Foster v The Minister Administering the Environmental Planning & Assessment Act [2018] NSWCATAP 42

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Foster v The Minister Administering the Environmental Planning & Assessment Act [2018] NSWCATAP 42 Hearing dates: 20 September 2017 Date of orders: 09 February 2018 Decision date: 09 February 2018 Jurisdiction: Appeal Panel Before: A P Coleman SC, Senior Member; L Wilson, Senior Member Decision: 1. The appeal is dismissed.

2. The orders of the Tribunal made 15 June 2017 are confirmed. Catchwords: APPEAL: Whether error of law in exercise of discretion Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancies Act 2010 Cases Cited: House v The King (1936) 55 CLR 499 Category: Principal judgment Parties: Stephen Foster

The Minister Administering the Environmental Planning & Assessment Act Representation: Stephen Foster, in person

Sarena Rowley, agent for the Minister Administering the Environmental Planning & Assessment Act File Number(s): AP17/29131 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: N/A Date of Decision: 15 June 2017 Before: B Shipp, Senior Member File Number(s): RT 17/156

REASONS FOR DECISION

Procedural Background 1. This is an internal appeal brought by a former tenant of a residential tenancy property (tenant). The appellant had been party to a residential tenancy agreement with the respondent (landlord). 2. On 13 December 2016 the landlord issued a Notice of Termination relying on various breaches of the residential tenancy agreement by the tenant. 3. On 3 January 2017 the landlord lodged an application with the Tribunal, seeking orders terminating the tenancy and for possession of the property. 4. On 27 March 2017 the landlord's application for termination and possession was heard by the Tribunal. On that occasion, the Tribunal was of the view that the tenancy should not be terminated at that time. The Tribunal did, however, make specific performance orders that the tenant comply with the terms of the residential tenancy agreement. The Tribunal also made an order entitling the landlord to re-list the application at any time before 28 July 2017 to determine whether the tenancy agreement should be terminated. 5. On 9 May 2017 the landlord requested that the termination application be re-listed and it was. 6. On 15 June 2017 the termination application was heard. The Tribunal made orders terminating the tenancy pursuant to s 87 of the Residential Tenancies Act 2010 (the RTA) and ordering possession be given to the landlord on 6 July 2017. Consequential orders with respect to occupation fees were also made. 7. On 29 June 2017 the tenant lodged this appeal, and also made an application to stay the orders made by the Tribunal on 15 June 2017. On 11 July 2017 the appeal and stay application came before the Appeal Panel constituted by Deputy President Westgarth. The Deputy President made direction for the exchange of evidence and for the preparation of the appeal and refused the stay application. However, the Deputy President did vary the date for possession to be 28 July instead of 6 July 2017 as originally ordered. 8. On 15 August 2017 pursuant to the orders made by the Tribunal, varied by the Appeal Panel, the landlord had the sheriff evict the tenant from the property. 9. In a statutory declaration dated 27 July 2017 which the tenant sought to rely on in the appeal, he referred to a desire to appeal the decision of the Appeal Panel to refuse to stay the order for possession. Mentioning a desire to appeal a decision is, however, not the correct way to appeal a decision of the Appeal Panel and no Notice of Appeal has been lodged with respect to that decision and no application was made to amend the Notice of Appeal to include an appeal from that decision. As such, the only appeal before us was the appeal from the decision of the Tribunal of 15 June 2017.