McGinn v Barilla [2018] NSWCATAP 85

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McGinn v Barilla [2018] NSWCATAP 85 Hearing dates: 19 March 2018 Date of orders: 10 April 2018 Decision date: 10 April 2018 Jurisdiction: Appeal Panel Before: R C Titterton, Principal Member Dr J Lucy, Senior Member Decision: 1. The appeal is allowed in part, and order 1 made in application RT 17/50841 is set aside.

2. In lieu thereof, the Appeal Panel makes the following orders:

(a) The appellant is directed to return the Commonwealth Bank of Australia cheque no 384541 dated 13 June 2014 to the respondent;

(b) Upon receipt of the bank cheque, the respondent is to pay the appellant the sum of $250 within 7 days;

3. To effect order 2(a) the Tribunal directs the Registrar to deliver up the bank cheque to the respondent immediately.

4. Save as provided above the appeal is dismissed, and leave to appeal refused.

5. If either party seeks an order as to costs, that party is to provide submissions in support to the Tribunal and the other party within 14 days of the date of these reasons.

6. If a party applies for costs, the other party is to provide a response to the party seeking costs and the Tribunal within a further 14 days.

7. The parties are to address in their submissions whether the issue of costs should be determined on the papers. Catchwords: LANDLORD AND TENANT – residential tenancy agreement – return of bond – whether Tribunal has jurisdiction where bond provided to landlord not lodged with Rental Bond Board in breach of the Residential Tenancies Act 2010 Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Interpretation Act 1987 Residential Tenancies Act 2010 Residential Tenancies Regulation 2010 Cases Cited: Al Adwan v He and Cai [2011] NSWCTTT 155 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154 Buckland v Goodwin [2009] NSWCTTT 685.Pholi v Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 Collins v Urban [2014] NSWCATAP 17 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 Pate v Chan [2010] NSWCTTT 221 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41 Taylor v Owners — Strata Plan No 11564 (2014) 253 CLR 531 Wentworth Securities Ltd v Jones [1980] AC 74 Texts Cited: Anforth, Christensen and Adkins, Residential Tenancies Law and Practice New South Wales, 7th Edition, Federation Press, 2017 Category: Principal judgment Parties: Sophia McGinn (Appellant) Pasquale Barilla (Respondent) Representation: Each party was self-represented File Number(s): AP 17/53461 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: n/a Date of Decision: 18 December 2017 Before: J Levingston, General Member File Number(s): RT 17/50841