Saqa v Kashro [2018] NSWCATAP 265

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Saqa v Kashro [2018] NSWCATAP 265 Hearing dates: 27 June 2018 Date of orders: 12 November 2018 Decision date: 12 November 2018 Jurisdiction: Appeal Panel Before: S Higgins, Senior Member T Simon, Senior Member Decision: Appeal is dismissed. Catchwords: APPEAL – Residential Tenancy – tenant made a claim seeking repayment from the landlord of the amount he had paid to a retail electricity supplier in electricity charges during the period of his tenancy – the claim was made on the basis that the residential premises the subject of his residential tenancy agreement with the landlord were not separately metered – the Tribunal below found that the tenant's application fell within s 47 of the Residential Tenancies Act 2010 (RT Act), s 47(5) of which gave the Tribunal a discretion as to whether to make the order sought – Tribunal below dismissed the tenant's application in the exercise of that discretion.

APPEAL – whether Tribunal took into account an irrelevant consideration in the exercise of its discretion under s 47(5), namely the oral agreement of the parties at the commencement of the tenancy that the tenant would pay the electricity charges but would not pay the water charges which was void under s 21 of the RT Act because it was contrary to ss 38(1)(a) and 40(1)(c). Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Interpretation Act 1987 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Act 1997 (Vic) Residential Tenancies Amendment (Review) Bill 2018 (NSW) Cases Cited: Abdel-Messih v Marshall [2018] NSWSC 648 Ballantyne v Work Cover Authority (NSW) [2007] NSWCA 239 Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28 Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 House v King (1936) 55CLR 499 at 504-505; [1936] HCA 40 Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281 John Prendergast and Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Knezevic v Kirby [2017] NSWCATAP 190 Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 Udy v Tilley [2018] NSWCATAP 85 Ward v Williams [1955] HCA 4; (1955) 92CLR 496 Texts Cited: M Aronson, M Groves and G Weeks Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) Category: Principal judgment Parties: Metuisela Saqa (appellant) Samantha Kashro (respondent) Representation: N Kennedy of Inner Sydney Tenants Advice Service for the appellant M M Bilaci, agent for the respondent File Number(s): AP18/17138 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Commercial and Consumer Division Citation: N/A Date of Decision: 4 April 2018 Before: S Hennings, Tribunal Member File Number(s): RT17/47061