Rayner v Rayner [2019] NSWCATAP 121

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rayner v Rayner [2019] NSWCATAP 121 Hearing dates: 31 October 2018 Date of orders: 09 May 2019 Decision date: 09 May 2019 Jurisdiction: Appeal Panel Before: S Higgins, Senior Member G Sarginson, Senior Member Decision: 1. Orders of the Tribunal made on 30 July 2018 are varied as follows: (a) The applicant's application in RT 18/21167 is dismissed. (b) The following orders are made in the respondent's application RT 18/32964: (i) The residential tenancy agreement is terminated immediately and possession is given to the landlord on the date of termination. (ii) The order for possession is suspended until 31 May 2019. (iii) The tenant shall pay the landlord a daily occupation fee at the rate of $28.57 per day from the day after the date of termination, namely 31 July 2018 until the date vacant possession is given to the landlord. (iv) Within 60 days of the date of possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing.

2. Appeal is otherwise dismissed.

3. The stay granted by the Appeal Panel on 23 August 2018 in regard to orders 2 and 3 of the Tribunal made on 30 July 2018 is lifted forthwith.

4. In the event the respondent seeks costs of the appeal the following order is made:

(a) within seven (7) days from the publication of these orders, the respondent is to file and serve her application for costs together with any evidence and written submissions: (b) within fourteen (14) days from the publication of these orders the appellant is to file and serve any evidence and written submissions in reply; and (c) submissions of each party must indicate whether they oppose an order that the application be dealt with on the papers under s 50 of the Civil and Administrative Tribunal Act 2013. Catchwords: LEASES AND TENANCIES – residential tenancy – whether orders for possession should have been stayed pending determination of the tenant's asserted claim of an equitable interest in the premises that gave him a right to possession independently of the residential tenancy agreement. Legislation Cited: Agricultural Tenancies Act 1990 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Law Reform (Law and Equity) Act 1972 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Australian Executor Trustees Ltd v Steak Plains Olive Farm Pty Ltd [2014] NSWCATCD 143 Bushby v Dixon Holmes du Pont Pty Ltd [2010] NSWSC 234 Lawrence v Gunner [2016] NSWCATAP 44 Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 1229 Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Steak Plains Olive Farm Pty Limited v Australian Executor Trustees Limited [2014] NSWCATAP 85 Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289 Category: Principal judgment Parties: Gary John Rayner (Appellant) Ashlee Rayner (Respondent) Representation: Counsel: