Herbert v New South Wales Land and Housing Corporation [2019] NSWSC 1703

Supreme Court New South Wales

Medium Neutral Citation: Herbert v New South Wales Land and Housing Corporation [2019] NSWSC 1703 Hearing dates: 28 November 2019 Decision date: 02 December 2019 Jurisdiction: Common Law Before: Adamson J Decision: (1) Grant leave to appeal in respect of ground (1) and refuse leave in respect of ground (2).

(2) Dismiss the appeal.

(3) Dissolve the stay of execution of the writ of possession granted by Ierace J on 22 August 2019 effective on and from 16 December 2019.

(4) Reserve costs.

(5) Grant liberty to the parties to apply to my Associate for the matter to be relisted on costs or for the question to be determined on the papers, unless otherwise agreed. Catchwords: ADMINISTRATIVE LAW – alleged jurisdictional error arising from rent increase due to cancellation of rent rebate

LANDLORD AND TENANT – whether cancellation of rental rebate under Housing Act 2001 (NSW) requires notice to be given of rent increase under s 41 of Residential Tenancies Act 2010 (NSW)

LANDLORD AND TENANT – whether non-payment notice erroneous for inclusion of arrears from previous tenancy which were the subject of a repayment plan

PRACTICE AND PROCEDURE – appeal – new point raised in Supreme Court which had not been raised in the Tribunal or the Appeal Panel – relevance of prejudice to defendant Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 83 Housing Act 2001 (NSW), ss 6, 56, 57, 58 Interpretation Act 1987 (NSW), s 33 Residential Tenancies Act 2010 (NSW), ss 13, 41, 44, 81, 87, 88, 89, 96, 99, 113, 136, 140, 141, 154A Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Applicant S442 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 28 BC v Minister for Immigration and Multicultural Affairs [2001] FCA 1669; (2001) 67 ALD 60 Brennan v New South Wales Land and Housing Corporation (2011) 83 NSWLR 23; [2011] NSWCA 298 Federal Commissioner of Taxation v Raptis (1989) 19 ALD 726; (1989) 20 ATR 1262 Forge v Australian Securities and Investments Commission (No 2) (2007) 69 NSWLR 575; [2007] NSWCA 42 Herbert v NSW Land & Housing Corporation [2019] NSWCATAP 173 Kirk v Industrial Relations Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 214; [2003] FCAFC 102 Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133 New South Wales Land and Housing Corporation v Quinn (No 2) [2018] NSWDC 161 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 S442/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1240 Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51; (2004) 204 ALR 722 Category: Principal judgment Parties: Stephen Noel Herbert (Plaintiff) New South Wales Land and Housing Corporation (First Defendant) New South Wales Civil and Administrative Tribunal (Second Defendant) Representation: Counsel: H Atkin (Plaintiff) N Simpson (First Defendant)