Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gavin v Redford & O'Shea [2020] NSWCATAP 54 Hearing dates: 16 March 2020 Date of orders: 24 March 2020 Decision date: 24 March 2020 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member G Sarginson, Senior Member Decision: (1) Extend the time for lodging the appeal to 18 December 2019 (2) Grant leave to appeal and allow the appeal. (3) Order 7 of the amended orders made on 22 November 2019, amending orders made on 23 October 2019, that Jamie O'Shea is removed as a respondent is set aside. Catchwords: APPEALS-residental tenancy – termination of co-tenancy – error to conclude one co-tenant no longer a tenant – failure to consider legal grounds for termination of co-tenancy Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: Serena Gavin (Appellant) Nada Redford (First Respondent) Jamie O'Shea (Second Respondent) Representation: Solicitors: Legal Aid NSW (Appellant) Respondents (Self-represented) File Number(s): AP 19/56622 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 22 November 2019 Before: J Searson, General Member File Number(s): RT 19/38818 REASONS FOR DECISION 1. These are our reasons for decision made on 16 March 2010 to extend the time for lodging the appeal and to grant leave to appeal and to allow the appeal. 2. The appellant, Ms Gavin, appealed from an order made on 22 November 2019 removing her ex-husband, Mr O'Shea, as one of two respondents in residential tenancy proceedings. Those proceedings were brought by the landlord against both the appellant and her ex-husband as former tenants of a property in Hamlyn Terrace, NSW. 3. The proceedings commenced by the landlord were concerned, in part, with a claim for damages in relation to the condition of the premises at the conclusion of the tenancy. The tenancy came to an end on 7 July 2019 pursuant to statutory provisions in Division 3A of Part 5 of the Residential Tenancies Act 2010 (NSW) ('RTA') concerned with termination of a tenancy as a result of a Domestic Violence Termination Notice. As required, this notice was given to both the landlord and to Mr O'Shea, as co-tenant. 4. At this time, when the tenancy came to an end, Ms Gavin and her three children were the only people living at the property. Mr O'Shea had moved out of the premises in September 2018 following the breakdown of the marriage. 5. As co-tenants, Ms Gavin and Mr O'Shea had entered into a new written one year lease of the property on 18 September 2018. Accordingly, the termination occurred during the fixed term of the lease. 6. Prior to termination of the tenancy, in January 2019, Mr Gavin, unilaterally, sought to have himself removed as a co-tenant. In late January 2019 he had email communications with the landlord's agent about requesting to be removed and he sent a signed letter to the agent stating that he had separated from the appellant; he had not resided at the property since the beginning of September 2018; and he wished to have his name taken off the lease since he was not residing there anymore. No consent to that occurring was communicated by the landlord or the appellant. 7. On 27 August 2019, the landlord commenced proceedings in the Tribunal, against Mr O'Shea only, seeking compensation and an order in respect of the rental bond. Following a Group List and Conciliation hearing in the Tribunal on 18 September 2019 at which both Mr O'Shea and the landlord's agent appeared, an order was made by the Tribunal adding the appellant as a party to the proceedings. 8. A hearing of the Tribunal took place on 23 October 2019 at which various orders were made, including an order that the hearing was adjourned to a date to be fixed. Mr O'Shea was not in attendance. It seems that he never personally received notice of the hearing. Ms Gavin appeared by telephone. The landlord's agent appeared in person. 9. At this hearing, following an exchange with the landlord's new agent, the Tribunal came to the view that Mr O'Shea was no longer a tenant of the property as from 29 January 2019. In the orders that were made on that occasion, Order 7 was in terms: The Tribunal finds that Jamie O'Shea was not the tenant from 29 January 2019. Reasons: Having considered all of the documentary and verbal evidence, an email from Jamie O'Shea to the landlord confirms that he no longer resides at the premises as of 29 January 2019. This email was forwarded to the other tenant as evidenced by her email to the Tribunal on 22 October 2019. The only rent allegedly owing is $222.41. 1. It appears from the transcript of the hearing that the evidentiary basis for the Tribunal's conclusion about Mr O'Shea's position as a tenant was the tenancy agreement; the written communications in January 2019 in which he said he no longer resided at the premises and wished to be taken off the lease; and oral evidence from the landlord's agent that the landlord acknowledged that Mr O'Shea had not resided at the property since at least January 2019 and that Mr O'Shea had told the Tribunal on 18 September 2019 that this was the position. 2. We note here that the Tribunal's conclusion was not made upon any application by Mr O'Shea nor did it follow from any express consideration of the legal test to be applied. 3. Subsequently, on 22 November 2019, an order was made by the Tribunal under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) amending Order 7 so that it had added to it an order that Mr O'Shea was to be removed as a respondent. It is from this order that the appellant now appeals. 4. The appeal was not lodged until 18 December 2019 which was beyond the permitted 14 days (an amended Notice of Appeal was lodged on 17 January 2020). The delay has been explained by Ms Gavin in a Statutory Declaration made on 13 February 2020 the correctness of which we accept. In essence, Ms Gavin was not aware of the significance of Order 7 and of her appeal opportunity until she received advice from Legal Aid after the next hearing of the Tribunal on 9 December 2019. She also describes a medical condition that has continued to affect her. 5. We were informed that on 7 January 2020 the proceedings at first instance were adjourned pending the determination of this appeal. Disposition of the appeal 1. We considered the written and oral submissions made by Ms Bradfield for the appellant and those made by, or on behalf, of Mr O'Shea. We have borne in mind that the order appealed from was an interlocutory order and the limitations that should be applied when considering whether to uphold such an appeal, including that leave to appeal is required: s 80 (2) (a) of the NCAT Act; Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54. 2. However, we were satisfied that central to the decision were plain errors of law. 3. In the first place, it is clear that the conclusion about Mr O'Shea not being a co-tenant followed from the established fact that Mr O'Shea had ceased to reside at the premises from, at least, the end of January 2019. However, that in itself is not a ground for termination of a co-tenancy. 4. Secondly, the Tribunal failed to ask itself the question as to what was the legal basis for termination of a co-tenancy. 5. As pointed out by Ms Bradfield in her written submissions, the RTA contains provisions concerning the termination of a co-tenancy; ss 101 and 102. The former section (s 101) makes provision for the termination by notice from a co-tenant of a residential tenancy where a fixed term has expired or where the tenancy is a periodic one. This is not applicable to the current situation. 6. Section 102 makes provision for the termination of a co-tenancy by order of the Tribunal, from a date specified in the order, upon an application by a co-tenant. In such a case, the Tribunal has the power to terminate "if it is of the opinion that it is appropriate to do so in the special circumstances of the case". 7. It is clear that the Tribunal was not proceeding under this power. Nor was the Tribunal proceeding under any consideration of a consensual termination of the co-tenancy by the parties.It is also clear that the Tribunal was not proceeding under any law concerned with the termination of the residential tenancy itself. 8. Bearing in mind the clear merits of the appeal, the explanation for delay and the relatively short period of delay (12 days), we decided to grant the necessary extension of time in which to lodge the appeal: s. We did so on the basis that, given the order appealed from was made in residential tenancy proceedings, an appeal was required to be lodged within 14 days of 22 November 2019. 9. In setting aside the order made by the Tribunal, we express no view as to whether the Tribunal can, or should, make any order terminating the co tenancy of Mr O'Shea prior to 7 July 2019 upon any application by Mr O'Shea for that to occur. Orders For the above reasons, the following orders were made: 1. Extend the time for lodging the appeal to 18 December 2019 2. Grant leave to appeal and allow the appeal. 3. Order 7 of the amended orders made on 22 November 2019, amending orders made on 23 October 2019, that Jamie O'Shea is removed as a respondent is set aside. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2020