Brennan v New South Wales Land and Housing Corporation

The New South Wales Land and Housing Corporation (the Corporation) sought leave to appeal a decision of Hoeben J, while Ms Brennan applied for judicial review of a District Court judgment. The underlying dispute concerned the termination of a residential tenancy agreement and the Corporation's subsequent application to the Consumer, Trader and Tenancy Tribunal (the Tribunal) for possession of the premises. Ms Brennan contended that she was not afforded procedural fairness because she was not notified of the Tribunal proceedings.

The primary legal issues before the Court of Appeal were whether the statutory scheme, specifically section 25(2) of the *Consumer, Trader and Tenancy Tribunal Act 2001* (NSW) and clause 50(2) of the *Consumer, Trader and Tenancy Tribunal Regulations 2009* (NSW), deemed notice of proceedings to have been given to Ms Brennan, and if so, whether this provision was inconsistent with the Corporation's obligation to provide a reasonable opportunity to be heard. The Court also considered the principles of statutory interpretation in resolving any such inconsistency.

The Court of Appeal reasoned that while clause 50(2) of the Regulations provided a means of service, it did not override the fundamental requirement of procedural fairness. The Court preferred an interpretation of the statutory provisions that preserved an opportunity for a party to be heard over one that denied it. Consequently, the Court found that the Corporation had failed to provide Ms Brennan with a reasonable opportunity to be heard, as she had not been properly notified of the Tribunal proceedings.

The Court of Appeal granted leave to appeal the judgment of Hoeben J, but ultimately dismissed the appeal. Ms Brennan's application for judicial review of the District Court judgment was also dismissed. The Corporation was ordered to pay 90% of Ms Brennan's costs in the Court of Appeal.