Cain v New South Wales Land and Housing Corporation

In *Cain v New South Wales Land and Housing Corporation*, the Supreme Court of New South Wales, Court of Appeal, considered a judicial review of a District Court judgment. The dispute concerned whether the Consumer, Trader and Tenancy Tribunal (CTTT) had a discretion to refuse an order sought by a landlord for the termination of a residential tenancy agreement. The landlord sought termination on the grounds that the premises had been used to supply prohibited drugs.

The primary legal issue before the Court of Appeal was whether the District Court had erred in law on the face of the record by concluding that the CTTT had no discretion to refuse the landlord's termination order. This required the court to interpret the relevant provisions of the *Residential Tenancies Act 2010* (NSW), specifically section 91, which deals with the grounds for termination and the tribunal's powers. The court also had to consider the meaning of the word "may" within that section to determine if it indicated a discretion or a duty to make an order.

The Court of Appeal reasoned that the District Court had misinterpreted section 91 of the *Residential Tenancies Act 2010*. The Court of Appeal held that the word "may" in section 91(1) did not confer a discretion on the Tribunal to refuse an order for termination in circumstances where the grounds specified in section 91(1)(a) were established. Instead, it indicated a power to make such an order. The Court of Appeal found that the District Court's conclusion that the Tribunal had no discretion was an error of law on the face of the record.

Consequently, the Court of Appeal set aside the orders made by the District Court and, in lieu thereof, dismissed the appeal from the decision of the Consumer, Trader and Tenancy Tribunal.