Coffs Harbour and District Local Aboriginal Land Council v Lynwood

The Coffs Harbour and District Local Aboriginal Land Council (the appellant) appealed to the Court of Appeal of New South Wales against orders made in the Common Law Division, which had set aside an order for possession made by the NSW Civil and Administrative Tribunal (NCAT). The dispute concerned the termination of residential tenancy agreements, specifically those relating to social housing, and whether NCAT was required to consider certain matters under section 154E(1) of the *Residential Tenancies Act 2010* (NSW) when exercising its power under section 85(3) of the same Act.

The primary legal issue before the Court of Appeal was the proper construction of sections 85(3) and 154E(1) of the *Residential Tenancies Act 2010* (NSW). Specifically, the court had to determine whether the word "whether" in section 154E(1) mandated that the Tribunal must consider the matters listed therein when deciding whether to exercise its power under section 85(3) in relation to social housing tenancy agreements, or if it merely permitted consideration of those matters. This involved resolving an apparent conflict between the two provisions and interpreting the mandatory language of "must" in section 154E(1).

The Court of Appeal reasoned that the ordinary meaning of "whether" in section 154E(1) indicated that the matters listed were to be considered in determining whether to exercise the power under section 85(3). The court found that the provision mandated regard to these matters, rather than merely permitting it. By construing "must" as "may" in this context, the primary judge had erred. The Court of Appeal allowed the appeal, setting aside the orders of the Common Law Division and directing that the order for possession made by NCAT take effect on 22 December 2017. The court also made orders regarding costs and granted a certificate under the *Suitors Fund Act 1951*.