Commissioner for Social Housing v Tenant Aa202154 & Ors (Appeal)

In the appeal case of Commissioner for Social Housing v Tenant Aa202154 & Ors, the dispute revolved around the endorsement of inconsistent terms in a residential tenancy agreement. The applicants sought to challenge the endorsement of a term that allowed for a no-cause termination notice to be given during the fixed term of the lease, with the notice to take effect 30 days after the end of the fixed term. This term was deemed inconsistent with the provisions of the Residential Tenancies Act and standard term 94. The matter was heard in the Civil and Administrative Tribunal of New South Wales.

The legal issues that the Tribunal had to address were whether the decision to endorse an inconsistent term was subject to a determined criteria, and if not, what factors should be considered when exercising the discretion to endorse such terms. The Tribunal also had to determine the meaning of fraud and undue influence in this context and assess other relevant factors to consider when exercising the discretion to endorse inconsistent terms. Additionally, the Tribunal examined the process followed by the tribunal in endorsing the inconsistent terms.

The Tribunal found that there were no determined criteria for endorsing inconsistent terms, and thus, the decision was subject to discretion. The Tribunal clarified that the meaning of fraud and undue influence in this context was that the tenant must have been deceived or coerced into accepting the term. The Tribunal also noted that other relevant factors to consider when exercising the discretion to endorse inconsistent terms include the nature of the term, the circumstances in which it was agreed to, and the impact on the tenant. The Tribunal held that the endorsement of the inconsistent term in this case was not flawed and dismissed the appeals.

The Tribunal ordered that the applications for appeal be heard jointly, and the orders of 6 October 2021 on each application for endorsement be confirmed. Each application for appeal was otherwise dismissed.