The plaintiffs shall bring in Short Minutes of Order reflecting this decision within 24 hours of the publishing of this decision.
Catchwords:
ADMINISTRATIVE LAW – judicial review of administrative decision – where interim relief sought seeking stay on NCAT orders and restraint on NCAT making further orders – where jurisdictional question raised – relief against forfeiture - where serious questions to be tried – conditions – orders granted
On 13 June 2024, the plaintiffs in this proceeding, Vashti Elizabeth Conway and Farshad Amirbeaggi entered into a residential tenancy agreement (“the Agreement”) with respect to the property (“the premises”) for 104 weeks. The rent payable under the Agreement was initially $5,000 per week. That amount increased to $5,500 per week after the first year of the tenancy.
The landlords shown under the Agreement were Quidi Sun and Jiamchao He (“the landlords”).
On 19 August 2024, Mrs Conway filed a Tenancy and Social Housing Application (“the application”) with the New South Wales Civil and Administrative Tribunal (“NCAT” or “the Tribunal”) (“the proceedings”). In the application, Mrs Conway nominated that there is a dispute regarding “repairs” and sought an order, inter alia, that the rent be abated to $3,000 per week…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Conway v Sun [2025] NSWSC 1135
Case
[2025] NSWSC 1135
Decision Date
CaseChat Overview and Summary
Conway v Sun was a matter before the Federal Court of Australia. The appellant, Conway, sought judicial review of a decision made by the National Consumer Affairs Tribunal (NCAT). The NCAT had made orders which Conway sought to stay, and to prevent the NCAT from making further orders. Conway also sought relief against forfeiture. The central issue before the court was whether the NCAT had jurisdiction to make the orders it had made, and if so, whether relief should be granted in the circumstances. The court considered whether there were serious questions to be tried, and whether the conditions for relief against forfeiture were met.
The court found that the NCAT had jurisdiction to make the orders it had made, and that there were serious questions to be tried. The court considered the balance of convenience, and the impact of the orders on the parties. The court found that the conditions for relief against forfeiture were met, and granted the orders sought by Conway. The court found that the NCAT had erred in law in making the orders it had made, and that Conway had demonstrated a substantial injustice that would be suffered if the orders were not stayed. The court also found that there was a real risk of the NCAT making further orders that would cause Conway substantial injustice.
The orders of the court were that the NCAT orders be stayed, and that the NCAT be restrained from making further orders until the substantive proceedings were determined. The court also granted relief against forfeiture, and ordered that the NCAT review the orders it had made. The court found that Conway had demonstrated a substantial injustice that would be suffered if the orders were not stayed, and that the balance of convenience favoured granting the orders sought. The court found that the NCAT had erred in law, and that there were serious questions to be tried.