Reported Decision: 76 NSWLR 512
New South Wales
Court of Appeal
CITATION: Dayeian v Davidson [2010] NSWCA 42 HEARING DATE(S): 15 February 2010
JUDGMENT DATE:
23 March 2010JUDGMENT OF: Basten JA at 1; Campbell JA at 2; Macfarlan JA at 87 DECISION: 1(a) Substitute the name of Nyree Susanne Dayeian for the name of the Applicant in these proceedings.
(b)Substitute the name of Cameron Frederick Baden Davidson for the name of the Respondent in these proceedings.
2 Grant leave to appeal.
3 Appeal allowed.
4 Set aside the orders in the District Court on 28 August 2009 and in place thereof:
(a) dismiss the appeal to the District Court;
(b) order that the appellant in the District Court pay the Respondent’s costs of that appeal.
5 Respondent to pay Applicant’s costs of the application for leave to appeal, and Appellant’s costs of the appeal, but to have a certificate under the Suitors Fund Act 1951.
6 Stay operation of these orders for three months from the date of handing down of reasons for judgment in this matter.CATCHWORDS: LANDLORD AND TENANT – legislation protecting tenants – Residential Tenancies Act 1987 – definition of residential tenancy agreement – formal requirements – construction and interpretation of agreement – surrounding circumstances – LANDLORD AND TENANT – legislation protecting tenants – Residential Tenancies Act 1987 – term of residential tenancy agreement – duration of residential tenancy agreement stated as “for life or as long as tenant wishes to stay” – certainty of term – whether an agreement “for a fixed term” – CONTRACTS – general contractual principles – lack of consideration – lack of intention to enter contractual relations – incorrect reliance on subsequent conduct in interpretation of contract – ADMINISTRATIVE LAW – judicial review – power of review under s 67 Consumer, Trader and Tenancy Tribunal Act 2001 – review permitted in relation to incorrect decision with respect to matter of law as opposed to jurisdictional error – need for there to be a decision with respect to a particular matter of law before a right of appeal under s 67 arises – lack of power of District Court to make orders in nature of prerogative relief concerning decisions of Tribunal – importance of identifying precise ground of complaint about a decision of the Tribunal before choosing to bring a s 67 appeal to District Court or application for prerogative relief to Supreme Court – ADMINISTRATIVE LAW – particular tribunals or bodies – Consumer, Trader and Tenancy Tribunal – extent of obligation to give reasons – whether failure to give reasons constitutes erroneous decision with respect to a matter of law LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001
Courts and Crimes Legislation Amendment Act 2008
Landlord and Tenant (Amendment) Act 1948
Migration Act 1958 (Cth)
Residential Tenancies Act 1987
Suitors Fund Act 1951
Supreme Court Act 1970CATEGORY: Principal judgment CASES CITED: Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150; (2008) 72 NSWLR 44
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- AGLC
- Dayeian v Davidson [2010] NSWCA 42
- Case
- [2010] NSWCA 42
- Decision Date
CaseChat Overview and Summary
The case of *Dayeian v Davidson* concerned an appeal to the New South Wales Court of Appeal regarding a dispute over a residential tenancy agreement. The central issue revolved around the nature and enforceability of the agreement, particularly its duration, and the subsequent legal proceedings that followed a decision by the Consumer, Trader and Tenancy Tribunal.
The Court of Appeal was required to determine whether the agreement constituted a residential tenancy agreement for the purposes of the *Residential Tenancies Act 1987* (NSW), specifically whether the term stating the tenancy was "for life or as long as tenant wishes to stay" created a certain and enforceable term. Furthermore, the court considered whether the District Court had erred in its judicial review of the Tribunal's decision, particularly in relation to the grounds for appeal under section 67 of the *Consumer, Trader and Tenancy Tribunal Act 2001* (NSW) and the nature of the relief available.
The Court of Appeal found that the term "for life or as long as tenant wishes to stay" lacked the necessary certainty to constitute a fixed term for a residential tenancy agreement under the Act. The court reasoned that such a term was too vague and indeterminate to be legally enforceable as a fixed term, and that the District Court had erred in its interpretation of the law by upholding the Tribunal's finding that a valid residential tenancy agreement existed with such a term. The court also clarified that a right of appeal under section 67 of the *Consumer, Trader and Tenancy Tribunal Act 2001* (NSW) arises in relation to an incorrect decision on a matter of law, not merely a jurisdictional error, and that the District Court lacked the power to grant prerogative relief.
Consequently, the Court of Appeal allowed the appeal, set aside the orders of the District Court, and dismissed the appeal to the District Court. The court also made orders regarding the costs of the proceedings in both the Court of Appeal and the District Court.
The Court of Appeal was required to determine whether the agreement constituted a residential tenancy agreement for the purposes of the *Residential Tenancies Act 1987* (NSW), specifically whether the term stating the tenancy was "for life or as long as tenant wishes to stay" created a certain and enforceable term. Furthermore, the court considered whether the District Court had erred in its judicial review of the Tribunal's decision, particularly in relation to the grounds for appeal under section 67 of the *Consumer, Trader and Tenancy Tribunal Act 2001* (NSW) and the nature of the relief available.
The Court of Appeal found that the term "for life or as long as tenant wishes to stay" lacked the necessary certainty to constitute a fixed term for a residential tenancy agreement under the Act. The court reasoned that such a term was too vague and indeterminate to be legally enforceable as a fixed term, and that the District Court had erred in its interpretation of the law by upholding the Tribunal's finding that a valid residential tenancy agreement existed with such a term. The court also clarified that a right of appeal under section 67 of the *Consumer, Trader and Tenancy Tribunal Act 2001* (NSW) arises in relation to an incorrect decision on a matter of law, not merely a jurisdictional error, and that the District Court lacked the power to grant prerogative relief.
Consequently, the Court of Appeal allowed the appeal, set aside the orders of the District Court, and dismissed the appeal to the District Court. The court also made orders regarding the costs of the proceedings in both the Court of Appeal and the District Court.
Orders
Orders of the court
1(a) Substitute the name of Nyree Susanne Dayeian for the name of the Applicant in these proceedings.
(b)Substitute the name of Cameron Frederick Baden Davidson for the name of the Respondent in these proceedings.
2 Grant leave to appeal.
3 Appeal allowed.
4 Set aside the orders in the District Court on 28 August 2009 and in place thereof:
(a) dismiss the appeal to the District Court;
(b) order that the appellant in the District Court pay the Respondent’s costs of that appeal.
5 Respondent to pay Applicant’s costs of the application for leave to appeal, and Appellant’s costs of the appeal, but to have a certificate under the Suitors Fund Act 1951.
6 Stay operation of these orders for three months from the date of handing down of reasons for judgment in this matter.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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