Gunner v Lawrence; Lawrence v Gunner

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Gunner v Lawrence; Lawrence v Gunner [2015] NSWCATCD 127

Hearing dates:

15 October 2015

Decision date:

05 November 2015

Jurisdiction:

Consumer and Commercial Division

Before:

K Rosser, Senior Member

Decision:

1 In RT 15/51215 (RT 12/09391):

(a) The tenancy agreement is terminated and possession is to be given to the landlord immediately.
(b) The order for possession is suspended for four weeks from the date of these orders.

2 In RT 12/15580:

(a) The application is dismissed.

3 Any application for costs is to be made within fourteen days of the date of these orders and is to be supported by a written submission not exceeding three pages in length. Any response to the application is to be made within fourteen days thereafter and is also not to exceed three pages in length.

Catchwords:

Residential tenancy; remittal from Supreme Court; whether Court made finding of residential tenancy agreement; whether Tribunal bound by finding; validity of termination notice; exercise of discretion in relation to date for possession

Legislation Cited:

Residential Tenancies Act 2010
Consumer Trader and Tenancy Tribunal Act 2001
Civil and Administrative Tribunal Act 2013

Category:

Principal judgment

Parties:

Frances Beatrice Gunner (applicant)
Wayne James Lawrence and Valerie Lawrence (respondents)

Representation:

Counsel: Ms Glover for the Applicant
Self-represented Respondents
Solicitors: Marshall Law (Applicant)

File Number(s):

RT 15/51215 (formerly RT 12/09391)RT 12/15580

Publication restriction:

Nil

Reasons for decision

Introduction

1. Mrs Gunner originally commenced these proceedings on 21 February 2012 in the former Consumer, Trader and Tenancy Tribunal (CTTT): RT 12/09391. She seeks orders for termination and possession in relation to what Mrs Gunner claims is a residential tenancy agreement between the parties in respect of xxxxxxxxx Balgowlah (the premises).

2. Mr and Mrs Lawrence filed an application in the nature of a cross-claim on 20 March 2012: RT 12/15580. The application referred to a number of sections of the Residential Tenancies Act 2010 (the RT Act). Relevantly, Mr and Mrs Lawrence sought a declaration under s 11 of the RT Act. Pursuant to s 11 the Tribunal may make an order declaring that a specified agreement is, or is not, a residential tenancy agreement to which the RT Act applies, or that specified premises are, or are not, premises to which the Act applies.

3. Mr and Mrs Lawrence denied that the agreement between the parties pursuant to which they occupied the premises was one to which the RT Act applied. Their application was therefore a defence to Mrs Gunner’s application. They stated, amongst other things, that s 8(1)(f) of the RT Act applied to their agreement with Mrs Gunner. This subsection provides that the RT Act does not apply to “an agreement for the sale of land that confers a right to occupy residential premises on a party to the agreement”.

4. Both applications first came before the Tribunal on 28 March 2012. The threshold issue of whether there was a residential tenancy agreement in place between the parties in respect of the…