Gunner v Lawrence; Lawrence v Gunner

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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…

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Details
Case
[2015] NSWCATCD 127
Decision Date

CaseChat Overview and Summary

In the matter of Gunner v Lawrence and Lawrence v Gunner, the parties were engaged in a dispute concerning a residential tenancy agreement. The matter was heard by the Residential Tenancy Tribunal of Queensland and subsequently remitted to the Tribunal by the Supreme Court of Queensland. The dispute centred on whether the Tribunal had correctly determined the existence of a residential tenancy agreement and if it was bound by the Supreme Court’s finding. Additionally, the validity of a termination notice issued by the landlord and the exercise of the Tribunal’s discretion regarding the date for possession were in question.

The legal issues that the Tribunal was required to address involved interpreting the Supreme Court’s remittal decision, determining the existence of a residential tenancy agreement, and assessing the procedural correctness of the termination notice. The Tribunal had to consider whether it was bound by the Supreme Court's findings and if it had the authority to independently assess the evidence and make its own determinations on the matter. Furthermore, the Tribunal needed to decide whether the notice of termination complied with statutory requirements and whether it had properly exercised its discretion concerning the date for possession.

In reaching its decision, the Tribunal examined the remittal decision and concluded that it was not bound by the Supreme Court's findings but rather guided by them. The Tribunal found that a residential tenancy agreement existed based on the evidence presented. It held that the termination notice was invalid due to procedural errors and that the Tribunal had not properly exercised its discretion in setting the date for possession. Consequently, the Tribunal ordered the immediate termination of the tenancy agreement and possession to be given to the landlord, but it suspended the order for possession for four weeks from the date of the orders. The dismissal of the application was also ordered, with a stipulation on the process for any subsequent applications for costs.

The final orders included the termination of the tenancy agreement and an immediate order for possession to be suspended for four weeks. The dismissal of the application was also confirmed, with a procedural guideline for any subsequent applications for costs.

Orders

Orders of the court

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.

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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