Hassiotis v Jiang - [2017] NSWCATCD 84

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Hassiotis v Jiang [2017] NSWCATCD 84
Hearing dates: 25 August 2017
Decision date: 31 August 2017
Jurisdiction: Consumer and Commercial Division
Before: P French, General Member
Decision:
1. Pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 the period within which this application may be made to the Tribunal is extended to 10 July 2017, being the date the application was made.
2. Pursuant to section 111 of the Residential Tenancies Act 2010 the Tribunal declares that the termination notice dated 31 May 2017 was not given in accordance with Part 5 of that Act and is of no effect.
Catchwords: RESIDENTIAL TENANCIES – tenant’s application for a declaration that a termination notice issued pursuant to section 84 of the Residential Tenancies Act 2010 was not issued in accordance with Part 5 of that Act – where the residential tenancy agreement that subsists between the parties was a fixed term agreement of 12 months with the option of renewing the agreement for a further 12 month period – where the tenant validly exercised the option to renew the agreement for a further 12 month period – where the landlord sought to terminate the tenancy and recover possession at the end of the initial fixed term in spite of the tenant exercising the option to renew the agreement.
Legislation Cited: Civil and Administrative Tribunal Act 2013: s 41
Civil and Administrative Tribunal Rules: r23
Conveyancing Act 1919: s118
Electronic Transactions Legislation Amendment (Government Transactions) Act 2017: s3; schedule 1; clause 1:30
Interpretation Act 1987: s76
Residential Tenancies Act 2010: s15; s19; s21; s84; s111; s223
Residential Tenancies Regulation 2010: r4; r5 ; schedule 1
Cases Cited: Codelfa Construction v SRA (1982) 149 CLR 337
Birks & Gilbertson v Winton Partners Pty Ltd [2010] NSWCTTT 128
Gamble v Watts Unit Trust [2004] NSWCTTT 475
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
Larkin v Atkins [1997] NSWRT 40
McDonald & McDonald v Stanley & Dale [2001] NSWRT 187
Newnham v Carroll [1995] NSWRT 52
Prudential Insurance v Health Minders (1987) NSWLR 673
Whitlock v Brew [1968] 118 CLR 445
Category: Principal judgment
Parties: Panagiotis Hassiotis (applicant)
Feng Zhi Jiang (respondent)
Representation: Panagiotis Hassiotis in person
Feng Zhi Jiangin person

File Number(s): RT 17/30531
Publication restriction: Nil

reasons for decision

This is an application by Panagiotis Hassiotis (the tenant) for an order from the Tribunal pursuant to section 111 of the Residential Tenancies Act 2010 (RT Act) that would declare that a termination notice dated 31 May 2017 relied upon by Feng Zhi Jiang (the landlord) as terminating the residential tenancy agreement (RTA) that subsists between the parties with effect on 25 July 2017 was not given in accordance with Part 5 of the RT Act. This application was made to the Tribunal on 10 July 2017 (the application).
For the reasons outlined following, the Tribunal…

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.

Continue reading Hassiotis v Jiang

Details

AGLC: Hassiotis v Jiang [2017] NSWCATCD 84
Case: [2017] NSWCATCD 84
Decision Date: 31 August 2017

CaseChat Overview and Summary

The case of Hassiotis v Jiang involved a dispute between a landlord and tenant in the context of residential tenancies. The tenant, Mr Hassiotis, applied for a declaration that a termination notice issued by his landlord, Ms Jiang, was not issued in accordance with the relevant legislation. The tenancy in question was a fixed term agreement of 12 months, with an option for the tenant to renew the agreement for another 12 months. Mr Hassiotis exercised this option, but Ms Jiang nonetheless issued a termination notice at the end of the initial fixed term, seeking to terminate the tenancy and recover possession of the property.

The primary legal issue before the court was whether the termination notice issued by Ms Jiang was validly given under the Residential Tenancies Act 2010. Specifically, the court needed to determine if the notice was in accordance with Part 5 of the Act, which deals with termination of residential tenancies. Given that the tenant had exercised the option to renew the agreement, the central question was whether the landlord could still issue a termination notice at the end of the initial fixed term, despite the tenant’s valid exercise of the renewal option.

In resolving the dispute, the court found that the termination notice was not issued in accordance with Part 5 of the Residential Tenancies Act 2010. The court held that since Mr Hassiotis had validly exercised the option to renew the tenancy agreement, the landlord was precluded from issuing a termination notice at the end of the initial fixed term. Consequently, the court declared the termination notice dated 31 May 2017 to be of no effect. The court extended the time for the tenant to make an application to the Civil and Administrative Tribunal, in line with the statutory provisions.

The final orders of the court were to extend the period within which the application to the Tribunal could be made, and to declare the termination notice issued by Ms Jiang to be invalid and of no effect. These orders ensured that the tenant could seek further relief in the Tribunal, if necessary, while also protecting the tenant’s rights under the renewed tenancy agreement.

Orders

Orders of the court

1. Pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 the period within which this application may be made to the Tribunal is extended to 10 July 2017, being the date the application was made.

2. Pursuant to section 111 of the Residential Tenancies Act 2010 the Tribunal declares that the termination notice dated 31 May 2017 was not given in accordance with Part 5 of that Act and is of no effect.

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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Medium Neutral Citation:	Hassiotis v Jiang [2017] NSWCATCD 84
Hearing dates:	25 August 2017
Decision date:	31 August 2017
Jurisdiction:	Consumer and Commercial Division
Before:	P French, General Member
Decision:	1. Pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 the period within which this application may be made to the Tribunal is extended to 10 July 2017, being the date the application was made. 2. Pursuant to section 111 of the Residential Tenancies Act 2010 the Tribunal declares that the termination notice dated 31 May 2017 was not given in accordance with Part 5 of that Act and is of no effect.
Catchwords:	RESIDENTIAL TENANCIES – tenant’s application for a declaration that a termination notice issued pursuant to section 84 of the Residential Tenancies Act 2010 was not issued in accordance with Part 5 of that Act – where the residential tenancy agreement that subsists between the parties was a fixed term agreement of 12 months with the option of renewing the agreement for a further 12 month period – where the tenant validly exercised the option to renew the agreement for a further 12 month period – where the landlord sought to terminate the tenancy and recover possession at the end of the initial fixed term in spite of the tenant exercising the option to renew the agreement.
Legislation Cited:	Civil and Administrative Tribunal Act 2013: s 41 Civil and Administrative Tribunal Rules: r23 Conveyancing Act 1919: s118 Electronic Transactions Legislation Amendment (Government Transactions) Act 2017: s3; schedule 1; clause 1:30 Interpretation Act 1987: s76 Residential Tenancies Act 2010: s15; s19; s21; s84; s111; s223 Residential Tenancies Regulation 2010: r4; r5 ; schedule 1
Cases Cited:	Codelfa Construction v SRA (1982) 149 CLR 337 Birks & Gilbertson v Winton Partners Pty Ltd [2010] NSWCTTT 128 Gamble v Watts Unit Trust [2004] NSWCTTT 475 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Larkin v Atkins [1997] NSWRT 40 McDonald & McDonald v Stanley & Dale [2001] NSWRT 187 Newnham v Carroll [1995] NSWRT 52 Prudential Insurance v Health Minders (1987) NSWLR 673 Whitlock v Brew [1968] 118 CLR 445
Category:	Principal judgment
Parties:	Panagiotis Hassiotis (applicant) Feng Zhi Jiang (respondent)
Representation:	Panagiotis Hassiotis in person Feng Zhi Jiangin person
File Number(s):	RT 17/30531
Publication restriction:	Nil