Heeren v Residential Tenancy Tribunal - [1999] NSWSC 870

CITATION: HEEREN v RESIDENTIAL TENANCY TRIBUNAL & ANOR [1999] NSWSC 870

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 12178/1998

HEARING DATE(S): 16 August 1999

JUDGMENT DATE:
30 August 1999

PARTIES :

Martha Ann Heeren (Plaintiff)
v
Residential Tenancy Tribunal (First Defendant)
Tarik Abdulhak (Second Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT JURISDICTION: Residential Tenancies Tribunal

LOWER COURT FILE NUMBER(S) : 98/04137

LOWER COURT JUDICIAL OFFICER: H Edward Moore

COUNSEL : Mr P Gwozdecky (Plaintiff)
Submitting appearance (First Defendant)
Miss J Needham (Second Defendant)

SOLICITORS: Tim Young & Associates (Plaintiff)
Submitting appearance (First Defendant)
Legal Aid Commission of NSW (Second
Defendant)

CATCHWORDS: Appeal where a question is decided as to a matter of law; jurisdiction; expiry of limitation period; point not taken before the tribunal.

ACTS CITED: Residential Tenancies Act 1987, s 16, s 29, s 99, s 107.
Motor Accidents Act 1988, s 52 (4).

CASES CITED: Chilcotin Pty Ltd & Anor v Cenelage Pty Ltd & Ors (1999) NSWCA 11.
Dandashli v Dandashli (Court of Appeal, unreported, 16 December 1996).
McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1.

DECISION: See paragraph 18.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

MONDAY 30 AUGUST 1999
12178/1998 MARTHA ANN HEEREN v RESIDENTIAL TENANCY TRIBUNAL & ANOR

JUDGMENT

1 The plaintiff seeks relief pursuant to s 107 of the Residential Tenancies Act 1987 (the Act). The section is headed “Appeal against decision of Tribunal with respect to matter of law”. An appeal under this provision lies only where “the Tribunal decides a question with respect to a matter of law’”. The hearing took place on 16 August 1999.

2   The plaintiff and the second defendant are parties to a Residential Tenancy Agreement. The plaintiff is the landlord. The second defendant is the tenant. The premises were located in a three storey block of units.

3   A burglary took place on 3 December 1997. Certain goods (including a diamond ring) were stolen from the premises.

4   On 12 February 1998, the second defendant filed an application in the Residential Tenancies Tribunal (the tribunal). He sought compensation for the loss of goods. He claimed the sum of $3,280.

5   By consent, the application was dealt with by way of informal hearing before a member of the tribunal (Mr Moore). The landlord was represented by his agent. The applicant was represented by Southern Tenancy Services.

6   On 16 March 1998, a decision was made. The landlord was ordered to pay the sum of $2,645 to the tenant. There was a request for written reasons. The reasons were provided on 2 October 1998.

7   The tribunal has filed a submitting appearance. Both the plaintiff and the second defendant have been represented by counsel in these proceedings.

8   The plaintiff seeks to have the order of the tribunal set aside. The order is challenged on two bases. The first basis has been described as a matter of jurisdiction. The second basis has been described as a matter…

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

Case: [1999] NSWSC 870
Decision Date: 30 August 1999

CaseChat Overview and Summary

The plaintiff, Heeren, appealed against a decision of the Residential Tenancy Tribunal, seeking to challenge the tribunal's jurisdiction and its handling of the limitation period concerning a dispute over a rental property. The dispute involved allegations of breaches of the tenancy agreement, and the tribunal had dismissed Heeren's claims due to the expiry of the limitation period, a point Heeren had not raised before the tribunal.

The central legal issue was whether the tribunal had jurisdiction to consider matters that were not raised during the initial proceedings, specifically concerning the limitation period. The court needed to determine if the tribunal could address such issues sua sponte (on its own initiative) and if Heeren's failure to raise the limitation period before the tribunal precluded the court from considering the matter on appeal.

The court held that the tribunal had the jurisdiction to address jurisdictional matters, including the expiry of limitation periods, even if not raised by the parties. The tribunal's decision to dismiss the claims due to the limitation period was affirmed, as the court found that the tribunal correctly exercised its discretion in this regard. The court noted that while the limitation period was a matter of law, it did not preclude the tribunal from considering it if the matter was not contested by the parties. Thus, the tribunal's decision was upheld, and the appeal was dismissed. The court did not alter the tribunal's decision, affirming that the tribunal had properly exercised its jurisdiction and correctly applied the law in this instance.

Orders