Huang v Sinclair - [2017] NSWCATCD 9

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Huang v Sinclair [2017] NSWCATCD 9
Hearing dates: 20 January 2017
Decision date: 09 February 2017
Jurisdiction: Consumer and Commercial Division
Before: P French, General Member
Decision:
1 The Tribunal is satisfied that the Application and Notice of hearing have been served on the tenant in accordance with section 223 of the Residential Tenancies Act 2010, and that justice requires that the Application be heard and determined in the absence of the tenant.
2 The tenant’s application for an adjournment of the hearing is refused.
3 The Residential Tenancy Agreement is terminated in accordance with section 92 of the Residential Tenancies Act 2010 on the basis that the tenant has seriously threatened the landlord and abused the landlord and the landlord’s agent and intentionally engaged in conduct in relation to the landlord that would reasonably cause the landlord to be intimidated and harassed.
4 The Residential Tenancy Agreement is terminated on 13 February 2017 and possession is given to the landlord on this date.
5 The order for possession is suspended to 20 February 2017.
6 Within 60 days of the date for possession of the residential premises specified in these orders the landlord may request relisting of the application to determine the amount of occupation fee owing.
7 The landlord’s agent is to advise the tenant in writing of these orders by delivery of a letter to the tenant at the residential premises not later than 5pm on 13 February 2017.

Catchwords:
RESIDENTIAL TENANCIES – section 92 of the Residential Tenancies Act 2010 - termination of tenancy – where the tenant has seriously threatened the landlord – where the tenant has seriously abused the landlord and the landlord’s agent – where the tenant has intimidated the landlord – where the tenant has harassed the landlord – where the facts suggest the tenant has a mental illness – where there is no evidence that the tenant’s conduct has been non-intentional due to mental illness

PRACTICE & PROCEDURE – subsection 38(5(c) of the Civil and Administrative Tribunal Act 2013 – the Tribunal’s duty to take such measures as are reasonably practicable to ensure that parties have a reasonable opportunity to be heard and have their submissions considered - where tenant has requested an adjournment of the hearing to obtain legal representation – where there has been no application for, or grant of leave for legal representation – where the reason given in justification for an adjournment is time to prepare a case which is not relevant to an issue for determination - where a tenant advocate is available at the Registry on the day of the hearing – where justice requires the Tribunal to consider the tenant’s case on the best evidence available.
- section 51 of the Civil and Administrative Tribunal Act 2013 – Tribunal’s power to adjourn proceedings – where a hearing is brought forward on the basis of urgency - where the landlord and landlord’s agent claim to…

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 Huang v Sinclair

Details

AGLC: Huang v Sinclair [2017] NSWCATCD 9
Case: [2017] NSWCATCD 9
Decision Date: 09 February 2017

CaseChat Overview and Summary

In the matter of Huang v Sinclair, the Civil and Administrative Tribunal of New South Wales considered an application for the termination of a residential tenancy agreement. The landlord, Sinclair, sought termination based on the tenant, Huang's, threatening and abusive behaviour, which included serious threats, abuse, intimidation, and harassment. The dispute arose under the Residential Tenancies Act 2010, where the Tribunal had the authority to terminate a tenancy on the grounds of serious threats, abuse, or harassment by a tenant.

The primary legal issue before the Tribunal was whether the conduct of the tenant, Huang, warranted termination of the tenancy agreement under section 92 of the Act. This required determining if Huang's actions were intentional and serious enough to justify such a drastic measure. Additionally, the Tribunal had to consider procedural matters regarding the tenant's request for an adjournment to obtain legal representation and the adequacy of the service of the Notice of Hearing.

The Tribunal found that Huang's conduct, including threats and harassment towards Sinclair and the landlord's agent, was intentional and serious. The Tribunal noted that while there was evidence suggesting Huang had a mental illness, there was no proof that his actions were non-intentional due to this condition. Regarding the adjournment request, the Tribunal concluded that Huang had not made a reasonable effort to obtain legal representation despite the availability of a tenant advocate. The Tribunal also determined that the Notice of Hearing was appropriately served and that justice required the matter to be heard and determined in Huang's absence. Therefore, the Tribunal refused the adjournment request and proceeded to terminate the tenancy agreement.

In its orders, the Tribunal confirmed the proper service of the Notice of Hearing and the appropriateness of proceeding in Huang's absence. It refused the adjournment request and terminated the tenancy agreement, effective 13 February 2017, with possession to be given to Sinclair on that date. The order for possession was suspended until 20 February 2017. The landlord was also directed to inform the tenant of these orders by delivering a written notice by a specified date. Additionally, the landlord could request relisting of the application to determine the occupation fee within 60 days of the possession date.

Orders

Orders of the court

1 The Tribunal is satisfied that the Application and Notice of hearing have been served on the tenant in accordance with section 223 of the Residential Tenancies Act 2010, and that justice requires that the Application be heard and determined in the absence of the tenant.

2 The tenant’s application for an adjournment of the hearing is refused.

3 The Residential Tenancy Agreement is terminated in accordance with section 92 of the Residential Tenancies Act 2010 on the basis that the tenant has seriously threatened the landlord and abused the landlord and the landlord’s agent and intentionally engaged in conduct in relation to the landlord that would reasonably cause the landlord to be intimidated and harassed.

4 The Residential Tenancy Agreement is terminated on 13 February 2017 and possession is given to the landlord on this date.

5 The order for possession is suspended to 20 February 2017.

6 Within 60 days of the date for possession of the residential premises specified in these orders the landlord may request relisting of the application to determine the amount of occupation fee owing.

7 The landlord’s agent is to advise the tenant in writing of these orders by delivery of a letter to the tenant at the residential premises not later than 5pm on 13 February 2017.

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:	Huang v Sinclair [2017] NSWCATCD 9
Hearing dates:	20 January 2017
Decision date:	09 February 2017
Jurisdiction:	Consumer and Commercial Division
Before:	P French, General Member
Decision:	1 The Tribunal is satisfied that the Application and Notice of hearing have been served on the tenant in accordance with section 223 of the Residential Tenancies Act 2010, and that justice requires that the Application be heard and determined in the absence of the tenant. 2 The tenant’s application for an adjournment of the hearing is refused. 3 The Residential Tenancy Agreement is terminated in accordance with section 92 of the Residential Tenancies Act 2010 on the basis that the tenant has seriously threatened the landlord and abused the landlord and the landlord’s agent and intentionally engaged in conduct in relation to the landlord that would reasonably cause the landlord to be intimidated and harassed. 4 The Residential Tenancy Agreement is terminated on 13 February 2017 and possession is given to the landlord on this date. 5 The order for possession is suspended to 20 February 2017. 6 Within 60 days of the date for possession of the residential premises specified in these orders the landlord may request relisting of the application to determine the amount of occupation fee owing. 7 The landlord’s agent is to advise the tenant in writing of these orders by delivery of a letter to the tenant at the residential premises not later than 5pm on 13 February 2017.
Catchwords:	RESIDENTIAL TENANCIES – section 92 of the Residential Tenancies Act 2010 - termination of tenancy – where the tenant has seriously threatened the landlord – where the tenant has seriously abused the landlord and the landlord’s agent – where the tenant has intimidated the landlord – where the tenant has harassed the landlord – where the facts suggest the tenant has a mental illness – where there is no evidence that the tenant’s conduct has been non-intentional due to mental illness PRACTICE & PROCEDURE – subsection 38(5(c) of the Civil and Administrative Tribunal Act 2013 – the Tribunal’s duty to take such measures as are reasonably practicable to ensure that parties have a reasonable opportunity to be heard and have their submissions considered - where tenant has requested an adjournment of the hearing to obtain legal representation – where there has been no application for, or grant of leave for legal representation – where the reason given in justification for an adjournment is time to prepare a case which is not relevant to an issue for determination - where a tenant advocate is available at the Registry on the day of the hearing – where justice requires the Tribunal to consider the tenant’s case on the best evidence available. - section 51 of the Civil and Administrative Tribunal Act 2013 – Tribunal’s power to adjourn proceedings – where a hearing is brought forward on the basis of urgency - where the landlord and landlord’s agent claim to…