Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: HUDSON v ARAP 1 (NSW) PTY LTD [2015] NSWCA 126 Hearing dates: 11 March 2015 Decision date: 14 May 2015 Before: Bathurst CJ at [1]; Emmett JA at [51]; Bergin CJ in Eq at [57] Decision: Order that the decisions of the New South Wales Civil and Administrative Tribunal, in proceedings between the parties dated 1 July 2014, 21 August 2014 and 15 October 2014, be quashed.
No order as to costs.Catchwords: APPEAL – New South Wales Civil and Administrative Tribunal – judicial review under s 69 of the Supreme Court Act 1970 (NSW) – whether Tribunal had jurisdiction to hear an application under s 84 of the Residential Tenancies Act 2010 (NSW)
STATUTORY INTERPRETATION – plain reading – general purpose and policy - extrinsic material – prior statutory provisions – construction of s 8(1)(f) of the Residential Tenancies Act 2010 (NSW)
CONTRACT – construction – contract for sale of land - tenancy agreement – whether agreement was an agreement for the sale of land that conferred a right to occupy residential premises on a party to the agreement under s 8(1)(f) of the Residential Tenancies Act 2010 (NSW)
CONTRACT – construction – principles – implied term not to hamper performance of contract – implied term to co-operate in carrying out agreement
MORTAGAGES – common law mortgage – conveyance and option to repurchase - intention of parties – extrinsic evidence – whether agreement was agreement under a term of a mortgage that conferred a right to occupy residential premises on a party to the mortgage under s 8(1)(g) of the Residential Tenancies Act 2010 (NSW)Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Real Property Act 1900 (NSW)
Residential Tenancies Act 1987 (NSW)
Residential Tenancies Act 2010 (NSW)
Supreme Court Act 1970 (NSW)Cases Cited: Abigail v Lapin [1934] AC 491; 51 CLR 58
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory
Revenue (NT) [2009] HCA 41; 239 CLR 27
Australis Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104
Barry v Heider [1914] HCA 79; 19 CLR 197
Barton v Bank of New South Wales (1890) 15 App Cas 379
Beckett v Tower Assets Co [1891] 1 QB 1
Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378
Chan v Cresdon (1989) 168 CLR 242
Currey (Registrar of Titles) v The Federal Building Society [1929] HCA 28; 42 CLR 421
Figgins Holdings Pty Ltd v SEAA Enterprises Pty Ltd [1999] HCA 20; 196 CLR 245
Gurfinkel v Bentley Pty Ltd (1966) 116 CLR 98
G&C Kreglinger v New Patagonia Meat and Cold Storage Company Ltd [1914] AC 25
Mackay v Dick (1881) 6 App Cas 251
Manchester, Sheffield and Lincolnshire Railway Company v North Central Wagon Company (1888) 13 App Cas 554
Partridge v McIntosh & Sons Ltd [1933] HCA 38; 49 CLR 453
Project Blue Sky Inc v Australian Broadcasting Authority [1998]…
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- Case
- [2015] NSWCA 126
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the agreement between the parties constituted an agreement for the sale of land that conferred a right to occupy residential premises under section 8(1)(f) of the *Residential Tenancies Act 2010*, or an agreement under a term of a mortgage that conferred a right to occupy residential premises under section 8(1)(g) of the same Act. The court was required to interpret these provisions and construe the nature of the agreement in light of the relevant statutory framework and contractual principles.
The court applied principles of statutory interpretation, considering a plain reading of the legislation, its general purpose and policy, and extrinsic materials. It also considered principles of contract construction, including implied terms not to hamper performance and to co-operate in carrying out the agreement. The court found that the agreement did not fall within the exceptions provided by sections 8(1)(f) or 8(1)(g) of the *Residential Tenancies Act 2010*. Consequently, the court determined that NCAT did have jurisdiction to hear the application.
The court ordered that the decisions of the New South Wales Civil and Administrative Tribunal, made on 1 July 2014, 21 August 2014, and 15 October 2014, be quashed. There was no order as to costs.
Orders
Orders of the court
Order that the decisions of the New South Wales Civil and Administrative Tribunal, in proceedings between the parties dated 1 July 2014, 21 August 2014 and 15 October 2014, be quashed.
No order as to costs.
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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