Kyriakou v Xie - [2014] NSWCATCD 154

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Kyriakou v Xie & ors. [2014] NSWCATCD 154
Hearing dates: 19 June 2014 and 29 July 2014
Decision date: 14 August 2014
Before: B Howe, General Member
Decision:
1. The application is dismissed.
2. Each party is to bear their own costs.

Catchwords: BIAS - actual or apprehended - SHARED HOUSEHOLD - recognition as a tenant - section 10 of the Residential Tenancies Act 2010 - no written residential tenancy agreement - applicability of the Act - meaning of "occupy" and "reside" - COSTS - section 60 of the Civil and Administrative Tribunal Act 2013
Legislation Cited: Residential Tenancies Act 2010 (the Act)
Civil and Administrative Tribunal Act 2013 (NCAT Act)
Cases Cited: Council of the City of Newcastle v Royal Newcastle Hospital (1956) 96 CLR 493
Harris & ors v McKenzie & ors (1986) 9 NSWLR 139
Johnson v Johnson [2000] HCA 48
Kyriakou v Long [2013] NSWSC 1890
Texts Cited: None
Category: Principal judgment
Parties: Andrew Kyriakou (applicant)
Eileen Xie (respondent)
Xiaofang Wang (respondent)
Xuefeng Zhu (respondent)
File Number(s): 14/9022
Publication restriction: None

reasons for decision

By an application filed on 17 February 2014, Andrew Kyriakou sought various orders about when he resided in premises owned by Xiaofang Wang and Xuefeng Zhu and which were leased to Eileen Xie.

When the matter came before the Tribunal on 12 March, I made various directions. These included the exchanging of documents, granting leave to both parties to be legally represented, and noting that as the applicant claimed that I was biased, not impartial and that I sabotaged his litigation, advising him that to ensure that I was not rostered to hear his claims at a future formal hearing, he should make an application, in writing, to the Deputy President of the Tribunal to that effect.

There was a problem concerning the exchange of documents and so the proceedings were listed before Member Holles on 10 June 2014. That Member made directions to bring the litigation ready for the formal hearing, including granting leave to amend the claim.

An amended claim was filed on 13 June 2014 in which the applicant seeks various orders. These were that in accordance with the provisions in section 77 of the Act he be recognised as a tenant; a declaration by means of section 11 of the Act that a specified agreement is, or is not, a residential tenancy agreement to which the Act applies; an order under section 47 of the Act for the repayment of rent; and an order pursuant to section 187 of the Act for compensation to be paid to him by the respondent.

By a document filed on 10 June 2014, the applicant also sought an order for the payment of "$550-00 for removalist costs", "$660-00 in rent being that the premises were illegally operated and without council approval, significant compensation due to the malicious and constant harassment, intimidation, threats of assault, breach of the tenant's rights to quiet…

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 Kyriakou v Xie

Details

AGLC: Kyriakou v Xie [2014] NSWCATCD 154
Case: [2014] NSWCATCD 154
Decision Date: 14 August 2014

CaseChat Overview and Summary

In the matter of Kyriakou v Xie, the appellant sought relief from the Civil and Administrative Tribunal of New South Wales, contesting the tribunal's decision which had dismissed her application for a declaration of tenancy and associated relief. The dispute centred around whether the respondent was a tenant of the property and the applicability of the Residential Tenancies Act 2010 to their living arrangement. Notably, there was no written residential tenancy agreement between the parties.

The central legal issues before the court involved determining whether the respondent was an occupier or tenant of the property, as defined by the Act, and whether the tribunal had jurisdiction to hear the appellant's application. This required an interpretation of the terms "occupy" and "reside" in the context of the Act and the existence of a shared household arrangement. Additionally, the court needed to consider whether the tribunal had the authority to hear the matter, given the absence of a written agreement and the specific nature of their living arrangement.

The court found that the respondent was not an occupier or tenant under the Act, as the living arrangement did not constitute a residential tenancy agreement. The tribunal's decision was affirmed, and the appeal was dismissed. The court held that the terms "occupy" and "reside" were not satisfied by the facts of the case, and thus the tribunal did not have jurisdiction to hear the appellant's application. Furthermore, the court ruled that the absence of a written agreement and the shared household arrangement did not bring the respondent within the scope of the Act.

The final orders of the court were that the application was dismissed, and each party was to bear their own costs in accordance with section 60 of the Civil and Administrative Tribunal Act 2013. This decision clarifies the boundaries of the tribunal's jurisdiction and the criteria for recognising a residential tenancy under the Act.

Orders

Orders of the court

1. The application is dismissed.

2. Each party is to bear their own costs.

Background

Background to the litigation

Full text does not contain this section.

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:	Kyriakou v Xie & ors. [2014] NSWCATCD 154
Hearing dates:	19 June 2014 and 29 July 2014
Decision date:	14 August 2014
Before:	B Howe, General Member
Decision:	1. The application is dismissed. 2. Each party is to bear their own costs.
Catchwords:	BIAS - actual or apprehended - SHARED HOUSEHOLD - recognition as a tenant - section 10 of the Residential Tenancies Act 2010 - no written residential tenancy agreement - applicability of the Act - meaning of "occupy" and "reside" - COSTS - section 60 of the Civil and Administrative Tribunal Act 2013
Legislation Cited:	Residential Tenancies Act 2010 (the Act) Civil and Administrative Tribunal Act 2013 (NCAT Act)
Cases Cited:	Council of the City of Newcastle v Royal Newcastle Hospital (1956) 96 CLR 493 Harris & ors v McKenzie & ors (1986) 9 NSWLR 139 Johnson v Johnson [2000] HCA 48 Kyriakou v Long [2013] NSWSC 1890
Texts Cited:	None
Category:	Principal judgment
Parties:	Andrew Kyriakou (applicant) Eileen Xie (respondent) Xiaofang Wang (respondent) Xuefeng Zhu (respondent)
File Number(s):	14/9022
Publication restriction:	None