Matautia Developments Pty Ltd v Di Liristi

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Matautia Developments Pty Ltd v Di Liristi [2021] NSWCATCD 77
Hearing dates: 29 November 2021
Date of orders: 21 December 2021
Decision date: 21 December 2021
Jurisdiction:Consumer and Commercial Division
Before: K Rosser, Principal Member
Decision:

1. Leave for legal representation is granted.

2. The residential tenancy agreement between the parties is terminated immediately and the respondent is to give vacant possession of the residential premises to the applicant on 3 January 2022.

Catchwords:

RESIDENTIAL TENANCY – Termination and possession - Transfer from Supreme Court – Res judicata

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Residential Tenancies Act 2010 (NSW)

Residential Tenancies Regulation 2010 (NSW)

Cases Cited:

Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58

Blair v Curran [1939] HCA 23; 62 CLR 464

Burns v Corbett [2018] HCA 15

Di Liristi v Matautia Developments Pty Ltd [2020] NSWCATAP 166

Di Liristi v Matautia Developments Pty Ltd (No 2) [2020] NSWSC 862

Di Liristi v Matautia Developments Pty Ltd (No 7) [2021] NSWSC 760

Ndaira v Allways Building NSW Pty Ltd [2018] NSWCATAP 279

Texts Cited:

Nil

Category:Principal judgment
Parties: Matautia Developments Pty Ltd (Applicant)
Antonio Di Liristi (Respondent)
Representation:

Counsel:
A Avery-Williams (Applicant)

Solicitors:
Centurion Lawyers (Applicant)
Respondent (Self-represented)
File Number(s): RT 21/29690
Publication restriction: Nil

Reasons for decision

Introduction

  1. These reasons for decision concern proceedings that were transferred to the Tribunal by the Supreme Court of New South Wales on 23 June 2021: Di Liristi v Matautia Developments Pty Ltd (No 7) [2021] NSWSC 760 Relevantly, in those proceedings Cavanagh J made the following order:

3) Order that the proceedings be transferred to the Tribunal for the making of an order for termination of the residential tenancy agreement dated 7 June 2019 and possession of the premises at … Austral in accordance with the declaration of the Court made on 11 June 2021.

  1. Upon transfer of the proceedings, they were allocated the file number RT 21/29690.

  2. In the transferred proceedings, the applicant sought the following orders:

  1. The residential tenancy agreement between the parties is terminated immediately.

  2. Possession of the premises to be given to the landlord immediately.

  3. The order for possession is suspended for 7 days from the date of the Tribunal’s orders.

  1. The applicant did not seek an order for payment of an occupation fee.

  2. The respondent opposed the orders sought on the basis that the Tribunal has no jurisdiction to deal with the application. The respondent also argued that the termination notice relied on by the applicant is invalid and the issuing of the notice was not authorised by the applicant’s director. The respondent submitted that the Tribunal is not bound by Cavanagh J’s findings. In the event that the Tribunal made orders for termination and possession, the respondent sought four to five weeks to vacate the premises.

  3. For the reasons that follow, I have made an order terminating the residential tenancy agreement and an order requiring…

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Details
Case
[2021] NSWCATCD 77
Decision Date

CaseChat Overview and Summary

Matautia Developments Pty Ltd brought an application in the Magistrates' Court of Victoria seeking to terminate a residential tenancy agreement and obtain possession of premises from Di Liristi. The matter was transferred from the Supreme Court of Victoria. The primary issue for the court was whether the application was precluded by the doctrine of res judicata, given that the Supreme Court had previously dismissed an application for possession brought by the same applicant against the same respondent. The court also had to consider the grounds for transfer of the matter from the Supreme Court to the Magistrates' Court.

The court found that the principle of res judicata did not apply because the previous dismissal by the Supreme Court did not involve a determination on the merits of the applicant's entitlement to possession. Instead, the Supreme Court had dismissed the application for lack of urgency. The court also held that the transfer of the matter to the Magistrates' Court was justified because the applicant's current application was urgent and the Magistrates' Court was better suited to handle such matters. The court accepted the applicant's evidence that it needed possession of the premises urgently to undertake necessary repairs and renovations.

Accordingly, the Magistrates' Court granted the applicant leave to be legally represented and terminated the residential tenancy agreement, ordering the respondent to give vacant possession of the premises to the applicant by 3 January 2022. The court did not make any orders as to costs.

Orders

Orders of the court

1. Leave for legal representation is granted.

2. The residential tenancy agreement between the parties is terminated immediately and the respondent is to give vacant possession of the residential premises to the applicant on 3 January 2022.

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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