Murray, Jodie v Gibson, Agnes Nina - [2014] NSWLC 25

Local Court

New South Wales

Medium Neutral Citation: Murray, Jodie v Gibson, Agnes Nina [2014] NSWLC 25
Hearing dates: 17 July 2014
Decision date: 17 November 2014
Jurisdiction: Civil
Before: LCM Favretto
Decision:
Application notice is not a nullity. Local Court has jurisdiction.

Catchwords: APPLICATION PROCEEDINGS - recovery of premises under the Landlord and Tenant Act 1899 and the Landlord and Tenant Act 1948 - jurisdiction - service of the application notice - waiver of service requirements upon appearance in proceedings or failure to object
Legislation Cited: Landlord and Tenant (Amendment) Act 1948 (NSW), Parts 2 and 3, s 59
Landlord and Tenant Act 1899 (NSW), ss 23, 33(2)
Local Court Act 2007 (NSW), Parts 3, 4, ss 9(a), 30(1), 44, 45
Local Court Rules 2009 (NSW), Part 4, r 5.6
Residential Tenancies Act 2010 (NSW), s 7(a)
Uniform Civil Procedure Rules 2005, r 10.20(5)
Cases Cited: Ex parte Godfrey (1898) 14 W. N. (NSW) 222
Marshall v Burman [1960] VR 162
Murray v Gibson (Tenancy) [2013] NSWCTTT 470
Project Blue Sky Inc v Australian Broadcasting Authority [1988] HCA 28; 194 CLR 355 at [92] - [93]
R v Janceski [2005] NSWCCA 281; 64 NSWLR 10
Category: Procedural and other rulings
Parties: Jodie Murray (Applicant)
Agnes Nina Gibson (Respondent)
Representation: Ramensky Lawyers (Solicitor for the applicant)
P Lane (Counsel for the respondent)
P Baker (Solicitor for the respondent)

File Number(s): 2014/00085825
Publication restriction: Nil

JUDGMENT

Background

These are application proceedings which on their face are brought under s 45 of the Local Court Act 2007 (NSW) and Part 4 of the Local Court Rules 2009 (NSW) for the recovery of possession of premises at 3/32 High Street, North Sydney. The application notice seeks recovery of the premises under both the Landlord and Tenant Act 1899 (NSW) ("the 1899 Act") and the Landlord and Tenant (Amendment) Act 1948 (NSW) ("the 1948 Act").
The proceedings for recovery were taken in the Local Court after D Sheehan, member of the Consumer, Trader & Tenancy Tribunal ("CTTT"), sitting in the Tenancy Division of the CTTT, held that as the premises were not excluded from the provisions of the 1948 Act he had no jurisdiction under s 7(a) of the Residential Tenancies Act 2010 (NSW): Murray v Gibson (Tenancy) [2013] NSWCTTT 470 (19 September 2013).
The applicant, Jodie Murray, purchased the premises on 9 January 2013. It appears that the respondent, Agnes Gibson, is the tenant of the premises by virtue of paying the rent but is not the lessee under the residential lease of 31 March 1983 for Flat 2 (subsequently renumbered "3" following renovations) of 32 High Street, North Sydney, between the lessor, J G Earl, and lessee, Shakuntala Postelnik.
The threshold issue taken by the respondent on the hearing day of 17 July 2014 is that the application notice was not validly served as required by the stringent service requirements prescribed under s 25 of the 1899 Act and therefore the proceedings are a nullity, whereby…

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: [2014] NSWLC 25
Decision Date: 17 November 2014

CaseChat Overview and Summary

Jodie Murray commenced proceedings against Agnes Nina Gibson to recover possession of premises under the Landlord and Tenant Act 1899 and the Landlord and Tenant Act 1948. The dispute arose from the alleged failure of Gibson to vacate the premises after the lease had expired. Murray sought an order for possession and recovery of the premises. The case was heard in the Local Court of New South Wales.

The central legal issue before the court was whether the Local Court had jurisdiction to hear the application for recovery of possession, particularly focusing on the validity of the service of the application notice. Murray argued that the application notice was validly served, and therefore, the court had jurisdiction. Gibson contended that the application notice was not validly served and, as such, the court lacked jurisdiction. Additionally, Gibson argued that she had not waived the service requirements by appearing in the proceedings or by failing to object to the service of the notice.

The court found that the application notice was validly served, and thus, the Local Court had jurisdiction to hear the matter. The court noted that under the relevant legislation, the service of the application notice is a critical procedural step, but its validity could be waived by the respondent's appearance in the proceedings or failure to object to the service. In this case, Gibson's appearance in the proceedings and failure to object to the service of the application notice constituted a waiver of the service requirements. Consequently, the court dismissed Gibson's challenge to its jurisdiction.

The court further ruled that the application notice was not a nullity and confirmed that the Local Court had jurisdiction to proceed with the application for recovery of possession. The court did not provide further orders in this decision, reserving those for subsequent hearings.

Orders

Orders of the court

Application notice is not a nullity. Local Court has jurisdiction.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Murray, Jodie v Gibson, Agnes Nina [2014] NSWLC 25
Hearing dates:	17 July 2014
Decision date:	17 November 2014
Jurisdiction:	Civil
Before:	LCM Favretto
Decision:	Application notice is not a nullity. Local Court has jurisdiction.
Catchwords:	APPLICATION PROCEEDINGS - recovery of premises under the Landlord and Tenant Act 1899 and the Landlord and Tenant Act 1948 - jurisdiction - service of the application notice - waiver of service requirements upon appearance in proceedings or failure to object
Legislation Cited:	Landlord and Tenant (Amendment) Act 1948 (NSW), Parts 2 and 3, s 59 Landlord and Tenant Act 1899 (NSW), ss 23, 33(2) Local Court Act 2007 (NSW), Parts 3, 4, ss 9(a), 30(1), 44, 45 Local Court Rules 2009 (NSW), Part 4, r 5.6 Residential Tenancies Act 2010 (NSW), s 7(a) Uniform Civil Procedure Rules 2005, r 10.20(5)
Cases Cited:	Ex parte Godfrey (1898) 14 W. N. (NSW) 222 Marshall v Burman [1960] VR 162 Murray v Gibson (Tenancy) [2013] NSWCTTT 470 Project Blue Sky Inc v Australian Broadcasting Authority [1988] HCA 28; 194 CLR 355 at [92] - [93] R v Janceski [2005] NSWCCA 281; 64 NSWLR 10
Category:	Procedural and other rulings
Parties:	Jodie Murray (Applicant) Agnes Nina Gibson (Respondent)
Representation:	Ramensky Lawyers (Solicitor for the applicant) P Lane (Counsel for the respondent) P Baker (Solicitor for the respondent)
File Number(s):	2014/00085825
Publication restriction:	Nil