NSW Land and Housing Corporation v Orr

The New South Wales Land and Housing Corporation (the Corporation) sought to appeal a decision of the primary judge who had set aside an order of the New South Wales Civil and Administrative Tribunal (NCAT). NCAT had made an order terminating a social housing tenancy agreement between the Corporation and Mr Orr, pursuant to section 91 of the *Residential Tenancies Act 2010* (NSW). The central dispute concerned whether the termination order was validly made, particularly in light of the potential hardship to the tenant.

The appeal raised several legal issues for determination by the Court of Appeal. These included the meaning of "undue hardship" in the context of the *Residential Tenancies Act 2010*, and whether NCAT possessed a discretion to terminate a tenancy agreement even if doing so would occasion undue hardship to the tenant. Furthermore, the court was required to consider whether NCAT had adequately had regard to the tenant's hardship when exercising its discretion to terminate the agreement, and whether the reasons provided by NCAT for its decision were sufficient to disclose how hardship was taken into account.

The Court of Appeal found that NCAT had erred in its approach. While NCAT had the power to terminate a tenancy agreement, its reasons for doing so did not adequately demonstrate that it had properly considered the tenant's hardship. The court held that a reference to "all of the circumstances of the case" was insufficient to discharge NCAT's obligation to explain how it had weighed the hardship to the tenant against other considerations when exercising its discretion. The appeal was allowed, and the primary judge's orders were set aside.