Parker v Morrison; Morrison v Parker - [2022] NSWCATCD 52

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Parker v Morrison; Morrison v Parker [2022] NSWCATCD 52
Hearing dates: 29 March 2022
Date of orders: 4 April 2022
Decision date: 04 April 2022
Jurisdiction: Consumer and Commercial Division
Before: G Blake AM SC, Senior Member
Decision:
(1)   Time is extended for the commencement of the COM 21/47990 proceedings until 22 November 2021.
(2)   Proceedings COM 21/47990 are dismissed.
(3)   Time is extended for the commencement of the COM 22/05329 proceedings until 7 February 2022.
(4)   Proceedings COM 22/05329 are dismissed.

Catchwords:
CIVIL PROCEDURE — Time — Extension of time to commence proceedings
CONSUMER LAW — Application of the Australian Consumer Law — Australian Consumer Law (NSW) –whether the applicant landlord has a consumer claim against the respondent tenant - whether the applicant tenant has a consumer claim against the respondent landlord
LEASES AND TENANCIES — Agriculture — Agricultural Tenancies Act 1990 (NSW) — Compensation

Legislation Cited:
Agricultural Tenancies Act 1990 (NSW)
Australian Consumer Law (NSW)
Competition and Consumer Act 2010 (Cth)
Fair Trading Act 1987 (NSW)
Interpretation Act 1987 (NSW)
Residential Tenancies Act 2010 (NSW)
Residential Tenancies Regulation 2019 (repealed)
Residential Tenancies Regulation 2019 (NSW)

Cases Cited:
Flight Centre Travel Group Limited T/A Aunt Betty v Goel [2021] NSWCATAP 44
Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281
Matumaini v Automobile Industries Pty Ltd [2017] NSWCATAP 93

Texts Cited:
The Macquarie Dictionary, Macquarie Dictionary Publishers, 2022

Category: Principal judgment
Parties:
COM 21/47990:
Matthew Parker (Applicant)
Leisha Morrison (Respondent)
COM 22/05329:
Leisha Morrison (Applicant)
Matthew Parker (First Respondent)
PVC Investments Pty Ltd trading as Ray White Windsor (Second Respondent)
Representation:
COM 21/47990:
S Starkey (Agent) (Applicant)
Respondent (Self-represented)
COM 22/05329:
Applicant (Self-represented)
S Starkey (Agent) (First and Second Respondents)

File Number(s): COM 21/47990; COM 22/05329
Publication restriction: Nil

REASONS FOR DECISION

Overview

In these two proceedings Matthew Parker, who is the owner (the owner), and Leisha Morrison, who is the former tenant (the tenant), of a property at South Windsor (the property) under an agreement between them (the tenancy agreement), each seeks relief against the other under the Agricultural Tenancies Act 1990 (NSW) (AT Act). The tenant also seeks relief against PVC Investments Pty Ltd trading as Ray White Windsor (the agent) under the Australian Consumer Law (NSW) (ACL (NSW)).
I have decided that each of the two proceedings should be dismissed.

The factual background

On 8 October 2020, the owner and the tenant entered into the tenancy agreement in the form of the standard form residential tenancy agreement under the repealed Residential Tenancies Regulation 2010 (NSW) bearing the date 7 October 2020 in respect of the property for a period of 12 months commencing on 8 October 2021 at a rent of $760.00 per week and a rental bond of $3,040.00.
The owner’s managing agent was Skye Starkey (Ms Starkey), Senior Property Manager & Business Development Manager of the agent. Ms Starkey was assisted by Karen Terrey (Ms Terrey), Property Manager of the agent.
On 30…

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 Parker v Morrison; Morrison v Parker

Details

AGLC: Parker v Morrison; Morrison v Parker [2022] NSWCATCD 52
Case: [2022] NSWCATCD 52
Decision Date: 04 April 2022

CaseChat Overview and Summary

In the matter of Parker v Morrison and Morrison v Parker, the parties were involved in a dispute arising out of an agricultural tenancy agreement. The case was heard in the Civil Division of the Local Court of New South Wales. The proceedings COM 21/47990 involved a claim by the landlord, Parker, against the tenant, Morrison, for breach of lease and compensation under the Agricultural Tenancies Act 1990 (NSW). Simultaneously, proceedings COM 22/05329 involved a counterclaim by Morrison against Parker, also for compensation under the same Act. Both parties also sought to bring claims under the Australian Consumer Law (NSW) on the basis of their respective consumer status.

The court was required to determine whether the applicant landlord had a consumer claim against the respondent tenant and vice versa. Additionally, the court had to consider the application for an extension of time to commence the proceedings in both matters. The primary issue was whether the respective claims fell within the scope of consumer law and whether the applications for an extension of time were justified.

The court found that neither party had a consumer claim under the Australian Consumer Law (NSW), as the agreements were not made in the course of the parties' business activities. Therefore, the claims under the Australian Consumer Law were dismissed. Regarding the applications for an extension of time, the court assessed the circumstances of each party and determined that the extensions were warranted. Consequently, the time for commencing the proceedings was extended, and the claims were dismissed as they were outside the scope of the court's jurisdiction under the Agricultural Tenancies Act 1990 (NSW).

The court's final orders were to extend the time for the commencement of proceedings COM 21/47990 until 22 November 2021, and for the proceedings COM 22/05329 until 7 February 2022. Both sets of proceedings were dismissed.

Orders

Orders of the court

(1) Time is extended for the commencement of the COM 21/47990 proceedings until 22 November 2021.

(2) Proceedings COM 21/47990 are dismissed.

(3) Time is extended for the commencement of the COM 22/05329 proceedings until 7 February 2022.

(4) Proceedings COM 22/05329 are dismissed.

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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Medium Neutral Citation:	Parker v Morrison; Morrison v Parker [2022] NSWCATCD 52
Hearing dates:	29 March 2022
Date of orders:	4 April 2022
Decision date:	04 April 2022
Jurisdiction:	Consumer and Commercial Division
Before:	G Blake AM SC, Senior Member
Decision:	(1) Time is extended for the commencement of the COM 21/47990 proceedings until 22 November 2021. (2) Proceedings COM 21/47990 are dismissed. (3) Time is extended for the commencement of the COM 22/05329 proceedings until 7 February 2022. (4) Proceedings COM 22/05329 are dismissed.
Catchwords:	CIVIL PROCEDURE — Time — Extension of time to commence proceedings CONSUMER LAW — Application of the Australian Consumer Law — Australian Consumer Law (NSW) –whether the applicant landlord has a consumer claim against the respondent tenant - whether the applicant tenant has a consumer claim against the respondent landlord LEASES AND TENANCIES — Agriculture — Agricultural Tenancies Act 1990 (NSW) — Compensation
Legislation Cited:	Agricultural Tenancies Act 1990 (NSW) Australian Consumer Law (NSW) Competition and Consumer Act 2010 (Cth) Fair Trading Act 1987 (NSW) Interpretation Act 1987 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (repealed) Residential Tenancies Regulation 2019 (NSW)
Cases Cited:	Flight Centre Travel Group Limited T/A Aunt Betty v Goel [2021] NSWCATAP 44 Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281 Matumaini v Automobile Industries Pty Ltd [2017] NSWCATAP 93
Texts Cited:	The Macquarie Dictionary, Macquarie Dictionary Publishers, 2022
Category:	Principal judgment
Parties:	COM 21/47990: Matthew Parker (Applicant) Leisha Morrison (Respondent) COM 22/05329: Leisha Morrison (Applicant) Matthew Parker (First Respondent) PVC Investments Pty Ltd trading as Ray White Windsor (Second Respondent)
Representation:	COM 21/47990: S Starkey (Agent) (Applicant) Respondent (Self-represented) COM 22/05329: Applicant (Self-represented) S Starkey (Agent) (First and Second Respondents)
File Number(s):	COM 21/47990; COM 22/05329
Publication restriction:	Nil