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Rahman v Zeaiter

Rahman v Zeaiter

Case [2024] NSWSC 1082 26 August 2024

Appeal

Standing

Res Judicata

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Rahman v Zeaiter [2024] NSWSC 1082
Hearing dates: 11 July 2024
Date of orders: 21 August 2024
Decision date: 26 August 2024
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders:
(1)   The leave to appeal is refused
(2)   The summons dated 5 December 2023 is dismissed.
(4) The decision of the Appeal Panel dated 21 June 2023 is affirmed.
(3)   The plaintiff is to pay the defendant’s costs assessed as a gross sum of $6,728.08

Catchwords:
APPEAL – Tribunal Decision – Residential Tenancy Agreement – Residential Proceeding – Calderbank offer – NCAT

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 41, 80, 83(1)
Civil and Administrative Tribunal Rules 2014 (NSW), rr 3, 25(4)(b)
Civil Procedure Act 2005 (NSW), ss 56(1), 57(1)(d), 60, 80(2), 98, cl 12 of sch 4 s 80(2), cl 12 of sch 4
Residential Tenancies Act 2010 (NSW) ss 33, 63, 65, 89(5)
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW) rr 42.1,
42.15A, 98.45

Cases Cited:
BHP Billiton Ltd v Dunning [2013] NSWCA 421
Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69
Cat Media Pty Ltd v Allianz Australia Insurance Ltd [2006] NSWSC 790
Chaina v Presbyterian Church (NSW) Property Trust (No. 26) [2014] NSWSC
Collins v Urban [2014] NSWCATAP 17
Cominos v Di Rico [2016] NSWCATAP 5
David v Langham [2021] NSWCATAP 360
Ghougassian v Fairfax Community Newspapers Pty Ltd [2015] NSWCA 307
Hamod v New South Wales [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Jackson v New South Wales Land and Housing Corporation [2014] NSWCATAP 22
Jaycar Pty Ltd v Lombardo [2011] NSWCAS 284
Lee v New South Wales Crime Commission [2012] NSWCA 276
Lewis and Smyth v Rejko Pty Ltd [2021] NSWCATAP 186
Liang v University of Technology Sydney (No 3) [2019] NSWSC 1705
McKerlie v Leeser [2023] NSWCATAP 112
Miwa Pty Ltd v Siantan Properties Pty Ltd (No. 2) [2011] NSWCA 344
Pholi v Wearne [2014] NSWCATAP 78
Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69
Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39
Seymour v Wu [2021] NJSWCATAP 289
Zelden v Sewell [2011] NSWCA 56

Category: Principal judgment
Parties: Fahmid Rahman (Plaintiff)
Charlie Zeaiter (Defendant)
Representation:
Counsel:
Self-Represented (Plaintiff)
F.G Di Lizia (Defendant)
Solicitors:
Muhammad Iqbal Chaudhry (Plaintiff)
Self-represented (Defendant)

File Number(s): 2023/00440298-1
Decision under appeal

Court or tribunal:

NSW Civil and Administrative Tribunal

Jurisdiction:

Appeal Panel

Date of Decision:

21 June 2023

Before:

G Sarginson, Senior Member
D Ziegler, Senior Member

File Number(s):

2023/00125502

Judgment

HER HONOUR: This is an appeal from a decision of NSW Civil and Administrative Tribunal (‘NCAT’) involving the termination of a residential tenancy agreement.
The plaintiff is Fahmid Rahman (‘Rahman’). He entered into a tenancy agreement with the landlord, Charlie Zeaiter (‘Zeaiter’). Rahman seeks to appeal a previous decision made by the New South Wales Civil and Administrative Tribunal Appeal Panel (‘the…

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 Rahman v Zeaiter

Details

AGLC: Rahman v Zeaiter [2024] NSWSC 1082
Case: [2024] NSWSC 1082
Decision Date: 26 August 2024

CaseChat Overview and Summary

In the case of Rahman v Zeaiter, the appellant, Mr Rahman, sought to appeal a decision made by the New South Wales Civil and Administrative Tribunal (NCAT) regarding a residential tenancy dispute. The respondent, Mr Zeaiter, was the tenant who had entered into a residential tenancy agreement with the appellant. The dispute centred on the validity of the agreement and the subsequent proceedings that followed. Mr Rahman argued that the NCAT had erred in law by not considering his Calderbank offer, which was a settlement offer made under the provisions of the Civil Procedure Act 2005 (NSW).

The legal issues before the court were whether the NCAT had properly exercised its discretion in dismissing the appeal and whether the NCAT had failed to consider the Calderbank offer in accordance with the statutory requirements. The appellant contended that the NCAT should have given weight to the offer and that this omission constituted a significant error in the decision-making process. Additionally, the appellant argued that the NCAT had not adequately justified its decision to dismiss the appeal.

The court found that the NCAT had not erred in dismissing the appeal. The reasoning of the court was that the NCAT had properly considered the evidence and arguments presented by both parties. The court held that the NCAT was not required to give effect to the Calderbank offer as it had not been formally made in accordance with the statutory framework. The court further found that the NCAT's decision was supported by the evidence and that there was no basis to interfere with the outcome. The appeal was dismissed, and the NCAT's decision was upheld.

Orders