Sharma v Kaur - [2023] NSWCATCD 14

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Sharma v Kaur [2023] NSWCATCD 14
Hearing dates: 3 March 2023
Date of orders: 15 March 2023
Decision date: 15 March 2023
Jurisdiction: Consumer and Commercial Division
Before: G Blake AM SC, Senior Member
Decision:
(1) The application for miscellaneous matters of Gurgit Singh and the first named respondent filed on 21 February 2023 is dismissed.
(2) The time for the applicants to make an application for a warrant for possession of the premises is extended to 3 February 2023.

Catchwords:
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — NSW Civil and Administrative Tribunal — Jurisdiction and power –the Tribunal has jurisdiction to determine application for extension of time to issue warrant for possession
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Recovery of possession of premises – application for extension of time to issue warrant for possession – application granted

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 51, Sch 4 cl 3
Criminal Law Consolidation Act 1935 (SA), ss 85, 131, 196
Residential Tenancies Act 2010 (NSW), ss 43, 87, 88, 119, 121

Cases Cited:
Attorney-General of NSW v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Kaur v Sharma [2022] NSWCATAP 336
Kaur v Sharma (No 2) [2022] NSWCATAP 360
McLean v Power [2013] NSWSC 193
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Singh v Tidball [2023] NSWSC 96
Smits v Loel [2014] FCA 1341
Smits v Loel (No 3) [2015] FCA 77
Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213

Texts Cited:
None cited

Category: Consequential orders
Parties: Umesh Sharma and Krishna Sharma (Applicants)
Kiranjit Kaur and Reva Kaur Mehroke (Respondents)
Representation:
Solicitors:
Neil Lawyers (Applicants)
G Singh (representative) (Respondents)

File Number(s): RT 22/15982
Publication restriction: Nil

REASONS FOR DECISION

Overview

In these proceedings the applicants, Umesh Sharma (Mr Sharma) and Krishna Sharma (Mrs Sharma), who were the landlords (collectively referred to as Mr and Mrs Sharma or the landlords), seek an extension of time for their application for a warrant for possession under the Residential Tenancies Act 2010 (NSW) (RT Act) against the respondents, Kiranjit Kaur (Ms Kaur) and Reva Kaur Mehroke (Ms Mehroke), who were the tenants, of premises at Kingswood (the premises) under a residential tenancy agreement between them (the residential tenancy agreement).
I have decided to dismiss the application of Gurgit Singh (Mr Singh) and Ms Kaur that the proceedings be stayed and to extend the time for the landlords making an application for a warrant for possession of the premises.

The factual background

Mr Singh is the husband of Ms Kaur and the father of Ms Mehroke.
At all relevant times RCMO Pty Ltd trading as United Property Sales &…

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 Sharma v Kaur

Details

AGLC: Sharma v Kaur [2023] NSWCATCD 14
Case: [2023] NSWCATCD 14
Decision Date: 15 March 2023

CaseChat Overview and Summary

In the matter of Sharma v Kaur, the primary issue was the application for an extension of time to issue a warrant for possession of residential premises under the Residential Tenancies Act 2010 (NSW). The case was heard and determined by the NSW Civil and Administrative Tribunal (NCAT). The applicants sought an extension of time to issue a warrant for possession of the premises due to delays caused by factors outside their control.

The legal issues before the tribunal centred on the tribunal's jurisdiction to grant an extension of time under the Act and whether the applicants had provided sufficient justification for the delay. The applicants argued that unforeseen circumstances had impeded their ability to timely apply for the warrant, while the respondents contended that the delay was unreasonable and that the applicants had not demonstrated exceptional circumstances warranting an extension.

In rendering its decision, the tribunal noted the statutory provisions regarding the recovery of possession and the requirement for applications to be made within a specified timeframe. The tribunal examined the evidence and submissions provided by both parties, considering the nature and extent of the delay and the reasons provided for it. Ultimately, the tribunal found that the applicants had demonstrated sufficient justification for the delay and granted the application for an extension of time. The tribunal emphasised the importance of landlords adhering to the statutory timelines but recognised that exceptional circumstances may warrant an extension in certain cases.

The final orders of the tribunal dismissed the application for miscellaneous matters filed by the applicants and extended the time for the applicants to make an application for a warrant for possession to 3 February 2023. This outcome reflects the tribunal's balanced approach to the competing interests of landlords and tenants under the Residential Tenancies Act 2010 (NSW).

Orders

Orders of the court

(1) The application for miscellaneous matters of Gurgit Singh and the first named respondent filed on 21 February 2023 is dismissed.

(2) The time for the applicants to make an application for a warrant for possession of the premises is extended to 3 February 2023.

Background

Background to the litigation

Full text does not contain this section.

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:	Sharma v Kaur [2023] NSWCATCD 14
Hearing dates:	3 March 2023
Date of orders:	15 March 2023
Decision date:	15 March 2023
Jurisdiction:	Consumer and Commercial Division
Before:	G Blake AM SC, Senior Member
Decision:	(1) The application for miscellaneous matters of Gurgit Singh and the first named respondent filed on 21 February 2023 is dismissed. (2) The time for the applicants to make an application for a warrant for possession of the premises is extended to 3 February 2023.
Catchwords:	LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — NSW Civil and Administrative Tribunal — Jurisdiction and power –the Tribunal has jurisdiction to determine application for extension of time to issue warrant for possession LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Recovery of possession of premises – application for extension of time to issue warrant for possession – application granted
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 51, Sch 4 cl 3 Criminal Law Consolidation Act 1935 (SA), ss 85, 131, 196 Residential Tenancies Act 2010 (NSW), ss 43, 87, 88, 119, 121
Cases Cited:	Attorney-General of NSW v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Kaur v Sharma [2022] NSWCATAP 336 Kaur v Sharma (No 2) [2022] NSWCATAP 360 McLean v Power [2013] NSWSC 193 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Singh v Tidball [2023] NSWSC 96 Smits v Loel [2014] FCA 1341 Smits v Loel (No 3) [2015] FCA 77 Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213
Texts Cited:	None cited
Category:	Consequential orders
Parties:	Umesh Sharma and Krishna Sharma (Applicants) Kiranjit Kaur and Reva Kaur Mehroke (Respondents)
Representation:	Solicitors: Neil Lawyers (Applicants) G Singh (representative) (Respondents)
File Number(s):	RT 22/15982
Publication restriction:	Nil