Sinanovic v Bone - [2022] NSWSC 1474

Supreme Court

New South Wales

Medium Neutral Citation: Sinanovic v Bone [2022] NSWSC 1474
Hearing dates: 26 October 2022
Date of orders: 26 October 2022
Decision date: 26 October 2022
Jurisdiction: Common Law
Before: Garling J
Decision:
See [3]

Catchwords:
APPEAL — Appeal from Local Court — dispute between landlord and tenant — where Local Court found in favour of the landlord — where hearing in Local Court was flawed due to lack of procedural fairness afforded to the tenant — where tenant could not read or write in the English language — where tenant was represented at the hearing by lay advocate — order made for a rehearing in the Local Court by a differently constituted Court

Legislation Cited:
Uniform Civil Procedure Rules 2005

Cases Cited:
Not Applicable

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Hakija Sinanovic (P)
Ludan Bone (D)
Representation:
Counsel:
Self-represented (P) (assisted by Ms Sinanaj)
R Notley (D)
Solicitors:
Clark Kann (D)

File Number(s): 2022/101645
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Civil

Date of Decision:

11 March 2022

Before:

Hosking LCM

File Number(s):

2022/101645

Judgment

On 8 April 2022, Hakija Sinanovic as plaintiff commenced proceedings by filing a Summons seeking leave to appeal, and to appeal from, a decision of Hosking LCM which was delivered orally on 11 March 2022 in the Local Court. Ms Ludan Bone, the defendant in these proceedings, was the plaintiff in the proceedings in the Local Court.
Because there is potential for confusion about which party is best described as the plaintiff and which as the defendant, which will depend upon whether reference is being made to proceedings in this Court or the Local Court, it will be convenient to refer to the parties by their names.
These proceedings were heard on 26 October 2022. At the conclusion of the proceedings, I made the following orders:

To the extent necessary, grant leave to appeal.

The judgment and orders of the Local Court made on 11 March 2022 are set aside.

Direct that proceedings be remitted to the Local Court for hearing by a differently constituted Court.

Order the defendant, Ms Bone, to pay the plaintiff, Mr Sinanovic’s, costs of these proceedings in the Supreme Court.

I indicated that I would deliver my reasons in due course. These are my reasons for that decision.

Local Court Proceedings

Ms Bone’s proceedings in the Local Court claimed a money judgment based upon a written Residential Tenancy Agreement (“RTA”) in which she, as landlord, leased to Mr Sinanovic, as tenant, identified premises. She claimed that the RTA was terminated and that she was entitled to a sum of money totalling almost $53,000 comprised of unpaid rent, an unpaid occupation fee and about $6,000 by way of cleaning and remediation costs at the end of the lease.
Mr Sinanovic filed a Defence in which he put in issue the existence and terms of the RTA including the claimed rental sum, the unpaid occupation fee and the necessity…

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 Sinanovic v Bone

Details

AGLC: Sinanovic v Bone [2022] NSWSC 1474
Case: [2022] NSWSC 1474
Decision Date: 26 October 2022

CaseChat Overview and Summary

The appeal involved a dispute between the landlord, Sinanovic, and the tenant, Bone. The matter was initially heard in the Local Court, where the landlord sought to evict the tenant. The Local Court found in favour of the landlord. The tenant appealed this decision, arguing that the hearing was flawed due to a lack of procedural fairness. The tenant could not read or write in English and was represented at the hearing by a lay advocate. The appeal centred on whether the Local Court's hearing was conducted in a manner that was fair and just, particularly considering the tenant's language difficulties and the representation by a lay advocate.

The legal issues before the court were whether the Local Court's decision was vitiated by a failure to observe procedural fairness, and whether the tenant's language difficulties and representation by a lay advocate were significant enough to warrant a rehearing. The court had to consider whether the tenant was given a fair opportunity to present their case, and whether the tenant's lack of English literacy and representation by a lay advocate impacted the fairness of the hearing.

The court found that the Local Court hearing did not afford the tenant procedural fairness due to their language difficulties and the representation by a lay advocate. The court noted that the tenant's inability to read or write in English and the lay advocate's lack of legal expertise likely impacted the tenant's ability to effectively participate in the hearing. The court concluded that these factors were significant enough to warrant a rehearing in the Local Court by a differently constituted court. The appeal was allowed, and a rehearing was ordered.

The court ordered that the matter be remitted to the Local Court for a rehearing before a differently constituted court, to ensure that the tenant had a fair opportunity to present their case. The court emphasised the importance of procedural fairness in legal proceedings, particularly in cases involving individuals with language difficulties or lay representation. The court's decision highlights the need for courts to take steps to ensure that all parties have an equal opportunity to participate in legal proceedings, regardless of their background or circumstances.

Orders