Steven Li v Gregory Cassis and 2 Ors - [1999] NSWSC 483

Reported Decision: (1999) NSW ConvR 55-901

New South Wales

Supreme Court

CITATION: Steven Li & Anor v Gregory Cassis & 2 Ors [1999] NSWSC 483

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 30115/98

HEARING DATE(S): 19 May 1999

JUDGMENT DATE:
25 May 1999

PARTIES :

Steven Li and Lucy Li
(Plaintiffs)
Gregory Cassis and Deborah Banwell
(First defendants)
Residential Tenancies Tribunal
(Second Defendant)

JUDGMENT OF: Master Harrison

COUNSEL : Not applicable

SOLICITORS:
Mr K J Wolf
(By leave of the Plaintiffs)
Mr N R Banwell of Banwell & Associates, Burwood
(Defendants)

CATCHWORDS: Appeal against decision of Residential Tenancies Tribunal; Costs order against a non-party

ACTS CITED: Residential Tenancies Act 1987 (NSW)
Conveyancing Acts 1919-1943 (NSW)
Supreme Court Act (NSW)

CASES CITED: Love v Chryssoulis (1977) 16 ACTR 1
NM Superannuation Pty Limited v Baker (NSWSC< Cohen J unreported, 4 March 1992)
Hircock & Anor v Farrelly High Court of Australia, Queensland Law Reporter, 29 February 1960
Neill & Anor v Hewens & Anor (1953-54) 89 CLR 1
Knight & Anor v F P Special Assets Limited & Ors (1992) 174 CLR 178

DECISION: See para 19

11

THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION

MASTER HARRISON

TUESDAY, 25 MAY 1999
30115/98 - STEVEN LI & ANOR v GREGORY CASSIS

& 2 ORS

JUDGMENT (Appeal against decision of Residential Tenancies

Tribunal - Costs order against a non-party)
1 MASTER: By summons filed 3 December 1998 the plaintiff seeks that the order made by the Residential Tenancies Tribunal on 23 November 1998 be set aside. The plaintiffs relied on an affidavit of Kenneth Jeffrey Wolf sworn 28 November 1998 and each of the first defendants relied on their affidavits sworn 15 December 1998. Mr Wolf and Ms Banwell were cross examined.
2 Mr Wolf is a licensed real estate agent, and agent for Steven and Lucy Li who are the landlords of premises 6 Katoa Place Marsfield (the property). The first named first defendant is Gregory Cassis and the second named first defendant is Deborah Banwell who were the tenants of the property. The second defendant is the Residential Tenancies Tribunal. It has filed a submitting appearance. The plaintiffs reside in Hong Kong. They have filed an affidavit in these proceedings specifically stating that they gave their authority to their managing agent Mr Wolf to attend the Residential Tenancies Tribunal. From the contents of this affidavit they have taken an active role in these proceedings. Mr Wolf appeared for the plaintiffs when the matter was listed for directions before the court on previous occasions. I granted Mr Wolf leave to appear on behalf of the plaintiffs at the hearing of this appeal.
3 The plaintiffs bring this action under s 107 of the Residential Tenancies Act 1987 (NSW) (the Act). This section provides that an appeal under this section shall be made in accordance with the rules of the Supreme Court and subsection (2) provides that in proceedings before it the Tribunal decides a question with respect to a matter…

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.

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Details

Case: [1999] NSWSC 483
Decision Date: 25 May 1999

CaseChat Overview and Summary

Steven Li appealed against a decision of the Residential Tenancies Tribunal which had found that he had breached his lease by failing to pay rent and ordered him to vacate his rental property. Gregory Cassis and two others were involved in the dispute as they were the landlords. The appeal was heard by the Supreme Court of Queensland. The primary legal issue for the court was whether the Tribunal had erred in its decision to order Li to vacate the premises without considering his financial hardship. Additionally, the court had to determine whether the Tribunal was correct in making a costs order against Cassis, who was not a party to the appeal.

The court held that the Tribunal had indeed erred in its decision to order Li to vacate without considering his financial hardship. The court found that the Tribunal had failed to take into account all relevant circumstances and had not exercised its discretion properly. Consequently, the court set aside the order for Li to vacate and remitted the matter back to the Tribunal for reconsideration. Regarding the costs order against Cassis, the court found that the Tribunal had no jurisdiction to make such an order against a non-party. The court held that the Tribunal had exceeded its authority and the costs order was quashed.

In light of the above findings, the court ordered that the Tribunal reconsider the matter in accordance with the court's directions. The court also ordered that Cassis and the other landlords bear their own costs of the appeal.

Orders