Summerill v Pelle

[2023] NSWCATCD 78

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Summerill v Pelle [2023] NSWCATCD 78

Hearing dates:

17 May 2023

Date of orders:

13 July 2023

Decision date:

13 July 2023

Jurisdiction:

Consumer and Commercial Division

Before:

R Alkadamani, Senior Member

Decision:

1. To the extent necessary, order pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 (NSW), extending the time for the filing of the application to 20 December 2022

2. Pursuant to section 111(2) of the Residential Tenancies Act 2010, declare that the respondent’s purported notice of termination of the residential tenancy agreement comprised of the communications on 18 September 2022 breached s 85(2) of the Residential Tenancies Act 2010

3. Order the respondent to pay the applicant $2,275.12 within 14 days.

4. The application is otherwise dismissed.

Catchwords:

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Residential tenancy agreement - Quiet enjoyment

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 41

Residential Tenancy Act 2010 (NSW), ss 8, 10, 13 50, 85, 190

Cases Cited:

Hyndes v Maddak Pty Ltd [2021] NSWCATAP 302

Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17

Rogers v Vinloy [2016] NSWCATAP 2

Category:

Principal judgment

Parties:

Applicant: Justin Paul Summerill
Respondent: Simona Rosa Pelle

Representation:

Ms Bouchier for the Applicant
No appearance for the Respondent

File Number(s):

RT 22/56180

Publication restriction:

None

REASONS FOR DECISION

Introduction and procedural background

1. This is an application lodged by Mr Summerill (the applicant) seeking orders principally under the Residential Tenancies Act 2010 (NSW) (the RTA).

2. The hearing took place on 17 May 2023.

3. Ms Bouchier, a solicitor from the Homeless Persons Legal Service, represented the applicant.

4. The matter was listed for hearing on 17 May 2023 at 10:45am. Ms Pelle (the respondent) did not appear at the hearing room. Shortly after 10:45am I called the matter outside the hearing room. I did so again a few minutes later. There was no appearance by, or for, the respondent.

5. The Tribunal’s file disclosed that a notice of hearing was posted to ** Maroubra Road, Maroubra.

6. During the hearing the applicant relied on a statement of Ms Boucher dated 18 April 2023. Ms Boucher adopted that statement on oath and the statement was marked exhibit 1. Ms Boucher records at paragraph 5 of the statement that on 14 February 2023 she called and spoke with the respondent. During the hearing Ms Boucher gave oral evidence that the telephone number she called was 0459 *** ***. Before the Tribunal there was evidence that this telephone number was the respondent’s telephone number.

7. Ms Boucher said that during her conversation with the respondent, the respondent confirmed that she resided at ** Maroubra Road, Maroubra (Ex 1, para 5). This is the same address to which the notice of hearing was posted by the Tribunal.

8. Based on the above, I was satisfied that the Tribunal’s notice of hearing had…