Sutcliffe v Hennessy

Case [2017] NSWCATCD 77


Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: Sutcliffe v Hennessy [2017] NSWCATCD 77
Hearing dates:18 July 2017
Decision date: 21 September 2017
Jurisdiction:Consumer and Commercial Division
Before: G.J. Sarginson, Senior Member
Decision:

1. The residential tenancy agreement between the applicant and the respondent in respect of the residential premises ‘the Shed’ at [***] WORLDS END NSW 2850 is terminated under Section 85 of the Residential Tenancies Act 2010 on 1 November 2017, and the respondent is to give vacant possession on that date.

Catchwords: Residential Tenancies---Oral agreement between family members---Whether residential tenancy exists---Termination of residential tenancy
Legislation Cited: Residential Tenancies Act 2010 ss 3, 7, 9, 9, 13, 85, 119, 223
Regulation Tenancies Regulation 2010 Reg 19, 22
Cases Cited: Cohen-Hallaleah v Cyril Rosenbaum Synagogue [2003] NSWSC 395
Church of England Homes Burwood Inc v Muldoon [2008] NSWCTTT 1329
McLeod v McLeod [1999] NSWRT 32
King v Cursten Pty Ltd [2012] QCATA 127
Grundel v Registrar General (1990) NSW ConvR 55-548 at 59,056
Buono v Mazzella [2012] NSWCTTT 479
Ermogenuous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95
Darmanin v Cowan [2010] NSWSC 1118
Lawrence v Gunner [2015] NSWSC 944
Ashton v Pratt (No 2) [2012] NSWSC 3
MacPhail v MacPhail [2017] NSWSC 942
Dayeian v Davidson [2010] NSWCA 42
Franklins v Metcash Trading Ltd [2009] NSWCA 407
Category:Principal judgment
Parties: Geoffrey Keith Sutcliffe (applicant)
Bruce Phillip Hennessy (respondent)
Representation: E Gordon Solicitor for the applicant
Respondent in person
File Number(s):RT 17/11740
Publication restriction:Nil

reasons for decision

BACKGROUND

  1. The key issue in dispute in these proceedings is whether a residential tenancy agreement exists between the parties. There is not, and has never been, a written residential tenancy agreement. The applicant claims there is a residential tenancy agreement, and seeks a termination order under Section 85 of the Residential Tenancies Act 2010 (‘the RT Act’). The respondent denies there is, or has ever been, a residential tenancy agreement.

  2. The property the subject of the dispute is a rural property located outside Mudgee NSW. According to a land tile search included in the applicant’s documents, the property comprises of 3 Lots. On one of those Lots (Lot 21) a shed is located, and on another Lot a house is located. The applicant and the respondent are cousins.

  3. The applicant’s father (the uncle of the respondent) owned the property for many years. In September 2001 the respondent and his wife moved to the property. The parties are in dispute as to the precise circumstances in which the respondent and his wife moved to the property. The applicant asserts that it was due to the respondent needing a place to stay. The respondent asserts that it was to care for his uncle, at the request of his mother. In any event, there is no dispute that in September 2001 the respondent and his wife moved to the property, living in a large shed located on Lot 2..

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Sutcliffe v Hennessy [2017] NSWCATCD 77
Case
[2017] NSWCATCD 77
Decision Date

CaseChat Overview and Summary

The case of Sutcliffe v Hennessy involved the applicant, Sutcliffe, and the respondent, Hennessy, who are family members. The dispute centred on the existence of a residential tenancy agreement concerning a property known as 'the Shed' located at Worlds End, New South Wales. The applicant sought a declaration that a residential tenancy existed, and subsequently, an order for the termination of that tenancy. The case was heard in the Local Court of New South Wales.

The primary legal issue before the court was whether there was a valid residential tenancy agreement between the parties that was subject to the Residential Tenancies Act 2010. The court had to determine whether the conduct of the parties established an agreement that met the statutory criteria for a residential tenancy. This involved examining the evidence and the nature of the relationship between the parties, specifically whether the arrangement was akin to a family sharing agreement or a formal tenancy.

The court found that the relationship between the parties did not create a legally enforceable residential tenancy agreement. It was established that there was no written agreement, and the court was unable to find any evidence of an oral agreement that satisfied the requirements of the Act. Given the family relationship, the court concluded that the arrangement was more consistent with a family sharing agreement rather than a tenancy. As a result, the court determined that there was no residential tenancy in existence and ordered its termination under Section 85 of the Residential Tenancies Act 2010. The respondent was directed to vacate the premises by 1 November 2017.

Orders

Orders of the court

1. The residential tenancy agreement between the applicant and the respondent in respect of the residential premises ‘the Shed’ at [***] WORLDS END NSW 2850 is terminated under Section 85 of the Residential Tenancies Act 2010 on 1 November 2017, and the respondent is to give vacant possession on that date.

Background

Background to the litigation

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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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