Sutcliffe v Hennessy

[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..