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Zistis v Zistis

Zistis v Zistis

Case [2018] NSWSC 722 21 May 2018

Judicial Review

Jurisdiction

Constitutional Law

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Zistis v Zistis [2018] NSWSC 722
Hearing dates: 27, 28 February, 1 March 2018
Decision date: 21 May 2018
Before: Latham J
Decision:
(1) Judgment for the plaintiff.
(2) The plaintiff is entitled to vacant possession of the premises at 165 Doncaster Avenue, Kensington.
(3) The plaintiff has leave to issue a writ of possession with respect to those premises.
(4) The plaintiff is to file and serve short minutes of order setting out the amount of mesne profits accrued since August 2017 plus interest, within 14 days of the date of this judgment.
(5) Costs are awarded against the defendant.

Catchwords: CONSTITUTIONAL LAW — Judicial power — Whether Civil and Administrative Tribunal (NSW), NCAT, exercises judicial power — Whether NCAT exercises judicial power when determining matters under the Residential Tenancies Act 2010 (NSW) — NCAT exercises judicial power.
CONSTITUTIONAL LAW — Whether NCAT a “court of a State” — NCAT is not a court of a State.
COURTS AND TRIBUNALS — Jurisdiction of NCAT — Whether NCAT has authority to adjudicate in matters under the Residential Tenancies Act 2010 (NSW) between residents of different states — NCAT does not have jurisdiction to adjudicate.
LEASES AND TENANCIES – residential tenancies – tenancy at will – termination.
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW), s 38, 45, 72, 73, 77, 78, Sch 4
National Security Act 1939-1940 (Cth)
National Security (Landlord and Tenant) Regulations (Cth), Reg 15
Residential Tenancies Act 2010 (NSW), s 81, 83, 84, 85, 119, 121, 187
Cases Cited: Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
Burns v Corbett; Gaynor v Burns [2017] NSWCA 3
Burns v Corbett [2018] HCA 15
Huddart, Parker & Co. Pty. Ltd v Moorehead (1908) 8 CLR 330
Johnson v Dibbin; Gatsby v Same [2018] NSWCATAP 45
K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501
Love v Attorney General (NSW) (1990) 169 CLR 307
Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen [2012] QCA 170
Precision Data Holdings Ltd v Wills (1991) 173 CLR 167
Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1
Steve Zistis v George Zistis [2017] NSWSC 27 September 2017 (unreported)
Sunol v Collier [2012] NSWCA 14; 81 NSWLR 619
TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533
Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185; 66 NSWLR 77
Category: Principal judgment
Parties: Steve Zistis (Plaintiff/Cross Defendant)
George Zistis (First Defendant/Cross Claimant)
NSW Civil and Administrative Tribunal (Second Defendant)
Attorney General for New South Wales (Intervener)
Representation:
Counsel:
P Santucci (Plaintiff/Cross Defendant)
H Stowe (First Defendant/Cross Claimant)
A Mitchelmore (Attorney General for New South Wales)
Solicitors:
Low Doherty & Stratford (Plaintiff/Cross Defendant)
Unified Lawyers (First Defendant/Cross Claimant)

File Number(s): 2017/153633

Judgment

By Summons filed 22 May 2017, the plaintiff (a Queensland…

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 Zistis v Zistis

Details

AGLC: Zistis v Zistis [2018] NSWSC 722
Case: [2018] NSWSC 722
Decision Date: 21 May 2018

CaseChat Overview and Summary

The case of Zistis v Zistis involved a dispute between two parties concerning the termination of a tenancy at will. The matter was heard by the Civil and Administrative Tribunal (NCAT) in New South Wales, which was challenged on its constitutional standing and jurisdiction. The central issue was whether NCAT exercises judicial power when determining matters under the Residential Tenancies Act 2010 (NSW). The court had to determine if NCAT was a court of a State and whether it possessed the authority to adjudicate matters between residents of different states. The outcome of these determinations had significant implications for the jurisdiction of NCAT in such cases.

The court delved into the nature of the judicial power exercised by NCAT, concluding that NCAT indeed exercises judicial power when adjudicating matters under the Residential Tenancies Act 2010 (NSW). However, the court further clarified that NCAT is not a court of a State. The court examined the statutory framework and the constitutional implications of these findings, assessing the tribunal's role within the broader judicial system. The decision underscored the distinction between exercising judicial power and being classified as a State court, thus impacting the scope of NCAT's jurisdiction.

In terms of jurisdiction, the court ruled that NCAT does not have the authority to adjudicate in matters under the Residential Tenancies Act 2010 (NSW) when the parties involved are residents of different states. This limitation was grounded in the specific statutory provisions and the jurisdictional boundaries established by the Act. The court's reasoning highlighted the importance of adhering to legislative intent and jurisdictional constraints in tribunal adjudications. This decision reinforced the need for clarity in the application of residential tenancy laws across state lines.

The final orders of the court affirmed the findings on the nature of NCAT's judicial power and its jurisdictional limitations. The tribunal was recognized for its role in exercising judicial power, but its authority was constrained by statutory provisions that limited its jurisdiction to matters involving residents of the same state. This delineation was crucial for maintaining the integrity of state-based residential tenancy laws and ensuring that tribunals operate within their defined scope.

Orders