Scicluna v NSW Land and Housing Corporation

(2008) 72 NSWLR 674; [2008] NSWCA 277

NSW Court of Appeal

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Catchwords

1. Residential Tenancies
2. › Termination of residential tenancy agreement
3. › Social housing premises
4. › Breach involving use of premises for manufacture or sale of prohibited drugs
5. › Nature of power conferred on Tribunal
6. › Whether obligatory or discretionary power
7. › Matters Tribunal required to consider
8. › Whether 'circumstances of the case' limited to 'special circumstances'
9. › Residential Tenancies Act 1987 (NSW), ss 23, 57, 64
1. Appeals
2. › Appeal on question of law from Consumer, Trader and Tenancy Tribunal
3. › Whether Tribunal decided question with respect to matter of law
4. › Scope of appellate powers
5. › Whether s 75A of Supreme Court Act 1970 (NSW) displaced by s 67 of Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
6. › Whether Court can make findings of fact on appeal on question of law
7. › Whether Court can make orders about constitution of Tribunal on remitter
8. › Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 67
9. › Supreme Court Act 1970 (NSW), s 75A
1. Statutory Interpretation
2. › Construction of statutory power
3. › Whether power obligatory or discretionary
4. › 'Has effect subject to any Act'
5. › Relationship between general and specific statutory provisions
6. › Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 67
7. › Supreme Court Act 1970 (NSW), s 75A
1. Administrative Law
2. › Tribunal decision-making
3. › Failure to apply correct legal test
4. › Failure to consider relevant considerations
5. › Consequences of legal error
6. › Whether matter should be remitted or determined by appellate court

Quick Take

The power under s 64(2) of the Residential Tenancies Act 1987 (NSW) to terminate a residential tenancy agreement is obligatory, not discretionary — once the Tribunal forms the evaluative opinion that the breach in the circumstances of the case justifies termination, it must make the order. The 'circumstances of the case' encompass all aspects of the particular case, not merely 'special circumstances', and must be considered as part of the evaluative judgment whether the breach justifies termination, not as a separate discretionary step after a termination decision has been reached. On an appeal on a question of law under s 67 of the CTTT Act, s 75A of the Supreme Court Act 1970 (NSW) has no operation, and the Court cannot make findings of fact or draw inferences.