Brennan v New South Wales Land and Housing Corporation;New South Wales Land and Housing Corporation v Brennan

(2011) 83 NSWLR 23; [2011] NSWCA 298

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Procedural fairness
4. › Reasonable opportunity to be heard
5. › Failure to be notified of proceedings
6. › Whether statutory scheme deems notice to have been given
7. › Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 25(2)
8. › Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW), cl 50(2)
1. Statutory Interpretation
2. › Subordinate legislation
3. › Inconsistency between regulation and Act
4. › Effect of regulation providing means of service
5. › Which provision prevails
6. › Reading which permits opportunity to be heard preferred
7. › Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 78(4)
8. › Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW), cl 50
9. › Interpretation Act 1987 (NSW), ss 5, 76
1. Administrative Law
2. › Judicial review
3. › Jurisdictional error
4. › No evidence ground
5. › Whether findings of fact constituted jurisdictional facts
6. › Whether state of satisfaction as jurisdictional fact
7. › Residential Tenancies Act 1987 (NSW), s 64
1. Administrative Law
2. › Judicial review
3. › Relationship between statutory appeal and supervisory jurisdiction
4. › Whether judgment on limited statutory appeal inconsistent with judicial review on different grounds
5. › Whether District Court judgment should be set aside
6. › Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 65, 67

Quick Take

A regulation deeming service by post to have been effected on a specified day does not create an irrebuttable presumption of service where the Interpretation Act 1987 (NSW), s 76, permits evidence to be adduced to the contrary. Where a party can demonstrate they did not receive notice of a hearing, the deeming provision in cl 50(4) of the CTTT Regulation does not satisfy the requirements of procedural fairness. The relevant jurisdictional fact under s 64(2) of the Residential Tenancies Act is the Tribunal's state of satisfaction that the breach justifies termination, not the individual factual findings underlying that satisfaction. A District Court's dismissal of a statutory appeal on limited grounds does not preclude the Supreme Court from setting aside the underlying decision on different grounds in its supervisory jurisdiction.