Gavin v Redford & O'Shea [2020] NSWCATAP 54 | Case summary

What happened

This appeal concerned an interlocutory Tribunal order which removed a co-tenant, Mr Jamie O'Shea, as a respondent from residential tenancy proceedings brought by the landlord. The tenancy, entered into by Ms Serena Gavin and Mr O'Shea on 18 September 2018, ended on 7 July 2019 under a Domestic Violence Termination Notice (REASONS [5], [3]). By that time Ms Gavin and her children were occupying the premises; Mr O'Shea had left the property in September 2018 (REASONS [4]).

In January 2019 Mr O'Shea emailed the landlord's agent saying he no longer resided at the premises and wished to have his name removed from the lease (REASONS [6]). No formal consent from the landlord or the other tenant to remove his name was recorded. The landlord commenced proceedings on 27 August 2019 initially against Mr O'Shea only; following a Group List and Conciliation hearing on 18 September 2019 the Tribunal added Ms Gavin as a party (REASONS [7]).

On 23 October 2019 a hearing occurred in which the Tribunal, relying on the tenancy agreement, written communications in January 2019, and oral evidence from the landlord's agent, concluded that Mr O'Shea was not a tenant from 29 January 2019 and recorded this as Order 7 (REASONS [8]–[9]). On 22 November 2019 the Tribunal amended Order 7 under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) to remove Mr O'Shea as a respondent. Ms Gavin appealed that amendment (REASONS subsequent para 3).

The appeal was lodged late (18 December 2019) but the Appeal Panel accepted Ms Gavin's statutory declaration explaining delay, and extended time. The Panel found the Tribunal had committed plain errors of law by treating non-residence as terminating a co-tenancy and by failing to consider the statutory mechanisms in the Residential Tenancies Act 2010 (NSW), particularly ss 101 and 102 (Disposition [2]–[7]). The Appeal Panel allowed the appeal, set aside the order removing Mr O'Shea as a respondent, and left open whether the Tribunal might, upon proper application, order termination of the co-tenancy (Orders; Disposition [9]).

Why the court decided this way

The Appeal Panel's decision turns on two core legal and procedural defects in the Tribunal's handling of Order 7.

Fact versus law: the Tribunal established, on evidence, that Mr O'Shea had ceased residing at the property from about the end of January 2019. The Appeal Panel accepted that factual finding. However, the Panel emphasised the legal point that cessation of residence is not, in itself, a recognised legal ground for termination of a co-tenancy (Disposition [3]). The Tribunal treated a factual change (non-residence) as effecting a legal change (termination of co-tenancy) without identifying the legal mechanism permitting that conclusion.
Failure to identify statutory mechanism: the RTA contains specific provisions dealing with termination of a co-tenancy: s 101 (termination by notice from a co-tenant where tenancy has ended or is periodic) and s 102 (termination by order of the Tribunal on application by a co-tenant in special circumstances) (Disposition [5]–[6]). The Appeal Panel found the Tribunal did not proceed under s 102 nor under any consensual termination; indeed, the Tribunal had not asked itself what legal basis justified termination of the co-tenancy before treating Mr O'Shea as no longer a tenant (Disposition [4], [7]). Because the operative legal route was not identified or applied, the Tribunal's removal of Mr O'Shea as respondent was legally unsupported.

Given those plain errors of law, the Appeal Panel concluded leave to appeal should be granted and allowed the appeal. The Panel limited its decision to setting aside the respondent-removal order; it expressly declined to decide whether the Tribunal could, on proper application, order termination of the co-tenancy before 7 July 2019 (Disposition [9]).

The Panel also addressed procedural aspects: the order appealed from was interlocutory, so leave to appeal was required; the Panel referred to the usual limitations on interlocutory appeals and cited Champion Homes Pty Ltd v Guirgis to underscore that context, but found the legal errors justified intervention and extension of time (Disposition [1], [8]).

Before and after state of the law

Before this decision: The statutory framework for termination of co-tenancies in New South Wales was already set out in the RTA: s 101 for certain notices by co-tenants, and s 102 for Tribunal-ordered termination on application by a co-tenant. The decision clarifies the application boundary between factual non-residence and legal termination.

After this decision: The Appeal Panel affirms that a Tribunal must identify and rely upon the statutory mechanisms in the RTA before making an order that effectively removes a co-tenant as a party. Practically, decisionmakers should not infer termination from conduct or non-residence alone. The decision reinforces procedural safeguards for parties in residential tenancy proceedings: removal of a respondent requires a legal foundation, and failure to apply the correct statutory provision will be treated as a plain error of law permitting appellate correction, including setting aside interlocutory orders.

The decision therefore tightens Tribunal practice: when a party asserts termination of co-tenancy, the Tribunal must either be satisfied that the statutory process (e.g. s 102 on application) has been followed, or that there has been a consensual termination; otherwise the Tribunal should not make orders that remove parties solely on factual grounds.

Key passages with plain-English translation

Disposition [2]: "We were satisfied that central to the decision were plain errors of law."
- Plain English: The Panel found fundamental legal mistakes in the Tribunal's reasoning which justify overturning the order.
Disposition [3]: "The conclusion ... followed from the established fact that Mr O'Shea had ceased to reside ... However, that in itself is not a ground for termination of a co-tenancy."
- Plain English: Just because someone stops living in the rental property does not automatically cancel their tenancy. The Tribunal needed a legal reason to end the co-tenancy, not just evidence that the person moved out.
Disposition [4]: "The Tribunal failed to ask itself the question as to what was the legal basis for termination of a co-tenancy."
- Plain English: The Tribunal did not consider what law (which statutory power) allowed it to find the co-tenancy had ended.
Disposition [6]: "Section 102 makes provision for the termination of a co-tenancy by order of the Tribunal ... upon an application by a co-tenant."
- Plain English: If a co-tenant wants the Tribunal to end the co-tenancy, there is a specific statute (s 102) that sets out how the Tribunal can do that, namely after an application and where it considers it appropriate in the circumstances.
Disposition [9]: "In setting aside the order ... we express no view as to whether the Tribunal can, or should, make any order terminating the co tenancy ... upon any application by Mr O'Shea ..."
- Plain English: The Appeal Panel only fixed the legal error; it did not decide whether, on the correct process, the Tribunal should or could have terminated the co-tenancy earlier.

What fact patterns trigger this precedent

This decision is directly engaged where:

Two or more people are co-tenants under a written lease and one co-tenant moves out but does not formally terminate the lease by the statutory method or by agreement.
A Tribunal or decision-maker seeks to remove a co-tenant from proceedings, or otherwise treat them as no longer a tenant, on the basis of communications or evidence that they no longer reside at the premises, without the Tribunal considering and applying the statutory termination provisions (RTA ss 101–102).
Landlords bring claims against one or more co-tenants for damages or bond recovery after a tenancy ends, and there is a factual dispute or procedural irregularity about who remains a tenant or party to those claims.
Interlocutory orders are made that effectively determine party status based on factual findings rather than legal process.

Practitioners should invoke this authority when facing Tribunal orders that remove parties in tenancy contexts without explicit statutory basis; they should also ensure that where a co-tenant wants conversion of status, a proper application under s 102 or consensual agreement is before the Tribunal.

How later courts have treated it

The present decision itself is an Appeal Panel determination that restates basic statutory construction principles and administrative fairness. It expressly cited Champion Homes Pty Ltd v Guirgis to frame limits on interlocutory appeals, but otherwise does not cite further authorities (Disposition [1]; PrecedentRelationships). The decision will operate as persuasive appellate guidance within NCAT practice, particularly for General Members and registrars who manage party joinder and removal at interlocutory stages.

Subsequent panels and members should follow the same approach: do not conflate evidentiary facts (non-residence) with legal cessation of tenancy; identify and apply the correct RTA provision before amending parties. Where orders are made without that legal foundation, they will be vulnerable to successful interlocutory appeal if the error is plain and the applicant can justify extension of time where necessary.

Still-open questions

The Panel expressly declined to decide whether the Tribunal could have lawfully terminated the co-tenancy prior to 7 July 2019 if an appropriate application under s 102 had been made and determined (Disposition [9]). That remains an open question for a properly constituted application and decision, fact-dependent and requiring the Tribunal to assess "special circumstances" and appropriateness under s 102.
The decision leaves open how s 101 might interact in borderline cases where a co-tenant purports to give notice in circumstances of a fixed-term lease. Disposition [5] notes s 101 is not applicable to this factual situation, but the precise scope of s 101 in other contexts may still require authoritative elaboration.
The correct procedural path and evidentiary threshold for a Tribunal to treat a co-tenant as no longer a party remains untested in contested cases where a tenant has both ceased residence and given communications indicating an intention to terminate, but no formal application under s 102 was made. Practitioners should ensure applications or consents are formally before the Tribunal.

Practical takeaway for practitioners: Where a co-tenant has moved out, do not assume their tenancy has ended. If party status or liability depends on that question, either secure a consensual termination, or bring and determine the appropriate s 102 application so that any Tribunal order removing a party is founded on a proper statutory basis.

Judgment (4 paragraphs)

[1]

REASONS FOR DECISION

These are our reasons for decision made on 16 March 2010 to extend the time for lodging the appeal and to grant leave to appeal and to allow the appeal.
The appellant, Ms Gavin, appealed from an order made on 22 November 2019 removing her ex-husband, Mr O'Shea, as one of two respondents in residential tenancy proceedings. Those proceedings were brought by the landlord against both the appellant and her ex-husband as former tenants of a property in Hamlyn Terrace, NSW.
The proceedings commenced by the landlord were concerned, in part, with a claim for damages in relation to the condition of the premises at the conclusion of the tenancy. The tenancy came to an end on 7 July 2019 pursuant to statutory provisions in Division 3A of Part 5 of the Residential Tenancies Act 2010 (NSW) ('RTA') concerned with termination of a tenancy as a result of a Domestic Violence Termination Notice. As required, this notice was given to both the landlord and to Mr O'Shea, as co-tenant.
At this time, when the tenancy came to an end, Ms Gavin and her three children were the only people living at the property. Mr O'Shea had moved out of the premises in September 2018 following the breakdown of the marriage.
As co-tenants, Ms Gavin and Mr O'Shea had entered into a new written one year lease of the property on 18 September 2018. Accordingly, the termination occurred during the fixed term of the lease.
Prior to termination of the tenancy, in January 2019, Mr Gavin, unilaterally, sought to have himself removed as a co-tenant. In late January 2019 he had email communications with the landlord's agent about requesting to be removed and he sent a signed letter to the agent stating that he had separated from the appellant; he had not resided at the property since the beginning of September 2018; and he wished to have his name taken off the lease since he was not residing there anymore. No consent to that occurring was communicated by the landlord or the appellant.
On 27 August 2019, the landlord commenced proceedings in the Tribunal, against Mr O'Shea only, seeking compensation and an order in respect of the rental bond. Following a Group List and Conciliation hearing in the Tribunal on 18 September 2019 at which both Mr O'Shea and the landlord's agent appeared, an order was made by the Tribunal adding the appellant as a party to the proceedings.
A hearing of the Tribunal took place on 23 October 2019 at which various orders were made, including an order that the hearing was adjourned to a date to be fixed. Mr O'Shea was not in attendance. It seems that he never personally received notice of the hearing. Ms Gavin appeared by telephone. The landlord's agent appeared in person.
At this hearing, following an exchange with the landlord's new agent, the Tribunal came to the view that Mr O'Shea was no longer a tenant of the property as from 29 January 2019. In the orders that were made on that occasion, Order 7 was in terms: The Tribunal finds that Jamie O'Shea was not the tenant from 29 January 2019. Reasons: Having considered all of the documentary and verbal evidence, an email from Jamie O'Shea to the landlord confirms that he no longer resides at the premises as of 29 January 2019. This email was forwarded to the other tenant as evidenced by her email to the Tribunal on 22 October 2019. The only rent allegedly owing is $222.41.
It appears from the transcript of the hearing that the evidentiary basis for the Tribunal's conclusion about Mr O'Shea's position as a tenant was the tenancy agreement; the written communications in January 2019 in which he said he no longer resided at the premises and wished to be taken off the lease; and oral evidence from the landlord's agent that the landlord acknowledged that Mr O'Shea had not resided at the property since at least January 2019 and that Mr O'Shea had told the Tribunal on 18 September 2019 that this was the position.
We note here that the Tribunal's conclusion was not made upon any application by Mr O'Shea nor did it follow from any express consideration of the legal test to be applied.
Subsequently, on 22 November 2019, an order was made by the Tribunal under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) amending Order 7 so that it had added to it an order that Mr O'Shea was to be removed as a respondent. It is from this order that the appellant now appeals.
The appeal was not lodged until 18 December 2019 which was beyond the permitted 14 days (an amended Notice of Appeal was lodged on 17 January 2020). The delay has been explained by Ms Gavin in a Statutory Declaration made on 13 February 2020 the correctness of which we accept. In essence, Ms Gavin was not aware of the significance of Order 7 and of her appeal opportunity until she received advice from Legal Aid after the next hearing of the Tribunal on 9 December 2019. She also describes a medical condition that has continued to affect her.
We were informed that on 7 January 2020 the proceedings at first instance were adjourned pending the determination of this appeal.

[2]

Disposition of the appeal

We considered the written and oral submissions made by Ms Bradfield for the appellant and those made by, or on behalf, of Mr O'Shea. We have borne in mind that the order appealed from was an interlocutory order and the limitations that should be applied when considering whether to uphold such an appeal, including that leave to appeal is required: s 80 (2) (a) of the NCAT Act; Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54.
However, we were satisfied that central to the decision were plain errors of law.
In the first place, it is clear that the conclusion about Mr O'Shea not being a co-tenant followed from the established fact that Mr O'Shea had ceased to reside at the premises from, at least, the end of January 2019. However, that in itself is not a ground for termination of a co-tenancy.
Secondly, the Tribunal failed to ask itself the question as to what was the legal basis for termination of a co-tenancy.
As pointed out by Ms Bradfield in her written submissions, the RTA contains provisions concerning the termination of a co-tenancy; ss 101 and 102. The former section (s 101) makes provision for the termination by notice from a co-tenant of a residential tenancy where a fixed term has expired or where the tenancy is a periodic one. This is not applicable to the current situation.
Section 102 makes provision for the termination of a co-tenancy by order of the Tribunal, from a date specified in the order, upon an application by a co-tenant. In such a case, the Tribunal has the power to terminate "if it is of the opinion that it is appropriate to do so in the special circumstances of the case".
It is clear that the Tribunal was not proceeding under this power. Nor was the Tribunal proceeding under any consideration of a consensual termination of the co-tenancy by the parties.It is also clear that the Tribunal was not proceeding under any law concerned with the termination of the residential tenancy itself.
Bearing in mind the clear merits of the appeal, the explanation for delay and the relatively short period of delay (12 days), we decided to grant the necessary extension of time in which to lodge the appeal: s. We did so on the basis that, given the order appealed from was made in residential tenancy proceedings, an appeal was required to be lodged within 14 days of 22 November 2019.

[3]

Orders For the above reasons, the following orders were made: 1. Extend the time for lodging the appeal to 18 December 2019 2. Grant leave to appeal and allow the appeal. 3. Order 7 of the amended orders made on 22 November 2019, amending orders made on 23 October 2019, that Jamie O'Shea is removed as a respondent is set aside.

[4]

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2020

Gavin v Redford & O'Shea

At a glance

Result

Key principles

Issues before the court

Plain English Summary

Cited legislation

Deep Dive

What happened

Why the court decided this way

Before and after state of the law

Key passages with plain-English translation

What fact patterns trigger this precedent

How later courts have treated it

Still-open questions

Judgment (4 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)

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