Lander v New South Wales Land and Housing Corporation

1. At the conclusion of the hearing of the appeal in this residential tenancy matter we made an order in the terms set out in the cover sheet disposing of this appeal. We said that written reasons for decision would be issued in due course. These are the written reasons for decision.
2. The order was made with the consent of the appellant, and it was not opposed by the respondent. It was made after a short hearing on 27 August 2025. Near the commencement of that hearing we raised with the parties a proposed approach to the disposition of the appeal having regard to the clear and uncontroversial jurisdictional problems in relation to the decision. These problems emerged from the parties' written submissions.
3. In view of the jurisdictional problems, it is unnecessary for us to set out in any detail the nature and history of the dispute between the parties, the reasons for decision by the Tribunal or the extensive written submissions on a range of subjects that have been made by the parties.
4. The proceedings the subject of the appeal consisted of a claim by the appellant for compensation in respect of what was alleged to be a wrongful eviction of the appellant (tenant) by the respondent (landlord) in December 2021.
5. It was uncontroversial that the civil claim for damages for breach of contract was commenced well after the time limit for the commencement of such an action had expired. This was the three- month time limit prescribed by s 190 (1) of the Residential Tenancies Act 2010 (NSW) (RTA) and Regulation 39 (9) of the Residential Tenancies Regulation 2019 (NSW). The time limit issue was not addressed by the Tribunal even though the appellant had applied for an extension of time in which to bring the action. Nevertheless, the appellant did not raise on appeal any contention that the Tribunal erred by failing to grant the required extension of time in which to bring the action.
6. There was also a second ground upon which the appellant had sought compensation for the alleged wrongful eviction. This was a claim under s 120 (2) of the RTA. The Tribunal upheld this claim. However, on the appeal it was uncontroversial that the Tribunal had no jurisdiction in respect of this claim in view of the criminal nature of the proceedings dealt with in this section.
7. In spite of these jurisdictional obstacles the Tribunal proceeded to determine the merits of the claim, including making findings of fact. However, it had no jurisdiction to proceed in this fashion. The order made reflects a decision on the merits and must be set aside.
8. At the heart of this appeal was a challenge to the correctness of a central finding of fact in determining the merits, namely a finding that the appellant had abandoned the premises. However, the more fundamental problem was that the Tribunal had no jurisdiction to proceed to determine the merits. This is as far as we should go on the appeal in respect of the findings of fact made by the Tribunal, including this central finding of fact. The appellant invited us to go further in respect of its challenge to this central finding of fact but it is not appropriate that we do so in view of the absence of jurisdiction and the role of the Appeal Panel which does not extend to giving advisory opinions.
9. Order

(1) The decision made by the Tribunal on 28 March 2025 that "The application is dismissed because having considered the material before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders have been established" is set aside and in lieu thereof the application is dismissed for want of jurisdiction.

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.