Property

Uren v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 30

From the Federal Court of Australia:

ADMINISTRATIVE LAW– whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra viress 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrumentcommenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth)

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of discretion in s 94 of theResidential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence

CONSTITUTIONAL LAW– separation of judicial and executive powers – whereResidential Tenancies Act 2010 (NSW) conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of theConstitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of 20 years or more – whether errors in primary judge’s exercise of discretion in s 94 of theResidential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence

David Rayment appeared for the Commonwealth.

Leahy v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 21

From the Federal Court of Australia:

ADMINISTRATIVE LAW – whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra vires s 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrument commenced before the day the Instrumentwas registered for the purposes of s 12 of the Legislation Act 2003 (Cth)

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010(NSW) that it was appropriate to make a termination order for a residential tenancy agreement – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence

CONSTITUTIONAL LAW – separation of judicial and executive powers – where Residential Tenancies Act 2010(NSW) conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of the Constitution – whether it was beyond the legislative power of the Parliament to make s10AA of the Federal Circuit Court of Australia Act 1999 (Cth)and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of 20 years or more –whether predominant use of premises for the purposes of agriculture within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence     

David Rayment appeared for the Commonwealth.

Findlay v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 20

From the Federal Court of Australia:

ADMINISTRATIVE LAW – whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra vires s 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrument commenced before the day the Instrumentwas registered for the purposes of s 12 of the Legislation Act 2003 (Cth)

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010(NSW) that it was appropriate to make a termination order for a residential tenancy agreement – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence

CONSTITUTIONAL LAW – separation of judicial and executive powers – where Residential Tenancies Act 2010(NSW) conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of the Constitution – whether it was beyond the legislative power of the Parliament to make s10AA of the Federal Circuit Court of Australia Act 1999 (Cth)and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of 20 years or more – whether errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – whether unresolved claim for compensation under s 187 of theResidential Tenancies Act 2010 (NSW), as the applicable law, for modifications to residence

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence      

David Rayment appeared for the Commonwealth.

Tucev v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 19

From the Federal Court of Australia:

ADMINISTRATIVE LAW – whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra vires s 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrument commenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth)

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence

CONSTITUTIONAL LAW – separation of judicial and executive powers – where Residential Tenancies Act 2010 (NSW) conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of theConstitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth)and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of 20 years or more – whether predominant use of premises for the purposes of agriculture within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence

David Rayment appeared for the Commonwealth.

Rigney v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 18

From the Federal Court of Australia:

ADMINISTRATIVE LAW – whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra vires s 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrument commenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth)

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence

CONSTITUTIONAL LAW – separation of judicial and executive powers – where Residential Tenancies Act 2010 (NSW) conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of theConstitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth)and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of 20 years or more – whether predominant use of premises for the purposes of agriculture within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence

David Rayment appeared for the Commonwealth.

Lukic v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 29

From the Federal Court of Australia:

ADMINISTRATIVE LAW– whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra viress 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrumentcommenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth)

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of discretion in s 94 of theResidential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence

CONSTITUTIONAL LAW– separation of judicial and executive powers – whereResidential Tenancies Act 2010 (NSW) conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of theConstitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of 20 years or more – whether predominant use of premises for the purposes of agriculture within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of discretion in s 94of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence

David Rayment appeared for the Commonwealth.

Jelfs v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 27

From the Federal Court of Australia

ADMINISTRATIVE LAW– whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra viress 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrumentcommenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth)

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of discretion in s 94 of theResidential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence

CONSTITUTIONAL LAW– separation of judicial and executive powers – whereResidential Tenancies Act 2010 (NSW) conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of theConstitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of 20 years or more – whether errors in primary judge’s exercise of discretion in s 94 of theResidential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence

David Rayment appeared for the Commonwealth.

Carr v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 26

From the Federal Court of Australia:

ADMINISTRATIVE LAW– whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra viress 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrument commenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth)

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of power under s 85 of theResidential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015(Cth) – whether error in appropriate date for vacant possession – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence

CONSTITUTIONAL LAW– separation of judicial and executive powers – whereResidential Tenancies Act 2010 (NSW) conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of theConstitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of less than 20 years – whether predominant use of premises for the purposes of agriculture or business within s 7(h) of theResidential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of power under s 85of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015(Cth) – whether error in appropriate date for vacant possession

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence

David Rayment appeared for the Commonwealth.

Watkins v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 25

From the Federal Court of Australia:

ADMINISTRATIVE LAW– whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra viress 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrument commenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth)

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of power under s 85 of theResidential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015(Cth) – whether error in appropriate date for vacant possession – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence

CONSTITUTIONAL LAW– separation of judicial and executive powers – whereResidential Tenancies Act 2010 (NSW) conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of theConstitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of less than 20 years – whether predominant use of premises for the purposes of agriculture or business within s 7(h) of theResidential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of power under s 85of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015(Cth) – whether error in appropriate date for vacant possession

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence

David Rayment appeared for the Commonwealth.

Minici v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 24

From the Federal Court of Australia:

ADMINISTRATIVE LAW– whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra viress 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrumentcommenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth)

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of discretion in s 94 of theResidential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence

CONSTITUTIONAL LAW– separation of judicial and executive powers – whereResidential Tenancies Act 2010 (NSW) conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of theConstitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of 20 years or more – whether predominant use of premises for the purposes of agriculture within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of discretion in s 94of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence

David Rayment appeared for the Commonwealth.

Shirvington v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 23

From the Federal Court of Australia:

ADMINISTRATIVE LAW– whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra viress 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrumentcommenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth)

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of discretion in s 94 of theResidential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence

CONSTITUTIONAL LAW– separation of judicial and executive powers – whereResidential Tenancies Act 2010 (NSW) conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of theConstitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of 20 years or more – whether predominant use of premises for the purposes of a business within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of discretion in s 94of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence

David Rayment appeared for the Commonwealth.

Shirvington v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 22

From the Federal Court of Australia:

ADMINISTRATIVE LAW– whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra vires 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrument commenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth)

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of power under s 85 of theResidential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015(Cth) – whether error in appropriate date for vacant possession – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence

CONSTITUTIONAL LAW– separation of judicial and executive powers – where Residential Tenancies Act 2010 (NSW) conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of the Constitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of less than 20 years – whether predominant use of premises for the purposes of agriculture or business within s 7(h) of theResidential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of power under s 85of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015(Cth) – whether error in appropriate date for vacant possession

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence

David Rayment appeared for the Commonwealth.

Stephens v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 31

In the Federal Court of Australia (Full Court):

ADMINISTRATIVE LAW – whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra vires s 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrument commenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth)

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of power under s 85 of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) – whether error in appropriate date for vacant possession – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence

CONSTITUTIONAL LAW – separation of judicial and executive powers – where Residential Tenancies Act 2010 (NSW) conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of the Constitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of less than 20 years – whether predominant use of premises for the purposes of agriculture or business within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of power under s 85 of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) – whether error in appropriate date for vacant possession

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence

David Rayment appeared for the Commonwealth.

Dattilo v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 17

ADMINISTRATIVE LAW – whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra vires s 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of aCommonwealth tenancy dispute – whether a provision of the Instrument commenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth)

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence

CONSTITUTIONAL LAW – separation of judicial and executive powers – whereResidential Tenancies Act 2010 (NSW)conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of the Constitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court (CommonwealthTenancy Disputes) Instrument 2015 (Cth)

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of 20 years or more – whether predominant use of premises for the purposes of agriculture within s 7(h) of theResidential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence 

Patrick Kenney v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 16

ADMINISTRATIVE LAW – whether theFederal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra vires s 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrument commenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth)

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of power under s 85 of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) – whether error in appropriate date for vacant possession – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence

CONSTITUTIONAL LAW – separation of judicial and executive powers – whereResidential Tenancies Act 2010 (NSW)conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of the Constitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of less than 20 years – whether predominant use of premises for the purposes of agriculture or business within s7(h) of the Residential Tenancies Act 2010(NSW) – whether errors in primary judge’s exercise of power under s 85 of theResidential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) – whether error in appropriate date for vacant possession

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence

Riva NSW Pty Ltd v Key Nominees Pty Ltd [2016] NSWSC 1569

PROPERTY – earlier order that plaintiffs may only commence proceedings seeking relief concerning 2006 mortgagee sale with leave – whether leave should be granted – whether leave should be subject to terms that plaintiffs pay all outstanding costs orders and provide security for the costs of proposed proceedings

Richard Parsons and Madeleine Bridgett appeared for the defendant.

Nelmeer Ashfield Pty Ltd v Farah [2016] NSWSC 279

CONTRACTS - Retail Leases Act 1994 (NSW) – nature of inconsistency with terms of head lease required by s 16(5) of Retail Leases Act
  
CORPORATIONS – head lessor and lessee had common shareholders and directors – no sham, fraud or device alleged – terms of head lease inconsistent with 5-year sub-lease
  
APPEAL – leave to appeal – Appeal Panel distinguished binding authority of Conoid Pty Ltd v International Theme Park Pty Ltd [2000] NSWCA 189 on erroneous basis – matter of sufficient importance to warrant a limited grant of leave

Robert Angyal SC appeared for the successful appellant.

Hacienda Caravan Park Pty Ltd v Denley [2016] NSWCATAP 23

ADMINISTRATIVE LAW - Appeal Residential Parks Act- residential tenancy agreement, jurisdiction to determine rent dispute - Reasons- Adequacy of reasons

LEGISLATION - Civil and Administrative Tribunal Act, 2013 - Civil and Administrative Tribunal Rules, 2014, Holiday Parks (Long-term Casual Occupation) Act, 2002 - Residential Parks Act, 1998

Michelle McMahon appeared for the successful respondent

Stephens & Ors v Commonwealth of Australia (No.2) [2015] FCCA 3404 & related cases

ADMINISTRATIVE LAW – Commonwealth tenancy dispute – purported representative action – tenancies terminated in concurrent proceeding – application dismissed.

David Rayment appeared for the Commonwealth of Australia

Related Cases:

Commonwealth of Australia v Stephens [2015] FCCA 3403

Commonwealth of Australia v Pries [2015] FCCA 3411 

Commonwealth of Australia v Rickwood [2015] FCCA 3412

Commonwealth of Australia v Frost [2015] FCCA 3397

Commonwealth of Australia v Patrick & Anor [2015] FCCA 3413