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Benchmark - Real Estate Cases & Commentary
Procedure
    •  Consumer, Trader and Tenancy Tribunal
        -  Jurisdiction
            >  NEW Where issue already before Supreme Court
            >  Where equitable interest in property exists



Where issue already before Supreme Court 

The tenants had been long-term tenants at the premises. The landlord first commenced proceedings in 2005 seeking termination of the tenancy on the ground that the premises were being sold. The tenants had alleged that the premises were “protected premises” under the Landlord & Tenants (Amendment) Act 1948.

The proceedings had been transferred to the Supreme Court, which ultimately held that the premises were not protected premises. An appeal against this decision had been heard, but the decision was reserved at the time of the Tribunal’s decision.

In 2006, the tenants also commenced proceedings in the Tribunal resisting a rent increase notice that had been served by the landlord. Those claims had been adjourned under s 22 of the Consumer Trader & Tenancy Tribunal Act 2001 (NSW), which provides that if an issue arising under an application to the Tribunal is also being dealt with by a court, the Tribunal, on becoming aware of the court proceedings, ceases to have jurisdiction to determine the issue.

The landlord began new proceedings in the Tribunal, asking for orders that the communal laundry be made available for all tenants, that the dogs being kept by the tenants be removed from the premises, and that an order in relation to the correct rent be backdated.

The Tribunal held that the issue with respect to rent was before the court, and so the Tribunal did not have jurisdiction to decide it.

However the Tribunal held that the orders in relation to the keeping of animals, and the use of the laundry common property, had nothing to do with the matters before the Supreme Court. Therefore the Tribunal held that it did have jurisdiction to make those orders and it made them.

Kopas v Celermajer Holdings Pty Ltd [2012] NSWCTTT 46



Where equitable interest in property exists 

In this case, a landlord sought termination of a residential tenancy.

The residential tenancy agreement was for a period of seven years. The landlord issued a notice of termination at the end of the fixed term, and the tenant did not vacate.

The landlord therefore sought orders from the Tribunal terminating the tenancy.

The tenant asserted that he had an equitable interest in the property. Therefore, the tenant contended, the Tribunal did not have jurisdiction to determine the application for termination of the tenancy.

The Tribunal pointed out that: as both parties agreed, the Tribunal certainly had no jurisdiction to determine the issue of whether the tenant had an equitable interest in the property. However, the Tribunal also pointed out that the tenant was at liberty to pursue that claim of an equitable interest in an appropriate jurisdiction.

However, the Tribunal had the jurisdiction to determine the application for termination, and the Tribunal held that those proceedings should continue, notwithstanding that the tenant might also make a claim in another Court that he had an equitable interest in the property.

Harris v Harris [2011] NSWCTTT 201