Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sorba v Liu [2020] NSWCATAP 235 Hearing dates: 9 November 2020 Date of orders: 16 November 2020 Decision date: 16 November 2020 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member R Titterton OAM, Senior Member Decision: The appeal is dismissed. Catchwords: LANDLORD AND TENANT – residential tenancies legislation – abandonment by the tenant – landlord's remedies on abandonment – compensation – discretion to refuse – discretion not exercised ADMINISTRATIVE LAW – NSW Civil and Administrative Tribunal - appeal from discretionary decision - House v R errors – alleged error that result so unreasonable or unjust that error must have occurred premised on the reasons not explaining the result reached Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 5(7) Residential Tenancies Act 2010 (NSW), s 107 Cases Cited: Abdel-Messih v Marshall [2018] NSWSC 648 Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 House v R [1936] HCA 40; (1936) 55 CLR 499 Texts Cited: None cited Category: Principal judgment Parties: Ismail Sorba (Appellant) Jane Liu (Respondent) Representation: Solicitors: M Kocak (Appellant) Respondent (Self Represented) File Number(s): AP 20/37328 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 14 August 2020 Before: D Harvey, General Member File Number(s): RT 20/27513 and RT 20/18828 REASONS FOR DECISION 1. This is an appeal by a tenant against an order made by the Tribunal ordering him to pay the sum of $2,580.00 to the landlord as a break lease fee arising from the tenant's abandonment of the premises. 2. We dismiss the appeal for the reasons that follow. Background 1. The appellant was a tenant of residential premises owned by the respondent and situated at Gwynneville, NSW. 2. There was no dispute in the proceedings that the parties had entered into a written residential tenancy agreement for a fixed term of six months commencing on 6 February 2020 and ending on 5 August 2020. There was no dispute that the appellant moved out of the premises on 30 April 2020 and returned the keys to the respondent on 14 May 2020. 3. In proceedings RT 20/18828 the appellant sought orders for the return of his bond because the premises were alleged to have been in an "unliveable state". 4. In proceedings RT 20/27513 the respondent sought orders for the payment of a break fee and various other orders not relevant to this appeal. 5. The two proceedings were heard together and determined by the Tribunal on 14 August 2020. 6. The appellant did not appear at the hearing although the Tribunal was satisfied that he had been given notice of the hearing. The Tribunal attempted to make telephone contact with the appellant on the day of the hearing but was unsuccessful. 7. It is clear from the Tribunal's reasons that it had before it, and took into consideration, documentary material which had been lodged by the appellant in preparation for the hearing including what amounted to written submissions made by the appellant. 8. It is clear that the Tribunal considered that material because reference is made to various matters which could only have come from such material (see, for example, references to such material in the quote from the Tribunal's reasons set out at [12] below). 9. The Tribunal decided that it satisfied that the appellant abandoned the premises on 30 April 2020, which was within the first half of the tenancy, and was therefore prima facie liable to the respondent for a break fee of $2,580.00. 10. As to the appellant's defence to that claim the Tribunal's reasons were as follows: "The tenant submits, in effect, that he was forced to leave the premises because the landlord delayed in repairing water ingress issues as evidenced by the text messages between the parties (including between approximately 1 April 2020 and 29 April 2020). The Tribunal is satisfied that this delay in repairing water ingress and consequential damage) was a breach by the landlord. Notwithstanding this breach and the tenant's claims that the landlord was in breach of her obligations under the agreement and Act in relation to other matters, the tenant did not take action that was permitted under the agreement and Act. The tenant's evidence indicates that he was in contact with the Office of Fair Trading prior to moving out of the premises. The tenant had several options available to him to address the breach and alleged breaches; including an application to the Tribunal for repairs, a rent reduction (se section [sic] and termination of the tenancy, including for hardship (see sections 103 and 104 of the Act). Further, the tenant had the option to serve the landlord a Notice of Termination for the breach(es) giving 14 days notice and vacate the premises (subject to any application the landlord made to the Tribunal) (see section 98 of the Act). The Tribunal is not of the view that the above breach (water ingress), and the other alleged breaches are of such a serious nature (for example, to amount to a frustration of the contract) to warrant the exercise of discretion in favour of the tenant; that is by not allowing the break lease fee. The Tribunal is satisfied that the tenant is liable for the 6 week break lease fee, that is $2580.00. The landlord claims rent arrears and relies on a rent ledger which evidences that rent is paid to 29 April 2020. The tenant has not submitted evidence to dispute the ledger. The landlord claims rent arrears between 30 April 2020 and 14 May 2020 when the keys were returned. The tenant states that the keys were not returned earlier because the landlord (via her partner) did not make herself available to collect the keys. The landlord does not dispute the tenant's version of events and does not rely on a statement from her partner to dispute the tenant's version. In these circumstances, the Tribunal finds that there is no rent arrears owing between 30 April 2020 and 14 May 2020." 1. The discretion referred to by the Tribunal is the discretion available to the Tribunal under s 107 of the Residential Tenancies Act 2010 (NSW) to refuse to order compensation payable by a tenant to a landlord by way of a break fee - see Abdel-Messih v Marshall [2018] NSWSC 648 at [36]. The Appeal 1. On this appeal, and over the opposition of the respondent, leave was granted for the appellant to be represented by his friend, Mr Max Kocak, although the appellant remained on the telephone line and heard the entirety of the appeal (the appeal was conducted wholly by telephone due to COVID restrictions). 2. In preparation for this appeal the appellant was directed by the Appeal Panel on 8 September 2020 to: "…lodge with the Appeal Panel and give to the Respondent by 09/10/2020: (a) All the evidence given to the Tribunal below on which it is intended to rely; (b) Any evidence not provided to the Tribunal in making the decision under appeal, on which it is intended to seek leave to rely; (c) The Appellant's written submissions in support of the appeal; and (d) The sound recording or transcript of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on and a typed copy of the relevant parts. New Evidence 1. Following that direction, the appellant lodged a statement of his own dated 13 July 2020, a number of colour photographs, submissions dated 8 October 2020 and a number of video recordings (albeit lodged after 9 October 2020). 2. The statement of 13 July 2020 and the photographs appear to have been accepted into evidence and considered by the Tribunal despite the appellant's non-appearance at the hearing. It does not appear the videos were lodged with the Tribunal prior to the hearing, but the appellant now seeks to rely upon them on this appeal. 3. We do not accept the tender of these videos on appeal because we are not satisfied that the appellant may have suffered a substantial miscarriage of justice because of these videos. That is, the videos are not significant new evidence, nor are we satisfied that they were not reasonably available to the appellant at the time the proceedings under appeal were being dealt with. Both these requirements are required to be satisfied by cl 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act") – see Collins v Urban [2014] NSWCATAP 17. 4. The videos are not significant because they do not materially differ from the photographs and the description in the Tribunal's reasons of a leaking roof/ceiling. The videos simply show one or more leaks in the ceiling of an unidentified dwelling but presumably being the rental premises. Clearly, they were available to the appellant prior to the hearing before the Tribunal as they were taken before he vacated the premises. Grounds of Appeal 1. On an appeal to an Appeal Panel an appellant may appeal on a question of law or on some ground other than a question of law if leave is sought to do so and that leave is granted. 2. In this appeal no grounds of appeal, whether as to a question of law or otherwise, were identified by the appellant. 3. We have examined the material with which we have been given to see whether some discernible ground of appeal is apparent, whether on a question of law or otherwise (see Cominos v Di Rico [2016] NSWCATAP 5 at [13]) but no grounds of appeal are discernible to us. 4. The appellant's written and oral submissions do no more in this case than to, in substance, repeat what was submitted before the Tribunal (in writing). That is, the appellant submitted that the premises were "not liveable" due to list of alleged defects including, but not limited to, a leaking roof, mould and holes in walls and that, therefore, the landlord should not recover the break fee. 5. As is clear from the Tribunal's reasons that we have quoted at [12] above, the Tribunal considered those matters and declined to exercise the discretion available to it under s 107 of the Residential Tenancies Act and allowed the respondent's claim for the break fee. 6. As that decision was discretionary, for a successful appeal the appellant needed to persuade us that the Tribunal had committed at least one of the errors listed in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505. 7. That is, the appellant needed to persuade us by reference to the Tribunal's reasons and the evidence before the Tribunal that the Tribunal had: 1. made an error of legal principle; 2. made a material error of fact; 3. took into account some irrelevant matter; 4. failed to take into account, or gave insufficient weight to, some relevant matter; or 5. arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. 1. The last error listed above was explained in Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61 by Bathurst CJ and Leeming JA at [9]-[10] as resting on the premise that the reasons provided by the Tribunal did not explain the result achieved. 2. In this case that premise does not exist. The Tribunal's reasons (quoted at [12] above) do explain the result. The Tribunal said that the appellant had not pursued any of the remedies (options) available to him if the defects were as numerous and as serious as he alleged, but in any event held that the alleged defects were not of such a serious nature as to warrant the exercise of discretion to refuse the respondent's claim for the break fee. 3. Otherwise, the appellant does not identify, nor can we discern, any error of legal principle, material error of fact, consideration of some irrelevant matter or any failure to consider or give insufficient weight to some relevant matter. 4. Doubtless the appellant considers the alleged defects to have been very serious and that great weight should have been given to that consideration. 5. But there is nothing in the Tribunal's reasons to indicate that insufficient weight was given to that consideration by the Tribunal. Nor, even if we took a different view and would have exercised the discretion differently to the Tribunal, are we allowed to uphold the appeal simply on that basis (Australian Health at [12]-[19]). More is required but is not present in this case. 6. As no error has been identified or established, we dismiss the appeal. Orders 1. The appeal is dismissed. ********** 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: 16 November 2020