Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Firth v Liddle [2020] NSWCATAP 249 Hearing dates: 18 November 2020 Date of orders: 26 November 2020 Decision date: 26 November 2020 Jurisdiction: Appeal Panel Before: S Thode, Senior Member S Goodman, SC Senior Member Decision: (1) The appeal is allowed. (2) Orders 2 and 3 made by the Tribunal on 24 August 2020 are set aside. (3) The proceedings are remitted to the Consumer and Commercial Division for a new hearing and redetermination, according to law, of the appellant's claim for compensation for abandonment of the residential premises, based upon the evidence already adduced by the parties and such additional evidence as the Tribunal may allow. Catchwords: APPEAL – Land Law – Residential Tenancy – error of law – application of s 107 Residential Tenancies Act 2010 Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancies Act 2010 Residential Tenancies Amendment (Review) Act 2018 Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: Craig Firth (Appellant) Alison Jane Liddle (First Respondent) Jai Christopher Liddle (Second Respondent) Representation: Appellant (Self Represented) Respondents (Self Represented) File Number(s): AP20/37969 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 24 August 2020 Before: S Fenwick, Member File Number(s): RT 20/20441 REASONS FOR DECISION Introduction 1. The appellant landlord has appealed a decision of the Tribunal made on 24 August 2020 in which the Tribunal made an order under s 107 of the Residential Tenancies Act 2010 (RT Act) that the respondent tenants pay to the landlord compensation of $1,721.50 following the tenants' abandonment of the premises. 2. The landlord contends that the Tribunal erred in law in applying s 107 of the RT Act in its present form to the calculation of the amount of that compensation, and that as a result the amount of compensation awarded was less than it should have been. 3. For the reasons set out below, we allow the appeal and remit the proceedings for reconsideration. Tribunal proceedings and decision 1. The findings of fact made by the Tribunal were not challenged. The salient facts for present purposes are: 1. In or around June 2019 the landlord and the tenants entered into a fixed term residential tenancy agreement (Agreement) for three years at a weekly rental of $1,150; and 2. On 20 April 2020, the tenants abandoned the premises. 1. Having made those findings of fact (among others) the Tribunal determined that the landlord was entitled to compensation for the abandonment of the premises. 2. The Tribunal then proceeded to calculate that compensation by reference to s 107 of the RT Act and determined that as less than 25% of the fixed term had expired as at the date of abandonment, the compensation payable was 4 weeks rent, or $4,600 (4 x $1,150). Material before the Appeal Panel 1. The landlord relied upon his Notice of Appeal (with attachments) and his written submissions (with attachments) and an extract of the sound recording of the hearing before the Tribunal. The tenants relied upon their Reply to Appeal (with attachments). Submissions 1. The landlord's submissions were that s 107 of the RT Act does not apply to retail tenancy agreements entered into prior to 23 March 2020 and, as the Agreement was entered into before that date, the Tribunal erred in applying s 107 in its present form when calculating the amount of compensation payable to the landlord. 2. We understood the tenants' submission in response to be that the Tribunal applied s 107 in its earlier form but in the calculation of compensation adopted, for convenience, the approach taken in s 107 in its present form. 3. The tenants made a number of other submissions concerning a variety of matters including that the calculation of the amount of compensation should take into account the proceeds of insurance received by the landlord; the prompt payment by the tenants of the amount ordered by the Tribunal; the landlord's acceptance of that payment; their concern that they are being relentlessly pursued by the landlord; that they abandoned the premises because of the effect of COVID-19 upon their financial position; and that their financial position presents difficulties for them in paying anything more to the landlord. The tenants also suggested that the landlord had engaged in various forms of misleading and deceptive conduct. None of these matters is relevant to the ground of appeal which we must determine, although some of them may conceivably become relevant upon any re-exercise of the discretion to award compensation for abandonment of the premises. Consideration 1. As noted above, the appellant contends that the Tribunal erred in law in applying s 107 of the RT Act in its present form. An appeal on a question of law may be brought as of right: s 80(2) Civil and Administrative Tribunal Act 2013. 2. Section 107 of the RT Act provides the Tribunal with a discretion to order that a tenant pay compensation to the landlord for losses caused by the tenants' abandonment of the premises. However, the operation of s 107 of the RT Act is affected by s 226 and Sch 2, cl 25 of the RT Act. Section 226 provides that Sch 2 contains savings and transitional provisions. Within Sch 2, clause 25 provides: Section 107, as substituted by the Residential Tenancies Amendment (Review) Act 2018, does not apply to a residential tenancy agreement entered into before the substitution of that section. 1. The effect of s 226 and Sch 2, cl 25 is that s 107 of the RT Act does not apply to a residential tenancy agreement entered into before the substitution of s 107 (i.e. the replacement of the previous version of s 107 with its present version). The substitution of s 107 occurred on 23 March 2020. This is because: 1. The substitution of s 107 occurred when cl 34 of Sch 1 of the Residential Tenancies Amendment (Review) Act 2018 (RT Amendment Act) commenced operation; 2. s 2 of the RT Amendment Act provided: This Act commences on a day or days to be appointed by proclamation; 1. On 11 December 2019, a Commencement Proclamation was made, which appointed 23 March 2020 as the day on which the as yet uncommenced provisions of the RT Amendment Act were to commence: see Proclamation 2019 No. 626. 1. As noted above, the Agreement was entered into mid-2019. As this preceded 23 March 2020, it follows that s 107 in its present form does not apply to the Agreement and the appeal must be upheld. 2. In circumstances where the parties have not placed before us all of the evidence that was before the Tribunal, we will order that the issue of compensation payable by the tenants to the landlord for the abandonment of the premises be remitted to the Tribunal for redetermination. Orders 1. The orders of the Appeal Panel are: 1. The appeal is allowed. 2. Orders 2 and 3 made by the Tribunal on 24 August 2020 are set aside. 3. The proceedings are remitted to the Consumer and Commercial Division for a new hearing and redetermination, according to law, of the appellant's claim for compensation for abandonment of the residential premises, based upon the evidence already adduced by the parties and such additional evidence as the Tribunal may allow. ********** 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: 26 November 2020