Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Phoenix v Guangyue Chen [2020] NSWCATAP 255 Hearing dates: 30 July 2020 Date of orders: 7 December 2020 Decision date: 07 December 2020 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member D Robertson, Senior Member Decision: 1. Leave to appeal refused. 2. Appeal dismissed Catchwords: LEASES AND TENANCIES – Residential Tenancies – Termination of tenancy – Vacant possession –Tenant left premises but did not return keys – Tenancy did not terminate until keys returned Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 NSW Land & Housing Corporation v Quinn (No 2) [2018] NSWDC 161 Thomas v Metropolitan Housing Corporation Ltd [1936] 1 All ER 210 Wilson v Walshe [1985] NSW Conv R 55-248 Texts Cited: nil Category: Principal judgment Parties: Svetlana Phoenix (Appellant) Guang Yue Chen (Respondent) Representation: Solicitors: Appellant (Self-Represented) L Feng (Managing Agent)(Respondent) File Number(s): AP 20/21470 Publication restriction: none Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: n/a Date of Decision: 13 May 2020 Before: G Bassett, Tribunal Member File Number(s): RT 20/03892 REASONS FOR DECISION 1. The appellant was a tenant of the respondent pursuant to a Residential Tenancy Agreement which commenced on 26 October 2018. The rent was $1,000 per fortnight payable in advance. The appellant paid a bond in the amount of $2,000 being 4 weeks rent. 2. On 19 December 2019 the respondent, by his agent, gave notice to terminate the tenancy agreement under the Residential Tenancies Act (2010) (NSW) (RTA) requiring the appellant to deliver up vacant possession of the premises on 2 January 2020. The termination was for non-payment of rent. 3. On 24 January 2020 the respondent lodged an application in the Consumer and Commercial Division of the Tribunal seeking orders for the payment of an amount of money including arrears of rent and a termination order where the tenant has breached the residential tenancy agreement. 4. The application first came before the Tribunal on 11 February 2020 on which occasion it is not disputed that the appellant handed the keys to the premises to the respondent's agent. On that occasion the appellant was given notice that the agent intended to carry out an inspection of the property to prepare an end of tenancy condition report. The appellant did not attend that inspection. 5. At the hearing on 11 February 2020 the respondent was given leave to amend his application to seek further payments arising in respect of the condition of the property. 6. The proceedings came before the Tribunal for hearing on 13 May 2020. The hearing was conducted by telephone by reason of the Covid-19 pandemic. 7. On 13 May 2020 the Tribunal made orders requiring the appellant to pay the respondent the sum of $5,897.95 by instalments of not less than $100 per fortnight commencing 20 May 2020. The calculation of the amount due was as follows: Rent arrears $4,642.95 Repair wall dents 300.00 Removal of rubbish 400.00 Internal cleaning and carpet cleaning 400.00 Clean walls 150.00 Locksmith 5.00 1. We note that the $5 in respect of the locksmith related to the failure to return a mailbox key. 2. The Tribunal calculated the arrears of rent on the basis that the appellant had not vacated the premises until 11 February 2020 when she had returned the keys to the respondent's agent. 3. The Tribunal also ordered that the bond be paid to the respondent and that any amount received was to be credited against the money order. 4. The appellant lodged her Notice of Appeal on 15 May 2020, within the time laid down for the lodgement of appeals in residential proceedings by Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW). 5. The appellant also filed an application for a stay. On 28 May 2020, the Appeal Panel made directions for the preparation of the appeal and dismissed the application for stay because the respondent had agreed not to commence enforcement proceedings until the appeal is determined. The Scope and Nature of Internal Appeals 1. By virtue of s 80(2) of the NCAT Act, internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel. 2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. The decision of the Tribunal under appeal was not fair and equitable; or 2. The decision of the Tribunal under appeal was against the weight of evidence; or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. Grounds of appeal 1. The appellant's Notice of Appeal filed on 15 May 2020 set out the appellant's grounds of appeal as follows: Rent arrears - $4,642.95 - I have vacated the premises before the 2nd January 2020 and the agent has failed to comply with the agency's Termination Notice procedures to receive the vacant possession and keys on the 2nd January 2020. As I have brought to the Tribunal's attention already, I have rented this apartment from the Sky City Property in October 2018. On the 24th June 2019 Ventus Real Estate has advised me via email that they are my new managing agent. I have never been to the Agency's office as well as I was not given an option to have Ventus Real Estate as my managing [agent]" 1. We have inserted the word "agent" because it is apparent that that word was somehow cut off in the document filed by the appellant. The intention was clear and was confirmed in the further Notice of Appeal which the appellant filed after the hearing of the appeal in circumstances explained below. 2. The appellant also sought leave to appeal on the ground that the decision was against the weight of evidence. In support of that ground for seeking leave to appeal the appellant asserted that she had never met or spoken or exchanged any correspondence with Ms Feng from Ventus Real Estate, the respondent's current managing agent, who had appeared at the hearing on behalf of the respondent. 3. The hearing of the appeal (which also took place by telephone by reason of the Covid-19 pandemic) took place on 30 July 2020. The appellant appeared in person. Ms Feng again appeared for the respondent. 4. The appellant asserted that she had sent to the Tribunal by email on 15 June 2020 an amended Notice of Appeal which included complaints that the Member had awarded compensation in respect of repairs to and cleaning of the premises after termination of the tenancy without the respondent providing evidence of the amount of money spent; and that the appellant had not been given the opportunity herself to make good the cleaning and damage to the premises, in respect of which the Tribunal had awarded the respondent compensation. 5. In oral submissions the appellant also asserted that, because the air-conditioner in the premises had not been working for a period between June and December 2019, she was only obliged to pay $450 per week in rent and that therefore she was not liable to the respondent for arrears of rent even up to the date on which she asserted she had vacated the premises (that is, 2 January 2020). 6. Ms Feng denied that she had received a copy of an amended Notice of Appeal. No amended Notice of Appeal or any communication from the appellant dated 15 June 2019 appeared on the Tribunal file relating to the appeal. 7. This was not the only example of the appellant's inadequate preparation for the appeal and failure to comply with directions. 8. On 28 May 2020 the appellant was directed to lodge with the Tribunal and provide to the respondent the evidence upon which she intended to rely, her written submissions in support of the appeal, and "the sound recording of the hearing at first instance, if what happened at the hearing is being relied upon, and a typed copy of the relevant parts". 9. The appellant did not file written submissions. 10. On 22 July 2020, after a number of extensions and the vacation of the date on which the appeal was initially fixed for hearing, the appellant served upon the respondent and provided to the Tribunal a three page document purporting to be a transcript of the hearing. The appellant did not provide a copy of the recording to the Tribunal or to the respondent. 11. By an email sent to the Tribunal on 27 July 2020 the respondent sought a three week extension for the lodgement of the respondent's material because, in the respondent's submission, the written transcript was not complete and the respondent's agent had been told it would take two weeks to obtain a recording of the hearing to prepare his own transcript. 12. If granted, the respondent's application for an extension of time clearly would have required the hearing date to be vacated again. On 29 July 2020 a Principal Member of the Tribunal directed that an application for an extension of time may be made at the hearing of the appeal and noted that the appellant had not complied with the direction of 28 May 2020 that she lodge a copy of the sound recording of the hearing. 13. Consistently with the guiding principle laid down in s 36 of the Civil and Administrative Act 2013 (NSW) (NCAT Act), to facilitate the just, quick and cheap resolution of the real issues in the proceedings, and the requirement in s 38 of the NCAT Act to act with as little formality as the circumstances of the case permit, at the hearing of the appeal on 30 July 2020 the Appeal Panel determined to receive oral submissions from the appellant on each of the grounds she had raised at the hearing and to require the appellant to provide to the Tribunal and to Ms Feng copies of the recording of the hearing, and the Notice of Appeal which she asserted she had provided to the Tribunal on 15 June 2020. Directions to that effect were made at the conclusion of the hearing. 14. The Appeal Panel informed the parties that the Tribunal would listen to the sound recording of the hearing and, that if some issue arose out of that recording upon which the Appeal Panel considered it necessary to hear from the parties, the Appeal Panel would either seek written submissions from the parties or convene a further hearing. 15. The Appeal Panel has listened to the recording of the hearing. Although the "transcript" forwarded by the appellant did not include substantial parts of the oral evidence and submissions given at the hearing, there is nothing in the evidence and submissions omitted from the transcript which requires the Appeal Panel to hear further from the parties. 16. The appellant provided a copy of a Notice of Appeal dated 14 June 2019. There was no endorsement on the Notice of Appeal to indicate that it had been filed with the Tribunal. That further Notice of Appeal differed from the original Notice of Appeal in the following respects: 1. The appellant included further grounds of appeal as follows: REPAIR WALL DENTS $300 – following me returning the apartment keys the agent has not giving me an opportunity to obtain an alternative quote or repair the walls; REMOVAL OF RUBBISH $400 – following me returning the apartment keys the agent has not giving me the opportunity to obtain an alternative quote or to remove the rubbish; CLEAN WALLS $150 – this fee would be a part of the INTERNAL CLEANING AND CARPET CLEAN $400 1. The appellant also sought leave to appeal on the basis that the decision was not fair and equitable. In respect of that ground the appellant repeated the grounds of appeal set out above but also asserted that she did not have the capacity to pay instalments of more than $100 per week. 2. The appellant continued to seek leave to appeal on the basis that the decision was against the weight of evidence, and in that regard repeated the same assertions as she had made in the grounds of appeal. 1. We consider it appropriate to re-state the appellant's grounds of appeal (consistently with the comments concerning the appropriate approach to the identification of grounds of appeal raised by self-represented appellants, by the Appeal Panel in Cominos v Di Rico [2016] NSWCATAP 5 at [12]-[13]). 2. We identify the appellant's grounds of appeal as follows: 1. That the Tribunal erred in law by determining that the tenancy did not terminate until the appellant handed over the keys on 11 February 2020 and failed to find that the tenancy terminated on 2 January 2020 when the appellant asserted that she had vacated the premises. 2. That the appellant had not entered into any agreement with Ventus Real Estate and had not agreed that Ventus Real Estate should be the managing agent for the tenancy. 3. That the Tribunal had erred in law by awarding compensation for cleaning and remediation of damage without evidence of the money the respondent had spent in that regard. 4. That the appellant had not been given an opportunity herself to undertake further cleaning or to rectify the damage complained of by the respondent. 5. That the Tribunal had ordered payment of rent arrears prior to 2 January 2020 which were not due because the rent should have been reduced by reason of the fact that the air-conditioning unit had not been working between June and December 2019. 1. We note that the appellant seeks leave to appeal on the same bases. 2. We have recorded all of the grounds of appeal identified by the appellant, including those set out in the further Notice of Appeal but not in the original Notice of Appeal, and ground (5) which was only raised by the appellant in the course of the hearing of the appeal. 3. We have permitted the appellant to rely upon the further Notice of Appeal and the ground raised orally at the hearing of the appeal because we are satisfied that the respondent would not be prejudiced by the appellant being permitted to raise the additional grounds of appeal. The respondent had put before the Appeal Panel the documentary evidence relied upon before the hearing at first instance. That evidence included correspondence between the appellant and the respondent's agent relating to the air-conditioning. 4. It is convenient to deal with Grounds 2 to 5 before dealing with Ground 1. Ground 2 – the appellant did not accept Ventus Real Estate 1. This ground of appeal is clearly misconceived. The appellant's tenancy agreement was with the respondent. It was a matter for the respondent whether to employ an agent, and if so, who to employ as agent. There is no provision in the Residential Tenancy Agreement between the appellant and the respondent, or in the RTA, which might limit the respondent's entitlement to appoint an agent to manage the tenancy on his behalf, or to enter into an agency agreement with such managing agent as he saw fit. 2. This ground of appeal must be dismissed. Ground 3 – alleged absence of evidence of the cleaning and remediation costs 1. The Tribunal in its decision rejected a number of claims made by the respondent on the basis that there was not before the Tribunal sufficient evidence of the amounts claimed or that the claims were otherwise not warranted. 2. In respect of each of the items in respect of which the Tribunal did allow compensation to the respondent there was clearly evidence in the material before the Tribunal (which the respondent put before the Appeal Panel) of the need for cleaning after the appellant had left the premises and of the damage in respect of which the Tribunal awarded compensation. There was also evidence of the costs incurred by the respondent in having the premises cleaned and damage repaired. 3. The respondent produced photographs which showed dents in the walls, the rubbish which had required removal, and the dirt on walls and carpets. The obligation to pay $5 for the replacement of the mailbox key was not disputed by the appellant. 4. The respondent also produced a quotation for repairs including $300 plus GST for repair of wall dents, and both a quotation and invoice for: "vacate cleaning and steam clean carpet" in the amount of $400 plus GST; "clean up wall marks", in the amount of $150 plus GST; and "remove furniture and wastes" in the amount of $400 plus GST. We note that the Tribunal appears to have awarded the respondent less than the amount to which he would have been entitled, as the Tribunal did not include GST in the amounts which it awarded. 5. There was clearly before the Tribunal evidence, on which the Tribunal was entitled to act, to establish the justification for and the amount of each of the items of damage and cleaning in respect of which the Tribunal awarded compensation. The Tribunal did not make an error of law in finding that the respondent had proved an entitlement to the cleaning and repair costs which it awarded. Nor could it be said that the Tribunal's conclusions in this respect were against the weight of evidence or not fair and equitable. 6. This ground of appeal must be dismissed. Ground 4 – the appellant was not given the opportunity to make good the premises 1. Clause 17 of the Residential Tenancy Agreement between the appellant and respondent provides: 17. The tenant agrees, when this agreement ends and before giving vacant possession of the premises to the landlord: 17.1 to remove all the tenant's goods from the residential premises, and 17.2 to leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy, and 17.3 to leave the residential premises reasonably clean, having regard to their condition at the commencement of the tenancy, and 17.4 to remove or arrange for the removal of all rubbish from the residential premises, and 17.5 to make sure that all light fittings on the premises have working globes, and 17.6 to return to the landlord all keys, and other opening devices or similar devices, provided by the landlord. 1. The obligations set out in clauses 17.1-17.4 and 17.6 were also implied into the tenancy agreement by s 51(3) of the RTA. 2. The obligations upon a tenant in relation to the state of the premises at the end of a lease are to ensure the premises are "as nearly as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy", "reasonably clean, having regard to their condition at the commencement of the tenancy" and with all "tenant's goods" removed. A tenant who fails to comply with those obligations does not, under the general law or the RTA, have a right to return after the termination of the tenancy to attempt to rectify any shortcomings in their previous performance of their contractual obligations. 3. We note that the appellant, although given an opportunity to do so, did not attend the outgoing condition inspection on 11 February 2020, of which she was notified at the Tribunal hearing on that date. 4. Accordingly this ground of appeal must be dismissed. Ground 5 – the entitlement claimed by the appellant to a reduction in rent by reason of the allegedly defective air-conditioner 1. It was not disputed that the air-conditioner had not been working satisfactorily during the term of the tenancy. 2. Ms Feng stated that the air-conditioner had been rectified by 2 December 2019 at the latest. The appellant did not appear to challenge that proposition. Her submission was that she should be entitled to a reduction in rent by reason of the fact that the air-conditioner had not been functional prior to that date. 3. Section 44 of the RTA makes provision for a tenant to make application to the Tribunal for a reduction in rent on the basis that the rent is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises. 4. Section 43 of the RTA permits a tenant to make a written request to the landlord for a reduction in rent if the landlord has reduced or withdrawn any goods, services or facilities provided with the residential premises. 5. There is some correspondence in the documents put before the Tribunal by the respondent which could be described as a written request by the appellant for a reduction in rent on the basis of issues with the air-conditioner. However the fact that a tenant makes such a request does not impose an obligation on the landlord to agree to such a request. The mechanism by which a tenant may obtain a reduction in rent to which a landlord does not agree is by application pursuant to s 44 of the RTA. The appellant did not make any such application and, in the absence of such an application, the Tribunal had no jurisdiction to reduce the rent otherwise payable to the respondent. 6. This ground of appeal must be dismissed. Ground 1 – the date of termination of the tenancy 1. We now turn to the appellant's first ground of appeal. 2. The issue the Tribunal was required to determine was when the residential tenancy agreement had terminated, that is, whether the tenancy terminated when the appellant moved out of the property, which the appellant asserted was before 2 January 2020, or only when the appellant handed the keys to the agent on 11 February 2020. 3. The Tribunal did not make any finding of fact as to whether the appellant had in fact moved out of the premises on or before 2 January 2020. The Tribunal determined the amount owing to the respondent for arrears of rent on the basis that the relevant date was the date on which the appellant delivered the keys to the respondent's agent. 4. The appellant did give sworn evidence before the Tribunal that she had "moved out" before 2 January 2020. 5. It is appropriate before seeking to resolve this issue to set out a number of provisions of the RTA which may have relevance to our determination: 6. Section 81 relevantly provides: 81 Circumstances of termination of residential tenancies (1) Termination only as set out in Act A residential tenancy agreement terminates only in the circumstances set out in this Act. (2) Termination by notice and vacant possession A residential tenancy agreement terminates if a landlord or tenant gives a termination notice in accordance with this Act and the tenant gives vacant possession of the residential premises. (3) Termination by order of Tribunal A residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act. (4) Other legal reasons for termination A residential tenancy agreement terminates if any of the following occurs— … (d) the tenant abandons the residential premises, (e) the tenant gives up possession of the residential premises with the landlord's consent, whether or not that consent is subsequently withdrawn, … 1. Sections 106 and 110 provide: 106 Abandoned premises (1) The Tribunal may, on application by a landlord, make an order declaring that the tenant abandoned the residential premises on a specified day. (2) The tenant is taken to have abandoned the residential premises on the specified day. (3) The landlord may take immediate possession of residential premises that have been abandoned by the tenant if there are no remaining occupants. Note— The residential tenancy agreement is terminated if a tenant abandons the residential premises (see section 81(4)(d)). (4) In determining whether a tenant has abandoned the residential premises the Tribunal may consider (but is not limited to considering) the following— (a) the failure by the tenant to pay rent under the residential tenancy agreement, (b) any evidence that the tenant no longer resides at the premises, (c) any failure by the tenant to carry out any obligations relating to the residential premises under the residential tenancy agreement. 110 Tenant may vacate at any time before termination date specified by landlord (1) A tenant who is given a termination notice by the landlord, or who gives a termination notice, may give vacant possession of the residential premises at any time before the termination date. (2) If a termination notice is given by a landlord, the tenant is not liable to pay any rent for any period after the tenant gives vacant possession of the residential premises and before the termination date. (3) Subsection (2) does not affect the liability of a tenant under a fixed term agreement to pay rent in respect of a period after the tenant gives vacant possession of the residential premises and before the end of the fixed term, if the termination notice is given by the landlord in accordance with section 84. 1. Section 120 relevantly provides: 120 Repossession of residential premises—offences (1) A person must not enter residential premises for the purposes of taking possession of those premises before or after the end of a residential tenancy agreement unless— (a) the person is acting in accordance with a warrant arising out of an order for possession of the Tribunal or a writ or warrant arising out of a judgment or order of a court, or (b) the tenant has abandoned the premises or given vacant possession of the premises. 1. Pursuant to s 110 of the RTA the appellant, having been served with a termination notice on 19 December 2019, was entitled to vacate the premises at any time after that date but was liable to pay rent until such time as she delivered vacant possession to the respondent. 2. If the appellant's evidence that she moved out of the premises before 2 January 2020 is accepted, the question arises whether that was sufficient to constitute the giving of vacant possession, or whether vacant possession was only given to the respondent upon the appellant handing over the keys on 11 February 2020. 3. In considering this question it is necessary to bear in mind the provisions of s 120 of the RTA. The respondent and his agents were not permitted to enter the premises for the purposes of taking possession unless the appellant had abandoned the premises or given vacant possession of the premises. The evidence does not suggest that the appellant gave the respondent or his managing agent any notice that she had departed from the premises at any time prior to 8 February 2020 which was the Friday before the hearing. 4. The term "vacant possession" has been the subject of consideration in a number of authorities. As Smart J held in Wilson v Walshe [1985] NSW Conv R 55-248 (31 May 1985): "The phrase 'vacant possession' varies in meaning according to its context." 5. The significance of the delivery of keys in the context of the giving of possession was considered by the English Court of Appeal in Thomas v Metropolitan Housing Corporation Ltd [1936] 1 All ER 210. That case concerned the question whether a tenant was protected by the English Rent Restriction Acts. Under legislation enacted in 1923, where a landlord came into possession of a dwelling, to which the Rent Restriction Acts had previously applied, at any time after the passing of the 1923 legislation, then the Rent Restriction Acts ceased to apply to the dwelling. "Possession" was defined as meaning "actual possession", with the result that a landlord did not come into possession by reason only by reason of a change of tenancy made with the landlord's consent. 6. The facts giving rise to those proceedings were that a tenant who was entitled to the protection of the Rent Restriction Acts had moved her furniture out of the premises on the middle of the day on a Saturday and left the key to the premises at the landlord's agent's offices on the Saturday afternoon. The incoming tenant had occupied the premises over the weekend but only signed a lease on the following Monday. The trial Judge held that the protected tenancy came to an end on the Saturday and that the landlord had entered into actual occupation upon delivery of the key. That conclusion was upheld by the Court of Appeal. 7. Slesser LJ held, at 214: "There are many cases … to the effect that the giving of a key giving access to the premises may amount to actual possession; and, when this is done with the intention to give possession, that possession will be an actual possession". 1. Scott LJ held, at 216: "Actual possession of empty premises, or of chattels which are locked up within a building or in a package of some sort, is retained by retaining the key. Possession of the key gives actual possession. The reason why there is so little law on the point is, I think, that it is difficult to imagine that anything to the contrary could ever have been contended … the evidence is … quite clear that the key of the premises was left with the landlord by the tenant going out on Saturday, October 17. That was a symbolical giving up of possession, leaving the actual possession in the landlords until the landlords parted with possession to somebody else." 1. Thomas v Metropolitan Housing Corporation was applied, in relation to a residential tenancy governed by the RTA, by P Taylor SC DCJ in NSW Land & Housing Corporation v Quinn (No 2) [2018] NSWDC 161. His Honour held that, in circumstances where a tenant had not returned the keys and there was no evidence of the date when he had vacated the premises, the tenant was liable for an occupation fee until the date of execution of a warrant for possession. At [258]-[259] his Honour held: 258 Although Mr Quinn may have vacated the premises earlier, there is no evidence that he returned the key, and, at least until late July 2014, the evidence is to the contrary. Having retained the key, he retained actual possession. Any presumption that he acted in accordance with the order of the Tribunal cannot displace the evidence that he had not returned the key by late July 2014, the presumption of continuity and an available Jones v Dunkel inference arising from his unexplained failure to give evidence on the subject. 259 As there is no evidence that vacant possession was earlier "given to the landlord", Mr Quinn is liable for the occupation fee until possession was proved to be taken by the Corporation. … 1. It is clear that the question whether a tenant has given vacant possession of premises is a question of fact in each case. However, in our view, as Taylor DCJ held in NSW Land & Housing Corporation v Quinn, ordinarily a tenant does not give up vacant possession of premises until they return the keys to the landlord or the landlord's agent. 2. Any other conclusion would create a difficulty for a landlord who knows that a property subject to a residential tenancy is empty. If the keys have not been returned, the landlord could not be confident that the tenant had abandoned the property or intended to terminate the tenancy. 3. In circumstances where a tenant appears to have abandoned the property, the landlord is entitled to approach the Tribunal for a declaration pursuant to s 106 that the tenant has abandoned the premises. Having obtained such a declaration, the landlord would be entitled to enter the premises. In the absence of such a declaration, a landlord would be at risk of committing an offence under s 120 of the RTA if they were to enter the premises in circumstances where the tenant had not returned the keys. 4. There may be cases where a tenant gives notice that they have vacated the property and have in fact left the property empty but haven't handed over the keys. In those circumstances the landlord would generally be entitled to act upon the tenant's notification and enter the property and change the locks on the basis that the tenant had communicated an intention to deliver vacant possession. 5. There is no evidence in this case that the appellant gave any notice to the respondent or the respondent's agent that she had vacated the premises prior to 8 February 2020. 6. In our view the Tribunal did not make an error of law in concluding that the tenant did not give vacant possession until she returned the keys on 11 February 2020, nor could it be said that that conclusion was against the weight of evidence or not fair and equitable. 7. Accordingly ground 1 of the appellant's grounds of appeal must be dismissed and the appeal must be dismissed. 8. Our orders are: 1. Leave to appeal refused. 2. Appeal 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: 07 December 2020