Fang v Cornelius [2021] NSWCATAP 28

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fang v Cornelius [2021] NSWCATAP 28 Hearing dates: 27 January 2021 Date of orders: 12 February 2021 Decision date: 12 February 2021 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member R C Titterton OAM, Senior Member Decision: (1) The appeal is allowed. (2) The order made by the Tribunal on 8 October 2020 is set aside. (3) The proceedings be remitted to a differently constituted Tribunal for a new hearing and redetermination on the basis of the evidence already presented to the Tribunal and such further evidence as the Tribunal may allow. Catchwords: LEASES AND TENANCIES-residential tenancy- termination by tenant before expiry of fixed term-discretion to pay compensation to the landlord- ss 104 and 107 of the Residential Tenancies Act 2010 (NSW) - compensation refused- claim in respect of alleged excessive rent due to reduction of facilities-ss 44 and 47 of the Residential Tenancies Act 2010 (NSW)-claim for breach in respect of reduction of facilities-dispute as to extent of reduction of facilities because of state of swimming pool and extent rent was excessive. APPEALS-error of law-failure to ask right questions-discretion to award compensation under s 107(2) different to that under s 104(2)-claim for refund of excessive rent distinct from claim for damages for breach-adequacy of reasons-absence of factual findings. Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013 Civil and Administrative Tribunal Rules (NSW) 2014 Residential Tenancies Act 2010 (NSW) Residential Tenancies Amendment (Review) Act 2018 (NSW) Residential Tenancies Regulations 2010 (NSW) Cases Cited: Abdel-Messih v Marshall [2018] NSWSC 648 Cominos v Di Rico [2016] NSWCATAP 5 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: Hui Fang (Appellant) Michael Cornelius (Respondent) Representation: Appellant (Self Represented) Respondent (Self Represented) File Number(s): AP 20/44612 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 8 October 2020 Before: F Holles, General Member File Number(s): RT 20/22181