Kassab v Mandoukas [2021] NSWCATAP 118

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kassab v Mandoukas [2021] NSWCATAP 118 Hearing dates: 21 April 2021 Date of orders: 6 May 2021 Decision date: 05 May 2021 Jurisdiction: Appeal Panel Before: S Thode, Senior Member J McAteer, Senior Member Decision: (1) The application for leave to appeal is refused. (2) The appeal is otherwise dismissed. Catchwords: APPEAL – residential tenancy Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Residential Tenancies Act, 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Maria Kassab (Appellant) Dimitrios Mandoukas (Respondent) Representation: Solicitors: J Ozcan (Agent) (Appellant) Turner Freeman Lawyers (Respondent) File Number(s): 2021/00056102 (AP 21/06900) 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: 02 February 2021 Before: D Ash, General Member File Number(s): RT 21/00229

reasons for decision

Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 2 February 2020. The respondent applied for orders for rent arrears arising from a Residential Tenancy Agreement. The application also sought an order for termination of the Residential Tenancy Agreement and possession of the premises. For convenience we shall refer to the appellant as the tenant and the respondent as the landlord. 2. The landlord filed an application in the Tribunal on 5 January 2021 seeking an order under s 87 of the Residential Tenancies Act, 2010 (NSW) (RT Act) being an order for termination of a residential tenancy agreement. The reasons in the application for requesting an order were as follows: During COVID 19, between landlord and tenant enter into an agreement on March 2020 [sic]. The agreement mention normal rent $860 fortnight postponed to $500 fortnight for 13 weeks. After 13 weeks holiday period, Tenant agreed normal rent paying $860 per fortnight plus $360 fortnight postponed rent instalment 13 weeks. Tenant had fail to replacement install from July 2020. Last date rent paid by tenant on 21/11/2020 rent covered period up to 22/11/2020. Rent had been in arrears over 44 days, on behalf landlord apply seeking terminate lease agreement and claim tenant's 4 weeks bond for part of rent. 1. The Tribunal heard the application on 2 February 2021 and terminated the Residential Tenancy Agreement in accordance with s 87 of the RT Act by finding that the tenant had breached the agreement by a failure to pay rent in accordance with the agreement. The Tribunal ordered possession of the premises but suspended that order for two weeks until 16 February 2021. An order for the tenant to pay a daily occupation fee at the rate of $61.42 was also made. 2. In addition the Tribunal ordered that the tenant, Maria Kassab, pay the landlord the sum of $4,422.85 for rent owed under the terms of the residential tenancy agreement for the period 23 November 2020 to 2 February 2021. It is relevant to note that the tenant vacated the premises in late 2020 and Mr Jon Ozcan, the tenant's fiancé, remained as an occupant in the premises. Leave was granted for Mr Ozcan to represent the tenant. The landlord was at all relevant times represented by a licensed real estate agent, Mr Sherman Kwong. However the agent did not appear at the hearing of the appeal. Ms A Mandoukas appeared for the landlord. 3. The tenant appeals against the order for termination and possession and challenges the calculation of the amount outstanding in rent arrears.