Pantalone v Jacobe [2021] NSWCATAP 418

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pantalone v Jacobe [2021] NSWCATAP 418 Hearing dates: 20 December 2021 Date of orders: 23 December 2021 Decision date: 23 December 2021 Jurisdiction: Appeal Panel Before: The Hon F Marks, Principal Member K Ransome, Senior Member Decision: (1) leave to appeal is denied (2) the appeal is dismissed (3) the stay of the orders of the Member granted on 3 November 2021 is dissolved. Catchwords: APPEAL – appellant contested validity of termination notice of residential tenancy agreement – held termination notice valid – appeal dismissed. Legislation Cited: Residential Tenancies Act 2010 ss 74(1),82 Cases Cited: None Category: Principal judgment Parties: Antonio Pantalone (Appellant) Stephen Jacobe (Respondent) Representation: A Brownlee agent (Appellant) N Montaser agent (Respondent) File Number(s): 2021/00290085 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 27 September, 2021 Before: J Levingston General Member File Number(s): RT 21/37839

Reasons for decision

Background 1. The appellant Antonio Pantalone entered into a residential tenancy agreement as tenant with the respondent Stephen Jacobe as landlord on 1 July 2021 for the lease of premises in a Sydney suburb. The tenancy agreement was for a period of 12 months commencing 5 July 2021. 2. Clauses 35.1 and 35.2 of the agreement are in the following terms 35.1 the tenant may, with the landlord's written permission, transfer the tenant's tenancy under this agreement or sublet the residential premises, and 35.2 landlord may refuse permission (whether or not it is reasonable to do so) to the transfer of the whole of the tenancy or subletting the whole of the residential premises 1. On 19 August 2021 the respondent issued a Termination Notice to the appellant giving notice of termination of the residential tenancy agreement based on an alleged breach by the appellant of section 74(1) of the Residential Tenancies Act, the effect of which, relevantly for the purpose of these appeal proceedings, was to permit the subletting of the leased premises to another person if the landlord gave written consent to the subletting. It was asserted that the appellant did not reside at the leased premises and had sublet them without the permission of the landlord. 2. On 6 September 2021 the respondent applied to the Consumer and Commercial Division of this Tribunal for a number of orders relating to the residential tenancy including a termination order and an order for the possession of the premises based on the asserted breach by the respondent described above. On 27 September 2021 a Member of this Tribunal found the breach proven and made orders terminating the agreement immediately, giving the respondent possession of the premises but suspending the order for possession until the later of 15 October 2021 or "7 days after the lockdown order is lifted for the Local Government Area in which the Premises are located." The appellant was required to pay the respondent a daily occupation fee of $100 from 28 September 2021 until the date of vacant possession being given to the respondent. 3. The appellant has filed an application for stay of the above orders and a Notice of Appeal. 4. On 3 November 2021 a Principal Member of this Tribunal stayed the order for possession made by the Member conditional upon the appellant continuing to pay the occupation fee outstanding. 5. The Grounds of Appeal may be summarized as firstly attacking the validity of the Termination Notice, and secondly complaining about certain factual allegations which had been made during the hearing by the respondent as being untrue. 6. The parties have made available a transcript of the proceedings before the Member and other documentary material to which we shall refer in the course of these reasons for decision. 7. We conducted a telephone hearing of the appeal. The appellant was present at the hearing but asked that Mr A Brownlee represent him as agent. The respondent's agent had previously been granted leave to appear and did not object to Mr Brownlee representing the appellant. We granted leave accordingly. 8. At the conclusion of the hearing, we made the orders set out below and said that we would deliver reasons therefor. These reasons for decision constitute our reasons for having dismissed the appeal and made the other orders set out.