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. The validity of the Termination Notice 1. It is uncontroversial that the residential tenancy agreement the subject of these proceedings was governed by the Residential Tenancies Act. Section 82 of that Act makes provision for a Termination Notice. 82 Termination notices (1) A termination notice must set out the following matters— (a) the residential premises concerned, (b) the day on which the residential tenancy agreement is terminated and by which vacant possession of the premises is to be given, (c) if the notice is not given under section 84, 85, 96 or 97, the ground for the notice, (d) any other matters prescribed by the regulations. (2) A termination notice must be in writing and be signed by the party giving the notice or the party's agent. (3) A termination notice for a periodic agreement may specify a day other than the last day of a period for the payment of rent as the termination date. 1. A copy of the Termination Notice was provided as part of the appeal papers and was before the Member. In his reasons for decision the Member noted that there was a reference in the Termination Notice to a breach by the appellant of "clause part 4, 74 (1) of the Residential Tenancies Act." The Member in his reasons for decision found that this was not a reference to a clause of the tenancy agreement, but a reference to a provision of the Residential Tenancies Act. The Termination Notice referred to section 74 in the following terms A tenant may transfer the tenancy under a residential tenancy agreement to another person or sub-let the premises to another person, if the landlord gives written consent to the transfer or sub-letting. 1. The Notice then said The tenant does not reside at the property and has sublet the property without landlord permission. 1. For completeness we set out the provisions of section 74, and note that by subsection (3) that section is a term of every residential tenancy agreement 74 Transfer of tenancy or sub-letting by tenant (1) A tenant may transfer the tenancy under a residential tenancy agreement to another person or sub-let the premises to another person, if the landlord gives written consent to the transfer or sub-letting. (2) The landlord must not charge for giving consent to a transfer or sub-letting, other than for the reasonable expenses of giving consent. (3) This section is a term of every residential tenancy agreement. 1. We understand from the oral submissions of Mr Brownlee that the appellant has two bases for challenging the validity of the Notice of Termination. The first is that it did not describe the breach of the residential tenancy agreement which was relied upon by the respondent. We pointed out to Mr Brownlee that the description of the breach which we have set out above is contained in an Annexure to the Termination Notice. Mr Brownlee responded that the appellant did not receive that Annexure. We then pointed out that the Annexure had been included in the appellant's documents filed in the proceedings. Mr Brownlee responded that not everything included in the appeal papers had actually been received by the appellant and continued to assert that the Annexure was not part of the Termination Notice received by him. The lie to the submission of Mr Brownlee is contained in the appellant's Statutory Declaration sworn 3 November 2021 for the purpose of these appeal proceedings to which he annexed the Termination Notice received by him, including the Annexure. Either the appellant has sworn a false Statutory Declaration or Mr Brownlee has attempted to mislead this Tribunal. 2. We reject this basis for the challenge to the validity of the Termination Notice. We find that the appellant received the Annexure to the Termination Notice as was conceded by him. We further find that the Annexure contained appropriate reference to the breach of the residential tenancy agreement. 3. For completeness we note that the Member found that the notice of termination was valid. We agree with this conclusion. It is clear that the requirements for validity as set out in s 82 of the Residential Tenancies Act have been met. 4. The next challenge made to the validity of the Termination Notice contested that the premises had been sublet by the appellant in breach of the terms of the residential tenancy agreement. Mr Brownlee submitted that there was no evidence that the appellant had sublet the premises. He conceded that someone other than the appellant had been living in the premises but said that this did not constitute a subletting. 5. In his reasons for decision the Member referred to the sworn evidence given before him by the appellant that he had never occupied the premises because he had been precluded from doing so by restrictions imposed by the Covid 19 pandemic and "family illness". The member said that the appellant "also gave evidence that another person is occupying the premises and paying rent to him." 6. We again refer to the Statutory Declaration sworn by the appellant for the purpose of these appeal proceedings. In it the appellant referred to a telephone conversation which he had had with Mr Brownlee, whom he described as a "business associate" on 2 July 2021. In that conversation the appellant said that he was unable to move into the rented premises the subject of these proceedings. He said that Mr Brownlee suggested he could allow Toni Fitzgerald to move in. The appellant noted that this would be good for "….the Landlord. He won't be without rent." The appellant continued to inform Mr Brownlee that he would make arrangements for Toni to pick up the key from the agent. 7. In the Statutory Declaration referred to above the appellant said When I made this interim arrangement with Toni Fitzgerald it never occurred to me that I would be breaching the lease agreement because I didn't tell the landlord about it. In my mind I was simply helping Toni just as she was helping me out for a few weeks. I considered it would be good for the Landlord as well because they would have continuity of rental payments. I consider that, even though Toni would be paying the rent, because the arrangement I had with Toni was casual and was intended to only be for a few weeks, her arrangement with me wasn't much different to having someone stay overnight…… 1. Mr Brownlee was involved in the appellant's intentions. He understood that Ms Fitzgerald would be occupying the premises in lieu of the appellant and paying the rent. 2. The Member was clearly entitled to find that the appellant had sublet the premises without the consent of the landlord in breach of the residential tenancy agreement. We reject the appellant's submission in this regard. Other grounds for appeal 1. In his Notice of Appeal, the appellant also asserted that the respondent had acted inappropriately in refusing to permit another person to reside in the premises. This submission overlooks the provisions of Clause 35.2, which permit the respondent to deny consent to a subletting arrangement, even if it were unreasonable to do so. This submission also overlooks the concession made by the appellant during the course of the proceedings that he had never sought the consent of the respondent to the subletting of the premises. These are matters which were referred to by the Member in his reasons for decision. 2. Factual matters which the appellant wished to dispute related to whether certain persons had been given access to the premises and the identity of those persons. Those matters were irrelevant to the determination of the proceedings at first instance, as the Member determined, and they remain irrelevant in these appeal proceedings. Conclusion 1. For the reasons set out above none of the matters raised in the appeal has any validity. In all the circumstances, the Member was entitled to make the orders which are the subject of the appeal, for the reasons given by the Member. It follows that leave to appeal should be denied, and the appeal dismissed. The stay granted should be dissolved. ORDERS 1. We make the following orders 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. ********** 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: 23 December 2021