Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rivera v Taipan Management Co [2023] NSWCATAP 70 Hearing dates: 27 February 2023 Date of orders: 10 March 2023 Decision date: 10 March 2023 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member J Currie, Senior Member Decision: (1) Leave to appeal is refused. Catchwords: APPEALS — Leave to appeal — Principles governing – leave to appeal refused LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — holding fees – claim for repayment of holding fee – tenant refused to enter into the residential tenancy agreement – application dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 80, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), r 25 Residential Tenancies Act 2010 (NSW), ss 17, 24, 25, 33, 159 Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None cited Category: Principal judgment Parties: Federico Caicedo Rivera (Appellant) Taipan Management Co (Respondent) Representation: Appellant (Self-represented) J Bao (Managing agent) (Respondent) File Number(s): 2023/00003357 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 21 December 2022 Before: K George, General Member File Number(s): RT 22/49118 REASONS FOR DECISION Overview 1. This is an internal appeal from the decision of the Consumer and Commercial Division of the Tribunal made on 21 December 2022 in proceedings between Federico Caicedo Rivera, who was the prospective tenant (the tenant), and Taipan Management Co, who was the prospective landlord (the landlord), of premises at Pyrmont in New South Wales (the premises). In the proceedings commenced by the tenant in which he sought relief under the Residential Tenancies Act 2010 (NSW) (RT Act), the Tribunal dismissed the application. 2. We have decided to refuse leave to appeal. The factual background 1. At all relevant times, Edna Zhou (Ms Zhou) and subsequently Jack Bao (Mr Bao) of Lobach Partners Pty Ltd trading as Loyal Property City was the landlord's agent. 2. On 19 October 2022, Ms Zhou approved the application of the tenant for a lease of the premises for a term of 12 months commencing 28 October 2022 at a rent of $950.00 per week and the tenant paid a holding deposit of $950.00 (the holding deposit). 3. On 28 October 2022, Ms Zhou advised that the tenant that the landlord had agreed for the lease of the premises to commence on 3 November 2022 subject to the tenant satisfying conditions with respect to the signing of the residential tenancy agreement and the payment of the rental bond of $3,800.00 and the second week of rent of $950.00 by 5.00pm on that day. The tenant did not satisfy these conditions. 4. On 31 October 2022, the landlord forfeited the holding deposit. 5. A dispute arose between the parties as to whether the landlord was entitled to forfeit the holding deposit. The proceedings between the parties in the Tribunal 1. On 4 November 2022, the tenant as the applicant commenced proceedings RT 22/49118 against the landlord as the respondent by filing an application in which he sought the return of the holding deposit. 2. On 21 December 2022, the Tribunal heard the proceedings, made the following order (the 21 December 2022 order) and published reasons for its decision (the Tribunal Decision): "1 The application is dismissed because having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established." The Tribunal Decision 1. In the Tribunal Decision, the Tribunal relevantly: 1. set out the relief sought by the tenant; 2. noted that the tenant and Mr Bao gave oral evidence and relied on a bundle of documents; 3. found that the Tribunal had jurisdiction to make an order in relation to the repayment of the holding deposit pursuant to s 25 of the RT Act; 4. made the following factual findings on the basis of the documents: "On 19 October 2022 Mr Rivera's application for the tenancy at Pyrmont was approved, commencing 28 October 2022. Mr Rivera paid the holding fee, the equivalent of 1 week's rent, on the same day. The lease agreement was sent to Mr Rivera on 25 October 2022. In oral evidence the parties agreed that the first version of the lease agreement had a start date of 28 October 2022. The parties exchanged text messages on 28 October 2022. Mr Rivera requested that the start date be deferred to 3 November 2022. The landlord (reluctantly) agreed and sent the revised lease to the tenant. It is dated 28 October 2022 for the period 3 November 2022 to 2 November 2023. It states that rent is payable in advance from 3 November 2022. The agreement also states that 'A rental bond of $3800.00 must be paid by the tenant on signing this agreement.' The tenant signed the agreement. In oral evidence the tenant stated that the date of signing was 28 October 2022. Text messages on 28 October 2022 indicate that the tenant promised to pay the bond that evening, in accordance with the agreement. He stated he would move in on 10 November 2022. The tenant did not pay the bond. Late in the evening of 28 October 2022 Mr Rivera emailed the agent saying: "I have just read in detail the tenancy agreement but have now several questions about it. And I'd like to ask first to NSW Fair Trading on Monday and then I will come back to you." By 5.05pm on Monday 31 October 2022 Mr Rivera had not contacted the agent. The agent emailed Mr Rivera that 'it is deemed you don't go ahead' with the tenancy and that the holding fee is forfeited. Late in the evening of 31 October 2022 Mr Rivera emailed the agent, saying relevantly: 'If the landlord wishes to continue with my current rental application, he/she should adjust the moving in date to 10 November 2022.' In the same email Mr Rivera states that he would be willing to sign a 'new adjusted lease'." 1. set out s 24(4) of the RT Act and noted the contention of the tenant that he had never refused to enter into the lease, but that it was the landlord who refused to enter into the lease; 2. made the following conclusions: "It is clear from the correspondence above that the negotiations between the applicant and the landlord were based on the term of the residential tenancy agreement commencing on 3 November 2022, with rent payable from the same date. The terms of the agreement dated 28 October 2022 reflect this. The landlord was under no obligation to change the commencement date to suit the tenant, nor issue a 'new adjusted lease'. I am satisfied on the balance of the evidence that Mr Rivera refused to enter into the residential tenancy agreement. Although he signed the agreement dated 28 October 2022, his behaviour indicates that he had no intention of being bound by the agreement because: i) he failed to pay the rental bond upon signing the agreement; ii) he sought to defer the start date of the agreement and the payment of rent by 1 week; and iii) he stated he would commence paying rent from the 'moving in date' on 10 November 2022 (see email dated 31 October 2022). Because Mr Rivera refused to enter into the residential tenancy agreement, the landlord is entitled to retain the holding fee." The history of the appeal 1. On 23 December 2022, the tenant as the appellant commenced proceedings 2022/00003357 against the landlord as the respondent by filing a notice of appeal (the notice of appeal) containing the following details under the heading "6 GROUNDS FOR APPEAL: 1. under the subheading "A ORDERS CHALLENGED ON APPEAL": "The application by the tenants seeks the return of a holding fee or deposit paid to the landlord" 1. under the subheading "B GROUNDS OF APPEAL": "The Tribunal member wrote in the order that according to the tenant's oral evidence in the hearing, the tenant signed the lease agreement on October 28th 2022; however, the tenant never signed the lease agreement on October 28th 2022; it was signed on November 3rd 2022 (refer to attached email when signed lease was sent to agency by tenant). This is question of fact. This wrong fact impacted directly the decision took by the Tribunal member, because Tribunal member said that tenant failed to pay rental bond upon signing the agreement and refused to enter into the residentail (sic) tenancy agreement. And both conclusions aren't accurate nor precise, because after tenant signed the lease on Nov 3/2022, tenant wasn't able to pay rental bond and 2nd week of rent; due to that the agent, according to landlord's instructions, had already put the property in the market; and it was rented it out straight (sic) away to someone else." 1. under the subheading "C ORDERS THE NCAT APPEAL PANEL SHOULD MAKE": "Section 187(1)(c) - An order for the payment of an amount of money $950 Section 187(1)(h) - An order directing a landlord, landlord's agent or tenant to comply with a requirement of this Act or the regulations. Section 47 - An order for the repayment of retn (sic) or other payments made by the tenant contrary to the Act or the residential tenancy agreement." 1. On 11 January 2023, the landlord filed a reply to appeal in which it supported the 21 December 2022 order and relevantly set out the following reply to the tenant's grounds of appeal in section 3.B: "The original approved lease starting date is 28/10/2022 and lease agreement was issued on 25th Oct 2022. On 27th Oct 2022, Applicant requested to postpone the lease starting date and eventually both parties agreed that new lease would start from 3rd Nov 2022 only if applicant signed and returned the revised agreement, lodged the bond by 28th Oct 2022, otherwise holding deposit would be forfeited. However, signed lease was not returned until 2nd Nov 2022 though the respondent kept reminding him till the late evening of 28th Oct 2022. On the other hand, even the applicant signed and returned revised lease which start from 3rd Nov 2022 on 2nd Nov 2022, he was still requesting to start the lease from 10th Nov 2022, without lodging the bond, paying the 2nd week of rent. The respondent could not see any signs that the applicant would genuinely enter the lease agreement. On 2nd Nov 2022, the property was back onto market after we clarified the applicant had no intention to enter the agreement and eventually the property was leased on 8th Nov …" 1. On 13 February 2023, the tenant filed a Submission in which he states he is seeking the following orders: "a. A leave to appeal to be granted on grounds other than a question of law (i.e. Question of Fact) b. Allow fresh evidence or evidence in addition to evidence received by the Tribunal at the first instance. c. To set aside the Notice of Order that the landlord is entitled to retain the holding fee." The hearing of the appeal 1. On 27 February 2023, we heard the appeal. The tenant represented himself. The landlord was represented by Mr Bao. 2. The tenant relied on the documents accompanying the notice of appeal and his submission and accompanying documents filed on 13 February 2023 which included a transcript of the hearing on 21 December 2022 (the 21 December 2022 transcript). In addition to relying on his documents, the tenant made oral submissions. 3. The landlord relied on its submission and accompanying documents filed on 24 February 2023. Mr Bao did not make any oral submissions. 4. The tenant indicated that his appeal was limited to the orders sought in his 13 February 2023 submission, and the new evidence he sought to rely on was the telephone conversation between himself and Ms Zhou on 3 November 2022 (the 3 November 2022 conversation). 5. At the conclusion of the hearing, we reserved our decision. The scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 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 Sch 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 on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable (cl 12(1)(a)); or 2. the decision of the Tribunal under appeal was against the weight of evidence (cl 12(1)(b)); 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) (cl 12(1)(c)). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act 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." (emphasis in original) 1. In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that: 1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act; 2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach. 1. The test of whether evidence is reasonably available for the purpose of cl 12(1)(c) of Sch 4 of the NCAT Act is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]. 2. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. 3. In Collins, the Appeal Panel at [84] summarised the general principles which govern the granting of leave to appeal: "[84] The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) 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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there." 1. An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances specified in s 80(2)(b) of the NCAT Act: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. 2. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel at [13] stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the appeal in s 36(1) of the NCAT Act, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. 3. Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provides that in the case of an appeal from a decision of the Tribunal in proceedings under the RT Act an internal appeal must be lodged within 14 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision. The issues 1. We are satisfied that the appeal was commenced within the time of 14 days prescribed under r 25(4)(b) of the NCAT Rules. 2. Notwithstanding the terms of sections 6.A and 6.C, we have treated the notice of appeal as an appeal in which the tenant is seeking orders that the 21 December 2022 order be set aside and for the repayment of the holding deposit in its place. 3. Having regard to the principles set out in Cominos at [13], the following issues arise for consideration and determination in this appeal: 1. whether the 3 November 2022 conversation is significant new evidence within cl 12(1)(c) of Sch 4 of the NCAT Act; 2. whether the decision of the Tribunal that the tenant refused to enter into the residential tenancy agreement was against the weight of evidence within cl 12(1)(b) of Sch 4 of the NCAT Act; 3. whether leave to appeal should be granted to tenant and if so the appeal should be allowed. Whether the 3 November 2022 conversation is significant new evidence within cl 12(1)(c) of Sch 4 of the NCAT Act 1. We are not satisfied that the tenant has established that the 3 November 2022 conversation is significant new evidence which has arisen and was not reasonably available at the time of the hearing on 21 December 2022 within cl 12(1)(c) of Sch 4 of the NCAT Act. For the reasons set out in [55] to [57] below the 3 November 2022 conversation is not significant evidence because the tenant had refused to enter into the residential tenancy agreement on 28 October 2022 and the landlord had forfeited the holding deposit on 31 October 2022. Further, this conversation was known to the tenant as he had participated in it. Whether the decision of the Tribunal that the tenant refused to enter into the residential tenancy agreement was against the weight of evidence within cl 12(1)(b) of Sch 4 of the NCAT Act Introduction 1. The tenant challenges the following findings of the Tribunal as being against the weight of evidence: 1. that he failed to pay the rental bond upon signing the agreement on 28 October 2022; 2. the tenant had refused to enter into the residential tenancy agreement. 1. Before considering this issue, it is necessary to set out the applicable provisions of the RT Act and the relevant email communications between Ms Zhou and the tenant between 19 October 2022 and 2 November 2022. It is unnecessary to set out text messages between Ms Zhou and the tenant during this period as they are consistent with the email communications. The applicable provisions of the RT Act 1. Part 2 Division 1 (ss 13-18) contains general provisions dealing with residential tenancy agreements. Section 17 deals with unexecuted residential tenancy agreements, and relevantly provides: 17 Certain unexecuted residential tenancy agreements enforceable (1) If a residential tenancy agreement has been signed by a tenant and given to the landlord or a person on the landlord's behalf and has not been signed by the landlord— (a) acceptance of rent by or on behalf of the landlord without reservation, or (b) any other act of part performance of the agreement by or on behalf of the landlord, gives to the document the same effect it would have if it had been signed by the landlord on the first day in respect of which rent was accepted or on the day on which such an act was first performed. … 1. Part 3 Division 1 (ss 23-31A) contains provisions dealing with pre-agreement matters between landlords and tenants. Section 24 deals with holding fees, and relevantly provides: 24 Holding fees (1) A person must not require or receive from a tenant a holding fee unless— (a) the tenant's application for tenancy of the residential premises has been approved by the landlord, and (b) the fee does not exceed 1 week's rent of the residential premises (based on the rent under the proposed residential tenancy agreement). … (4) A holding fee may be retained by the landlord only if the tenant enters into the residential tenancy agreement or refuses to enter into the residential tenancy agreement. … 1. Section 25 deals with disputes about holding fees, and provides: 25 Disputes about holding fees (1) The Tribunal may, on application by a person who has paid, or required or received payment of, a holding fee, make an order in relation to the payment or repayment of the fee. (2) A person may make an application under this section whether or not the prospective residential tenancy agreement was executed. 1. Part 3 Division 2 (ss 32-48) contains provisions dealing with rent and other payments. Section 33 deals with the payment of rent by a tenant, and relevantly provides: 33 Payment of rent by tenant (1) A tenant must pay the rent under a residential tenancy agreement on or before the day set out in the agreement. (2) A landlord, or landlord's agent, must not require a tenant to pay more than 2 weeks rent in advance under a residential tenancy agreement or to pay rent for a period of the tenancy before the end of the previous period for which rent has been paid. … (4) This section is a term of every residential tenancy agreement. 1. Part 8 Division 2 (ss 159-162) contains provisions dealing with the payment and deposit of rental bonds. Section 159 deals with the payment of rental bonds, and relevantly provides: 159 Payment of bonds (1) A landlord, landlord's agent or any other person must not require or receive from a tenant or another person a rental bond of an amount exceeding 4 weeks rent under the residential tenancy agreement for which the bond was paid (as in force when the agreement was entered into). … (2) A landlord, landlord's agent or any other person must not require from a tenant or another person an amount of rental bond before the tenant signs the residential tenancy agreement. (2A) Subsection (2) does not prevent a landlord, landlord's agent or other person from requiring a tenant or other person who has agreed to deposit a rental bond for a residential tenancy agreement with the Secretary to provide evidence that the rental bond has been so deposited before the residential tenancy agreement is entered into. … The relevant email communications between Ms Zhou and the tenant between 19 October 2022 and 2 November 2022 1. On 19 October 2022 at 10.40 am, Ms Zhou sent an email to the tenant (the 19 October 2022 at 10.40 am email) which relevantly provided: "Congratulations Federico, Your application for [address omitted] Pyrmont has been approved as a 12 months lease starting from 28/10/2022 at the rent of $950 per week Before lease starting, 2 weeks' rent and 4 weeks' bond are required. Please see the payment schedule as below: - One week holding deposit $950.00- Pay ASAP (it will become the 1st week rent if application is not withdrawn by you) - 2nd week of rent $950.00 - Pay before move in by bank transfer or cash when picking up the keys - 4 weeks bond $3,800.00- Pay before or on the lease starting date via rental bond online (I will create a link for your later) … Should you have any enquiry, please feel free to contact me. Best Regards Edna Zhou …" 1. On 25 October 2022 at 11.35 am, Ms Zhou sent an email to the tenant which attached a residential tenancy agreement providing for a commencement date of 28 October 2022 and asked what time he would be signing the lease and picking up the keys on 28 October 2022 (the 25 October 2022 at 11.35 am email). 2. On 28 October 2022 at 1.53 pm, Ms Zhou sent an email to the tenant (the 28 October 2022 at 1.53 pm email) which attached a revised residential tenancy agreement providing for a commencement date of 3 November 2022 (the revised residential tenancy agreement) and provided: "Hi Federico Please lodge the bond, pay the send week of rent by 5pm today and send me the payment receipt. Please sign at the right bottom corner of page 1, page 2, sign in the signature box of page 16 and 17, then return it back to me by 5PM today. Best regards Edna" 1. On 28 October 2022 at 11.49 pm, the tenant sent an email to Ms Zhou which provided: "Dear Edna Zhou I hope that you're well I have just read in detail the tenancy agreement but have now several questions about it. And I'd like to ask first to NSW Fair Trading on Monday and then I will come back to you. Thank you Regards, Fred" 1. On 31 October 2022 at 5.05 pm, Ms Zhou sent an email to the tenant (the 31 October 2022 at 5.05 pm email) which provided: "Hi Federico, I haven't heard from you today, it is deemed you don't go ahead with 5304/233 Harris St Pyrmont. In this case, your holding deposited is forfeited and we will put this property back onto market for rent. Best regards Edna" 1. On 31 October 2022 at 11.46 pm, the tenant sent an email to Ms Zhou (the 31 October 2022 at 11.46 pm email) which provided: "Dear Edna Zhou Property Consultant Loyal Property City I hope that you're well I'd like to inform that I have already received the feedback from NSW Fair Trading regarding to the lease agreement, and I received several instructions, suggestions and recommendations to be included in it. Firstly, I would like to confirm that I'm still very interested in the property, am definitely going ahead with it and then organising the moving in date. Secondly, NSW Fair Trading has confirmed that the landlord has two options in the current circumstances: 1) The landlord has the full rights to cancel my rental application if he/she consider it appropriate, even though If I'm interested to go ahead with the property; in that case, the landlord should return the holding deposit. If this option is chosen by the landlord, my bank account details are: Account Name: Fred Caicedo [account details omitted] 2) Alternatively, NSW Fair Trading says that tenant should only pay the rent from the moving in date. Therefore, If the landlord wishes to continue with my current rental application, he/she should adjust the moving in date to 10 November 2022. NSW Fair Trading suggests the following steps in order to achieve a just and fair lease agreement: A) If the new lease is adjusted to 10th November 2022, I should sign it in the earlier convenience with the real estate agency. B) After signing the new lease, real estate agency is entitled to ask me for the payment of 2nd week rent. C) Likewise, after signing the new lease, I should lodge bond before the moving in date. Nevertheless, if landlord decides to adjust his/her lease according to the moving in date on November 10th 2022; I'm willing to proceed with A, B, and C steps in the same day. It means that I would be signing the new adjusted lease; paying the 2nd week of rent; and then lodging the bond in the same day, once the landlord confirms the moving in date on Nov 10th 2022. And the another hand, I just want to inform you that I have already arranged the electricity and internet to be connected for the 10th November 2022. Regards, Fred Caicedo" 1. On 1 November 2022 at 11.24 am, Ms Zhou sent an email to the tenant (the 1 November 2022 at 11.24 am email) which provided: "Hi Federico, We have held the captioned property for you since you paid the holding deposit. Based on your application and the application approval, your lease must be executed on 28/10/2022, but you failed. So on 28/10/2022, your holding deposit is forfeited due to non-execution of the lease. The property is back on the market under the instruction of our landlord. Best regards Edna" 1. On 1 November 2022 at 4.30 pm, the tenant sent an email to Ms Zhou (the 1 November 2022 at 4.30 pm email) which provided: "Dear Edna I have double checked with NSW Fair Trading today, they confirmed that I didn't fail the execution of the lease, simply because there is no lease yet at all. The lease hasn't legally created nor signed by the parties, that's why the holding deposit can't be forfeited at all; for that legal reason the landlord by law MUST return the holding deposit. I have just tried to convince to the landlord to change the moving in date; otherwise, the landlord must return holding deposit in the absence of a lease legally created, which one hasn't been signed by the parties yet. In Addition, if landlord refuses to enter to the lease agreement, this is an second ground why landlord MUST return the holding deposit to the tenant. However, this isn't a reasonable and practical solution for landlord nor for tenant, because I'm definitely entering into lease agreement and I'm moving in on 10th November; and I informed to you yesterday that I have already organized the connection of electricity and internet for this date and also hired the removal company; likewise, please be aware and reminder that I have never refused to enter to the lease agreement. I'd like to come to your office tomorrow, and we can talk directly with NSW Fair Trading about holding deposit, if you need some 'legal clarification' about it. However, I'm more interested to talk with you tomorrow about new lease agreement and the moving in date; and then try to find a reasonable solution for both landlord and tenant. Thank you, Regards, Fred" 1. On 1 November 2022 at 4.54 pm, Ms Zhou sent an email to the tenant (the 1 November 2022 at 4.54 pm email) which provided: "Sorry Federico, your holding deposit is forfeited. Should you have any enquiries for the holding deposit, please refer to residential tenancy. Under landlord's instruction, this is the end of it and this property is back on the market. Best regards Edna" 1. On 1 November 2022 at 7.16 pm, the tenant sent an email to Ms Zhou (the 1 November 2022 at 7.16 pm email) which relevantly provided: "Dear Edna Thank you for your message Be aware that I can't refer to the residential tenancy agreement, because there is no tenancy agreement legally created between landlord and the tenant nor was signed by the parties at all. I have attached below the NSW Fair Trading information about Holding Deposit for your information. If you read carefully the information attached, you will find that 1) There is no lease between landlord and tenant if it hasn't been signed; likewise, it can't be executed nor failed, if it doesn't exist. 2) I, as future tenant, have never refused enter into lease, and 3) if the landlord refused to enter into the lease, Therefore, for the previous three legal reasons (1, 2, and 3), the landlord MUST return the deposit to the tenant. …" 1. On 1 November 2022 at 7.32 pm, Ms Zhou sent an email to the tenant (the 1 November 2022 at 7.32 pm email) which provided: "Hi Federico. Sorry but under landlord's instructions, your holding deposit is forfeited and property is back on the market now. Best regards Edna" 1. On 1 November 2022 at 8.16 pm, the tenant sent an email to Ms Zhou (the 1 November 2022 at 8.16 pm email) which relevantly provided: "Dear Edna I suggest that you should read the Residential Tenancies Act (RTA) about Holding Deposit The landlord can instruct you to put his/her property back in the market, ifhe wishes to dolt and it's 100% alright; however, he can't instruct you and he can't say that the holding deposit is forfeited; otherwise, you're breaking the law under landlord's instructions. Please read carefully the NSW Fair Trading information and the RTA about holding Deposit, I can attach here the sections directly from the legislation about Holding Deposit here, if you wish to verify the information. I can confirm that landlord can't forfeited the Holding Deposit for the following three legal reasons and he MUST refund the Holding Deposit to the tenant. 1) There is no lease between landlord and tenant if it hasn't been signed; likewise, it can't be executed nor failed, if it doesn't exist. 2) I, as future tenant, have never refused enter into lease, and 3) if the landlord refused to enter into the lease, if you break the law on behalf of landlord's instructions, NCAT can order to Landlord and/or Agency to return the Holding Deposit to the Tenant. Please kindly sent to the landlord the NSW Fair Trading information attached in the previous email, so he can read and understand why he can't instruct to the agent to forfeit the Tenant's Holding Deposit. I'm now driving on the way home and can't reply your emails later tonight, so I hope that we can talk tomorrow and overcome our inconveniences and find a mutual and practical solution and organise the moving in date. Thank you, Have a good night, Regards, Fred" 1. On 2 November 2022 at 10.56 am, the tenant sent an email to Ms Zhou (the 2 November 2022 at 10.56 am email) which attached the revised residential tenancy agreement signed by himself and relevantly provided: "Dear Edna Zhou Property Consultant Loyal Property City I hope that you're well I have been advised by NSW Fair Trading to write this email with the following four (4) points, and with copy to NSW Fair Trading's Residential Team 1) I have attached the leased agreement signed for s304/233 Harris St. Pyrmont 2) However, I request to the landlord to change the starting date in the lease from November 3rd 2022 to November 10th 2022, because on November 10th 2022 is the date that I'm able to move in at the property 3) Likewise, I need to Inform that a NSW Fair Trading's case officer will contact you and explain the landlord's responsibilities. 4) If the landlord decides not to proceed with the lease and put the property back in the market, please transfer the holding deposit to this account: Account Name: Fred Caicedo, [details omitted] Let me know. Thank you, Regards, Fred" 1. On 2 November 2022 at 11.16 am, Ms Zhou sent an email to the tenant (the 2 November 2022 at 11.16 am email) which provided: "Sorry, landlord 's instruction is clear that the contract is off, so there is no point to go back and forward of the lease starting date." Consideration 1. We have examined the 21 December 2022 transcript and are satisfied that the tenant did not give evidence that he signed the revised residential tenancy agreement on 28 October 2022. It follows that the finding of the Tribunal that "In oral evidence the tenant stated that the date of signing was 28 October 2022" was erroneous. 2. We are satisfied that on 19 October 2022 by reason of the 19 October 2022 at 10.40 am email and the payment of the holding deposit by the tenant an agreement was entered into between the landlord and the tenant for a lease of the premises for 12 months commencing on 28 October 2022 (the 19 October 2022 agreement). 3. We are not satisfied that on 28 October 2022 an agreement was made to vary the 19 October 2022 agreement by substituting 3 November 2022 for 28 October 2022 as the commencement day for the following reasons: 1. the offer by the landlord to vary the 19 October 2022 agreement was contained in the 28 October 2022 at 1.53 pm email; 2. the landlord was entitled to require the tenant: 1. to pay two weeks rent in advance pursuant to ss 17 and 33 of the RT Act at the time the revised residential tenancy agreement signed by the tenant was returned to Ms Zhou; and 2. to lodge the rental bond pursuant to s 159(2A) of the RT Act before the revised residential tenancy agreement signed by the tenant was returned to Ms Zhou; 1. the tenant did not accept this offer by returning the revised residential tenancy agreement signed by himself to Ms Zhou, lodging the rental bond and paying the second week of rent by 5.00pm on that day. 1. We are satisfied that the inference should be drawn that the tenant refused to enter into the residential tenancy agreement constituted by the 19 October 2022 agreement as he did not return the residential tenancy agreement attached to the 25 October 2022 at 11.35 am email signed by himself and pay the rental bond by 28 October 2022. The landlord was entitled to and did validly forfeit the holding deposit by the 31 October 2022 at 5.05 pm email. The position between the parties was not altered by the subsequent email communications between the tenant and Ms Zhou. 2. If, contrary to our finding, on 28 October 2022 an agreement was entered into between the landlord and the tenant to vary the 19 October 2022 agreement for a lease of the premises for 12 months by substituting 3 November 2022 for 28 October 2022 as the commencement date (the 28 October 2022 agreement), then: 1. the inference should be drawn that the tenant refused to enter into the residential tenancy agreement for the following reasons: 1. he did not return the revised residential tenancy agreement signed by himself to Ms Zhou, lodge the rental bond and pay the second week of rent by 5.00pm on 28 October 2022; 2. by the 31 October 2022 at 11.46 pm email he sought to vary the commencement date to 3 November 2022 and the time for lodgment of the rental bond to a time after execution of the residential tenancy agreement; 1. the landlord was entitled to and did validly forfeit the holding deposit by the 1 November 2022 at 11.24 am email. The forfeiture was effective from that time rather than 28 October 2022 as asserted by Ms Zhou. The position between the parties was not altered by the subsequent email communications between the tenant and Ms Zhou. 1. For these reasons we are satisfied that the decision of the Tribunal that the tenant refused to enter into the residential tenancy agreement was not against the weight of evidence within cl 12(1)(b) of Sch 4 of the NCAT Act. Whether leave to appeal should be granted to tenant and if so the appeal should be allowed 1. We are not satisfied that the error made by the Tribunal in finding that the revised residential tenancy agreement was signed by the tenant on 28 October 2022 affected the accuracy of the finding of the Tribunal that the tenant refused to enter into the residential tenancy agreement. 2. We are satisfied that the Tribunal implicitly found that the landlord forfeited the holding deposit. It was on this basis that the Tribunal pursuant to s 25(1) of the RT Act refused to order the repayment of the holding deposit to the tenant by making the 21 December 2022 order. 3. As none of the criteria in cl 12(1) of Sch 4 of the NCAT Act has been satisfied, we are not satisfied that the tenant may have suffered a substantial miscarriage of justice. It follows that leave to appeal against the 21 December 2022 order should be refused. 4. Even if we had been satisfied that the tenant may have suffered a substantial miscarriage of justice, then having regard to the matters in Collins at [84(2)], we would not have exercised the discretion under cl 12(1) of Sch 4 of the NCAT Act to grant leave to appeal against the 21 December 2022 order. Orders 1. We make the following order: 1. leave to appeal is refused. 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: 10 March 2023