Darren and Julia Patterson v David Dawson [2015] NSWCATAP 31

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Darren and Julia Patterson v David Dawson [2015] NSWCATAP 31 Hearing dates: Determined on the papers Date of orders: 04 March 2015 Decision date: 04 March 2015 Jurisdiction: Appeal Panel Before: D Patten, Principal Member G Meadows, Senior Member Decision: An oral hearing of this appeal matter be disposed with. The appeal is dismissed. Catchwords: APPEAL - Civil and Administrative Tribunal (NSW) - appeal against orders dismissing an application for termination of a residential lease pursuant to s 103 of the Residential Tenancy Act 2010 (NSW), - application of s 81 of the Act – meaning of "abandonment". Legislation Cited: Civil and Administrative Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Category: Principal judgment Parties: Darren and Julia Patterson (Appellant) David Dawson (Respondent) File Number(s): AP 14/46310 (AP 14/0033) Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 20 March 2014 Before: B Howe, General Member File Number(s): SH 13/39825

REASONS FOR DECISION 1. This is an appeal against a decision in the Residential Tenancies List in the Consumer and Commercial Division of the Tribunal heard on 23 January 2014. The appellants, Darren and Julia Patterson, were the applicants in the C&C Division and the respondent, David Dawson, was the respondent. The appellants leased premises from the respondent for a fixed term of twelve months commencing on 17 June 2013. 2. The appellants did not personally inspect the premises prior to entering the lease as they were overseas. A friend of the appellants inspected a number of prospective premises and recommended the subject premises to the appellants. It is clear on the evidence that the appellants were seeking what may be termed superior accommodation and were prepared to pay rent in proportion. The rent was $12,166.6 per calendar month and a bond of $11,200,00 was paid which, as at the date of the hearing, had not been paid out. 3. The appellants collected the keys to the premises on 17 June 2013 and almost immediately reported to the landlord or the landlord's agent that they were dissatisfied with certain issues in relation to the condition of the premises. On 05 August 2013 the appellants filed the original application in the C&C Division and moved out of the premises on 10 August 2013, returning the keys on 16 August 2013. Subject to findings to be made by the Tribunal and the provisions of the Residential Tenancies Act 2010 ("the RTA"), a tenancy terminates not when the tenants vacate the premises but when the keys are returned. 4. The application as originally filed sought an order pursuant to s 103 of the RTA terminating the tenancy because of an alleged breach of the lease by the landlord respondent. 5. On 16 August 2013 the appellants sought leave to amend their application to include a further three orders: 1. pursuant to s 44(1)(b) of the RTA an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount; 2. pursuant to s 187(1)(d) of the RTA an order for compensation; and 3. pursuant to s 175 of the RTA an order regarding the return of the bond. 1. It appears that leave was not formally granted to the appellants to amend their claim but such leave was granted at the hearing and an order to that effect was included in the decision. 2. The Tribunal allowed the amount of $224.00 in relation to the claim for compensation but dismissed the balance of the claims in that regard. The Tribunal dismissed the application in relation to s 103, finding that the tenancy had already been terminated by the actions of the appellants in vacating the premises and returning the keys on 16 August 2014. The Tribunal ordered the whole of the bond, plus interest, be paid to the appellants. 3. To the extent that the remainder of the application was dismissed, it was on the basis that the Tribunal was not satisfied at the civil standard of proof that the grounds required to make the orders sought were established.