Diago Lobo v Abdel-Messih [2016] NSWCATCD 14

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Diago Lobo v Abdel-Messih [2016] NSWCATCD 14 Hearing dates: 24 November 2015 and 22 January 2016 Decision date: 24 February 2016 Jurisdiction: Consumer and Commercial Division Before: K Rosser, Senior Member Decision: The respondent is to pay the applicant the sum of $3,000.00 immediately. Catchwords: TENANCY: Whether premises abandoned or tenancy terminated by consent: whether landlord entitled to a break lease fee; credibility Legislation Cited: Residential Tenancies Act 2010 Civil and Administrative Tribunal Act 2013 Category: Principal judgment Parties: Natasha Diago Lobo (applicant) Bishoy Abdel-Messih (respondent) Representation: Both parties self-represented File Number(s): RT 15/60138 Publication restriction: Nil

Reasons for decision

Introduction 1. The applicant (the tenant) seeks an order that the respondent (the landlord) refund to her a total of $3,000.00, being four weeks rent paid as a bond and two weeks rent paid in advance. An application for orders for compensation in respect of other issues was abandoned on the first day of the hearing on 24 November 2015. In addition, on that day the landlord paid the tenant $100.00, being the refund of a security key deposit. 2. The landlord claims that he is entitled to retain the bond and the rent paid in advance as a break lease fee under clause 41 of the residential tenancy agreement. 3. For the reasons set out below, I find that the tenancy agreement ended by consent on the day on which it commenced, which I find to be 31 October 2015. In these circumstances, I find that a break lease fee is not payable and have ordered that the landlord pay the tenant the sum of $3,000.00.