Abdel-Messih v Dai [2017] NSWCATAP 76

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Abdel-Messih v Dai [2017] NSWCATAP 76 Hearing dates: 23 January 2017 and 21 March 2017 Date of orders: 31 March 2017 Decision date: 31 March 2017 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President D Fairlie, Senior Member Decision: (1) Leave to appeal is refused; and (2) The appeal is dismissed Catchwords: Leave to appeal – Clause 12 Schedule 4 Legislation Cited: Civil and Administrative Tribunal Act 2013 Residential Tenancies Act, 2010 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Bishoy Abdel-Messih (Appellant) Xiao Dong Dai (Respondent) Representation: Ms Sarah Morris (real estate agent for Respondent) File Number(s): AP 16/47125 Publication restriction: Unrestricted Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 10 October 2016 Before: D Charles, General Member File Number(s): RT 16/25202

reasons for decision

Background 1. This is the second decision of this appeal panel, which arises from an appeal from a decision made in the Consumer and Commercial Division of the Tribunal on 10 October 2016 (which we refer to as the "Decision"). Our first decision was published on 1 February 2017 and dealt only with the subtenancy issue. 2. As with our first decision we will refer to the appellant as the tenant and to the respondent as the landlord. 3. As indicated in our first decision, the earlier hearing of this appeal was adjourned because the landlord's son, Mr Dai submitted that all matters the subject of the appeal (other than the matter concerning the subtenancies) had been the subject of an agreement between the parties and had therefore been settled. In addition, there was insufficient time in which to complete the hearing. 4. This decision was reserved following the second day of the hearing of the appeal and on that occasion we heard the parties' submissions with respect to the remaining issues (which we will identify below). 5. It is also necessary to record that the tenant attempted to have us consider further submissions in relation to the subtenancy issue. We refused the tenant's request to reopen the subtenancy issue and have not considered the additional submissions on that subject which were handed to us at the second hearing. In our view, the tenant has had an ample opportunity to make submissions with respect to the subtenancy issue and we have already made our decision known (notwithstanding that formal orders arising out of that issue have not yet been made). 6. The remaining issues concern the tenant's appeal in respect of the following matters: 1. Internet: an amount (to be calculated) is claimed as compensation and was refused in the Decision; 2. An amount of $960.00 is claimed as compensation for the defective dryer and was partly refused in the Decision; 3. An amount of $500.00 is claimed as compensation for noisy showerheads. This was refused in the Decision; and 4. An amount of $175.00 is claimed to compensate the tenant for having pest control treatment undertaken. This was refused in the Decision. 1. We will deal with each of the above claims separately.