Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Abdel-Messih v Azzi [2017] NSWCATAP 171 Hearing dates: 10 August 2017 Date of orders: 15 August 2017 Decision date: 15 August 2017 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President Decision: 1. Mr Abdel-Messih's application for a stay of the Tribunal's order that he pay Mr Azzi $5,850 on or before 16 August 2017 is refused. 2. The time for Mr Abdel-Messih to pay is extended to 24 August 2017. Catchwords: RESIDENTIAL TENANCY – stay of decision for tenant to pay landlord occupation fee – prospects of success – balance of convenience – interests of justice Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 43(3) Residential Tenancies Act 2010 (NSW), s 187 Cases Cited: Abdel-Messih v Azzi [2017] NSWCATAP 86 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Bentran Pty ltd v Sabbarton [2014] NSWCATAP 37 NSW Bar Association v Stevens [2003] NSWCA 95 Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 Category: Procedural and other rulings Parties: Bishoy Abdel-Messih (Appellant) Tony Azzi (Respondent) Representation: Appellant (self-represented) J Foong (Goodvest Realty International) (Respondent) File Number(s): AP 17/32963 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 19 July 2017 Before: S Hennings File Number(s): RT 17/08746 REASON FOR DECISION The question 1. Mr Abdel-Messih has applied to the Appeal Panel for a stay of the Tribunal's order that he pay his former landlord, Mr Azzi, $5,850.00. I have to decide whether Mr Abdel-Messih should pay that amount now or whether he should be allowed to wait until the Appeal Panel decides whether the Tribunal's decision should stand. 2. I have decided that Mr Abdel-Messih should pay Mr Azzi by 24 August 2017. His prospects of success on appeal are not high and even if Mr Abdel-Messih's appeal is successful, there is no reason to assume that Mr Azzi will not give him the money back. The background 1. The Tribunal terminated a residential tenancy agreement between Mr Abdel-Messih and Mr Azzi on 23 November 2016. The order for possession was suspended until 7 December 2016. The Tribunal found that Mr Abdel-Messih had breached the agreement by sub-letting the whole premises without the landlord's consent. Mr Abdel-Messih appealed to the Appeal Panel but the appeal was dismissed. Before the Appeal Panel dismissed the appeal it granted a stay suspending the order for possession on the condition that Mr Abdel-Messih pay the outstanding rent of $1650 and an occupation fee of $150 a day. Mr Abdel-Messih did not pay the occupation fee. The stay order was lifted on 21 February 2017 but Mr Abdel-Messih's sub-tenant did not move out until 24 February 2017. 2. Mr Azzi brought proceedings in the Tribunal to recover $5,850 for unpaid rent and occupation fees for the period from 17 January 2017 to 24 February 2017. In those proceedings, from which Mr Abdel Messih has appealed, the Tribunal found that: 1. the loss incurred by the landlord "clearly flowed from the breach of the tenancy agreement by sub-letting the premises during the tenancy agreement and the landlord not being able to get vacant possession of the premises back until 24 February 2017"; 2. the stay order granted by the Appeal Panel was conditional on Mr Abdel Messih paying the outstanding rent and the occupation fee; 3. Mr Abdel-Messih did not pay the occupation fee; 4. the Tribunal's order suspending the date of possession until 7 December 2016 remained in force until 21 February 2017; and 5. although Mr Abdel-Messih gave Mr Azzi the keys on 16 January 2017, that action did not constitute giving Mr Azzi vacant possession because the sub-tenant remained in the premises until 24 February 2017. Relevant principles 1. The Tribunal has power to grant a stay if it considers it "appropriate to secure the effectiveness of the determination of the … appeal": Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 43(3). Relevant principles are set out in Bentran Pty ltd v Sabbarton [2014] NSWCATAP 37. In considering whether to grant a stay I have to take into account: 1. whether a stay is necessary "to secure the effectiveness of the appeal": NCAT Act, s 43(3); Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695; 2. whether the appeal has "any real prospects of success"; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695; 3. the competing interests of the parties and the balance of convenience: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694; 4. what the interests of justice require: NSW Bar Association v Stevens [2003] NSWCA 95 at [83]; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [18]. Is a stay necessary to secure the effectiveness of the appeal? 1. Mr Abdel-Messih submitted, without any supporting evidence, that Mr Azzi's agent, Mr Foong, had "consistently made misrepresentations and engaged in alleged contempt of the Tribunal". He added that "there is a real risk of non-compliance by the Respondent if the Appellant was to succeed in the appeal". There is no evidence for either of those serious allegations and I do not accept them. There is no basis for assuming that Mr Azzi would not re-pay the money if Mr Abdel-Messih is successful on appeal. Does the appeal have any real prospects of success? 1. Relying on the same submissions that were rejected by the Tribunal below, Mr Abdel-Messih contended that his appeal has strong prospects of success. In summary, two of those submissions were that: 1. the Tribunal did not have jurisdiction because s 187 of the Residential Tenancies Act 2010 (NSW) allows the Tribunal to order compensation for breach of a residential tenancy agreement and, in this case, there was no breach because the landlord consented to the sub-tenant occupying the premises; 2. the tenant gave vacant possession on 16 January 2017 by giving the landlord the keys and thereby lifting the stay order; 1. In relation to (1), the Tribunal found that there was no consent and Mr Abdel-Messih's appeal from that decision was dismissed: Abdel-Messih v Azzi [2017] NSWCATAP 86. In relation to (2), only the Tribunal can lift the stay order. Giving the landlord the keys to the premises does not have that effect. 2. Mr Abdel-Messih says that he did take steps to remove the sub-tenant including issuing a termination notice but because the tenancy had already been terminated, the Tribunal did not have jurisdiction. Mr Abdel-Messih did not provide the Appeal Panel with any decision of the Consumer and Commercial Division to that effect. 3. Because I am not finally determining the merits of Mr Abdel-Messih's appeal, I have not addressed all his submissions in detail. Even so, I am not persuaded that the appeal has any real prospects of success. Balance of convenience 1. Without providing any supporting evidence, Mr Abdel-Messih submitted that Mr Azzi is "very well-off financially, with many assets and investments". I do not need to make a finding about that assertion because Mr Azzi did not submit that he would incur financial hardship if the stay was not granted. On the other hand, Mr Abdel-Messih claimed that he was a full-time student and "largely reliant on Youth Allowance". I do not accept that assertion because he provided no evidence of his income or assets. What do the interests of justice require? 1. Mr Abdel-Messih submitted that for the period from 17 January 2017 to 24 February 2017, he did not have possession of the premises because he had given the landlord the keys and a sub-tenant was in occupation. He claims that the landlord would be "unjustly enriched" if he received $150 per day during that period. Contrary to those submissions, handing over the keys is not giving vacant possession to the landlord and the landlord is entitled to receive an occupation fee while the premises were still being let. The interests of justice require that Mr Azzi receive the outstanding amount pending any final order of the Appeal Panel. Orders 1. Mr Abdel-Messih's application for a stay of the Tribunal's order that he pay Mr Azzi $5,850 on or before 16 August 2017 is refused. 2. The effect of this order would be that Mr Abdel-Messih must pay Mr Azzi $5,850 on or before 16 August 2017. Because that only gives Mr Abdel-Messih one day to pay, I will allow him some extra time. The time for Mr Abdel-Messih to pay is extended to 24 August 2017. ********** 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: 15 August 2017