Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wong v Azzi [2019] NSWCATAP 291 Hearing dates: 19 November 2019 Date of orders: 04 December 2019 Decision date: 04 December 2019 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member K Ransome, Senior Member Decision: (1) Leave to appeal on grounds other than a question of law refused. (2) Appeal dismissed. Catchwords: LANDLORD AND TENANT – rent – breach of covenant to pay – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 80(2)(b), clause 12(1) of Schedule 4 Cases Cited: Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Category: Principal judgment Parties: Stephen Keung Ching Wong (Appellant) Fadi Azzi (Respondent) Representation: Solicitors: Appellant (Self Represented) C Lawless (Agent) (Respondent) File Number(s): AP 19/41387 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 29 August 2019 Before: S Corley, General Member File Number(s): RT 19/25856 REASONS FOR DECISION 1. This is an appeal by the appellant tenant from a decision of the Tribunal ordering him to pay the respondent landlord the sum of $7,700 by way of rental arrears. 2. For ease of reference we shall refer to the parties as the tenant and landlord. Background 1. The tenant commenced occupation of premises owned by the landlord at Kellyville Ridge, NSW, in 2015. 2. On 12 February 2019 the parties entered into a written six-month fixed-term residential tenancy agreement for those premises. The tenant was the sole tenant named in the residential tenancy agreement. 3. It was not disputed that rent under that tenancy agreement was only paid up to 11 April 2019. 4. The Tribunal ordered the tenant to pay rental arrears to the landlord for the period 11 April to 26 June 2019, being 11 weeks at $700 per week. 5. In the Tribunal below the tenant gave evidence that although he and his former wife had commenced to divorce in January 2019, they needed somewhere to live until the divorce was finalised, and that his wife wanted to continue to live at the premises (with their 26 year-old son) even after the time came for the tenant to move out when their divorce was finalised. Accordingly, he signed the tenancy agreement on 12 February 2019. 6. He said that the divorce was finalised proximate to 10 April 2019, and so that date was the date that he, his former wife and his son ceased to live in the premises. 7. The tenant gave evidence that he returned the keys to the premises to the landlord's real estate agent on 10 April 2019 and gave them to an unidentified female employee of the agent. When he returned the keys he said he filled in an unidentified form drafted by the landlord's agent and gave it to the agent, but was not given a copy. 8. He submitted that, as a result of this return of the keys, he was not liable for rent thereafter. 9. Contrary to his evidence that he returned the keys to the agent on 10 April was an email written by the tenant to the agent dated 11 July 2019 in which he said he was in China from 17 March to 4 June 2019. As he was not in Australia on 10 April his evidence of returning the keys was obviously incorrect. 10. When his attention was drawn to this email the tenant changed his evidence and said that his former wife and son had returned the keys to the agent on 10 April, and that he got the information about the agent's employee and the form from his former wife and son. 11. The tenant did not call any oral evidence from his former wife or son in the Tribunal, nor did he seek to tender any written statement made by them, although the tenant did give evidence that he was not on good terms with his former wife and he did not know where his wife was. No evidence was given that he did not know where his son was, nor that he was unable to contact his son. 12. We pause to observe that in his "Detailed information for the appeal case of RT19/25856 (Stephen Wong)" dated 29 August 2019 and attached to his Notice of Appeal the tenant says that on that day he identified the residential address of his former wife from Medicare records available to him. Notwithstanding that knowledge, the tenant has not attempted to tender on this appeal evidence (as to the return of the keys on 10 April) from his former wife or son on the basis that this evidence was not reasonably available to him at the time of the hearing in the Tribunal. 13. Also before the Tribunal was an email dated 24 May 2019 from the tenant to the landlord's agent. In that email the tenant told the agent that he had changed his email address, asked the agent to send him a short email to "maintain email communications" and said that he no longer used a previous email address which he had (presumably) supplied to the agent. 14. There was no mention in this email of the return of the keys. When asked by the Tribunal why there was no mention of the return of the keys (or purported termination of the tenancy agreement) in this email, the tenant said (after a noticeable pause) that he was told by friends that if he left the premises in the way he had, without documentation, "it could be bad". So, he said, he wanted communication from the agent that "the case was clear". 15. This evidence did not address the obvious point that if he wanted documentation that "the case was clear" then why didn't this email, or another subsequent email, ask for such documentation. 16. There was no contemporaneous document referring to the return of the keys such as a receipt or other contemporaneous note issued by the agent recording the fact that the keys had been returned tendered to the Tribunal. The first document written by the tenant in which the tenant refers to the return of the keys was dated 26 June 2019, a date two days after a Tribunal conciliation hearing was held between the parties (the proceedings brought by the landlord having been commenced on 4 June 2019). 17. The landlord's agent gave evidence that there was no record of the keys having been returned to it. 18. Had the keys been returned on 10 April, and the lease been treated as at an end, a break fee equivalent to six weeks rent would have been payable pursuant to cl 41 of the tenancy agreement (as the Tribunal found). However, no correspondence was generated in relation to a break lease fee, and the agent made no claim on the bond until 10 July 2019. The lack of that correspondence and the lack of any earlier claim on the bond was some evidence, said the Tribunal, that the keys had not been returned as alleged. 19. The tenant maintained that he returned the keys as he had said, but the landlord's agent's record keeping was faulty, thus accounting for the lack of any documents in the agent's office that the keys had been returned. The tenant also said the agent's manager for this particular property had changed a number of times, and that may be an explanation for there being no documentation recording the return of the keys. All of this was speculation. 20. The tenant also said that he went to the agent's office at Windsor on 26 June 2019, two days after the Tribunal conciliation hearing, and asked an employee of the agent sign a piece of paper to the effect that the keys had been returned on 10 April. The request was declined. The tenant said that this was evidence which supported his case. However, that evidence was at least equally consistent with the agent not agreeing to the proposition that the keys had been returned as alleged. The Tribunal's Reasons 1. The Tribunal did not accept the tenant's evidence, such as it was. 2. The evidence of the return of the keys was hearsay, and although the Tribunal is not bound by the rules of evidence the weight of that hearsay evidence is another matter. 3. The Tribunal found that the tenant's evidence was inconsistent and implausible, and obviously did not regard the tenant's evidence as accurate or reliable. 4. The Tribunal noted the absence of any contemporaneous documents recording the return of the keys which would, in the ordinary course of events, arise if the keys had been returned (such as a claim for the break fee and a claim on the bond). 5. The Tribunal noted the inconsistency between the tenant's version of events and his own email of 24 May 2019 in which no mention was made of the return of the keys. Nor did the terms of the email conform with the tenant's expressed purpose of obtaining confirmation from the agent that the "case was clear". 6. Having considered those matters, the Tribunal did not accept the tenant's evidence. There being no other evidence supporting that assertion the Tribunal rejected the tenant's case that the keys had been returned on 10 April 2019, that the tenancy terminated at that date and he was not liable for any rent. The Appeal 1. The essence of the tenant's appeal is that he says that the Tribunal erred in not finding that the keys were returned on 10 April 2019. 2. No grounds of appeal which raise a question of law were contained in the Notice of Appeal or other documents lodged by the appellant. However, we have read his material with the aim of identifying any grounds that may raise a question of law – see Cominos v Di Rico [2016] NSWCATAP 5 at [13] – but are unable to discern any. 3. Accordingly, the tenant must seek leave (permission) to appeal on any other ground (if one exists) – s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"). 4. The tenant says that: 1. the Tribunal's decision was not fair or equitable because the decision was "made purely based on written message" (sic); 2. the Tribunal's decision was against the weight of evidence; and 3. significant new evidence is now available that was not reasonably available at the hearing. 1. These three grounds accurately reflect the terms of cl 12(1) of Schedule 4 of the NCAT Act pursuant to which leave to appeal on grounds not raising a question of law may be sought. 2. Obtaining leave to appeal is a two-stage process. At the first stage the tenant must persuade us that he may have suffered a substantial miscarriage of justice because of one or more of the three matters referred to in his Grounds 1 – 3. Should he persuade us that he may have suffered a substantial miscarriage of justice he must then, at the second stage, persuade us that we should exercise our discretion to grant leave to appeal on one or more of those Grounds. 3. The principles applicable to the granting of leave were set out in Collins v Urban [2014] NSWCATAP 17 at [65] – [84]. 4. Applying those principles, we are not persuaded that the tenant has satisfied either stage one or stage two of the relevant test. 5. It is convenient to address stage one in relation to Ground 1 first, followed by Ground 2, then Ground 3 and then stage two. Ground 1 1. Ground 1 must fail because it is clearly incorrect. 2. It is clear from the Tribunal's reasons that the decision was not "purely based on written message" as alleged, but was based on the rejection of the tenant's testimonial evidence (which was only hearsay as to the return of the keys) which in turn was based on the Tribunal's finding that the tenant's evidence was inconsistent and implausible. 3. The tenant was the party who bore the onus of proof, and, his evidence having been rejected, there was no evidence proving the keys had been returned. 4. The Tribunal's rejection of the tenant's evidence was understandable given his change of evidence as to who returned the keys, its inconsistency with contemporaneous documents (his email dated 24 May 2019) and the inconsistency between his explanation for generating that email and its terms. 5. The decision was also based on the inherent logic of events in that none of the things that would normally happen if keys were returned in fact occurred – see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31]. 6. Therefore, as to Ground 1, we are not persuaded that the tenant may have suffered a substantial miscarriage of justice. Ground 3 1. The new evidence the tenant relies upon in relation to Ground 3 is an assertion that he now knows where his former wife lives, that her lease on new premises began on 10 April 2019 and that therefore this proves that he, his former wife and son had all left the leased premises by 10 April. 2. We are not persuaded the tenant may have suffered a substantial miscarriage of justice in relation to Ground 3. 3. First, it is irrelevant when his wife leased new premises. The tenant, as the sole tenant named in the residential tenancy agreement, was contractually obliged to continue to pay rent until the lease was legally terminated, not simply to when the occupants ceased living in the premises. 4. Second, the relevant point was whether or not the keys were returned as the tenant alleged. He does not allege he has new evidence from his wife on that issue. 5. Thus, there is no new evidence to support the allegation that the keys had been returned on 10 April. It follows that the decision by the Tribunal that the keys were not returned on that date remains undisturbed. Ground 2 1. Ground 2 asserts that the Tribunal's decision was against the weight of evidence. 2. The expression "against the weight of evidence" in the Tribunal means that the evidence in its totality preponderates so strongly against the conclusion favoured by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach – Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; [1991] HCA 23 at [153], followed in Collins v Urban at [77]. 3. We are not persuaded that there is any substance to this Ground. The tenant's hearsay evidence was rejected, there was no other evidence supporting his allegation that the keys had been returned, and that assertion was inconsistent with contemporaneous documents and inconsistent with the apparent logic of events. 4. It follows that we are not persuaded that the tenant may have suffered a substantial miscarriage of justice in relation to Ground 3 Stage Two 1. Stage two of seeking leave to appeal requires the tenant to persuade us that the grounds he raises involve an issue of principle, questions of public importance, an injustice which is reasonably clear, a factual error that was unreasonably arrived at and clearly mistaken or that the way the Tribunal went about the fact-finding process was so unorthodox that it was likely to produce an unfair result – Collins v Urban at [84]. 2. None of those factors exist in this case. Clause 41 1. We note for completeness that the Tribunal found that had the keys been returned as alleged by the tenant he would have been liable for a six-week break fee pursuant to cl 41 of the tenancy agreement. 2. This finding was not challenged on this appeal. In the event we and the Tribunal were wrong about the keys being returned, the tenant would still be liable to the landlord for the sum of $4,200 being six weeks rent at $700 per week. Orders 1. We make the following orders: 1. Leave to appeal on grounds other than a question of law refused. 2. Appeal dismissed. ********** 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: 04 December 2019