Abdel-Messih v Azzi [2017] NSWCATAP 214

Abdel-Messih v Azzi [2017] NSWCATAP 214

The Appeal Panel dismissed the appeal because the landlord's claim flowed from the tenant's pre-termination breach of sub-letting the whole premises without consent and from the tenant's failure to provide vacant possession while the possession order was stayed. The Tribunal had jurisdiction under the Residential Tenancies Act 2010 (NSW), including ss 123, 187 and 190, to order payment or compensation for that loss. The tenant's procedural fairness and evidentiary grounds were irrelevant or not made out because the earlier finding of unauthorised sub-letting bound the parties and the primary decision was consistent with the material before the Tribunal. The landlord acted reasonably to...

Jurisdiction
Australia
Judgment Date
16 November 2017
Procedural Posture
Residential Tenancy Appeal / Appeal Panel From Decision of the Commercial and Consumer Division of the Civil and Administrative Tribunal of New South Wales Dated 19 July 2017
Outcome
Appeal dismissed; costs to be determined after further written submissions.
Legal Topics
['breach of Residential Tenancy Agreement' 'sub Letting Without Landlord Consent' 'termination and Possession Order' 'occupation Fee' 'post Termination Damages' 'mitigation of Loss' 'procedural Fairness' 'costs in NCAT Appeals']
['residential Tenancy Law' 'civil Procedure' 'tribunal Appeals'] ['breach of Residential Tenancy Agreement' 'sub Letting Without Landlord Consent' 'termination and Possession Order' 'occupation Fee' 'post Termination Damages' 'mitigation of Loss' 'procedural Fairness' 'costs in NCAT Appeals']

Case Brief

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Procedural Posture

Residential Tenancy Appeal / Appeal Panel From Decision of the Commercial and Consumer Division of the Civil and Administrative Tribunal of New South Wales Dated 19 July 2017

Legal Issues

  1. 1 ["Whether the tenant was denied procedural fairness by the landlord's evidence about lack of consent to the sub-tenant." 'Whether there was evidence to support a finding that the landlord had not consented to the sub-tenancy.' 'Whether the Tribunal had jurisdiction to award money or compensation for loss suffered after termination where the breach occurred before termination.' 'Whether RTA s 187 could support relief where the landlord was said not to have identified a primary basis for liability.' 'Whether the landlord failed to mitigate loss after 17 January 2017.' "Whether the tenant's return of keys amounted to giving possession despite the continued occupation of the sub-tenant."]

Ratio Decidendi

The Appeal Panel dismissed the appeal because the landlord's claim flowed from the tenant's pre-termination breach of sub-letting the whole premises without consent and from the tenant's failure to provide vacant possession while the possession order was stayed. The Tribunal had jurisdiction under the Residential Tenancies Act 2010 (NSW), including ss 123, 187 and 190, to order payment or compensation for that loss. The tenant's procedural fairness and evidentiary grounds were irrelevant or not made out because the earlier finding of unauthorised sub-letting bound the parties and the primary decision was consistent with the material before the Tribunal. The landlord acted reasonably to...

Court Disposition

Appeal dismissed; costs to be determined after further written submissions.

Orders

  • ['Appeal dismissed' 'The respondent is to provide, to the Tribunal and to the appellant, either in person or by post, any further documents and submissions he intends to rely on in relation to costs, on or before 20 November 2017.' 'The appellant is to provide to the respondent and the Tribunal, either in person or...