Fang v Cornelius [2021] NSWCATAP 28

Fang v Cornelius [2021] NSWCATAP 28

The Tribunal erred in law by failing to ask the right questions on each of the three issues between the parties. On the break fee, it failed to make findings about abandonment and failed to address the different statutory context and discretion under s 107 as distinct from s 104. On the excessive rent or pool issue, it failed to direct itself to ss 44 and 47 and to whether an order was available after termination, or alternatively to identify any breach and measure of damages. On the unpaid water bill, it failed to consider whether to extend time if the claim was out of time. Because the Appeal Panel lacked sufficient material to redetermine the merits, the matter had to be remitted for a...

Jurisdiction
Australia
Judgment Date
12 February 2021
Procedural Posture
Residential Tenancy Appeal / Internal Appeal to the Appeal Panel From a Decision of the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal Dated 8 October 2020
Outcome
Appeal allowed; Tribunal order set aside; proceedings remitted to a differently constituted Tribunal for a new hearing and redetermination.
Legal Topics
['fixed Term Residential Tenancy' 'early Termination by Tenant' 'break Fee' 'abandonment of Residential Premises' 'tenant Hardship' 'excessive Rent' 'reduction or Withdrawal of Facilities' 'rental Bond' 'adequacy of Reasons' 'error of Law' 'failure to Ask the Right Questions']
['residential Tenancies' 'administrative Law' 'civil Procedure'] ['fixed Term Residential Tenancy' 'early Termination by Tenant' 'break Fee' 'abandonment of Residential Premises' 'tenant Hardship' 'excessive Rent' 'reduction or Withdrawal of Facilities' 'rental Bond' 'adequacy of Reasons' 'error of Law' 'failure to Ask the Right Questions']

Case Brief

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Procedural Posture

Residential Tenancy Appeal / Internal Appeal to the Appeal Panel From a Decision of the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal Dated 8 October 2020

Legal Issues

  1. 1 ['Whether the Tribunal erred in refusing the Landlord compensation or a break fee after the Tenant left before expiry of a fixed term tenancy.' 'Whether the Tribunal asked the correct questions under ss 104 and 107 of the Residential Tenancies Act 2010 (NSW).' 'Whether the Tribunal could make an order for repayment of rent as excessive under ss 44 and 47 of the Residential Tenancies Act 2010 (NSW) after the tenancy had terminated.' 'Whether any claim concerning the unusable pool should have been treated instead as a damages claim for breach of the residential tenancy agreement, and if so what breach and measure of damages applied.' 'Whether the Tribunal gave adequate reasons and made necessary factual findings concerning the pool, the break fee and the water bill.']

Ratio Decidendi

The Tribunal erred in law by failing to ask the right questions on each of the three issues between the parties. On the break fee, it failed to make findings about abandonment and failed to address the different statutory context and discretion under s 107 as distinct from s 104. On the excessive rent or pool issue, it failed to direct itself to ss 44 and 47 and to whether an order was available after termination, or alternatively to identify any breach and measure of damages. On the unpaid water bill, it failed to consider whether to extend time if the claim was out of time. Because the Appeal Panel lacked sufficient material to redetermine the merits, the matter had to be remitted for a...

Court Disposition

Appeal allowed; Tribunal order set aside; proceedings remitted to a differently constituted Tribunal for a new hearing and redetermination.

Orders

  • ['The appeal is allowed.' 'The order made by the Tribunal on 8 October 2020 is set aside.' 'The proceedings be remitted to a differently constituted Tribunal for a new hearing and redetermination on the basis of the evidence already presented to the Tribunal and such further evidence as the Tribunal may allow.']