Abdel-Messih v Marshall [2018] NSWSC 648

Abdel-Messih v Marshall [2018] NSWSC 648

The summons was dismissed because the plaintiff did not establish any reviewable error of law in the Appeal Panel decision. Section 107 of the Residential Tenancies Act 2010 (NSW) gave the Tribunal a discretion whether to order compensation for abandonment, including where a fixed term agreement contained a break fee clause; s 107(3) fixed the amount if compensation was ordered but did not remove the discretion. The challenges to the exercise of discretion were either incompetent appeals from the Tribunal rather than the Appeal Panel, factual challenges not raising questions of law, or showed no error. The Appeal Panel afforded procedural fairness by inviting written submissions on the...

Jurisdiction
Australia
Judgment Date
11 May 2018
Procedural Posture
Appeal From Decision of the NSW Civil and Administrative Tribunal Appeal Panel Under S 83 of the Civil and Administrative Tribunal Act 2013 (nsw) and Proceedings Under S 69 of the Supreme Court Act 1970 (nsw) / Supreme Court Determination of Summons Seeking Leave to Appeal and Relief From the Appeal Panel Decision
Outcome
The summons filed 19 July 2017 was dismissed and costs were reserved.
Legal Topics
['leave to Appeal From NCAT Appeal Panel' 'question of Law' 'judicial Review for Error of Law on the Face of the Record' 'break Fee Under Residential Tenancy Agreement' 'discretion Under S 107 of the Residential Tenancies Act 2010 (nsw)' 'procedural Fairness' 'jurisdiction to Order Payment of Rental Bond' 'apprehended Bias' 'privilege Against Self Incrimination Under S 128 of the Evidence Act 1995 (nsw)']
['administrative Law' 'residential Tenancy Law' 'civil Procedure' 'evidence'] ['leave to Appeal From NCAT Appeal Panel' 'question of Law' 'judicial Review for Error of Law on the Face of the Record' 'break Fee Under Residential Tenancy Agreement' 'discretion Under S 107 of the Residential Tenancies Act 2010 (nsw)' 'procedural Fairness' 'jurisdiction to Order Payment of Rental Bond' 'apprehended Bias' 'privilege Against Self Incrimination Under S 128 of the Evidence Act 1995 (nsw)']

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Procedural Posture

Appeal From Decision of the NSW Civil and Administrative Tribunal Appeal Panel Under S 83 of the Civil and Administrative Tribunal Act 2013 (nsw) and Proceedings Under S 69 of the Supreme Court Act 1970 (nsw) / Supreme Court Determination of Summons Seeking Leave to Appeal and Relief From the Appeal Panel Decision

Legal Issues

  1. 1 ['Whether s 107 of the Residential Tenancies Act 2010 (NSW) conferred a discretion on the Tribunal to refuse compensation where a fixed term agreement provided for a break fee.' 'Whether any discretion under s 107 miscarried because the Tribunal or Appeal Panel considered irrelevant matters, failed to address s 95 of the Residential Tenancies Act 2010 (NSW), or made findings against the weight of evidence.' 'Whether the Appeal Panel denied procedural fairness by considering payment of the rental bond.' 'Whether the Appeal Panel had jurisdiction to make an order that the bond be paid to the defendant.' 'Whether the Appeal Panel was biased.' 'Whether the Appeal Panel erred by not informing the plaintiff about rights under s 128 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The summons was dismissed because the plaintiff did not establish any reviewable error of law in the Appeal Panel decision. Section 107 of the Residential Tenancies Act 2010 (NSW) gave the Tribunal a discretion whether to order compensation for abandonment, including where a fixed term agreement contained a break fee clause; s 107(3) fixed the amount if compensation was ordered but did not remove the discretion. The challenges to the exercise of discretion were either incompetent appeals from the Tribunal rather than the Appeal Panel, factual challenges not raising questions of law, or showed no error. The Appeal Panel afforded procedural fairness by inviting written submissions on the...

Court Disposition

The summons filed 19 July 2017 was dismissed and costs were reserved.

Orders

  • ['The summons filed 19 July 2017 is dismissed.' 'Costs are reserved.']