Xu v Awad [2021] NSWCATAP 209

Xu v Awad [2021] NSWCATAP 209

The short delay in filing the appeal, absence of prejudice and clear rent-calculation errors warranted an extension of time. The Tribunal erred in the rent calculation because the ledger showed rent paid to 19 October 2020, the payable period to vacant possession was 44 days, and the $1,270.20 payment had been double-counted. Correcting those errors meant the Tenant owed the Landlord $1,475.40 for unpaid rent, while the Landlord owed the Tenant $3,400 for painter damage and delayed repairs, producing a net amount of $1,924.60 payable by the Landlord to the Tenant. No error was shown in the awards for damage by the painter or delayed repairs.

Jurisdiction
Australia
Judgment Date
09 July 2021
Procedural Posture
Residential Tenancy Appeal / Appeal Panel Determination of Application to Extend Time and Appeal From Consumer and Commercial Division Decision Dated 15 April 2021
Outcome
Time to appeal extended; appeal upheld in relation to rent calculation; appeal not upheld in relation to painter damage or delayed repairs; Tribunal order varied to reduce the amount payable by the Landlord to the Tenant to $1,924.60.
Legal Topics
['recovery of Rent and Outgoings' 'errors in Rent Calculations' 'landlord Obligation to Repair and Maintain' 'compensation for Delayed Repairs' "damage to Tenant's Goods by Landlord's Painter" 'extension of Time to Appeal']
['leases and Tenancies' 'residential Tenancy Law'] ['recovery of Rent and Outgoings' 'errors in Rent Calculations' 'landlord Obligation to Repair and Maintain' 'compensation for Delayed Repairs' "damage to Tenant's Goods by Landlord's Painter" 'extension of Time to Appeal']

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Procedural Posture

Residential Tenancy Appeal / Appeal Panel Determination of Application to Extend Time and Appeal From Consumer and Commercial Division Decision Dated 15 April 2021

Legal Issues

  1. 1 ['Whether time to appeal should be extended where the appeal was filed five days out of time.' 'Whether the Tribunal erred in calculating rent and credits by using the wrong paid-to date, miscounting days and double-counting a payment.' "Whether the Tribunal erred in awarding compensation for damage to the tenant's goods caused by the landlord's painter." 'Whether the Tribunal erred in awarding compensation for delayed repairs and maintenance.']

Ratio Decidendi

The short delay in filing the appeal, absence of prejudice and clear rent-calculation errors warranted an extension of time. The Tribunal erred in the rent calculation because the ledger showed rent paid to 19 October 2020, the payable period to vacant possession was 44 days, and the $1,270.20 payment had been double-counted. Correcting those errors meant the Tenant owed the Landlord $1,475.40 for unpaid rent, while the Landlord owed the Tenant $3,400 for painter damage and delayed repairs, producing a net amount of $1,924.60 payable by the Landlord to the Tenant. No error was shown in the awards for damage by the painter or delayed repairs.

Court Disposition

Time to appeal extended; appeal upheld in relation to rent calculation; appeal not upheld in relation to painter damage or delayed repairs; Tribunal order varied to reduce the amount payable by the Landlord to the Tenant to $1,924.60.

Orders

  • ['The time to appeal is extended up to and including 5 May 2021.' 'Appeal upheld.' 'Order 1 made by the Tribunal on 15 April 2021 is varied to substitute the sum of $1,924.60 for the sum of $4,851.80 referred to in that Order.']