Tang v Zhao [2020] NSWCATAP 243

Tang v Zhao [2020] NSWCATAP 243

The tenant was presumptively entitled to the bond, and the landlords bore the onus of proving an entitlement to retain it. The landlords failed to provide a Start of Tenancy Condition Report or other persuasive evidence of the condition of the premises at the commencement of the tenancy, and the absence of the report was not at the tenant's risk. Any fault of the landlords' agent did not alter the landlords' burden. Separate proceedings against the former agent or companies associated with the tenant did not affect the tenant's entitlement to return of the bond. No error of law or basis for leave to appeal was established.

Jurisdiction
Australia
Judgment Date
23 November 2020
Procedural Posture
Internal Appeal in a Residential Tenancy Bond Dispute / Appeal Panel Decision on Leave to Appeal and Appeal From the Consumer and Commercial Division Decision of 21 August 2020
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['rental Bond' 'condition Report' "landlord's Onus of Proof" 'leave to Appeal' 'subletting']
['residential Tenancies' 'civil Procedure Appeals'] ['rental Bond' 'condition Report' "landlord's Onus of Proof" 'leave to Appeal' 'subletting']

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Procedural Posture

Internal Appeal in a Residential Tenancy Bond Dispute / Appeal Panel Decision on Leave to Appeal and Appeal From the Consumer and Commercial Division Decision of 21 August 2020

Legal Issues

  1. 1 ["Whether the landlords established an entitlement to retain the tenant's rental bond or any part of it." "Whether the absence of a Start of Tenancy Condition Report was at the tenant's risk or prevented the tenant from obtaining return of the bond." 'Whether the Tribunal made an error of law or the landlords may have suffered a substantial miscarriage of justice warranting leave to appeal.' 'Whether separate proceedings against the former managing agent and companies associated with the tenant justified delaying repayment of the bond.']

Ratio Decidendi

The tenant was presumptively entitled to the bond, and the landlords bore the onus of proving an entitlement to retain it. The landlords failed to provide a Start of Tenancy Condition Report or other persuasive evidence of the condition of the premises at the commencement of the tenancy, and the absence of the report was not at the tenant's risk. Any fault of the landlords' agent did not alter the landlords' burden. Separate proceedings against the former agent or companies associated with the tenant did not affect the tenant's entitlement to return of the bond. No error of law or basis for leave to appeal was established.

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['Leave to appeal refused.' 'The appeal is dismissed.']