Novakov v Carew [2017] NSWCATAP 194

Novakov v Carew [2017] NSWCATAP 194

Leave to appeal out of time was granted because the delay was minor, the appeal was only three days late, the appellant explained delay by reference to obtaining the sound recording, the respondents filed no submissions on the extension, and no prejudice was shown. The Tribunal erred in concluding that the landlord consented to termination because the email correspondence did not amount to landlord consent, an agreement to terminate, or a transfer of the tenancy; the respondents' conduct was abandonment or repudiation accepted by the appellant. However, cl 41, including the break fee provisions, had been deleted from the agreement, so the appellant was not entitled to a six-week break...

Jurisdiction
Australia
Judgment Date
29 September 2017
Procedural Posture
Residential Tenancy Appeal / Appeal Panel Decision on Leave to Appeal Out of Time and Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 27 February 2017
Outcome
Leave to appeal out of time granted; appeal allowed; order dismissing the application set aside; substituted order made requiring the respondents to pay the appellant $1328.52 immediately.
Legal Topics
['termination of Residential Tenancy Agreement' 'landlord Consent to Tenant Vacating Premises' 'break Lease Fee' 'abandonment or Repudiation of Tenancy Agreement' 'loss of Rent Damages' 'extension of Time to Appeal']
['residential Tenancy Law' 'civil Procedure' 'contract Law'] ['termination of Residential Tenancy Agreement' 'landlord Consent to Tenant Vacating Premises' 'break Lease Fee' 'abandonment or Repudiation of Tenancy Agreement' 'loss of Rent Damages' 'extension of Time to Appeal']

Case Brief

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Procedural Posture

Residential Tenancy Appeal / Appeal Panel Decision on Leave to Appeal Out of Time and Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 27 February 2017

Legal Issues

  1. 1 ['Whether leave should be granted to appeal out of time.' 'Whether, in vacating the residential premises on 22 December 2016, the respondents breached the residential tenancy agreement or there was an agreement or consent permitting them to do so.' 'If the respondents breached the agreement, what damages the appellant was entitled to recover.']

Ratio Decidendi

Leave to appeal out of time was granted because the delay was minor, the appeal was only three days late, the appellant explained delay by reference to obtaining the sound recording, the respondents filed no submissions on the extension, and no prejudice was shown. The Tribunal erred in concluding that the landlord consented to termination because the email correspondence did not amount to landlord consent, an agreement to terminate, or a transfer of the tenancy; the respondents' conduct was abandonment or repudiation accepted by the appellant. However, cl 41, including the break fee provisions, had been deleted from the agreement, so the appellant was not entitled to a six-week break...

Court Disposition

Leave to appeal out of time granted; appeal allowed; order dismissing the application set aside; substituted order made requiring the respondents to pay the appellant $1328.52 immediately.

Orders

  • ['Leave is granted to appeal out of time and the time to appeal is extended to 16 March 2017.' 'The appeal is allowed and order 1 made on 27 February 2017 in application RT 1655812 is set aside.' 'In substitution of order 1 the Appeal Panel orders that the respondents Patrick Carew and Luke Bowen are to pay the...