Abdel-Messih v Marshall [2017] NSWCATAP 136

Abdel-Messih v Marshall [2017] NSWCATAP 136

The Tribunal correctly held that, notwithstanding the contractual break fee clause, s 107 of the Residential Tenancies Act 2010 gives it a discretion as to whether compensation should be awarded for abandonment. Having found the subtenant reasonably believed that the head landlord was about to become entitled to possession due to the tenant's breaches, and in view of the circumstances, the Tribunal's decision not to award compensation was not an error of law, and no grounds for interfering with that discretion or granting leave to appeal were demonstrated.

Parties
Appellant: Bishoy Abdel-Messih; Respondent: Simon Marshall
Jurisdiction
Australia
Judgment Date
21 June 2017
Procedural Posture
Civil Appeal / Appeal Against Tribunal Decision
Outcome
appeal dismissed except as to bond order
Legal Topics
Abandonment, Break Fee, Compensation for Loss, Landlord and Tenant
Residential Tenancies Consumer Commercial Abandonment Break Fee Compensation for Loss Landlord and Tenant

Case Brief

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Parties

Bishoy Abdel-Messih

Appellant

Simon Marshall

Respondent

Procedural Posture

Civil Appeal / Appeal Against Tribunal Decision

Legal Issues

  1. 1 Whether the Tribunal erred in the exercise of its discretion under s 107 of the Residential Tenancies Act 2010 regarding compensation for early termination (break fee)
  2. 2 Whether the contractual break fee provision (clause 41) required payment or was subject to Tribunal discretion
  3. 3 Whether the Tribunal considered irrelevant matters and failed to consider relevant evidence

Ratio Decidendi

The Tribunal correctly held that, notwithstanding the contractual break fee clause, s 107 of the Residential Tenancies Act 2010 gives it a discretion as to whether compensation should be awarded for abandonment. Having found the subtenant reasonably believed that the head landlord was about to become entitled to possession due to the tenant's breaches, and in view of the circumstances, the Tribunal's decision not to award compensation was not an error of law, and no grounds for interfering with that discretion or granting leave to appeal were demonstrated.

Court Disposition

appeal dismissed except as to bond order

Orders

  • Except for the purposes of making order 2, the appeal is dismissed
  • The bond of $1,600.00 held by Rental Bond Services (reference number P0000626726) is to be paid to the Respondent