Abdel-Messih v Dai [2017] NSWCATAP 20

Abdel-Messih v Dai [2017] NSWCATAP 20

The Conrad Realty letter did not constitute general approval for the tenant to enter into subtenancies without later referral to the landlord. Its proviso that the tenant adhere to tenancy and strata regulations meant the tenant still had to comply with clause 32 of the residential tenancy agreement and ss 74 and 75 of the Residential Tenancies Act, 2010, including seeking the landlord's approval. The tenant provided no evidence that landlord consent to the alleged Mr Mountford subtenancy was before the Member at first instance. The Decision on the subtenancy issue should therefore be affirmed.

Jurisdiction
Australia
Judgment Date
01 February 2017
Procedural Posture
Appeal From a Decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal Concerning a Residential Tenancy Dispute / Appeal Adjourned Part Heard; Reasons Published on the Subtenancy Issue
Outcome
The appeal was adjourned part-heard. The Appeal Panel reserved its decision concerning the subtenancy issue but indicated that it proposed to find that the appeal should be dismissed on that issue and stated that the Decision in respect of the subtenancy issue should be affirmed.
Legal Topics
['subletting' 'landlord Consent' 'quiet Enjoyment' 'compensation' 'appeal Procedure']
['residential Tenancy Law' 'civil and Administrative Tribunal Procedure'] ['subletting' 'landlord Consent' 'quiet Enjoyment' 'compensation' 'appeal Procedure']

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Procedural Posture

Appeal From a Decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal Concerning a Residential Tenancy Dispute / Appeal Adjourned Part Heard; Reasons Published on the Subtenancy Issue

Legal Issues

  1. 1 ['Whether the tenant had a right to enter into subtenancies without further consent from the landlord.' 'Whether an undated letter from Conrad Realty constituted general approval for the tenant to sublet the premises.' "Whether the Tribunal's decision on the subtenancy issue should be affirmed."]

Ratio Decidendi

The Conrad Realty letter did not constitute general approval for the tenant to enter into subtenancies without later referral to the landlord. Its proviso that the tenant adhere to tenancy and strata regulations meant the tenant still had to comply with clause 32 of the residential tenancy agreement and ss 74 and 75 of the Residential Tenancies Act, 2010, including seeking the landlord's approval. The tenant provided no evidence that landlord consent to the alleged Mr Mountford subtenancy was before the Member at first instance. The Decision on the subtenancy issue should therefore be affirmed.

Court Disposition

The appeal was adjourned part-heard. The Appeal Panel reserved its decision concerning the subtenancy issue but indicated that it proposed to find that the appeal should be dismissed on that issue and stated that the Decision in respect of the subtenancy issue should be affirmed.

Orders

  • ['The appeal is adjourned part-heard and will be listed for directions by the Registry after 28 days for the appointment of a further hearing date;' 'Within 14 days from 23 January 2017, the respondent will file with the Tribunal and serve on the appellant his evidence and submissions in support of his argument that...