Rathod v Liu [2019] NSWCATAP 80

Rathod v Liu [2019] NSWCATAP 80

The appeal was allowed in part because the Tribunal ordered Mr Rathod to pay a break lease fee without making the necessary material finding whether the tenancy was terminated by the landlord's or agent's consent or, if not, whether Mr Rathod abandoned the premises. The Tribunal also failed to explain the reasoning process leading to Ms Liu's entitlement to the break fee. That failure was an error of law requiring the decision on Ms Liu's claim to be set aside and remitted. Mr Rathod's own grounds otherwise failed: his 21 May 2018 notice did not comply with s 98(2) because it gave only 10 days notice, there was no tenancy on foot for a termination order under s 103 by the hearing, s 109...

Jurisdiction
Australia
Judgment Date
05 April 2019
Procedural Posture
Internal Appeal From a Consumer and Commercial Division Residential Tenancy Decision / Appeal Panel Decision
Outcome
Appeal allowed in part; the decision in RT 18/24796 was set aside and remitted for reconsideration without further evidence.
Legal Topics
['break Lease Fee' 'termination Notice' 'abandonment' 'consent to Termination' 'adequacy of Reasons' 'failure to Make an Essential Finding of Fact' 'remittal']
['residential Tenancies' 'administrative Law' 'appeals'] ['break Lease Fee' 'termination Notice' 'abandonment' 'consent to Termination' 'adequacy of Reasons' 'failure to Make an Essential Finding of Fact' 'remittal']

Case Brief

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Procedural Posture

Internal Appeal From a Consumer and Commercial Division Residential Tenancy Decision / Appeal Panel Decision

Legal Issues

  1. 1 ["Whether Mr Rathod's 21 May 2018 notice validly terminated the residential tenancy agreement under the Residential Tenancies Act 2010 (NSW)." "Whether the Tribunal erred by ordering payment of a break lease fee without determining whether the tenancy ended by the landlord's consent or by abandonment." "Whether the Tribunal gave adequate reasons and made necessary findings on material questions of fact relevant to Ms Liu's claim." "Whether the premises were uninhabitable or the landlord's alleged breach justified termination." "Whether Ms Liu's failure to comply with procedural orders affected the decision."]

Ratio Decidendi

The appeal was allowed in part because the Tribunal ordered Mr Rathod to pay a break lease fee without making the necessary material finding whether the tenancy was terminated by the landlord's or agent's consent or, if not, whether Mr Rathod abandoned the premises. The Tribunal also failed to explain the reasoning process leading to Ms Liu's entitlement to the break fee. That failure was an error of law requiring the decision on Ms Liu's claim to be set aside and remitted. Mr Rathod's own grounds otherwise failed: his 21 May 2018 notice did not comply with s 98(2) because it gave only 10 days notice, there was no tenancy on foot for a termination order under s 103 by the hearing, s 109...

Court Disposition

Appeal allowed in part; the decision in RT 18/24796 was set aside and remitted for reconsideration without further evidence.

Orders

  • ['Appeal allowed in part.' 'The decision of the Tribunal in RT 18/24796 is set aside and remitted for reconsideration by the Tribunal as it was originally constituted, in accordance with these reasons for decision and without further evidence.' "The moneys held by the Registrar in accordance with the stay order made...