Phoenix v Guangyue Chen [2020] NSWCATAP 255

Phoenix v Guangyue Chen [2020] NSWCATAP 255

The Appeal Panel held that the Tribunal did not err in treating 11 February 2020, when the appellant returned the keys, as the date vacant possession was given. Although the appellant said she moved out before 2 January 2020, there was no evidence she notified the respondent or agent before 8 February 2020, and the respondent could not safely take possession without vacant possession or abandonment. The other grounds also failed because the respondent could appoint a managing agent, there was evidence supporting the cleaning and repair amounts, the appellant had no right after termination to return and remedy defects, and the Tribunal had no jurisdiction to reduce rent for the...

Jurisdiction
Australia
Judgment Date
07 December 2020
Procedural Posture
Internal Appeal in Residential Tenancy Proceedings / Appeal Panel Decision on Leave to Appeal and Appeal From Consumer and Commercial Division Orders of 13 May 2020
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['termination of Tenancy' 'vacant Possession' 'return of Keys' 'rent Arrears' 'cleaning and Repair Compensation' 'reduction of Rent' 'leave to Appeal']
['residential Tenancies' 'civil and Administrative Tribunal Appeals'] ['termination of Tenancy' 'vacant Possession' 'return of Keys' 'rent Arrears' 'cleaning and Repair Compensation' 'reduction of Rent' 'leave to Appeal']

Case Brief

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Procedural Posture

Internal Appeal in Residential Tenancy Proceedings / Appeal Panel Decision on Leave to Appeal and Appeal From Consumer and Commercial Division Orders of 13 May 2020

Legal Issues

  1. 1 ['Whether the Tribunal erred in determining that the tenancy did not terminate until the appellant returned the keys on 11 February 2020 rather than when she asserted she vacated before 2 January 2020.' "Whether the respondent was entitled to appoint Ventus Real Estate as managing agent without the appellant's agreement." 'Whether the Tribunal erred by awarding compensation for cleaning and repairs without evidence of amounts spent.' 'Whether the appellant had a right to return after termination to undertake cleaning or rectify damage herself.' 'Whether rent arrears should have been reduced because the air-conditioner had not been working between June and December 2019.' 'Whether leave to appeal should be granted on the basis of a substantial miscarriage of justice.']

Ratio Decidendi

The Appeal Panel held that the Tribunal did not err in treating 11 February 2020, when the appellant returned the keys, as the date vacant possession was given. Although the appellant said she moved out before 2 January 2020, there was no evidence she notified the respondent or agent before 8 February 2020, and the respondent could not safely take possession without vacant possession or abandonment. The other grounds also failed because the respondent could appoint a managing agent, there was evidence supporting the cleaning and repair amounts, the appellant had no right after termination to return and remedy defects, and the Tribunal had no jurisdiction to reduce rent for the...

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['Leave to appeal refused.' 'Appeal dismissed.']