Abdel-Messih v Wang

Background

1. The background facts that we record are those found by the Member in her Reasons. As presently summarised, we do not understand them to be controversial.
2. The Appellant's tenancy commenced on 18 August 2016. Under the Agreement, rent of $2,160 was payable fortnightly. A rental bond of $4,320 was lodged with the Rental Bond Service.
3. Prior to signing the Agreement, the Appellant informed the Respondent that he would not occupy the premises for about three months and requested that he be allowed to have four people reside in the premises until he took occupation. The Member found agreement by the Respondent to that effect as well as an agreement that upon the Appellant's occupation of the premises in October or November 2016, he would reside in the premises with three other occupants.
4. The Agreement is in the standard form prescribed by cl 4 of the Residential Tenancies Regulation 2010. Relevant for present purposes are the provisions of cl 32 of the Agreement. That clause provides: Transfer of tenancy or sub-letting by tenant 32. The landlord and tenant agree that: 32.1 the tenant may with the landlord's written permission, transfer the tenant's tenancy under this Agreement or sub-let the residential premises and 32.2 the landlord may refuse permission (whether or not it is reasonable to do so) to the transfer of the whole of the tenancy or sub-letting the whole of the residential premises, and 32.3 the landlord must not unreasonably refuse permission to a transfer of part of a tenancy or a sub-letting of part of the residential premises, and 32.4 without limiting clause 32.3, the landlord may refuse permission to a transfer of part of the tenancy or to sub-letting part of the residential premises if the number of occupants would be more than is permitted under this agreement or any proposed tenant or sub-tenant is listed on a residential tenancy database or it would result in overcrowding of the residential premises.
5. In each of subclause 32.1, 32.2 and 32.4 the word "may" has been struck through manually with the initials "B.A." appearing above each of the words that have been struck through. Subclause 32.2 has been circled and handwritten in the margin is "s 75(1)". It will be necessary to return to the provisions of cl 32 in due course.
6. On 23 August 2016, the Respondent consented to an application, apparently made by the Appellant, that Simon Marshall be accepted as an occupant of the premises. Upon giving that consent, the building manager was notified by the Respondent accordingly, indicating that Mr Marshall was authorised to occupy the premises for a three-month period as he was "sharing" the premises with the Appellant. As it happened, the Appellant had entered into a subletting agreement with Mr Marshall, authorising his occupation of bedroom 2 in the premises. The subtenancy agreement was for a period of three months commencing on 24 August 2016.
7. That subtenancy agreement was produced to the building manager on 24 August who later that day met the Appellant and handed to him a termination notice on the basis that the Agreement had been breached because the premises has been sublet without the consent of the Respondent. That action on the part of the building manager was undertaken on the instruction of the Respondent.
8. On 29 August 2016 the Appellant advised the Respondent that he had found two further occupants of the premises, being Ms Khurshid and Ms Goel, and sought consent to sub-let bedroom 1 in the premise to them. On that same day and prior to consent being given by the Respondent, the Appellant allowed Ms Khurshid and Ms Goel to occupy the premises along with Mr Marshall. Their occupation of the premises from that date was not then known by the Respondent.
9. The response of the Respondent to the application for consent to allow the occupation of Ms Khurshid and Ms Goel was to seek information from them. The initial information received in response to that request revealed that they were foreign nationals who held student visas. As a consequence, further information was sought of them as to their enrolment in an educational establishment. Before that information was provided, they vacated the premises on 16 September 2016 as they had not, by then, be provided with a security key enabling them to gain access to the building in which the premises were located. It seems that until then, they were dependent upon either Mr Marshall or the Appellant to provide building access
10. In the meantime, the Appellant had ceased paying rent from 1 September 2016. His explanation for so doing was the failure of the Respondent to provide her consent to the subletting of bedroom 1 intended for Ms Khurshid and Ms Goel.

Termination notices are issued

1. As we have already said, a notice purporting to terminate the Agreement was given to the Appellant on 24 August 2016. That notice was given on the basis that the premises had been sublet to Mr Marshall without the Respondent's consent. It is that notice that founds proceedings RT16/42344.
2. A second termination notice was given to the Appellant on 30 September 2016 for failure to pay rent. As the Appellant had declined to pay rent from 1 September for the reason earlier recorded, it is apparent that at the time at which this second termination notice was given to him, the Appellant was in arrears of rent for a period exceeding 14 days (cf s 88(1) of the Residential Tenancies Act). The failure to abide by the terms of that notice is the subject of proceedings RT16/44922.
3. Apart from declining to pay rent from 1 September 2016, the Appellant took two further steps on that day. First, he notified the Respondent that lights, a microwave, a clothes dryer and the outlet for a television signal, all within the premises, were either not working at all or not operating as expected. Second, he commenced proceeding RT16/39468 for orders summarised by the Member as being: (i) An order pursuant to section 65(1)(a) that the landlord carry out repairs. (ii) An order pursuant to section 68(1)(a) that the tenant may install a fixture or make a renovation/alteration/addition to the residential premises. (iii) An order pursuant to section 73(c) requiring a copy of a key or other opening device or information to be given to the tenant. (iv) An order pursuant to section 75(1) that the tenant may transfer a tenancy or sub-let the residential premises. (v) An order pursuant to section 111 declaring that a termination notice was or was not given in accordance with the Act. (vi) An order pursuant to section 187(1)(b) that requires an action in performance of the residential tenancy agreement. (vii) An order pursuant to s 187(1)(b) as to compensation. (viii) An order pursuant to s 187(2)(a) as to compensation for loss of rent.

Procedural History

1. All three proceedings were listed together on 26 October 2016. The hearing took place on that day but was not concluded. It was then adjourned for further hearing on 14 February 2017. At the hearing on 26 October the following interim orders were made in proceedings RT16/44922: "(1) The tenant is to pay the landlord the sum of $8,640 immediately: Reasons: Rent from 01 September 2016 to 26 October 2016 $8,640. The tenant is to pay the landlord rent presently $1,080 per week, next payment due on 26 October 2016 and once the arrears are paid in full, to pay rent in accordance with the residential tenancy agreement. The landlord has the right to relist the matter at any time before the next hearing date if the tenant has not complied with these orders."
2. In all three matters the following procedural directions were also made on that day: (1) By a determination of the Member, the hearing was adjourned to a date to be fixed by the Registrar. (2) The parties will not be permitted to present any additional evidence in relation to this dispute without the leave of the Tribunal. Any request to submit additional evidence must be made in writing at least 21 days before the scheduled hearing date.
3. A printout from the Appellant's computer indicates that on 3 January 2017 he sent an email to the Tribunal's registry, requesting leave to lodge "more evidence" regarding the continuation of breaches while waiting for the full-day hearing. His computer printout also includes an automated response from the Registry, stating that his email was received. In her Reasons, the Member recorded that the Tribunal had no record of the email, notwithstanding what was shown on the Appellant's computer.
4. The Appellant contends that no substantive response to his request was received from the Tribunal, with the consequence that he commenced fresh proceedings RT17/04077 against the Respondent in which he sought orders that, in some respects, were different from those that he had sought in the application he filed on 1 September 2016. Accompanying his new application were a large number of documents. That application and its accompanying documents were said by the Appellant to have been provided to the Respondent on 25 January.
5. At the commencement of the hearing on 14 February 2017, the Appellant sought to have his new application (RT17/04077) heard along with the three proceedings that had been adjourned, part heard, from 26 October. That application was refused by the Member, her reasons for so doing being set out at [12] of the Reasons.

The decision under appeal

1. As was appropriate, the Member separately addressed each of the three proceedings being determined by her. She identified the critical issue in proceedings RT16/42344 as being whether the Appellant had breached the Agreement by subletting the premises without the consent of the Respondent. In addressing that issue, she made reference to cl 32.2 of the Agreement and the handwritten amendment to that clause to which we have earlier referred.
2. At [30] she identified the competing contentions of the parties as to the intent of the amendment made to cl 32. The Appellant asserted that the reference to s 75 in the handwritten marginal note to cl 32 was intended to acknowledge permission on the part of the Respondent to sublet the premises. The Respondent contended that the purpose of the amendment was to exclude subletting, it being understood by her that up to three other occupants of the premises would be members of the Appellant's family.
3. On the evidence that was before the Member, the Respondent's contention was rejected. While the Member accepted that deletion of the word "may" from the subclauses of cl 32 to which we have referred was intended to indicate that the Respondent would not agree to the tenant subletting the premises, the handwritten reference to s 75 in the margin of the Agreement adjacent to cl 32 was a demonstration that the section could not be excluded by law. Having regard to the provisions of s 219 of the Residential Tenancies Act, rendering void any provision of a residential tenancy agreement that purports to "exclude, limit or modify" the operation of the Act, we accept that the Member was correct in so concluding.
4. When articulating her conclusion on this point, the Member said at [39]: The Tribunal is satisfied that the landlord when entering the agreement understood that the tenant would be moving into the premises in October 2016 and would sub-let to three other occupants, being the total amount of occupants allowed to reside in the premises to 4 people. This is supported by the fact that the landlord had approved the occupancy of Mr Marshall and that the landlord was considering approving the occupancy of Ms Goel and Ms Khurshid before they vacated the premises.
5. However, in further response to the submission made by the Appellant as to his claimed entitlement to sublet the premises, the Member referred to the decision of the Appeal Panel in Abdel-Messih v Dai [2017] NSWCATAP 20 in which the Panel determined that by reason of standard condition 32 of the prescribed form of residential agreement and ss 74 and 75 of the Residential Tenancies Act, there was an obligation on the Appellant to seek the Respondent's consent prior to subletting any part of the premises. At [40] the Member found that the Respondent had consented to the subletting of the premises by approving Mr Marshall's occupancy and instructing the building manager to issue to Mr Marshall a security key to the building.
6. The ultimate finding of the Member in respect of those proceedings was that at the time at which the termination notice given to the Appellant on 24 August 2016, the Respondent had consented to the subletting of the premises to Mr Marshall. Clearly, in so doing the Member accepted that the consent had been given on 23 August 2016. As a consequence, the Member found that there was no breach of the Agreement by subletting to Mr Marshall, with the consequence that those proceedings were dismissed.
7. The Respondent did not challenge the determination made in those proceedings. As the Appellant was successful, no challenge was made by the Appellant either to the determination made or to the reasons given for that determination.
8. In proceedings RT16/44922 the Member found that on 30 September 2016 the Respondent had issued a valid termination notice pursuant to s 87 of the Residential Tenancies Act. That finding was founded upon the circumstance that rent had been paid up to 31 August 2016 but none had been paid since. So much was acknowledged by the Appellant who is recorded as stating that he stopped paying rent "because the landlord had repudiated the tenancy agreement by not consenting to him subletting the premises" (at [45]).
9. Having recorded the Appellant's reasons for refusing to pay rent due from 1 September 2016, the Member stated at [46] of the Reasons that a tenant had a fundamental obligation to pay rent and was not entitled to withhold rent on the basis of any claimed breach by a landlord of the residential tenancy agreement. She made reference to the interim order made on 26 October requiring the payment of arrears and the continued payment of rent in accordance with the Agreement. The Member then recorded that the claim in those proceedings had been withdrawn on 14 February 2017. That claim was withdrawn by the Respondent because by that date all rent was being paid in accordance with the residential tenancy agreement. In so doing, the Respondent acknowledged that the Appellant had complied with the interim orders made on 26 October 2016. Subject to one matter arising in the reasons directed to that claim, nothing further in respect of those proceedings need be said.
10. As will be seen, the Appellant essentially challenges the determination made by the Member in respect of proceedings RT16/39468, being the proceedings in which he had sought a number of orders, including specific compensatory orders in which he was successful. By reference to the orders sought in his application, the claim in which he was not successful was that seeking a compensation order by reason of the claimed breach by the Respondent of s 75 of the Residential Tenancies Act. A further claim for "unliquidated damages" raised at the hearing was also addressed by the Member.
11. In her Reasons, the Member addressed at length the claim that the Respondent's consent to sublet the premises had unreasonably been withheld. She recorded the evidence of the Respondent to the effect that it was always her intention to allow the Appellant to reside in the premises with three other occupants, on condition that the occupants would do so on the same terms and conditions as applied to the Appellant. As recorded at [52] of the Reasons, the Respondent identified why she was not prepared to consent to the entire premises being sublet. Among those reasons was the circumstance that the Appellant was running a business of subletting numerous apartments in the building in which the premises are located as well as apartments in other buildings in the central business district of Sydney. That allegation is recorded by the Member as being conceded by the Appellant.
12. The Member then recorded that there were two bedrooms in the premises as well as a sunroom that was being used as a third bedroom. She also recorded that the Appellant resides in bedroom 1; that a Mr Luan and Ms Lai reside in bedroom 2 under a tenancy agreement with the Appellant for a period of six months from 10 November 2016 and to which the Respondent had given her consent. The third bedroom or sunroom was occupied by a Mr Co under a tenancy agreement with the Appellant for a period of six months from 16 November 2016, an agreement to which the Respondent had also given her consent.
13. Having considered the Appellant's contention in general terms, the Member stated at [61] that she was not satisfied that the Respondent had unreasonably withheld consent to a subletting of the premises, with the consequence that there was no breach of s 75 of the Residential Tenancies Act. She recorded that there were currently four persons residing in the premises in accordance with the Agreement and that the Appellant was residing permanently in the premises, the Respondent having consented to the subletting of parts of the premises to three other persons.
14. Having so stated, the Member then directed consideration to the claims made by the Appellant in respect of the subletting of each of the three bedrooms.
15. Bedroom 1 was the bedroom occupied by Ms Khurshid and Ms Goel between 29 August and 16 September 2016. The Member records the Appellant's claim that because the Respondent's consent to subletting of that part of the premises had not been given, Ms Khurshid and Ms Goel were "forced" to leave as they were unable to obtain a building security key. The rent charged by the Appellant for that bedroom was $480 per week and he therefore claimed lost rent from 16 September 2016 until he moved into that bedroom on 9 November 2016. That amounted to a claim of rent for 55 days totalling $3,771.43.
16. We have earlier referred to the requests made by the Respondent for information from Ms Goel and Ms Khurshid to enable her properly to consider the subtenancy application for them. Having considered the detail of that evidence at [63], the Member determined at [64] that the Respondent had not unreasonably withheld consent to the subletting of the premises. She stated that the Respondent was reasonably entitled "to carry out due diligence in relation to who is moving into the premises". She also recorded that the Appellant had not provided evidence that he had received the consent of the Respondent to Ms Khurshid and Ms Goel occupying the premises prior to their tenancy being approved "in accordance with s 75 of the Act". They had not provided all of the information required of them at the time at which they vacated bedroom1.
17. Bedroom 2 was the bedroom occupied by Mr Marshall who had entered into a three-month tenancy agreement with the Appellant on 24 August 2016. That was the day after the consent of the Respondent had been given to that part of the premises being sublet to Mr Marshall. Mr Marshall vacated the premises on 5 November 2016. This had occurred, so the Appellant contended, because the Respondent "interfered with the tenancy causing Mr Marshall to vacate prior to the end of his fixed term".
18. In her Reasons, the Member recorded that the Appellant had brought proceedings in the Tribunal against Mr Marshall, alleging that he had "abandoned" the premises, as a result of which the Appellant sought to recover a break lease fee. The Appellant was unsuccessful in those proceedings (Abdel-Messih v Marshall NSWCATCD, 19 January 2017, unreported (RT16/48675)). As recorded by the Member at [68], in the latter proceedings the Tribunal's reasons disclosed acceptance of Mr Marshall's evidence that "the Head landlord's agent had informed him, and he reasonably believed that the Head Agreement would be terminated by the landlord for breaches of the Head Agreement" which included non-payment of rent. The evidence before the Tribunal in the proceedings below included evidence of a text message from Mr Marshall to the Appellant at the end of October 2016 indicating his intention to vacate the premises. The Member recorded that at that time the proceedings against the Appellant were unresolved, with orders having been made on 26 October for the payment of outstanding rent in the terms that we have earlier recorded.
19. The Member found at [68] that it was open to Mr Marshall to take the course he did on the basis that his continued right to occupy the premises was at risk due to the non-payment of rent by the Appellant. That approach was consistent with the finding of the Tribunal in the proceedings brought by the Appellant against Mr Marshall.
20. On that basis, the Member concluded at [69] that the Respondent had not interfered with the tenancy of Mr Marshall. She therefore dismissed the Appellant's claim for compensation in relation to bedroom 2 for the period between 5 November 2016 when Mr Marshall vacated and 10 November when the subtenancy to Mr Luen and Ms Lai commenced. The Member further noted that the issue of the Appellant's entitlement to a break lease fee had been determined by the Tribunal in the proceedings brought by the Appellant against Mr Marshall in which the appellant was unsuccessful.
21. As reflected in the Member's Reasons, the claim for compensation in respect of bedroom 3 would appear to have been somewhat tenuous. The Appellant sought compensation from the Respondent for unreasonably withholding consent for the sunroom or bedroom 3 for the period from 28 August 2016 until 16 November 2016. The Appellant claimed that he had received interest from a prospective tenant to move into the premises on 28 August but, as the Member recorded, due to the issues that the Appellant was having with the Respondent, the Appellant stated that he "did not want to risk not being able to give this person a swipe key and therefore he did not enter into any agreement with [the prospective tenant]". Ultimately, the Member found that the only consent sought by the Appellant from the Respondent to sublet bedroom 3 was the consent sought in respect of Mr Co on 7 November 2016. The Respondent had approved Mr Co's occupation on 16 November 2016.
22. Having identified those facts, the Member determined that there was no application for consent made by the Appellant to sublet bedroom 3 that had been unreasonably refused by the Respondent. As a consequence, she refused that part of the application.
23. The only other aspect of the Reasons of the Member that need be recorded in any detail for present purposes is the manner in which she considered the Appellant's claim under s 187(1)(d) of the Residential Tenancies Act. That provision affords a discretion to the Tribunal, on the application of a tenant (among others), to make "an order as to compensation". As the Member indicates, the claim made by the Appellant in this regard was addressed in his written submission as a claim for "unliquidated damages". In the written submissions provided to the Member by the Appellant, the heads of claim identified in para 96 of the submission were advanced as a claim for damages for economic loss "as per s 16 of the Civil Liabilities Act 2002 [sic]". The Member then observed that the Tribunal had no jurisdiction to make orders for "damages", as that term is defined in s 3 of the Civil Liability Act 2002. In support of that conclusion she cited the decision of Bellew J in Tralee Technology Holdings Pty Limited v Yun Chen [2015] NSWSC 1259.
24. The Member then observed, having regard to the basis upon which the Appellant sought to sustain his claim, that it should be characterised as "a claim for interruption of the enjoyment of the property". She stated that in order to sustain a claim on that basis the Appellant was required to establish that there was a breach of the Agreement by the Respondent. As she had determined that the Respondent had not breached s 75 of the Act, no "compensation for non-economic loss" could be sustained by reference to that section. The only breach of the Act found by the Member was a breach of s 62 "by failing to maintain and repair the premises in relation to the television power points" (at [90]). In respect of that breach, the Member had ordered the payment of a "nominal amount" of $100. For those reasons, the claim for non-economic loss was dismissed.

The Appeal

1. The Appellant's Notice of Appeal was filed with the Tribunal on 20 March 2017. By his notice, the Appellant challenges, in substance, the decision of the Member to dismiss the substantial claims for compensation that he sought by reference to the alleged refusal of the Respondent to consent to the subletting of the premises. So much is reflected in the order that he sought in the Notice, namely that the decision under appeal be set aside and "the application be dealt with for awarding of damages". His Notice also sought leave to appeal on the basis that the decision of the Tribunal was not fair and equitable because "decisions should be made based on facts in the application of the law to findings of fact" and that "prejudices and personal opinions should have no place in a Court of law". He also contended in the Notice that the decision was against the weight of evidence because weight was to be given "to submissions evidence in writing, instead of accepting oral objections contrary to evidence, especially where there are conflicting accounts of the events [sic]".
2. The Reply to the appeal filed by the Respondent was prepared by her agent. It is prepared in narrative form, effectively asserting that prior to signing the Agreement it was explained that the premises were not to be sublet or the tenancy transferred. The Reply also recorded that subletting internally had been the subject of consent for three other occupants. The decision of the Member was, according to the Reply, to be upheld. The Reply also contended that leave to appeal was required and that the grant of leave was opposed.
3. The written submissions of the parties filed prior to the hearing of the appeal further and better elucidated their respective positions.
4. The Appellant advances four "issues", as he described them, or four grounds upon which his appeal was founded. As stated in his written submissions, they were directed to the rejection of his claims founded in s 187(1)(d) for compensation generally and in particular in s 187(2)(a) for loss of rent. His grounds for challenging the decision below were: 1. that the Tribunal erred at law in determining that the Respondent had not unreasonably withheld consent to subletting bedrooms 1, 2 and 3 and had "failed to give weight to the evidence before it" in addressing this issue. That had the consequence that he was denied lost rent that totalled either $9,156.76 or $7,812.82; 2. that he was denied procedural fairness on 26 October 2016 when he was ordered to pay the arrears of rent then due to the Respondent and to pay rent in accordance with the Agreement; 3. that the Tribunal should have required the Respondent to pay a break fee of $1,600 be reason of "the persistence [sic] on Mr Marshall to break his sublease". Alternatively, the Respondent should have been ordered to pay lost rent of $285.71 for the period during which bedroom two was vacant and $27.49 for advertising the availability of that bedroom for subletting; and 4. that the Tribunal should have exercised its discretion to deal with the claim for damages under s 187(1)(d) by reason of the Respondent's "breach of quiet enjoyment".
5. The Respondent sought to sustain the decision of the Member for the reasons expressed as founding the decision that she gave. In addition, the Respondent contended: 1. that the appeal was lodged out of time and that an extension of time should not be granted; and 2. that as the Appellant challenges the Member's findings of fact, leave to appeal would be required but the grant of such leave is opposed. In light of the first of those contentions, it is appropriate first to address that issue.

Extension of Time

1. The provisions of r 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 require, subject to any extension of time granted under s 41 of the Tribunal Act, that an internal appeal against a decision made in proceedings arising under the Residential Tenancies Act must be lodged within 14 days from the day on which an Appellant is "notified of or given reasons for" the decision against which the appeal is brought. The Appellant acknowledges receiving the decision and Reasons of the Member on 24 February 2017. His Notice of Appeal was lodged with the Tribunal on 20 March 2017. Compliance with r 25(4)(b) required that the appeal be lodged by 10 March 2017. An extension of time to appeal is therefore required.
2. The exercise of the discretion available under s 41 of the Tribunal Act to extend time to lodge an appeal is not circumscribed by any provision of that section. Nonetheless, it is a discretion to be exercised in a principled manner. Those principles, taken from a number of cases of high authority, are distilled in the decision of the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. Relevantly, the discretion is to be exercised in favour of an Appellant if strict compliance with the rules would work an injustice upon the Appellant. Matters that are relevant to the consideration of such injustice include: 1. the length of the delay; 2. the explanation for it; 3. the Appellant's prospects of success; and 4. the extent of prejudice to the Respondent.
3. The Appellant states that he attended the Registry on Monday 27 February 2017 for the purpose of lodging his appeal. He had then brought with him only four copies of the appeal papers. His attempt to file the documents on that date was unsuccessful because five copies of the relevant documents were required before the lodgement of the appeal could be accepted and a filing fee received. He states that he left for overseas later that day on a flight booking that he had made in May 2016. Endeavours were made by him while overseas to arrange copies of his appeal papers to be prepared and payment to the Registry made but this attempt was unsuccessful. Upon his return to Sydney he lodged the required number of copies and paid the requisite filing fee on 20 March 2017.
4. In opposing any extension of time to appeal, the Respondent described the Appellant's explanation of the delay as "lengthy and convoluted". She points to the fact the Appellant is an experienced litigant in the Tribunal and, by reason of that experience, is well aware of the Tribunal's "procedural requirements". No prejudice is identified by the Respondent if the extension sought is granted.
5. We are disposed to grant the extension of time sought by the Appellant, albeit after the time has expired for so doing (cf s 41(2) of the Tribunal Act). The delay of 10 days beyond 10 March is not, of itself, unduly long. The Appellant described his attempt to file his Notice of Appeal in the time permitted by r 25. We have no basis upon which to question the Appellant's statement as to the attempts he made to file his appeal within the time limited by the Tribunal Rules.
6. We take account of the fact that the Appellant did choose to leave for overseas knowing that his Notice of Appeal had not been filed but we also take account of his efforts, albeit unsuccessful, to address the situation while away from Australia. Weighing in favour of the exercise of discretion is the need to balance against the short period of delay the fact that the Respondent did not assert prejudice by reason of the 10 day delay in filing the appeal.
7. Consideration of the Appellant's prospects in the appeal does not require that we determine, in advance of argument upon the substantive grounds of appeal, that the Appellant will or is likely to succeed. It is sufficient to consider, as we do, that the grounds of appeal reflected in his written submissions identify matters that are "fairly arguable". Such a finding does not require an expectation that the Appellant will or is likely to succeed (Tomko v Palasty (No.2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [58]).
8. For these reasons we propose to extend time to lodge the appeal to 20 March 2017.

Leave to Appeal

1. The second matter raised by the Respondent is directed to the requirement for the Appellant to be granted leave to appeal. We have earlier identified s 80(1) of the Tribunal Act as founding the entitlement to appeal from the decision below. Subsection (2)(b) of s 80 circumscribes that entitlement by providing that an appeal "may be brought as a right on any question of law" while any other ground requires the leave of the Appeal Panel. In the present appeal, that leave was sought in the Appellant's Notice of Appeal.
2. Our power to determine an appeal, where leave to appeal is required because factual errors are asserted, is further constrained by cl 12 of Sch 4 to the Tribunal Act. Schedule 4 contains those provisions of the Act that pertain to proceedings assigned to the Consumer and Commercial Division of the Tribunal. Clause 12 of the Schedule relevantly provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the Appellant may have suffered a substantial miscarriage of justice because (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time of the proceedings under appeal were being dealt with).
3. We will address those provisions as they apply to the Appellant's grounds of appeal when dealing with each ground. Clearly, if any of the grounds give rise to a question of law, no leave will be required in respect of that issue or those issues.

Ground 1: Unreasonably withholding consent for subletting the premises

1. The Appellant, who was self-represented, prepared lengthy written submissions in support of this ground. Much in his written material rehearsed the debate in the hearing below on which he succeeded by establishing that the Respondent had in fact consented to the initial subletting of the premises to Mr Marshall. However, he sought to deduce from the determination that the Agreement between the parties was one that allowed him to sublet to other persons, apparently without constraint (see para 69 of his written submissions). This, so he suggests, was a consequence of the reference to s 75 of the Residential Tenancies Act written in the margin against cl 32 of the Agreement.
2. Given their significance to the submission, it is appropriate to identify the relevant provisions of both s 74 and s 75. They provide: 74 Transfer of tenancy and sub-letting by tenant (1) A tenant may transfer the tenancy under a residential tenancy agreement to another person or sub-let the premises to another person, if the landlord gives written consent to the transfer or sub-letting. (2) The landlord must not charge for giving consent to a transfer or sub-letting, other than for the reasonable expenses of giving consent. (3) This section is a term of every residential tenancy agreement. 75 Consent to transfer of tenancy or sub-letting (1) No requirement for reasonable refusal for whole transfer of sub-letting The landlord may withhold consent to a transfer or sub-letting relating to the whole tenancy or residential premises whether or not it is reasonable to do so. (2) Consent must not be unreasonably withheld to partial transfer or sub-letting The landlord must not unreasonably withhold consent to a transfer of a tenancy or sub-letting of premises if the transfer results only in one or more tenants in addition to an original tenant under the residential tenancy agreement or the partial sub-letting of the residential premises occupied by the tenant. (3) Without limiting subsection (2), the landlord is entitled to withhold consent if: (a) the number of proposed occupants is more than the number permitted by the residential tenancy agreement or any applicable consent or approval under the Environmental Planning and Assessment Act 1979, or (b) the proposed tenant or sub-tenant is listed on a residential tenancy database in accordance with this Act, or (c) the landlord is reasonably of the opinion that the transfer or sub-letting would result in the residential premises being overcrowded. (4) Subsection (1)-(3) are terms of every residential tenancy agreement… (5) Remedy if landlord refuses consent The Tribunal may, on application by a tenant, order that the tenant may transfer a tenancy or sub-let residential premises as referred to in subsection (2) if the Tribunal is of the opinion that the landlord's failure to consent is unreasonable.
3. The Appellant contends at para 109 of his written submissions that the Tribunal erred in law in interpreting cl 32 of the Agreement and ss 74 and 75 of the Retail Tenancies Act. While the proper interpretation of a statute does give rise to a question of law, the asserted error of the Member in so doing is not readily apparent from the Appellant's submissions.
4. There are two matters to be noticed from the terms of ss 74 and 75. First, any transfer or subletting of the whole tenancy by the tenant may be made but the consent of the landlord is required for that to occur (s 74(1)). The consent of the landlord to the transfer or subletting of the whole tenancy may be withheld for any reason, whether or not withholding of that consent is reasonable (s 75(1)).
5. The constraint upon the landlord, when requested to consent to a transfer or subletting of the premises that will result in tenants, apart from the original tenant, being added or to the partial subletting of the premises occupied by the tenant, is that the consent to such transfer or subletting must not be unreasonably withheld (s 75(2)). While s 75 does not purport to state exhaustively the bases upon which the landlord may reasonably refuse consent, those bases at least include the matters identified in s 75(3).
6. The effect of these provisions, relevant to the Appellant's submissions are twofold. First, there is no scope for interpreting the provision as entitling a tenant to sublet part of the tenanted premises without constraint. The constraint upon the tenant is that in respect of each proposed sub-tenant consent of the landlord is required. So much is made apparent by s 75(3). Second, the consent must be sought and obtained before the subtenant occupies the part of the premises intended to be the subject of the subletting agreement. That surely is the consequence of both the need for consent and the specification of the remedy in s 75(5) should the tenant contend that the consent sought has been unreasonably withheld. Subletting without consent would constitute a breach of the tenancy agreement. No additional term of the tenancy agreement can derogate from those provisions; s 219.
7. We do not discern any aspect of the reasoning of the Member that advances an interpretation of ss 74 and 75 that differs from that which we have advanced. Clause 32 of the Agreement reflects the provision of ss 74 and 75 and is not considered to do otherwise by the Member. The Agreement cannot be interpreted as affording to the Appellant a right to sublet any part of the premises without observing the requirements of the statutory provisions and cl 32 (Abdel-Messih v Dai at [19]). As a consequence, no error by the member in interpreting the statutory provisions or the relevant term of the Agreement is established.
8. The Appellant next turned to address his claim for rent or compensation in respect of each of the three bedrooms within the premises on the basis that the Respondent had unreasonably withheld consent to the subletting of those bedrooms.

Bedroom two

1. Bedroom 2 was occupied by Mr Marshall. It will be recalled that the Respondent was found by the Member to have consented to the subletting of that bedroom to Mr Marshall on 24 August 2016. As framed, the submission by the Appellant in respect of lost rent for that bedroom seems not to relate to the withholding of consent to the sublease but rather a claim that harassment of Mr Marshall by the Respondent's agent had caused him to leave the premises 19 days prior to the expiration of his tenancy. Presumably, it is a claim for compensation equivalent to the rental loss sustained by the Appellant.
2. The contention that the Respondent had "interfered" with Mr Marshall's tenancy was put to the Member but rejected by her at [80] of her Reasons. On the evidence available to the Member, the rejection of that contention was reasonably open to her. However, the Appellant seeks to support his challenge to the Member's finding by referring to evidence that was not before her. The Appellant seeks to introduce evidence that was apparently tendered in proceedings RT16/48675 brought by the Appellant against Mr Marshall. It is also said to be evidence that was intended to be provided in the separate proceedings RT17/04077 commenced by the Appellant against the Respondent. Those are the proceedings that the Appellant sought to have heard concurrently with the proceedings under appeal on 14 February 2017 but which the Member refused to allow (Reasons at [12]).
3. That determination, not to allow the latter proceedings to be joined with the part-heard proceedings when the hearing resumed on 14 February, involved the exercise of a discretion in a matter of practice and procedure. The Member had made clear on 26 October that no new evidence could be relied upon without leave and that leave was not given, when sought, on 14 February. The fact that the Appellant had sought to file documents in early January in support of an application for leave is of no present consequence. As the proceedings were part heard, the application for leave would always have to be determined, as it was, by the Member.
4. No error in the exercise of the discretion to refuse leave of the kind identified in House v The King (1936) 35 CLR 499 was demonstrated by the Appellant. As there is no basis upon which to interfere with that decision, we cannot have regard to the evidence intended to be advanced in proceedings RT17/04077 for the purpose of determining this aspect of the present appeal.
5. As no error has been demonstrated by the Appellant, we are persuaded to overturn the decision that the Member articulated at [69] to dismiss this part of the Appellant's claim. No breach of the Agreement having been demonstrated, the Appellant is not entitled to any compensation for any loss of rent in respect of bedroom 2.

Bedroom one

1. This claim is directed to the failure of the Respondent to consent to the proposed subletting to Ms Khurshid and Ms Goel. The timing of the request for consent and the response of the Respondent to that request is reflected in the Reasons, the substance of which we have already described.
2. The Appellant submits, in effect, that the Respondent delayed unreasonably in giving her consent to the proposed subtenancy, as a result of which the proposed subtenants vacated the premises. He also submits that contrary to the evidence given before the Member, neither the Respondent nor her agent requested the student enrolment verification that the Respondent claimed to have sought.
3. We have earlier referred to the finding and reasoning of the Member in respect of this claim. In summary, the Member acknowledged the entitlement of the Respondent to request relevant information about the proposed subtenants before consenting to the sublease. In the circumstances pertaining to the proposed subtenants, that entitlement included a right to request evidence of enrolment in an educational institution, given that they were each dependent upon student visas to remain residing in Sydney. The reasoning of the Member in this regard involves no error of law.
4. The Appellant seeks to assert error by submitting that the request for evidence of enrolment at an educational institution was made directly to Ms Khurshid and Ms Goel and not made to him. That had the consequence, so he submitted, that the request was not made conformably with cl 32 of the Agreement.
5. We do not accept that submission. While the evidence identified by the Member suggests that the request was made directly to the proposed subtenants, the Appellant neither identified evidence nor made a submission that he was unaware of the request having been made to the proposed subtenants.
6. Rather, the Appellant seeks to expand his submission by contending that the Respondent, either falsely or erroneously gave evidence to the hearing below that such a request was made when, in fact, no such request was ever made for substantiation of enrolment at an educational institution. He seeks to support the contention by reference to an email exchange with each of Ms Khurshid and Ms Goel in May 2017. Clearly, those emails could not have been before the Tribunal on 14 February 2017. Significantly, the substance of the evidence to support the Appellant's contention that no such request was ever made must reasonably have been available as at 14 February 2017 had the Appellant sought to investigate that issue. As is obvious, he was able to contact each of Ms Khurshid and Ms Goel in May 2017 and, in the absence of contrary evidence (and there was none), it must be assumed that he had contact details for them in February 2017 so as to inquire as to the events that had occurred in late August or early September 2016. In short, the evidence upon which he now seeks to rely is not evidence that engages the provisions of cl 12(1)(c) of Sch 4 to the Tribunal Act.
7. There is a further difficulty for the Appellant in seeking to sustain this claim. As we have earlier said, the provisions of ss 74 and 75 of the Residential Tenancies Act make apparent that the landlord's consent to subletting of premises is required before a subtenancy can be granted by the head tenant. The remedy for claimed failure by a landlord to consent to the subletting of residential premises is that expressed in s 75(5) of the Act, namely to apply to the Tribunal for an order pursuant to that section. Contrary to the statutory requirements, the Appellant secured from Ms Khurshid and Ms Goel the signing of a residential tenancy agreement and allowed them into occupation of the premises without obtaining the consent of the Respondent.
8. On the evidence available to the Member, the circumstances we have described, concerning the proposed subletting of bedroom 1, does not manifest any breach of the Residential Tenancies Act on the part of the Respondent. Therefore, there is no basis upon which to disturb the determination by the Member that this aspect of the Appellant's claim should be dismissed.

Bedroom three

1. The Appellant's submissions in respect of this claim are somewhat confusing. He identifies the claim made in respect of bedroom 3 as being for lost rent between 28 August 2016 and 16 November 2016 totalling $3,702.80. That claim was advanced before the Member and was rejected (Reasons at [70]). However, none of the submissions advanced by him on the appeal address error by the Member in rejecting his claim. The Member had found that the only request for consent to sublet bedroom 3 was that made on 7 November 2016 for occupation by Mr Co. Consent to that subletting was given on 16 November 2016. The Appellant does not identify any matter that would displace that finding nor does he contend that the period between 7 November, when the application for consent was made, and 16 November when the consent was given, manifested an unreasonable withholding of consent, contrary to s 75(2) of the Residential Tenancies Act.
2. In her Reasons, the Member also recorded at [70] the submission then made by the Appellant that he had found a tenant interested in subletting bedroom 3 but due to the difficulty he, the Appellant, perceived in having the Respondent consent to any subletting, he was unwilling to take the risk of "not being able to give this person a swipe key" and therefore did not seek the Respondent's consent nor enter into any agreement with the prospective subtenant.
3. Assuming that is the argument sought to be made on appeal, it does not avail the Appellant in substantiating a right to recover "lost" rent. His entitlement to recover compensation, which may be measured by the quantum of lost rent, turns upon a finding of breach of the Agreement by the Respondent. If no request was made to the Respondent for consent to sublet bedroom 3 to a nominated person, there can be no breach of s 75(2).
4. It follows from the reasons we have given in addressing all matters raised by the Appellant under Ground 1 that this ground of appeal is not sustained.

Ground 2: Denial of procedural fairness

1. As we understand the Appellant's submission, he contends that the interim order made on 26 October 2016, requiring that he pay rent arrears and pay rent in accordance with the Agreement, was procedurally unfair. The procedural unfairness occurred, so he submits, because the order requiring him both to pay the outstanding rent and to continue observing the requirement to pay the rent stipulated under the Agreement was made before the Member had determined his claim for compensation, a claim that was being heard together with the proceedings instituted by the Respondent.
2. That procedural unfairness was "compounded", so he submitted, because the hearing of all proceedings was then adjourned, part heard, to a date to be fixed by the Registrar who, in turn, fixed the hearing to resume on 14 February 2017. His contention is that by fixing that date so long after the adjourned hearing, he was unfairly burdened in the intervening period by the requirement to comply with the order for payment of rent without the prospect of an early determination upon his claim for compensation.
3. The claim that the Appellant was denied procedural fairness does raise a question of law (Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 at [13] (4)). No leave is therefore required in respect of this ground of appeal; it is a ground the Appellant is entitled to advance as of right: s 80(2)(b) of the Tribunal Act.
4. A single day had been fixed for hearing all three matters on 26 October 2016. That day proved to be insufficient to complete the hearing of all three matters. At that hearing the Appellant was self-represented and the Respondent was represented by her real estate agent. It is apparent that evidence was given during the course of the day, including evidence from the Appellant.
5. It will be recalled that one of the proceedings then being heard was the proceeding in which the Respondent sought an order for termination of the tenancy and for possession of the premises on the ground that the Appellant had not paid rent due under the Agreement since 1 September 2016. That proceeding was founded upon a termination notice served upon the Appellant on 30 September 2016.
6. As we have earlier recorded, the Appellant acknowledged that he had not paid rent since 1 September. His reasons for not doing so was, as we have also recorded, a decision made by him on 1 September that he would withhold the payment of rent because of the failure of the Respondent to consent to the subletting of bedroom one to Ms Khurshid and Ms Goel. The evidence to that effect is recorded at [45] of the Reasons.
7. The Member recorded at [47] the evidence given by the Appellant that he was able both to pay the outstanding arrears of rent and also to pay rent in accordance with the Agreement. The fact that the evidence was recorded in those terms militates against any suggestion that the order for payment of rent was made without alerting the Appellant to the prospect that the making of such an order was in contemplation. The Appellant does not submit to the contrary.
8. The thrust of the Appellant's submission is that no such order should have been made because, at that time, there was a prospect of determination favourable to the him in his proceeding RT16/39468 for the payment of damages or compensation which, if awarded, would be offset against unpaid rent. However, it is significant that despite the claims against the Respondent, the Appellant did not assert a right to terminate the tenancy. On the contrary, he wished to remain in possession so as to gain the benefit of subletting two of the three bedrooms in the premises.
9. As the Member made apparent in her Reasons at [44], the termination notice given by the Respondent to the Appellant on 30 September was a valid notice, there being no challenge to its validity either before the Member or before us. In light of the Appellant's expressed reasons for declining to pay rent, it was open to the Member to do as she did at [46], namely to identify the fundamental obligation of a tenant to pay rent under a residential tenancy agreement unless that agreement made provision for abatement of rent in identified circumstances. No such entitlement was identified in the present case either by reference to the Agreement or by reference to the provisions of the Residential Tenancies Act. Clearly, the arrears of rent would continue to increase during the period for which the proceedings were adjourned, should the Appellant continue to maintain his occupation of the premises under the Agreement but pay no rent in the interim.
10. In effect, by making the order that she did on 26 October, the Member afforded the Appellant the opportunity to remain in possession of the premises under the Agreement when it was clearly open to the Member, on the evidence then available to her, to uphold the Respondent's application in proceedings RT16/44922 and to make an order under s 83 of the Residential Tenancies Act terminating the tenancy. Although all three proceedings were being heard together, nothing compelled the Member to refrain from determining one proceeding before another if the evidence in the former demonstrated the entitlement of one party to an order in that proceeding whatever may be the outcome in the other proceedings.
11. By making the order for payment of rent, both arrears and current, without formally determining proceedings RT 16/44922, its practical effect was to allow the Appellant to remain in possession of the premises. Clearly, he did not seek to vacate them pending final determination of all three proceedings. The interim nature of the order and its purpose is made apparent by the terms of an expressed rider to the order recorded at [6] of the Reasons under which the Respondent had the right to relist the matter if the order for payment of rent in the interim, both arrears and current, was not made. That is, should the payment ordered not be made, the Respondent could press her proceeding for a termination order under s 83. That rider to the order made on 26 October does not imply that should the Respondent have relisted the matter for hearing because payment had not been made, the Appellant would not be heard as of an order, if any, that might then be made.
12. We find that the course taken by the Member was unexceptional. Our position does not change by reference to the Appellant's complaint that the date to which the proceedings were adjourned was unduly lengthy. It is in the nature of the workload of the Tribunal that hearing dates are allocated to matters on the basis of estimates of hearing time either given by the parties or assessed by a Member at the time of fixing a matter for hearing. When the initial hearing time is exceeded and the necessity for a further hearing date arises, the date to which the proceedings are adjourned will depend both upon the availability of the Member, having regard to his or her other commitments, and to the state of the list of all other matters that have already been fixed for hearing. The fact that a date was fixed for mid-February 2017 for a matter that was part heard towards the end of October 2016 does not seem to us to be an exceptionally long delay.
13. Almost as a footnote to his submissions in this regard, the Appellant again raised in support of the claimed procedural unfairness, the refusal of the Member to allow him to present new evidence or to hear proceedings RT17/04077 commenced by him on 26 January 2017, together with the part- heard proceeding on 14 February. We have earlier addressed that issue. Our conclusions in respect of that issue does not change even when considered in the context of the present appeal ground.
14. For the reasons we have given, ground 2 of the appeal is not sustained.

Ground 3: Payment of a break lease fee

1. The Appellant seeks to recover a break lease fee of $1,600 from the Respondent by reason of Mr Marshall's departure from the premises on 5 November 2016, some 19 days prior to the expiration of the term of his subtenancy. Alternatively, he seeks payment of $285.71 for rent lost between 5 November and 10 November when bedroom 2 was let to Mr Luan and Ms Lai. In substance, the Appellant repeats the same argument that he addressed in respect of Mr Marshall's occupancy when addressing the first ground of appeal.
2. He adds reference to s 50 of the Residential Tenancies Act in which a tenant's right to quiet enjoyment of residential premises is expressed. That right or entitlement is expressed in subsection (1) to be "without interference by the landlord or any person…having a superior title (such as a head landlord) to that of the landlord". The Appellant contends that the actions of the Respondent or her agent directed to Mr Marshall are actions caught by the subsection, notwithstanding that he, the Appellant, was the direct landlord of Mr Marshall.
3. Accepting, without deciding, the correctness of the Appellant's construction of s 50(1), reliance upon s 50 does not take the Appellant's claim beyond that previously argued when addressing ground 1 of the appeal and dealt with by us when addressing that ground. We rely upon the reasons earlier expressed for rejecting the claim made in that regard.
4. Again, the Respondent seeks to rely upon evidence that he proposed to tender in proceedings RT17/04077, being the proceedings that the Member refused to allow to be joined in with the part-heard proceedings on 14 February 2017. The reasons earlier expressed for rejecting this claim, when addressing the first ground of appeal, stand in response to this claim.
5. In rejecting the Appellant's reliance upon evidence that was not before the Member, we are mindful of two potential constraints that arise when, as in respect of this issue, leave is required because the ground of appeal does not raise a question of law. The first constraint is that expressed in the opening paragraph of cl 12(1) of Sch 4 to the Tribunal Act, by reference to which we must be satisfied that the Appellant "may have suffered a substantial miscarriage of justice" by reason of the matters identified in paragraphs (a), (b) or (c) of the subclause when considering the grant of leave. Second, even if we are so satisfied, that does not impose a requirement upon us to grant leave.
6. By operation of s 80(2)(b) of the Tribunal Act, the grant of leave remains within the discretion of the Appeal Panel. So much follows from the use of "may" in s 80(2)(b). It is for the Appellant to demonstrate something more than that the Member was arguably wrong in the conclusion that he ultimately reached (Collins v Urban [2014] NSWCATAP 17 at 84). No issue of principle or question of public importance is demonstrated in the present proceedings; there is no error that is "plain or readily apparent on a matter or issue that was central to" the Member's decision and there is no unorthodoxy in the process of fact finding made by the Member" (Urban v Collins at 84).
7. This ground of appeal is not sustained.

Ground 4: Entitlement to damages

1. The Appellant challenges the finding of the Member at [97] of his Reasons. The Member there records the submission of the Appellant that he was entitled to damages for non-economic loss under s 16 of the Civil Liability Act 2002. As the Appellant did not lead evidence of any "injury" that he suffered, the Member determined that the Tribunal had no jurisdiction to make an order for "damages" as defined in s 3 of that Act. As we understand the Appellant's submission, he contends that the "true facts as per findings of this Appeal" do not support the dismissal of his claim for damages by reference to s 187(1)(d) of the Residential Tenancies Act.
2. The Appellant further submits that the Member should have dealt with the claim by him as a claim arising for breach of s 50 of the Residential Tenancies Act because the Respondent interrupted the Appellant's quiet enjoyment of the premises or that of his subtenants.
3. Having read the Appellant's written submission below, his claim under s 187(1)(d) was framed by reference to the Civil Liability Act. Although, in principle, a question of law would arise if the rejection of the Civil Liability Act as founding an entitlement to compensation in the present proceeding was challenged, that is not the case the Appellant seeks to make. Rather, he appears to contend that, conformably with the provisions of s 38 of the Tribunal Act and recognising the irrelevance of the Civil Liability Act, his claim should have been determined as one arising from the Respondent's alleged interference with the enjoyment of the premises.
4. On any reasonable reading of [97] of the Reasons, that which the Appellant submits ought to have been done by the Member was in fact done. Having identified the absence of evidence of "injury" and the inapplicability of the Civil Liability Act, the Member sought to address the claim as one for compensation "for loss of enjoyment of the property". Although no reference was made, in terms, to either s 50 or a right to quiet enjoyment, her reference to "loss of enjoyment" can only be read as being synonymous with a reference to the entitlement afforded to a tenant under that section.
5. As outlined in [96] of the Reasons, the Appellant's claim for "unliquidated damages" was founded upon the following assertions of fact: (a) the wasted efforts for the purposes of inspections, moving items, answering distress emails and calls; (b) acting as the gatekeeper for Ms Goel and Ms Khurshid; (c) having Mr Maher and Ms Chiu fabricating allegations against me and making false defamatory imputations; (d) having the subtenant Mr Marshall being subjected to private nuisance through Ms Chiu advising him that she will be evicting him; (e) having my subtenant Mr Marshall harassed by Mr Maher and having his swipe card deactivated for simply assisting me upstairs to the apartment; (f) Ms Chiu may be involved in unlawful private tort of nuisance by constantly harassing my subtenants and such indirectly may be a private nuisance against me; (g) having myself and my subtenants be treated like garbage by both Mr Maher and Ms Chiu.
6. In rejecting the Appellant's claim on the understanding that it was founded upon a claim for "loss of enjoyment", the Member concluded, correctly in our opinion, that any such claim could only be sustained if a breach of the Residential Tenancies Act was demonstrated. The Member concluded that no breach of s 75 of that Act had been established. No doubt that conclusion was expressed because the emphasis of the Appellant's complaint was directed to the claimed reticence of the Respondent in consenting to the subletting of the bedrooms within the premises. The only breach that the Member acknowledged had been established was a breach of s 62 of the Residential Tenancies Act for which she awarded a separate amount of compensation.
7. For reasons earlier given, we find no appealable error on the part of the Member in her determination that no breach of s 75 was established. Further, on the evidence available to the Member, we are not persuaded that there was a breach of the statutory entitlement of the Appellant and his subtenant to "quiet enjoyment" of the premises. In order to sustain his present claim before us, the Appellant sought to rely upon evidence that was not before the Member. We have earlier stated out reasons for not allowing that evidence to be relied upon for the purpose of the Appellant prosecuting this appeal.
8. To the extent that there was evidence before the Member relevant to this issue, it reveals contact by or on behalf of the Respondent with the Appellant because he was not observing the requirements of the Agreement. Relevantly, he took it upon himself to install subtenants in the premises without awaiting the consent of the Respondent, as was required by cl 32 of the Agreement and s 75 of the Residential Tenancies Act. Again, when he stopped paying rent from 1 September, it is little wonder that he was contacted by the Respondent's agent concerning his continued occupation of the premises. That same circumstance of non-payment of rent, so it seems to us, did not render the contact with Mr Marshall in October 2016 by the Respondent's agent, informing him of proceedings against the Appellant for termination of the tenancy for non-payment of rent, an "interruption" of Mr Marshall's quiet enjoyment of the premises within the meaning of s 50(1) of the Residential Tenancies Act. He was entitled to understand that by reason of the Appellant's default in paying rent, the possibility of termination and an order for possession were present (cf s 95 of the Residential Tenancies Act).
9. This ground of appeal is not sustained.

Consequential orders

1. It follows from the reasons we have given in addressing each ground of appeal that the appeal will be dismissed.

Costs

1. In the event that the Appellant is unsuccessful, the Respondent seeks an order that the Appellant pay her costs. Given that the quantum of the Appellant's claim is less than $30,000 and given that no order has been made under cl 10(2) of Sch 4 to the Tribunal Act, this is not a matter that is excluded from the operation of s 60 of the Tribunal Act by r 38(2) of the Tribunal Rules.
2. Section 60(1) requires that each party to proceedings in the Tribunal is to pay the parties own costs. Subsection (2) operates by way of exception to the provisions of subsection (1) by providing that costs may be awarded "only if" the Tribunal is satisfied "that there are special circumstances warranting an award of costs". Subsection (3) identifies matters to which regard can be had when determining whether there are "special circumstances". Those paragraphs of subsection (3) relied upon by the Respondent are: "(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law… ."
3. For reasons earlier given, we have determined that an extension of time to bring the appeal should be granted because the Appellant had a "fairly arguable case". In that circumstance, we are not satisfied that the Respondent is entitled to an order for costs by reference to paragraph (c) of s 60(3). Further, we are not satisfied that the substance of paragraph (b) of the subsection has been established in that once the appeal was filed, there was no undue prolonging of the appeal proceeding by reason of the Appellant's conduct. That leaves for consideration whether "special circumstances" have been established by reference to the considerations expressed in paragraph (a) of the subsection.
4. It is correct to observe that the Appellant filed a considerable volume of material in support of his appeal, including documents and evidence that he sought to have us consider for the purposes of supporting his appeal that was not before the Member. So far as we are aware, that material was provided to the Respondent for the purpose of the appeal in a timely manner and was addressed by the Respondent in her written submissions. Notwithstanding the volume of that material, we are not satisfied that it "unnecessarily disadvantaged" the Respondent in the conduct of the appeal.
5. No "special circumstances" within the meaning of s 60(2) having been established, no order for costs is made. Each party to the appeal should pay his and her own costs.

Orders

1. The orders that we make are as follows: 1. Pursuant to s 41 of the Civil and Administrative Tribunal Act 2013, extend time to appeal to 20 March 2017. 2. To the extent required, leave to appeal is refused. 3. Otherwise, the appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2018