Al-Azooz v Nguyen

"As a tenant I am asking to terminate the contract immediately and for the landlord and landlord's agent to refund the entire bond and two weeks rent for serious breach by real estate agency."

1. On 21 January 2025 the landlord filed her own application 2025/00025926 seeking orders for termination for non-payment of rent and vacant possession. The application did not seek an order regarding the rental bond.
2. On 23 January 2025 the tenant's application came before the Tribunal for a Group List/Conciliation Hearing. At the direction of the Tribunal, the tenant returned the keys to the landlord during the hearing. The application was adjourned to a final hearing.
3. Both applications came before the Tribunal for final hearing on 13 March 2025. The landlord contested the tenant's claim and sought to retain the 2 weeks' rent in advance and another 20 days' rent from the bond (an amount of $1,342.86) to 23 January 2025.
4. The Tribunal dismissed the tenant's application with the following order:

"The application is dismissed after hearing as the Applicant did not prove that the property was not in a reasonable state of cleanliness when the Residential Tenancy Agreement was entered into."

1. In the landlord's application, the Tribunal ordered that $1,141.38 be paid to the landlord from the rental bond, with the balance being returned to the tenant.
2. The Tribunal provided the same written reasons for both decisions.
3. The tenant's Notice of Appeal was filed on 17 March 2025, within the time required by rule 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules).
4. While the Notice of Appeal specified that it is the decision regarding the tenant's application which is appealed, both decisions are obviously interrelated. The documents on appeal submitted by the parties related to both decisions, including the partial payment of the bond to the landlord. We have therefore considered this as an appeal of both decisions, 2024/00478446 and 2025/00025926.
5. The appeal was listed for hearing before us on 13 August 2025, when, after hearing from both parties, we reserved our decision.

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) is concerned with internal appeals. It provides:

"(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.

Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1).

(2) Any internal appeal may be made:

(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

(a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and

(b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances."

1. The tenant has not sought to raise an error on a question of law.

1. In cases where leave to appeal is sought with respect to the decisions of the Consumer and Commercial Division of the Tribunal, clause 12 of Schedule 4 of the NCAT Act relevantly provides that:

"(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 the proceedings under appeal were being dealt with).

Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds."

1. This provision was discussed in detail by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 and has been followed in many cases since. The Appeal Panel in that case concluded at paragraphs [76] - [79] that:

"Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.

As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that:

(1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12].

(2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].

If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence.

In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55]."

1. If we are satisfied that the tenant has made out one of the grounds for granting leave to appeal in clause 12 of Schedule 4, we must then consider whether we should exercise the discretion to grant leave to appeal under s 80(2)(b). In Collins v Urban the Appeal Panel reviewed a number of decisions concerning the granting of leave to appeal and summarised them as follows, at [84] -

"(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];"

1. In considering the appeal we had the following materials before us:

(1) The tenant's notice of appeal and attachments.

(2) The tenant's bundle of documents filed on 23 May 2025 (TB).

(3) The tenant's transcript of the hearing filed 18 June 2025.

(4) The landlord's reply to appeal and attachments.

(5) The landlord's bundle of documents filed 3 April 2025.

(6) Orders made by the Appeal Panel preparatory to the appeal.

(7) The Tribunal's order and reasons for decision.

(8) The tenant's initial application to the Tribunal filed 23 December 2024.

1. The Tribunal explained the background to the applications in the written reasons at [1] as:

"1. This matter involved two related claims the first by Laith Al-Azooz (Tenant) against Khoa Nguyen (Landlord) claiming that the Tenant should not be liable for any end of tenancy expenses because the property was not in a reasonably clean state and was uninhabitable when he moved in. The primary concern was that the property was allegedly infested with German cockroaches. The second claim was by the Landlord against the Tenant for 21 days rent arising from the failure by the Tenant to return the keys. The Landlord did not make a separate claim for a break lease fee."

1. Briefly put, the tenant's case was that he signed the residential tenancy agreement (agreement), and paid the rental bond, together with two weeks' rent in advance, without physically inspecting the rented premises. He did inspect the premises virtually before agreeing to rent them.
2. When the tenant arrived at the premises, he says he found that the premises were infested by German cockroaches and, as he wrote repeatedly on the condition report, the premises were "filthy" and "full of roaches". The state of the premises had not been apparent to him during the virtual inspection.
3. The tenant decided not to move in and to terminate the agreement. He communicated this to the landlord's agent.
4. The tenant did not return the keys to the landlord immediately. He told the Tribunal he had not been told how to do so. The keys were returned to the landlord on 23 January 2025. The Tribunal noted at [12]:

"He said he had called a staff member at the agency a number of times to ask how to return the keys but received no response."

1. The tenant claimed to be particularly sensitive to bugs. The Tribunal wrote at [9]:

"9. The Tenant claimed to have suffered serious medical effects from his exposure to the German cockroaches. He submitted medical documents to support these arguments."

1. The Tribunal said that, in opposing the tenant's claim and claiming rent until the keys were returned, the landlord argued:

(1) The landlord had arranged for a pest control treatment of the premises but had been advised, at [14] "that it can take up to six weeks for the pest treatment to be fully effective."

(2) The premises had been provided to the tenant "in a reasonable state of cleanliness and fit for habitation by the Tenant", at [15]. The tenant was exaggerating and "would not let them undertake any further cleaning or pest control treatment."

(3) The state of the premises was illustrated by the ingoing condition report, which showed that it was in a reasonable state of cleanliness.

(4) The keys were returned on 23 January 2025, at the first Tribunal hearing, at the direction of the Member.

(5) The landlord was entitled to keep the two weeks' rent paid in advance and a further 20 days' rent until the keys were returned.

1. The Tribunal commenced its consideration of these competing claims thus:

"19. In relation to the Tenant's claim, he bore the burden of proof under section 52 of the Residential Tenancies Act 2010 (RTA) to demonstrate that the residential premises were not in a reasonable state of cleanliness and fit for habitation by the Tenant.

20. At the commencement of the hearing, I explained to the Tenant that previous Tribunal cases indicated that it would only be in extreme cases that premises would be found to be uninhabitable due to a lack of cleanliness. Based on my observations, the Tenant focused his arguments on whether the property was in a reasonable state of cleanliness."

"21. In this regard I found that the Tenant had not discharged his burden of proof under section 52 of the RTA. First, the photos which he provided as part of his evidence did not demonstrate that the property was infested with German cockroaches. Rather, a number of photos related to a bird's nest on the balcony, while only one other photo showed any active cockroaches. A further photo showed what the Tenant claimed to be evidence of the presence of cockroaches, but this photo was not conclusive. The final photos were of a bait trap set up by the Tenant which had apparently poisoned a small number of cockroaches.

22. Second, the Tenant was also unable to rebut the photo evidence contained in the ingoing inspection report. He claimed that the photos were not accurate. However, my review of the photos did not show any evidence of infestation. Rather the photos showed that the property was clean and tidy when the Tenant initially took possession. I could not simply discount the evidence from the ingoing condition report on the basis of the Tenant's unsubstantiated assertions that they were not accurate.

23. Accordingly, I found that the Tenant had not proven that the property was not in a reasonable state of cleanliness when he took possession of the property and as such his purported termination of the residential tenancy agreement based on a breach by the Landlord of section 52 of the RTA was ineffective."

1. With respect to the return of the keys that Tribunal found:

"25. I also noted that there was no documentary evidence provided by the Tenant to the Agents asking about how to return the keys. I found the absence of SMSs or emails somewhat puzzling given that the Tenant had previously sent a large number of SMSs to the Agents about the state of the property. I found it less than convincing that the Tenant who had used SMSs so extensively on an earlier occasion would have decided to only make phone calls about returning the keys.

26. Regardless of this fact, the onus is on the Tenant to return the keys to the Landlord. If the Tenant is unsure how to do that, they should have recourse to their residential tenancy agreement. The Tenant acknowledged he did not review his residential tenancy agreement to check how to return the keys.

27. I also noted that the agency had an afterhours box which the Tenant could have used to return the keys at any time, including over the Christmas - New Years shutdown period.

28. Having said that, I decided to reduce the Landlord's claim by three days due to the Christmas - New Years shutdown period. It seemed to me that during this time any written messages from the Tenant to the agency about the return of the keys would not have been responded to, given all staff were on leave. However, there was no reason for the Tenant failing to return the keys after the Agency reopened on 6 January 2025.

29. Accordingly, I have allowed the Landlord to recover 17 days of rent from the rental bond or an amount of $1141.38."

1. The appellant is self-represented. As the Appeal Panel explained in Cominos v Di Rico [2016] NSWCATAP 5 ("Cominos") at [13]:

"It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]- [316]). Relevantly, s 38(2) provides that that Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice'."

1. The tenant seeks leave to appeal against the Tribunal's decision on the grounds that:

(1) The decision was not fair and equitable because, in brief, the Tribunal overlooked "many evidence" and that its conclusion that the premises were reasonably clean was based "solely by looking at the condition reports pictures."

(2) The decision was against the weight of evidence including because the condition report stated the premises was infested and was not clean; and

(3) Significant new evidence is now available which was not reasonably available at the time of the hearing.

1. Considering the information the tenant provided in the Notice of Appeal, we consider that ground 1 and ground 2 in substance raise the same ground of appeal: that the decision of the Tribunal was against the weight of evidence.

Additional information obtained from a review of material that was before the Tribunal

1. There are a number of details that were documented in the evidence before the Tribunal, which the Tribunal did not refer to in its decision, which are uncontested on appeal. These are:

(1) The condition report was completed and initialled on the landlord's behalf on 20 December 2024. As completed for the landlord, it shows some aspects of the premises as not being clean: such as the laundry wall, tiles, doorframes and windows; the bathroom ceiling, taps, basin and bath; the kitchen bench, tiles and doors; the lounge doors; and the bedroom walls and floors.

(2) In a section of the report headed "Additional Comments" related to, relevantly, "Health Issues", the landlord's agent wrote:

"The property requires pest control there are cockroaches everywhere."

(3) The tenant first attended the premises on 20 December 2024. He immediately contacted the landlord's agent (confirmed by an email that night) complaining that the premises were "filthy" and were infested with cockroaches. At TB 11 he wrote:

"The entire apartment is infested with insects and roaches and it poses a serious health hazard ... urgent cleaning and pest control; required by 24 hrs as discussed with Jenny today ...I will never be moving in or loving [sic] any piece of furniture unless all the major issues above being fixed by tomorrow sharp."

(4) The tenant's version of the condition report, dated 21 December 2024, shows the entire premises as filthy, infested with cockroaches, mouldy and damp, with rubbish left on the premises. Under safety issues the tenant wrote:

(5) There are photographs attached to the condition report.

(6) Emails exchanged on the morning of Saturday, 21 December 2024 showed attempts at negotiation about remedying the problem being frustrated and hampered by the proximity of Christmas.

(7) The tenant emailed the landlord's agent at 4:44pm on 21 December 2024, "officially requesting to cancel the contract to the property ...". He wrote:

"After the professional pest control from "Bug free control" company that you assigned to do the job today came and inspected the property thoroughly and his finding was astonishing as he said the property is severely infested with roach egg and feces (sic) all over the place inside cupboards, appliances, stove, Air Cons, laundry, ceiling, smoke detectors ... etc ... even after he treated them the (sic) start coming out in large number ... and he came up with the decision that the apartment is fully infested and it poses health hazards to the household.

Given his findings above and my dissatisfaction of the condition of the property and you misrepresenting and failing to declare the actual condition of the property I am exercising my right to cancel the contract and get my bond in full and two weeks rent in full under s 107 of the RTA that allows me to terminate the tenancy agreement if the landlord or agent has breached their obligations, including providing a property that is fit for habitation."

(8) The invoice from Bugfree Pest Control for work done 21 December 2024, produced by the landlord, contains no description of the work done, notes or report.

(9) Clause 18.6 of the agreement stipulated that the tenant was required to return to the landlord all keys and other opening devices when the agreement ends and before giving vacant possession (consistent with s 51(3)(e) of the RTA).

"A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant."

1. As the Appeal Panel said in Bhandari v Laming [2015] NSWCATAP 224 ("Bhandari") at [35]:

"Section 52 imposes two obligations on the landlord. One obligation is to provide the residential premises in a reasonable state of cleanliness and the other is to provide residential premises that are "fit for habitation"."

1. As expressed in Bhandari at [38], both obligations, according to the language used, are mandatory and unqualified. They are not:

"... contingent on reasonable steps or to be dependent on the landlord being at fault or having control over the event or circumstance affecting the state of the premises."

1. A condition report for residential premises must be completed and signed by the landlord and tenant at the commencement of a tenancy as required by s 29 of the RTA.
2. Section 30 of RTA provides:

"30 Condition report evidence of condition of premises

(1) A condition report that is signed by both the landlord and the tenant is presumed to be a correct statement, in the absence of evidence to the contrary, of the state of repair or general condition of the residential premises on the day specified in the report.

(2) This section does not apply -

(a) to any matter that could not have reasonably been discovered on a reasonable inspection of the premises, or

(b) to any statement in the report about which the tenant makes a written dissenting comment on the copy of the report completed by the tenant and retained by the landlord."

1. Section 30(1) does not provide a basis for rejecting or ignoring other evidence as to the state of the premises at the relevant time, where the evidence happens not to be contained in a condition report signed by both the landlord and the tenant: Hall v Hawkins [2015] NSWCATAP 197 at [64].
2. The meaning of vacant possession was considered by the Appeal Panel in Phoenix v Guangyue Chen [2020] NSWCATAP 255. Relevantly, the Appeal Panel said at [77] - [78]:

"It is clear that the question whether a tenant has given vacant possession of premises is a question of fact in each case ... ordinarily a tenant does not give up vacant possession of premises until they return the keys to the landlord or the landlord's agent. Any other conclusion would create a difficulty for a landlord who knows that a property subject to a residential tenancy is empty. If the keys have not been returned, the landlord could not be confident that the tenant had abandoned the property or intended to terminate the tenancy."

"There may be cases where a tenant gives notice that they have vacated the property and have in fact left the property empty but haven't handed over the keys. In those circumstances the landlord would generally be entitled to act upon the tenant's notification and enter the property and change the locks on the basis that the tenant had communicated an intention to deliver vacant possession."

1. The landlord completed the condition report on 20 December 2024, the day before the tenant was entitled to occupy the premises under the tenancy agreement.
2. The tenant completed the condition report the next day.
3. A copy of the condition report, signed by both the landlord's agent and the tenant, was before the Tribunal.
4. While there were differences between their assessments about the cleanliness of the premises, the parties agreed there was a serious cockroach problem.
5. The landlord's agent wrote "there are cockroaches everywhere." The tenant wrote that "The unit is infested with roaches and pests."
6. Before the Appeal Panel, Mr Baradin for the landlord submitted that the comment "cockroaches everywhere" was "incorrect". While he agreed that there were some cockroaches in the premises, he submitted that the photographs showed the premises were "clean and definitely fit for habitation". Mr Baradin was not the agent who completed the ingoing report.
7. According to the online Cambridge Dictionary, infest means:

"(of animals, insects) to cause a problem by being present in large numbers, spreading disease or causing damage or danger"

1. If there are "cockroaches everywhere", then they were present in large numbers and the premises may reasonably be described as "infested".
2. In its reasons the Tribunal made no reference to the landlord's agent recording that there are "cockroaches everywhere" in the condition report.
3. Instead, the Tribunal considered the photographs of the premises attached to the condition report, and based on them (without considering that the parties agreed there was an infestation) it found at [22] that "the Tenant was ... unable to rebut the photo evidence contained in the ingoing inspection report"; the photographs "did not show any evidence of infestation"; and "the property was clean and tidy when the tenant initially took possession."
4. This too was at odds with the parties' agreement that certain aspects of the premises were not clean.
5. It is difficult to reconcile how premises with "cockroaches everywhere" can be said to be in a reasonable state of cleanliness.
6. We conclude that the evidence before the Tribunal preponderates so strongly against the Tribunal's conclusions that i) there was no evidence of infestation and ii) the property was in a reasonable state of cleanliness when the tenant took possession, that it can be said that these were not conclusions a reasonable Tribunal member could have reached (Collins v Urban at [77]).

May the tenant have suffered a substantial miscarriage of justice?

1. For the following reasons we are satisfied that there is a significant possibility that a more favourable result would have been achieved had the decision not been against the weight of evidence
2. In this regard we consider that the tenant has a fairly arguable case to dispute the rental arrears, which the Tribunal ordered the tenant to pay to the landlord.
3. The conclusions the Tribunal reached regarding the state of the premises, resulted in the Tribunal's conclusion at [23] that the tenant's "purported termination of the residential tenancy agreement based on a breach by the Landlord of section 52 of the RTA was ineffective."
4. We note that this conclusion appears to contradict the Tribunal's oral reasons which appear on page 59 of the transcript prepared by the tenant:

"... the fundamental issue was the alleged failure by the applicant to return the keys after he had decided to terminate the contract. The contract was effectively terminated in late 2024 ..."

1. The tenant is not legally qualified. His argument, however, is a familiar one, which says, in effect, that the landlord's failure to comply with her obligations to provide premises in a reasonable state of cleanliness and fit for habitation, amounted to a repudiation of the agreement by the landlord, which the tenant accepted in his email of 21 December 2024, thereby terminating the agreement.
2. The common law in this regard is conveniently summarised in Halsbury's Laws of Australia, Lexis Nexis at [245-4220], quotations omitted:

"A lease operates as both a contract and demise. That element of the leasing arrangement which can be characterised as a contract is subject to the doctrine of repudiation. It can no longer be alleged that leases are immune from the application of the doctrine. The requirement of seriousness is a necessary element of proof for the doctrine to apply. While the nature of the breach may establish this requirement, a non-essential breach of a contract, without such further circumstances, does not. By contrast, any breach of an expressly essential term satisfies the requirement.

Until a repudiation is accepted by the election of the other party, performance of the lease is not terminated. Upon acceptance of a repudiation, the lease is irrevocably terminated, and there is an entitlement to damages.

An election to accept an act of repudiation differs from the forfeiture of a lease in that it avoids the formalities associated with issuing a notice, gives the other party no opportunity to remedy the breach and there is no statutory relief associated with it."

1. Section 81(1) of the RTA provides that residential tenancy agreements in NSW terminate "only in the circumstances set out in this Act." This modifies the operation of the common law: McKerlie v Leeser; Leeser v McKerlie [2023] NSWCATCD 6.
2. Section 81(4)(g) provides:

"(4) A residential tenancy agreement terminates if any of the following occurs -

(g) disclaimer occurs (such as when the tenant's repudiation of the tenancy is accepted by the landlord)."

1. In Shapkin v Lorenzato [2024] NSWSC 1620, Stern J explained at [73 -74]:

"73.The plaintiff contends that the January or February 2022 Documents would fall within s 81(4)(g) of the Residential Tenancies Act, namely effecting termination of a residential tenancy agreement by repudiation (accepted by the landlord) which amounts to a disclaimer of the residential tenancy. Breach of contract by repudiation occurs when a party "evinces an intention no longer to be bound by the contract... or shows that [they intend] to fulfil the contract only in a manner substantially inconsistent with [their] obligations and not in any other way": Shevill v Builders Licensing Board [1982] HCA 47; (1982) 149 CLR 620 at 625-626; [1982] HCA 47 (Gibbs CJ). In Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; [1989] HCA 23, Deane and Dawson JJ at 658 said that it "suffices [for repudiation] that, viewed objectively, the conduct of the relevant party has been such as to convey to a reasonable person, in the situation of the other party, repudiation or disavowal either of the contract as a whole or of a fundamental obligation under it"

74. An issue of repudiation involves "the characterisation of conduct to see whether it meets (or is capable of meeting) the requisite standard" and "must be analysed with reference to its entire factual setting. That setting... includes all the events and correspondence leading up to [the allegedly repudiatory conduct]": Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353 at [92], [109] (McDougall J, Beazley P (as her Excellency then was) and Simpson JA agreeing)."

(emphasis added)

1. The Tribunal determined that the tenant's failure to return the keys to the landlord until 23 January 2025 entitled the landlord to rent up to that date (subject to some deduction for the landlord's agent being closed over Christmas).
2. In reaching this conclusion the Tribunal did not consider whether the landlord's conduct in failing to provide premises in a reasonable state of cleanliness was repudiatory, taking into account the factual setting that:

(1) Despite identifying the infestation the day before the tenant's arrival at the premises, the landlord took no remedial action until the tenant started vociferously complaining; and

(2) While a pest exterminator was engaged on 21 December 2024, the landlord's own evidence to the Tribunal was that "it can take up to six weeks for the pest treatment to be fully effective."

(1) Whether the tenant, by his email on 21 December 2024, accepted any repudiation, thereby terminating the tenancy agreement on that date;

(2) Whether there was a total failure of consideration which, given the payment of 2 weeks' rent in advance, unjustly enriched the landlord, giving rise to a prima facie obligation to make restitution to the tenant (Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 22);

(3) That the question of whether the tenant had given vacant possession of the premises is a question of fact in each case;

(4) Whether, in the circumstances of this case, where the landlord was on notice that the tenant i) purported to terminate the contract immediately and ii) had no intention to occupy the premises, either the tenant never took possession of the premises, or almost immediately provided vacant possession, notwithstanding his delay in returning the keys.

1. Had the Tribunal's decision regarding the cockroach infestation and cleanliness of the premises not been against the weight of evidence, the Tribunal would have had to address these fairly arguable issues raised by the tenant's case. This has resulted in an error which is readily apparent and central to the Tribunal's decision, so that it would be unjust to allow the findings to stand.
2. Consequently, in the exercise of our discretion, we grant leave to appeal and allow the appeal.
3. It is therefore not necessary to consider in detail the other ground of appeal, that significant new evidence is now available that was not reasonably available at the time of the original proceedings. We do, however, note that we are not persuaded that the new evidence (which consists primarily of photographs) was not reasonably available to the tenant because, on his own evidence, the photographs were on his phone at the time of the Tribunal hearing but he "focussed on other parts of the case".

1. In considering the orders to be made, we are mindful that:

(1) The tenant's application and the landlord's application are interrelated;

(2) While it was the tenant - not the landlord - who applied for return of the bond, the order for partial payment of the bond was made in the landlord's application;

(3) Section 81(1) of the NCAT Act provides that in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including to vary the decision;

(4) There is no utility in remitting the landlord's application for termination and vacant possession for rehearing because it is not disputed that the tenant has now provided vacant possession.

(1) Leave to appeal is granted.

(2) The appeal is allowed.

(3) The orders made by the Tribunal on 13 March 2025 in 2025/00025926 are set aside and in lieu thereof the application for termination and vacant possession is dismissed.

(4) The orders made by the Tribunal on 13 March 2025 in 2024/00478446 are set aside.

(5) The tenant's application 2024/00478446 is remitted to the Tribunal, differently constituted, to be determined in accordance with the law and with such further evidence as the Tribunal decides.

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.