Darren and Julia Patterson v David Dawson

Application Pursuant to s 68 of the Consumer Trader and Tenancy Tribunal Act 2001.

1. Before proceeding to consider the appeal application and the appeal, it is necessary to refer to one more pre-appeal transaction.
2. This Tribunal commenced on 01 January 2014. A number of prior tribunals were abolished and their functions amalgamated into various Divisions of this Tribunal. The former Consumer Trader and Tenancy Tribunal ("CTTT"), in general terms, became the C&C Division. The Civil and Administrative Tribunal Act 2013, ("the CAT Act") includes transitional provisions (in Schedule 1 to that Act) to, among other things, provide for those matters which were commenced but not completed in a former tribunal before this Tribunal had assumed those functions, or in relation to matters in which the original decision had been made but the parties still had continuing rights, such as an application for a rehearing, an application for costs or for an appeal.
3. The transitional provisions provided, in brief, that where an application was commenced in the CTTT but was not completed before the abolition of the CTTT, then the matter was to continue to be dealt with by NCAT but in doing so, NCAT applied the previous CTTT law as if the NCAT legislation had not been passed. That is what occurred in the original hearing in this matter, now under appeal.
4. However, at the time this matter was heard (being 23 January 2014, very shortly after this Tribunal had commenced) and decided, there was some uncertainty about which legislative scheme applied to continuing legal rights of the parties to the original decision. An example of this uncertainty was: if a party wishes to appeal the decision, should that party follow the procedure provided for in the CTTT Act or the CAT Act?
5. If the latter, the appeal process would be quite different and that is described below. If the former, there was basically a choice: first, s 67 of the CTTT Act provided for an appeal to the District Court, such appeal having to be filed within 28 days of the decision being made. Secondly, s 68 of the CTTT Act provided for an application to be made for the matter to be reheard. That s 68 application was generally, indeed almost without exception, decided on the papers (that is, without a hearing), after having ensured each or all parties had an opportunity to provide written submissions.
6. In this case, the appellants decided, or were advised, to make a s68 application for a rehearing. For reasons to be discussed further below, it is necessary to set out certain portions of that section: 68 Rehearings by Tribunal 1. A party in any proceedings that have been heard and determined by the Tribunal ("the completed proceedings") may, in the manner and within the time prescribed by the regulations, apply to the Chairperson to have the completed proceedings reheard by the Tribunal. 2. The grounds on which such an application may be made are that the applicant may have suffered a substantial injustice because: 1. the decision of the Tribunal in the completed proceedings was not fair and equitable, or 2. the decision of the Tribunal was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the completed proceedings were being heard). 1. The applicant may request that the rehearing be limited to the matters specified in the application. 2. ... 3. The Chairperson is not to grant the application unless: 1. each other party in the completed proceedings has: 1. been notified and given a copy of the application, and 2. been given an opportunity to respond in writing to the application within the time prescribed by the regulations, and 1. the Chairperson has taken into consideration any such response. 1. ... 2. The Chairperson is not to grant the application unless it appears to the Chairperson that the applicant may have suffered a substantial injustice.
7. The appellants made such an application by completing the prescribed form and submitting that form, apparently, on 26 February 2014 (the copy provided with the respondent's Reply form is not clear and it may have been filed on 27 or 28 February 2014. The form was signed on 26 February 2014.)
8. Regulation 22 of the Consumer Trader and Tenancy Tribunal Regulation 2009 provided: 22 Application for rehearing 1. For the purposes of section 68 (1) of the Act: 1. an application to the Chairperson to have completed proceedings reheard by the Tribunal is to be: 1. in writing and in the form approved by the Chairperson, and 2. lodged with the Chairperson, and 1. the prescribed time within which the application may be made is, subject to subclause (2), 14 days after the date of notification of the Tribunal's order in respect of the completed proceedings. The appellants assert they received notification of the decision on 17 February 2014 and so their s 68 application was within time. In any case, there appears to have been no dispute in that regard (presumably because, as asserted by the respondent in this appeal, the respondent was unaware the s 68 application had been filed).
9. Tribunal Member P Smith considered the s 68 application and on 28 February 2014 declined to grant a rehearing. The Member's written reasons were: On 27/2/14 the application to the Deputy President for a rehearing of matter number RT 13/41460 was not granted as the delegate of the Deputy President was not satisfied that the applicant may have suffered a substantial injustice. Written Reasons: Both parties were present at the hearing and had filed documents in accordance with the procedural directions of the Tribunal. The matter has had a hearing on the merits. The applicant appear to dispute the findings on the evidence, in particular that the tenancy did not terminate when they gave vacant possession and requires a determination by the Tribunal pursuant to Residential Tenancies Act, Section 103. The fact the applicant does not agree with the findings does not establish a substantial injustice and if they are of the belief that an error at law has occured [sic] they are at liberty to lodge an appeal. APPLICATION FOR A REHEARING NOT GRANTED.
10. The appellants filed their appeal on 13 March 2014.

Statutory Provisions in Relation to Appeals

1. The Tribunal decision was a "general decision" pursuant to CAT Act from which an "internal appeal" lies pursuant to s 4 of the CAT Act: 32 Internal appeal jurisdiction of Tribunal 1. The Tribunal has internal appeal jurisdiction over: 1. any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and
2. Section 80 of the CAT Act provides for internal appeals: 80 Making of internal appeals 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). 1. Any internal appeal may be made: 1. in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and 2. 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. 1. The Appeal Panel may: 1. 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 2. 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.
3. Schedule 4 of the CAT Act provides additional limitations on appeals against C&C Division decisions: 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: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
4. As well as the general provisions in the CAT Act, there are provisions specific to the C&C Division and in relation to appeals in residential decisions. Rule 25 of the Civil and Administrative Tribunal Rules 2014 make provision in relation to how and when an appeal must be made: 25 External and internal appeals 1. An external or internal appeal (including, where required, an application for leave to appeal) may be made by lodging a notice of appeal. 2. The notice of appeal must be: 1. in or to the effect of the approved form, and 2. duly completed, and 3. lodged at the Registry, and 4. accompanied by the applicable fee (if any) for the appeal. 1. A notice of appeal need not specify the Division of the Tribunal (if any) to which the function of determining the appeal is allocated by the Act. However, if the appropriate Division is not specified or an incorrect Division is specified, a registrar may complete or alter the notice form accordingly. 2. Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged: 1. in the case where the enabling legislation specifies the period within which the appeal is to be made - within the period specified, or 2. in the case of an internal appeal against a decision made in residential proceedings - within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later), or 3. in any other case - within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later). 1. An appellant who lodges a notice of appeal must serve on each respondent a sealed copy of the notice as soon as practicable after lodging the notice.

Grounds of Appeal

1. In their appeal application, the appellants stated in answer to Question 11A "Orders challenged on appeal": "4. The balance of the claim, as amended, is dismissed because having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established."
2. In answer to Question 11B "Grounds of Appeal" the appellants list three grounds: 1. Ground #1: The Tribunal erred in paragraph 26 of the Decision, as a matter of law, in dismissing the Appellants' claim under section 103 of the Residential Tenancies Act 2010 (the "Act") on the basis that the claim was "otiose" because "the tenancy agreement has already been terminated by the tenants by vacating the premises", particularly in the following circumstances: 1. the Tribunal had the power to make a termination order under section 103 nunc pro tunc and thus the claim was not "otiose"; and 2. it was not open for the Tribunal to make a determination that the Appellants terminated the tenancy agreement by "mov[ing] all of their possessions from the premises on 10 August and return[ing] the keys to the landlord's agent on 16 August' (see decision at [18]-[19]) in circumstances where there were no orders being sought by the Respondent for a declaration that the Appellants had abandoned the premises pursuant to section 106 of the Act. 1. The Tribunal erred in paragraph 19 of the Decision, as a matter of law, in finding that the Appellants terminated the Tenancy Agreement. 2. The Tribunal erred, as a matter of law, in failing to find that the Tenancy Agreement was terminated in accordance with section 103 of the Act as the Respondent had breached the Tenancy Agreement and the breach was, in the circumstances of the case, sufficient to justify termination. Detailed particulars were provided in support of each ground claimed.
3. The appellants also in their appeal application applied for an extension of time, pursuant to s 41 of the CAT Act, citing the uncertainty or "confusion" referred to above in paragraphs 10 to 13, and noting that the appeal was filed within 14 days of the appellants being notified their s 68 application had been refused. The appellants also submitted in their request for an extension of time that "[t]he confusion cannot be resolved by reference to the transitional provisions of Schedule 1 to the CATA."
4. The respondent's Reply to Appeal was filed on 17 July 2014. For reasons to be given below, it is necessary to provide only the most succinct summary of the respondent's reply.
5. First, the respondent notes the s 68 application which was declined and provides a copy of the s68 application and the Member's order and reasons for refusing the application.
6. Next, the respondent notes his own application for unpaid rent and compensation which, being in excess of the Tribunal's jurisdictional limit, was filed in the Local Court. The respondent suggests that unless the appellants can obtain a s 103 order terminating the tenancy on 16 August 2014, the appellants will be potentially liable for the sum claimed in the Local Court proceedings.
7. The respondent then submits that the Member did make an order in relation to the s 103 claim, finding it had not been proved, and extracting a number of statements from the Reasons given for the original decision. The respondent refers particularly to statements in those Reasons to the effect that the appellants had not proved their case in relation to their claim for compensation.
8. In response to each of the three grounds of appeal listed in the appeal application, the respondent suggests first that each of the three grounds are really just restatements of the one issue: that the Tribunal found the appellants had terminated the tenancy and did not make a s 103 order. The respondent also asserts that none of the three grounds raise a question of law but are "a matter of opinion" which, it is clear, is intended to indicate that the question was a matter of fact, not law.
9. In relation to the request for an extension of time, the respondent submits that the appellants chose to make a s 68 application and "actively sought to avoid appealing to the District Court of NSW" and now seeks to confuse the basis of the current appeal. The respondent submits that having made their choice, the appellants are now out of time and to allow an extension "would be facilitating the abuse of process the Appellant is attempting to create". The respondent submits that no errors of law have been identified or particularised, the appeal is misconceived, the appeal is not competent and the appeal has not been brought within time.

Interlocutory Proceedings in the Appeal

1. The appeal was first listed for callover and directions on 19 March 2014 before Principal Member Harrowell. On that date the Principal Member made the following observations and orders: This is an application to appeal a decision in respect of application RT 13/41460 in which orders were made by the Tribunal on 13 February 2014 (the "Original Proceedings"). The Original Proceedings were commenced in 2013 and therefore are pending proceedings within the meaning of Schedule 1 Clause 7 of the Civil and Administrative Tribunal Act 2013 (Act). Clause 7(3)(b) provides: " the provision of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Act not been enacted continue to apply". In these circumstances the Appeal may be misconceived as any right to challenge the orders made in the Original Proceedings is by way of un application for a rehearing under section 68 of the Consumer Trader and tenancy Tribunal Act, 2001 5. (CTTT Act) or appeal to the District Court of New South Wales under section 67 of the CTTT Act or other application to a court. Accordingly the Tribunal makes the following directions: 1. On or before 28 March 2014 the appellant is to advise the Tribunal as to whether the appeal is to be withdrawn and dismissed or alternatively transferred to the Consumer and Commercial Division for determination under s68 of the CTTT Act. 2. In the event the appellant wishes to maintain their appeal, the appellant is to file and serve submissions on the issue of competency on or before 28 March 2014. 3. In the event the appellant files submissions in accordance with order 2, the respondent is to file and serve any submissions in response on or before 4 April 2014. 4. The appellant is to file and serve any submissions in reply by 11 April 2014. 5. In default of the appellant complying with order 1 or 2 by the due date, the appeal will thereupon be dismissed.
2. On 24 March 2014 the appellants responded to the orders above. In brief, the appellants submit that Clause 7(3)(b) of Schedule 1 to the CAT Act does not apply to this appeal, and in effect that the appeal, commencing after the "establishment day" (01 January 2014, being the date this Tribunal was established pursuant to s 7 of the NCAT Act) is a new application and not "pending proceedings" for the purpose of Schedule 1.
3. On 03 April 2014 the respondent provided to the Appeal Panel "Respondents Submissions in Reply". This document noted that the respondent was not aware an appeal had been filed until he received by email a copy of the Principal Member's directions made on 19 March 2014. The respondent also notes that attachment "C" to the Appeal Application (the request for an extension of time) disclosed that the appellants had made a s 68 application and that the respondent had never been served with this application. The respondent goes on to submit that this appeal is an abuse of process and is out of time.
4. On 09 April 2014 the appellants responded to the respondent's submissions in reply. Noting the respondent's submissions that the appeal is an abuse of process and is out of time, the appellants submit the rehearing application is irrelevant, that s 67 of the CTTT Act would have applied and an appeal would lie to the District Court. Further, the appellants submit that an appeal to the District Court, if lodged at the same time the current appeal was lodged, would have been within time. The appellants suggest the issue is really where the appeal should have been lodged, and that there is no question of a "second bite at the apple".
5. There was a second callover on 30 April 2014 before Principal Member Harrowell, at which the following orders were made: The Appeal Panel required submissions on the competency of the appeal on the basis there was an issue as to whether clause 7(3)(6) of schedule of the Civil and Administrative Tribunal Act, 2013 (NCAT Act) operated to provide any right of appeal to the District Court of New South Wales. Since that time the decision of NSW land and Housing Corporation v Diab [2014] NSWCATAP 8 has been delivered. However there remains an issue as to whether the appeal is an abuse of process for the reasons asserted in the respondent's submissions provided 3 April 2014. There is also a need to resolve the substantial issues on appeal if the appeal is competent. In light of the history of this matter it is appropriate to fix for hearing all issues being: Whether the appeal is competent; Does the appeal require leave; and If leave is granted, should the appeal be allowed. Accordingly the Tribunal makes the following directions: 1. On or before 16 May 2014 the parties are to prepare an agreed bundle of all documents to be relied upon on the appeal, including: The application to appeal and reply to appeal; An agreed statement of facts, or where not agreed each parties contentions; A transcript of the proceedings at first instance; All documents to be relied upon by either party; Any new evidence, including where from witnesses, statements in the form of affidavits or statutory declarations. The bundle is to be placed in a folder(s), indexed, paginated and arranged in a logical order. Where there is a dispute about a document it is to be included in the bundle and suitably identified. 2. On or before 23 May 2014 the appellant is to file and serve written submissions. 3. On or before 30 May 2014 the respondent is to file and serve submissions in reply. 4. On or before 5 June 2014 the appellant is to file submissions in reply. 5. The appeal is to be fixed for hearing on (Registry to fix date).
6. On 16 May 2014 the appellants provided further submissions including a statement of facts and a chronology for the appeal and noted that the transcript had been ordered.
7. Yet another callover occurred on 10 July 2014. This time Principal Member Harrowell made the following orders: The Tribunal makes the following directions: 1. The issues on appeal to be determined are agreed as follows: 1. Whether the "exercise" of a right to seek a rehearing of the original decision in application RT 13/41460 under section 68 of the Consumer Trader and Tenancy Tribunal Act 2001 prevents the appellants lodging this appeal; 2. Whether the appellants should be granted leave to appeal out of time; 3. Whether the Tribunal was in error in dismissing the appellants application under section 103 of the Residential Tenancies Act 2010 (RTA); 4. Whether the actions of the Appellants (tenants) in 1. failing to pay rent after 16 August 2013; and 2. vacating the premises and handing back the keys to the premises on 16 August 2013; (which facts (i) and (ii) are agreed) being dates prior to the hearing of the application to terminate under section 103 of the RTA brought the residential tenancy agreement to an end on that date and/or constituted an abandonment of the residential premises as provided in section 81 of the RTA. 1. Whether the sale of the property following vacation, which sale it is agreed was completed on 18 November 201 brought the residential tenancy agreement to an end. 2. If: 1. the residential tenancy agreement was not terminated on or about 16 August 2013 or some time prior to the hearing of the original proceedings, it being agreed the respondent landlord sold the property following vacation of the premises on about 18 November 2013, and 2. the Tribunal was in error in failing to determine the application under section 103 of the RTA, whether the Appeal Panel should determine such application or remit the proceedings for determination of that question by the Tribunal. 1. The Appeal Panel notes the parties rely on the following documents for the appeal: 1. Notice of Appeal and attachments 2. Reply to Appeal and attachments 3. The original application; 4. The transcript of the original proceedings; 5. The appellants documents attached to an email to the Tribunal dated 16/5/14 entitled Statement of Facts Appeal and Chronology of Applicant (marked "APPEAL EXHIBIT A") 6. Red folder from Appellants (marked APPEAL EXHIBIT B) 7. Red plastic folder of appellants containing photographs (marked APPEAL EXHIBIT C) 1. The Appellants have leave to uplift APPEAL EXHIBITS B and C for the purpose of copying them and are directed to provide to the Tribunal the original Exhibits and 2 copies (in colour) and to the respondent 1 copy in colour, such documents to be returned to the Registry and delivered to the respondent on or before 18/7/14. For the purpose of uplifting the documents, they are to be collected from the Principal Registry of the Tribunal. 2. On or before 18/7/14 the appellants are to file and serve any further submissions in relation to the issues for determination. 3. On or before 1/8/14 the respondent is to file and serve any further submissions in reply in relation to the issues for determination. 4. On or before 8/8/14 the appellants are to file and serve any submissions in reply to the respondents submissions. 5. The parties consent to all issues in the appeal being dealt with on the papers unless the Appeal Panel considers a hearing is necessary 6. The matter is to be referred to the Appeal Panel for determination as soon as possible after 8/8/14. 7. The parties are encouraged to meet and try and settle the dispute. If settled the parties should advise the Tribunal immediately.
8. On 18 July the appellants filed further submissions in relation to the directions of 10 July 2014. They deny the consent referred to in Direction 7, that the appeal be heard on the papers. In relation to Directions 1(a) and (b), the appellants consider that their previous submissions dealt with those issues, the "[s]eemingly the Appeal panel was happy with the submissions that the Appeal was competent and within time. … the member has erred to include those points in the directions …".
9. In relation to Direction 1(d) the appellants submit that as no orders were sought pursuant to s 106 of the RTA (that the tenants abandoned the premises), the member has also erred in including this issue in the Directions.
10. In relation to Direction 1(e) the appellants submit that as the respondent has no claim before this Tribunal, the sale of the premises has no bearing on the appeal.
11. In relation to Direction 1(f) the appellants hope the Appeal Panel will determine the application so as to save costs and time.
12. The appellants also provided a document headed "Appellants Final Submission". This document consists of a number of submissions in relation to factual issues during the tenancy and seeks to refute some submissions of the respondent. There is no need to summarise this document further.
13. In addition to the various submissions, the appellants have provided two bundles of documents including all the evidence and submissions relied upon in the original hearing, as well as the transcript. Neither party has made submissions in relation to the transcript, which was required to be provided by direction of Principal Member Harrowell.
14. The respondent corresponded with the Registry in relation to the preferred manner of dealing with this appeal, suggesting the best course would be to decide as a preliminary issue whether the appeal is competent and whether leave is required. The respondent suggests that the directions do not help to progress that course. In addition, the respondent notes that "the fact that this matter has been determined by Tribunal Member P Smith on 28 February 2014 … appears to have been over looked."
15. The respondent also sought clarification of Direction 1(f). It is not necessary to consider this further.
16. The respondent provided "Final Submissions" in which it first summarised the grounds of appeal, again suggesting the three grounds were in fact merely restatements of one ground: that the Tribunal should have made an order terminating the tenancy pursuant to s 103 of the RTA. A number of documents were provided by the respondent which appear to relate to the original hearing.

Disposition of the Appeal

1. The Appeal Panel has ordered the appeal be determined on the papers.
2. Although the lengthy summary and chronology of the appeal above has been provided out of respect to the parties and their evidence and submissions, the appeal can actually be decided in short compass.
3. The appellants' three grounds of appeal, each said to be "as a matter of law", all related to the termination of the tenancy. The first ground states that the Tribunal erred in dismissing the appellants' s 103 claim on the ground that the tenancy was already terminated by the appellants having vacated the premises. The second ground does not mention s 103 but essentially otherwise repeats the first ground, that the Tribunal erred in finding the appellants terminated the tenancy agreement while the third ground states that the Tribunal erred in failing to find the tenancy was terminated in accordance with s 103 as the respondent had breached the tenancy agreement.
4. Because the appellants considered each of the three grounds to be in relation to a matter of law, leave to appeal was not sought. If leave had been sought or was required, then the s 68 application would be significant: see Bersich v Quinlan Bulk Pty Ltd [2014] NSWCATAP 51. The ratio for that decision was that s 68(2) contains provisions very similar to Clause 12(1) of Schedule 4 to the CAT Act. This issue does not arise in this appeal unless the appellants' characterisation of the grounds of appeal as matters of law is incorrect.
5. In this case, it is our opinion that ground 1 of the appeal raises a question of law: the question is, was the Member correct in finding, as a matter of law, that if the tenants vacated the premises as alleged, the tenancy was terminated in the absence of a s 106 application by the landlord? That issue was adverted to by Principal Member Harrowell in Direction 1(d) of 10 July 2014. The Principal Member specifically referred to s 81 of the RTA: 81 Circumstances of termination of residential tenancies "(1) Termination only as set out in Act A residential tenancy agreement terminates only in the circumstances set out in this Act. … "(4) Other legal reasons for termination A residential tenancy agreement terminates if any of the following occurs: (a) … … (d) the tenant abandons the residential premises, …
6. Therefore, if the Tribunal found that the appellants abandoned the premises, the lease was terminated by operation of law pursuant to s 81(4)(d). In that case, the Member was correct and in our view the appeal fails.
7. Ground 1 of the appeal asserts that the Tribunal could not make a finding that the tenants had terminated the tenancy by removing their possessions and vacating the premises in the absence of a s 106 application by the landlord seeking a declaration that the tenants had abandoned the premises. We reject that submission. The purpose of s 106 of the RTA is not to determine whether an "abandonment" has occurred, but to make a declaration to that effect so that a landlord may take possession of the premises without running the risk of a finding that such re-entry may be found to be unlawful if, as a matter of fact, the premises have not been abandoned. If, as a matter of fact, the tenants have abandoned the premises, then by operation of s 81(4)(d) the tenancy is terminated and there is no need or requirement for a s 106 application to determine that question - except for the reason just given, for the protection of the landlord from a claim of wrongful re-entry and wrongful termination.
8. The first ground of appeal fails.
9. In our opinion, the second ground of appeal also relates a question of law. There is no dispute that the appellants vacated the premises by removing their belongings (noting that the premises were leased as furnished) and returned the keys to the landlord or the landlord's agent and also ceased paying rent. There is no factual issue as to whether the appellants claimed the residential tenancy continued, or that they retained rights of possession of the premises, or that they arranged for another person to reside in the premises or indeed any of the circumstances which might be thought to indicate the lease in fact continued. In our opinion, abandonment occurs when a tenant vacates within the fixed term of a lease without the consent of the landlord or without a Tribunal order: see Residential Tenancies Law and Practice, 5th Edition, at [2.81.8]. The learned authors extract from Williams, Alice (Tenant) v Onerwal Local Aboriginal Land Council (Landlord), NSW Aboriginal Land Council (Landlord), Merritt, Susan (Landlord), and Ngunnawal ACT & District Indigenous People's Aboriginal Corporation (Landlord) [1997] NSWRT 137: An abandonment of the lease is a particular form of repudiation in which the tenant indicates their intention to be no longer bound by the lease by, physically leaving the property, refusing to pay rent and refusing to maintain the property to the extent required of tenants in the lease. It is not sufficient to constitute an abandonment that a tenant simply chooses not to personally reside in the premises, if they have not otherwise relinquished control over the premises.
10. The undisputed facts in this case have the meaning, as a matter of law, that the appellants abandoned the premises and in doing so terminated the tenancy. A declaration to that effect is not required, once the facts are ascertained.
11. The second ground of appeal fails.
12. In our opinion the third ground of appeals necessarily fails as a result of the above findings in relation to the first two grounds of appeal: in finding that the tenancy was terminated by the tenants vacating the premises in the manner they did, there was no residential tenancy to terminate pursuant to s 103 by the time the matter came before the Member.
13. If we are wrong that the grounds of appeal raise questions of law, then the appellants require leave to appeal. For the reasons given in Bersich v Quinlan Bulk Pty Ltd [supra], we find that leave should not be granted as a decision has already been made by Member P Smith on the relevant grounds.
14. 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: 05 March 2015