LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) —
Offer of rent rebate if tenant vacated early to enable sale of property —
Tenant did not give notice to vacate
but sought to take advantage of offer three
Source
Original judgment source is linked above.
Catchwords
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) —Offer of rent rebate if tenant vacated early to enable sale of property —Tenant did not give notice to vacatebut sought to take advantage of offer threemonths later — Landlord not bound to allow rent rebate — Tenantfailed tofulfil requirements of offer — Even if offer had not lapsed by
effluxion of time offer was withdrawn by landlord before tenant
took the steps
required to accept it
Judgment (9 paragraphs)
[1]
The application was filed before the appellant vacated the premises and termination of the tenancy. No amendment to the application was sought or made to seek orders relating to the bond or the parties' obligations following termination. Therefore, no such issues were before the Tribunal at first instance and this ground may be set to one side.
[2]
3. The appellant suggests that the hearing was only two hours and it was not enough time "to review all" of the issues the appellant had raised.
[3]
This submission implicitly suggests that the appellant was not given the opportunity to make submissions on all issues. I note that the appellant did not provide a recording or transcript of the hearing. In those circumstances, the Appeal Panel cannot determine that the appellant was denied procedural fairness, as it cannot know what submissions were made, what evidence was led or whether the appellant was given a fair opportunity to address the matters the subject of her claim.
Likewise, the Appeal Panel cannot know what evidence was given orally at the hearing, and could not determine that the decision was against the weight of evidence or not fair and equitable: Aboss v Hafeez[2022] NSWCATAP 345 at [27] - [30] and cases there cited.
[4]
In oral submissions at the hearing of the appeal, the appellant submitted that the respondent had engaged in misleading and deceptive conduct, contrary to s 18 of the Australian Consumer Law (NSW).
The Tribunal did not deal in its reasons for decision with any submissions concerning misleading conduct. As noted above, a failure to deal with a substantial clearly articulated argument may constitute a constructive failure to exercise jurisdiction and constitute an error of law.
However, in the absence of a transcript or recording of the hearing, it is not possible to conclude that the appellant made any submission concerning misleading conduct at the first instance hearing. Certainly, it cannot be said that any submission made was substantial or an argument based on established facts.
In any event, the appellant's case founded upon alleged misleading and deceptive conduct could not succeed. The conduct of the respondent which the appellant relied upon in her submissions at the hearing of the appeal was the statement by the respondent's agent Mr Cole on 19 December 2024 that "the owners circumstances have changed and the urgency to sell in 2024 is no longer". There is no evidence in the material before the Appeal Panel to suggest that that statement was not accurate.
To the extent that the appellant asserted that she had incurred losses in reliance upon that statement, her submissions were incoherent.
[5]
It remains to deal with the appellant's first ground of appeal concerning the offer of a month's rent if the appellant vacated the premises early.
The appellant's submissions appear to rely upon the proposition that the respondent was bound by her offer of a month's rent rebate. Consistently with the principles relating to unilateral contracts, the respondent would only be held bound by the terms of her offer, if the appellant had, while the offer remained open for acceptance, accepted it by performing the act specified in the offer as constituting acceptance of it.
A unilateral contract is a contract constituted by the making of an offer, which is accepted by the offeree taking a step identified in the offer.
[6]
"An offer of a unilateral contract arises when one party promises the second to do or abstain from doing some other act, or abstain from doing some act, if the second will do, or abstain from doing something without making any promise to that effect. The contract is "unilateral" because the promisee makes no counter-promise to perform the stipulated act or abstention." JD Heydon, Heydon on Contract (Lawbook Co, 2019) 46 [2.220]
[7]
Such an offer will expire if not accepted within a reasonable time, or if revoked by the promisor before acceptance by the promisee: Halsbury's Laws of Australia [110-300], [110-315].
Although it is not apparent that the Tribunal considered the application of those principles, in my view the Tribunal's decision was clearly consistent with them.
It is clear that the requirement the appellant was required to satisfy in order to accept the offer was to give formal notice of intention to vacate the premises.
It is also clear that the appellant did not give such notice at any time before the respondent, through Mr Cole's email of 18 December 2024, indicated that the offer was no longer open for acceptance.
The offer was not expressed to be open for any fixed period. There is no reason why the respondent should not have been entitled to withdraw the offer at any time before it was accepted by the appellant giving notice to vacate.
It is also apparent that the offer was made on the basis that acceptance by the appellant would occur within a short time. The obvious intention behind the offer was to enable the respondent to obtain vacant possession of the premises earlier than she might otherwise have done so, in order to expedite the sale of the property.
The enquiry by Mr Cole in September 2024 might have suggested that the offer remained open at that time. However, there is no reason to conclude that it was intended to remain open until December. The benefit to the respondent of acceptance by the appellant would have been having early vacant possession in order to undertake the sale process. That benefit was diminished if the appellant failed to accept the offer and vacate the premises promptly.
But it is not necessary to determine whether the offer had lapsed of its own force by December 2024, because the appellant did not take the necessary step to accept the offer, that is giving notice to vacate, before the respondent informed the appellant on 18 December 2024 that the offer was no longer open for acceptance, that is that it had been withdrawn or lapsed.
The words of Mr Cole's emails of 15 and 19 August 2024 make it clear that, to obtain the benefit of the month's rent rebate, the appellant was required to "give notice to vacate". Those words suggest the service of a formal notice complying with s 82 of the RTA.
[8]
(1) Leave to appeal is refused.
(2) The appeal is dismissed.
[9]
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.
Parties
Applicant/Plaintiff:
Leal
Respondent/Defendant:
Silk [2026] NSWCATAP 91;
Legislation Cited (3)
Tenancies Act 2010
Administrative Tribunal Act 2013
Tenancies Regulation 2019
Cases Cited (9)
An appeal to the Appeal Panel from a final decision of the Tribunal may be made "as of right on any question of law, or with leave of the Appeal Panel, on any other grounds": Civil and Administrative Tribunal Act2013 (NSW) (NCAT Act), s 80(2)(b).
The meaning of a "question of law" was discussed in detail by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano[2024] NSWCATAP 204 (Cusumano) at [25]-[40]. Examples of questions of law include the matters set out in Prendergast v Western Murray Irrigation Ltd[2014] NSWCATAP 69 at [13] and _Cusumano a_t [32]. However, the categories of question of law are not closed. As was stated at Cusumano at [37]-[39]:
"37 What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2)[2023] NSWSC 416 at [33(4)], citing Thomas and Naaz[2023] NSWCA 40 at [52] and Da Costa v The Queen[1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51.
38 For instance, a ground of appeal that raises the question whether there were adequate reasons may constitute an attack on the merits which would not raise a pure question of law. On the other hand, it may be a contention that the decision is unreasonable in the requisite sense or that the Tribunal failed to exercise the jurisdiction, which would likely raise a question of law: see the exposition of this issue in Wollondilly [Shire Council v Styles[2024] NSWCATAP 104] at [28]- [32]. Care must in any event be taken. As has been clarified by amendment to the NCAT Act since Prendergast was decided, the Tribunal is not required to give reasons for all decisions it makes: NCAT Act, s 62(2A); see too: New South Wales Land and Housing Corporation v Orr[2019] NSWCA 231 at [53]- , [109]-[114].
(1) Whether the Tribunal applied the correct principle is a question of law: Bimson, Roads & Maritime Services v Damorange Pty Ltd[2014] NSWSC 734 at [40]- [45];
(2) Whether there has been:
is a question of law: The Owners - Strata Plan No. 12185 v Brown[2025] NSWCATAP 51 at [56(2)], citing Dranichnikov v Minister for Immigration and Migration Affairs [2003] HCA 26; 77 ALJR 1088; and Alexandria Landfill Pty Ltd v Transport for NSW(2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]- [12] and [413].
The Appeal Panel considered the meaning of a substantial miscarriage of justice for the purposes of cl 12 of Sch 4 of the NCAT Act in Collins v Urban[2014] NSWCATAP 17 at [76], stating that a substantial miscarriage of justice may have been suffered:
"(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:
It is important to note that an appeal to the Appeal Panel does not simply provide a losing party in the Tribunal with the opportunity to run its case again, nor is it sufficient for an appellant to disagree with the outcome and to contend there should have been a different outcome: Frediani v Hall t/as Happy Camper Conversions[2024] NSWCATAP 134 at [30].
(2020) 103 NSWLR 479
(1968) 118 CLR 186
It cannot be said that either of the emails of 15 August 2024 and 19 August 2024 contemplated acceptance by an enquiry from the appellant whether the offer was still open, or a general intimation by the appellant that she had identified alternative premises. The appellant never gave notice to vacate. Even if the offer had remained open in December 2024, the appellant did not take the necessary steps to accept it.
For the foregoing reasons the Tribunal did not err in finding that the respondent was not bound to pay the appellant a month's rent. Accordingly, leave to appeal must be refused and the appeal dismissed.
39 Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required."