Leung v Deng [2025] NSWCATCD 226;

"1 The Tribunal orders that the respondent Michael Deng, is to pay the applicant Ching Yee Leung, the sum of $938.98, on or before 19 September 2024.

Details of the Money order:

1. Cleaning $500

2. Fob and keys $438.98

2 The Tenant, Michael Deng, is to return to the landlord, Ching Yee Leung the security keys for the building including garage access, firedoor access and other general common property keys that were provided at the commencement of the tenancy on or before 19 September 2024."

[sic.]

Renewal application and "other appropriate order" sought

1. The application for renewal was filed on 29 August 2025.
2. The concept and legal basis of a renewal application is contained in Sch 4 cl 8 of the NCAT Act.

8 Renewal of proceedings in respect of certain Division decisions

(1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal.

(2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.

(3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act.

(4) When proceedings have been renewed in accordance with this clause, the Tribunal -

(a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or

(b) may refuse to make such an order.

(5) This clause does not apply if -

(a) the operation of an order has been suspended, or

(b) the order is or has been the subject of an internal appeal.

1. In Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 at [44]- [45], it was noted that a renewal hearing does not involve a re-hearing of the initial application but instead requires a consideration of what to do next when there has been non-compliance with the earlier order. The application is made by the person "in whose favour the order was made", pursuant to cl 8(2). It is a remedy for non-compliance by the respondent.
2. These renewal proceedings were filed within one year, within the time required by cl 8(2). The Renewal Application itself was not on the hard copy or electronic file at the time of hearing. I considered that immaterial to the resolution of the application, as the basis for the application and orders sought were respectively clarified and amended at the directions hearing for the renewal application and subsequently in the correspondence with the Tribunal, and as articulated to the Tribunal at the hearing. That evolution is outlined below.
3. At the directions hearing of the renewal application on 10 October 2025 before Hennings SM, the Senior Member granted leave to the applicant to renew the proceedings as he was satisfied that order 2 of the original orders had not been complied with - that is, that:

"[t]he respondent failed to return to the applicant the security keys for the building including garage access, firedoor access and other general common property keys that were provided at the commencement of the tenancy on or before 19 September 2024.

The Tribunal notes that the applicant states that no security keys have been returned at all as per the order and paragraph 11 in the reasons for decision issued on 12 September 2024."

1. Paragraph 11 of the 12 September 2024 reasons for decision corresponds to order 2 made on 12 September 2024, being the order allegedly breached and the subject of the renewal application.
2. After granting leave for the applicant to renew the application, Hennings SM went on to grant leave to the applicant to amend the renewal application. The Senior Member stated of the amended order sought:

"The applicant seeks the respondents pay the cost of replacing the security keys for the building including garage access, fire door access and other general common property keys that were not returned at the end of the tenancy, and as ordered by the Tribunal."

1. The direction made that day was for the applicant to lodge with the Tribunal and give to the other party the amended application by 7 November 2025, setting out the precise amount claimed and the breakdown of the cost for each key claimed.
2. The applicant was granted an extension to comply with this direction on health grounds. On 8 December 2025, the applicant filed a document addressed to the Registrar. The applicant stated that, based upon her enquiries with the building manager and strata manager of the rental property, there were in fact no physical keys for common property. With that online registry filing was another document containing email correspondence evidencing and confirming those enquires between 14 and 28 October 2025.
3. Based on this information, the applicant changed the order sought and wrote in her submission:

"Clarification of the Missing Keys

Given the Building Manager's confirmation that the missing keys cannot be for the common property (as no such keys are issued to owners), I have re-evaluated the contents of the missing key set.

The set provided to Mr Deng consisted of nine (9) keys in total. As the Building Manager has confirmed these are not building keys, I have identified them as the keys to my personal property - specifically my luggage sets.

Amendment to claimed costs

As the respondent has failed to return these originals, and I do not possess spare copies to facilitate key cutting, the locks on those items can no longer be utilized. Consequently, the only remedy is the replacement of the luggage sets.

Accordingly, I am submitting the attached quotes for the replacement of these items as the "precise amount claimed..."

[sic.]

1. The order sought in the renewal application, quantified at the hearing, was $5,625.00, based on the price of nine Samsonite bags costing $625 each.

1. With that same registry lodgement, the applicant attached four screenshots, being, clockwise from top left:

(1) A photograph of four sets of keys apparently attached to an SMS thread with the respondent, including a large bunch with a red plastic tag (Red Set);

(2) The same photo but with annotations to the Red Set numbering each key;

(3) A screenshot with a heading "Google Lens" featuring a photograph of a large Samsonite luggage bag, which features beneath it "Sponsored products" and three advertisements for what appears to be that model of bag, showing prices of $312.50 (apparently reduced from $625), $309 and another for $309, from Samsonite, "Luggage Di"[rect?] and Bagwor"[ld?];

(4) A photograph of the Samsonite luggage bag apparently corresponding to the advertisements.

1. In evidence provided by the applicant at the hearing, and in response to my questions about her evidence which did not, on its own, speak for itself, the applicant said words to the effect:

(1) She thought the Red Set related to common property but she realises after hearing back from the building and strata managers and as contained in her submission at [14] and [15] that she must have been mistaken;

(2) Nonetheless because she does not have those keys now and they were not returned, the respondent should compensate her for them;

(3) The keys on the Red Set are all keys for the Samsonite bags in the photo she has put in evidence;

(4) She has nine of those bags, eight of which are in Hong Kong;

(5) She does not have photographs of all of them, only one;

(6) The bags are useless without the keys;

(7) The bags can no longer be bought for $309 or $312.50 as that was a special price, but rather the bags are now $625;

(8) She could not explain why the keys on the Red Tag nearly all looked like different styes of key, some shorter than others, some with keyed serrations on one side, some with serrations on the other side, and an assortment of different bows through which the ring passes;

(9) Her explanation for how she knows and why the Tribunal should accept that the Red Set consists of keys to her Samsonite bags is that the only keys the applicant is missing are keys to her Samsonite bags.

(10) The applicant had not contacted Samsonite to seek replacement keys or see a locksmith, who might have been able to provide keys significantly more cheaply than buying nine new bags with new key sets.

1. Principles regarding factual findings are well established and flow from the High Court decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362.
2. The relevant principles were further summarised by McDougall J (with whom McColl and Bell JJA agreed) in the Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [55] as follows:

"(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;

(2) where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact's existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;

(3) where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and

(4) a rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue."

1. Based on the evidence and submission of the applicant referred to at [15], I find in accordance with the applicant's observation that no common property keys were ever issued to the respondent.
2. Because no common property keys were ever issued to the respondent, I find that the respondent has not breached order 2 made on 12 September 2024, contrary to the basis for the renewal application, as a matter of fact arising from the law discussed at [24]. That order required the respondent to return security keys for the building including garage access, firedoor access and other general common property keys. Those keys in fact never existed.

1. Renewal proceedings can only be brought if there has been a breach of an order in the original proceedings, under Sch 4 cl 8(2). As I have found, there has been no breach of the order alleged.
2. At general law, as a general rule courts do not require compliance with or performance of an impossibility - the law does not compel a person to do that which cannot possibly be performed: see for example Lockrey v Historic Houses Trust of New South Wales [2012] NSWCA 249 at [80]. Enforcement assumes a practical ability to comply with the order. The Tribunal's renewal process is an enforcement process. It follows that renewal cannot now be invoked in respect of the order the subject of the applicant's renewal application.
3. On this basis alone, the renewal application should be dismissed.
4. Furthermore, a claim by a landlord for damages because a tenant lost or did not return keys to luggage bags is not, it seems to me, a claim over which the Tribunal has jurisdiction. The presence or usage of personal items of luggage, or the inadvertent custodianship of keys to that luggage, was no part of the residential tenancy agreement. Therefore the order sought by the applicant is not an order which can be made under Sch 8 cl 4(a) of the NCAT Act. That is to say, the order could not be made under the RT Act or the NCAT Act and could not have been made at the time the proceedings were originally determined. As noted by the Appeal Panel consideration of this provision in Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 at [44], "[t]his criterion reflects the situation that the Tribunal is a statutory decision-making body whose only powers are those conferred by statute, expressly or impliedly."
5. If I am mistaken in these views, and there had been a breach of that order because that order should be interpreted to have included any personal baggage keys provided by the applicant to the respondent (which I should emphasise I see no basis for whatsoever), then I consider that a monetary order would be an appropriate "any other order" for the purpose of Sch 4 cl 8(4)(a), if the money order sought could be justified on a reasonable basis, on the balance of probabilities.
6. There is insufficient evidence before the Tribunal reviewed at [17] and [18] to persuade me on the balance of probabilities that:

(1) The applicant owns nine Samsonite bags all with key locks (as opposed to number coded locks) - there was a photo of one bag which may belong to the applicant, no evidence of a key lock on that bag, and no receipts, other photographs, or witness statements verifying ownership of this many bags;

(2) The applicant has quantified her loss on a reasonable basis - for example, options may have been available to her to obtain replacement keys from the manufacturer quoting lock numbers, enlisting the assistance of a locksmith, no such evidence of which was presented to the Tribunal;

(3) Even if the bags should be replaced, it is appropriate to replace them with brand new bags without some reduction for depreciation.

1. I am far from satisfied of any of those matters which the applicant is required to show to quantify loss.
2. Consequently, the applicant has not established her claim for compensation in the amount sought, if the applicant had been able to establish an entitlement to an order to compensate her for the loss of the Red Set of keys.

1. For all of these reasons the application has failed.
2. The Tribunal makes the following orders.

(1) Leave is granted to renew the proceedings, to the extent not already provided.

(2) The Tribunal refuses to make the order sought by the applicant.

(3) The application is otherwise dismissed after hearing.

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.

26 March 2026 - Amended Title of case - to remove given names of both parties