Nasarallah v Cha-Yun Fan

BACKGROUND

1. A written residential tenancy agreement was entered into on 30 July 2021 with the appellant listed as co-tenant with Ms Lodyer. The first respondent is identified as the landlord. The rent payable was $580 per week. The residential tenancy agreement was for a fixed term of 1 year. The rental premises were a unit in a strata scheme building.
2. At the appeal hearing, the appellant claimed that he had not signed this lease and the landlord had forged his signature. It is unnecessary for us to consider this very serious allegation, because (a) the allegation is denied; (b) there was no evidence, other than the claim of the appellant, to support the allegation; (c) there is nothing in the documentary materials provided to the Appeal Panel or the sound recording of the Tribunal hearing to indicate the appellant raised this allegation at the hearing; and (d) irrespective of that allegation, there is no dispute that the appellant was a tenant of the property for a period of time until at least 27 September 2022.
3. In our view, allegations about the authenticity of the written residential tenancy agreement dated 30 July 2021 are not relevant to determination of the real issues in dispute in the appeal.
4. After commencement of the tenancy, rent was paid by electronic funds transfer from the account of the appellant. The appellant's bank details had been provided to the respondent prior to the commencement of the tenancy.
5. On about 27 September 2021 the appellant sent an email to the landlord's agent stating he had moved out of the property; the other tenant Ms Lodyer was still living there; and to remove his name from "the contract" and for the bond to be sent to him "when the contract finished". The appellant asserts there was also an oral conversation with the landlord's agent where he said he was moving out.
6. The landlord's agent responded soon thereafter with an email thanking the appellant for letting her know and stating, "I can take your name off the lease;" "whatever bank details are registered under cannot be changed" and the bond cannot be refunded "until the tenants move out."
7. There was no further immediate response to the appellant's email.
8. In January 2022 there were further text message exchanges between the appellant and the landlord's agent. The agent stated, in substance, that the co-tenant had not contacted the agency and signed a new lease and that the appellant's name could not be removed from the lease. One of the messages stated the appellant would "have to go to the Tribunal" if the appellant wanted to be removed from the lease.
9. According to the appellant, such correspondence arose when he was notified by Ms Lodyer that there were NCAT proceedings involving the landlord seeking to terminate the tenancy for non-payment of rent.
10. The appellant says he did not return his set of keys to the premises to the agent when he moved out in late September 2021 but gave them to another man who had moved into the property with the co-tenant. He did not tell the agent of the landlord he was doing this. There is no evidence to indicate the landlord, or the landlord's agent, was made aware that another person had moved into the property.
11. The appellant says it was the responsibility of the agent to change the written lease and tell him if there was anything further that he needed to do, in circumstances where they knew he had left the premises. The appellant does not accept that it was his responsibility to ensure that the co-tenancy had been terminated and to have returned his set of keys to the landlord's agent.
12. The appellant also informed the appeal hearing that after he had moved out rent continued to be paid from his bank account. According to the appellant, Ms Lodyer would give him money; he would add his proportion of the rent; and then transfer money to the landlord's agent. This continued to occur for a period of time after the appellant moved out. The appellant did not cancel this banking arrangement. When Ms Lodyer stopped giving him money, he stopped forwarding monies to the landlord's agent.
13. The landlord made an application to the Tribunal to terminate the tenancy for non-payment of rent. Such orders were made on 4 March 2022 by the Tribunal.
14. The appellant disputed that he was liable for payment of rent arrears in the period he moved out. That issue was set down for a special fixture hearing at the Tribunal on 20 April 2022. The appellant and the agent of the landlord appeared and gave evidence.

DECISION OF THE TRIBUNAL

1. The Tribunal gave a written decision dated 21 April 2022.
2. The Tribunal held that the appellant and Ms Lodyer were jointly and severally liable for the rent arrears amount of $5,302.85. Although the Tribunal did not set aside the earlier money order of 4 March 2022 against Ms Lodyer, its reasons make clear that the landlord could not seek to enforce the money orders in a manner that meant it obtained an amount from either co-tenant in excess of $5,302.85.
3. The reasons of the Tribunal clearly set out the evidence of both parties at the hearing. The Tribunal found that the appellant merely sending a text message and email that he had moved out in late September 2021 to the landlord's agent and wanted to be "taken off the lease"; and the landlord's agent's failure to inform him immediately that he would remain jointly and severally liable for the payment of rent; did not constitute a removal of the tenant as a co-tenant.
4. The Tribunal's reasons are summarised as follows: 1. There was a residential tenancy agreement between all the parties. 2. The appellant sent an email of 27 September 2021 to the landlord's agent stating he had moved from the property but that Ms Lodyer remained in the property and the agent should "remove my name from the contract and the Bond I will get it when the contract finish and move out then send me the cheque or transfer it to my account". 3. The landlord's agent did not immediately respond to that email. 4. Ms Lodyer had given evidence at the hearing the appellant had "moved out and was resident (sic) with children down the street." 5. The appellant had argued that the landlord's agent had made a representation to him (by silence and by subsequent discussions regarding rent arrears) that let him to assume the landlord had agreed to terminate his co-tenancy and he had acted on this to his detriment. 6. There was insufficient evidence to establish what representations were made by the landlord's agent or that the appellant relied on them. 7. The issue arose because the appellant moved out of the premises and requested his name be removed from the lease, not because the landlord's agent had said anything to him. This did not relieve the appellant of his obligation to pay rent. There was no "cogent evidence" of anything the landlord's agent had done within the scope of its authority to "make the tenant's misunderstanding of his own obligations something that binds the landlord." 8. There was no evidence that the appellant was living at another premises from late September 2021, so there was no evidence of detriment.

NEW EVIDENCE OF THE APPELLANT

1. In his documents file and served in support of the appeal, the appellant seeks leave to rely on additional documents that were not before the Tribunal at the hearing on 20 April 2022. Such documents relevantly include: 1. The text message and email exchange on 27 September 2021 between the appellant and the landlord's agent Ms El-Bayeh. As discussed previously, that email exchange included Ms El-Bayeh responding to the appellant by stating "I can take you off the lease however, whatever name and bank details are registered under cannot be changed. Once the bond is registered we can't make any changes to the bank details and once the tenants moves (sic) out, it will be disrupted (sic) to the nominated account details." 2. The text message exchanges between the appellant and the landlord's agent in early 2022. 3. A written residential tenancy agreement between the appellant; a different co-tenant; and a different landlord for different residential premises located in the same suburb. Those premises are located in close proximity to the residential premises the subject of this dispute. The residential tenancy agreement is from 23 March 2019 to 19 March 2021. 4. Rent receipts for the premises identified in the written residential tenancy agreement between 17 July 2021 and 27 May 2022. 5. Two extracts from different bank accounts of the appellant. Both extracts have different addresses. One bank account has an address at Yennora. The other bank account has an address of the same address as the written residential tenancy agreement commencing on 23 March 2019, and the rent receipts between 17 July 2021 and 27 May 2022. 6. A statutory declaration of Mr Ahmed Nasrallah stating that on 5 September 2021 he assisted the appellant to move "his home stuff" from the premises the subject of this dispute to the premises that were the subject of the written residential tenancy agreement that commenced on 23 March 2019.
2. The appellant gave an explanation as to why the documents were not tendered as evidence at the hearing, which he asserts was caused by confusion about there being separate proceedings with different Tribunal Matter numbers.
3. At the appeal hearing, the appellant made extensive submissions as to why he disagreed with the decision. He also claimed that the further documents provided in his appeal documents supported his case, and he was not given an adequate opportunity to present this evidence.
4. The appellant submitted that the landlord had made a representation to him in the email of the landlord's agent of 27 September 2021 and the landlord was bound by this representation. The appellant submitted that the only amount he should be held liable to pay was a "break lease" fee of 4 weeks rent.

SCOPE AND NATURE OF APPEALS

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80 (2) of the NCAT Act.
2. Internal appeals involve consideration of whether there has been any error of law; or any error other than an error of law sufficient to grant leave to appeal under Cl. 12 of Sch. 4 of the NCAT Act.
3. An appeal is not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
4. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ('Prendergast') the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons. 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
5. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in Cl. 12 (1) of Sch. 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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).
6. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of Cl. 12 (1) of Sch. 4 may have been suffered 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.
7. Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of Cl. 12(1) of Sch. 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
8. In Collins v Urban, the Appeal Panel stated at [84] that 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; (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.
9. Even if the appellant establishes that it may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains discretion whether to grant leave under s 80(2) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong (Pholi v Wearne [2014] NSWCATAP 78 at [32]).

EXTENSION OF TIME-APPLICABLE PRINCIPLES

1. The principles applicable to whether time should be extended to appeal are set out in Jackson v NSW Land and Housing Corporation [2022] NSWCATAP 22 at [22] as follows: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].

CONSIDERATION

1. The grounds of appeal raise error on a question of law (the Tribunal purportedly applying incorrect legal principles); and leave to appeal under Cl. 12 of Sch. 4 of the NCAT Act.
2. We will consider those issues in the context of whether the appellant should be granted leave to extend time to file the appeal under s 41 of the NCAT Act.
3. The appellant's reasons for delay in filing the appeal are that he did not understand the process of filling an appeal and took time to obtain advice from a tenants advice and advocacy service located at Harris Park. He sought such advice after speaking to the Tribunal Registry, who informed him if he wished to appeal he could obtain legal advice. The appellant also asserted that he had sent a copy of the documents he sought to rely on (and were provided to the Appeal Panel) to the Tribunal after the hearing, because he did not understand why the Tribunal did not consider them.
4. We are not satisfied the explanation for the delay is reasonable. We accept that a non-legally trained person may need time to obtain advice and consider whether to appeal a Tribunal decision. However, this appeal was filed almost 4 months after the date the appellant received the decision. The delay is lengthy. Considering the appellant contacted the Tribunal Registry after the decision and was informed he could obtain legal advice regarding an appeal, the appellant's significant and lengthy delay in filing the appeal is unreasonable.
5. We do not regard the appellant as having any prospect of success in the appeal if leave to extend time is granted.
6. Section 81 of the RT Act states as follows: 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. (2) Termination by notice and vacant possession A residential tenancy agreement terminates if a landlord or tenant gives a termination notice in accordance with this Act and the tenant gives vacant possession of the residential premises. (3) Termination by order of Tribunal A residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act. (4) Other legal reasons for termination A residential tenancy agreement terminates if any of the following occurs - (a) a person having superior title (such as a head landlord) to that of the landlord becomes entitled to possession of the residential premises, (b) a mortgagee of the residential premises becomes entitled to possession of the premises to the exclusion of the tenant, (c) a person who succeeds to the title of the landlord becomes entitled to possession of the residential premises to the exclusion of the tenant, (d) the tenant abandons the residential premises, (e) the tenant gives up possession of the residential premises with the landlord's consent, whether or not that consent is subsequently withdrawn, (f) the interests of the landlord and tenant become vested in the one person (merger), (g) disclaimer occurs (such as when the tenant's repudiation of the tenancy is accepted by the landlord).
7. Section 101 of the RT Act states: 101 Termination by co-tenant of own tenancy (1) A co-tenant may give a termination notice to the landlord and each other co-tenant if the fixed term of the residential tenancy agreement has ended or the agreement is a periodic agreement. (2) The termination notice must specify a termination date that is not earlier than 21 days after the day on which the notice is given. (3) A co-tenant ceases to be a tenant under the residential tenancy agreement on the termination date if the co-tenant gives a termination notice in accordance with this section and vacates the residential premises. (4) The Tribunal may, on application by a co-tenant, make a termination order for the residential tenancy agreement if it is satisfied that a termination notice was given by another co-tenant in accordance with this section.
8. Section 102 of the RT Act states: 102 Termination of agreement or co-tenancies by Tribunal (1) The Tribunal may, on application by a co-tenant, make any of the following orders - (a) an order terminating the tenancy of the co-tenant or another co-tenant under the residential tenancy agreement from a date specified in the order, (b) an order terminating the residential tenancy agreement, (c) any necessary ancillary orders relating to the residential tenancy agreement or liabilities under that agreement. (2) The Tribunal may make an order under this section if it is of the opinion that it is appropriate to do so in the special circumstances of the case. (3) If the Tribunal terminates the tenancy of one or more, but not all, of the co-tenants under the residential tenancy agreement, the Tribunal must, in the order terminating the tenancy, specify the day on which the tenants whose tenancies are terminated must vacate the residential premises. (3A) Such an order is taken to be an order for possession of the residential premises in favour of the remaining tenant or co-tenants. Note - Section 121 provides that a warrant for possession may be issued on the application of a person in whose favour an order for possession is made. (4) The Tribunal may order a co-tenant under a residential tenancy agreement that is terminated under this section before the end of the fixed term of a fixed term agreement to pay an amount, not exceeding the applicable break fee for the tenancy specified in section 107. (5) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement. (6) The Tribunal must give the landlord notice of an application under this section. The landlord has a right to be heard in the proceedings. (7) An application may be made under this section whether or not a termination notice has been given under section 101.
9. In essence, the appellant's argument is that the appellant gave up possession of the premises with the landlord's consent (s 81 (4) (e) of the RT Act).
10. In our view, that clearly did not occur for the following reasons: 1. The appellant moving his property from the residence on 5 September 2021 and then telling the landlord's agent to remove his name from the lease is not sufficient to terminate the co-tenancy. 2. The electronic response of the landlord's agent on 27 September 2021 is not an agreement by the landlord to terminate the co-tenancy. The agent merely said "I can" take the appellant off the written residential tenancy agreement. She did not say that she "had" removed the appellant as a co-tenant, or "would" do so. That email is not an unambiguous representation that the landlord consented to the end of the co-tenancy, and that the landlord agreed to Ms Lodyer being the sole tenant. 3. All co-tenants must agree to a termination of the co-tenancy of one of the co-tenants (Leek and Moorelands Building Society v Clarke [1952] 2 All ER 493). The appellant did not provide to the landlord any written consent of Ms Lodyer that she agreed to the appellant terminating the co-tenancy on or about 27 September 2021. 4. The actions of the appellant after 27 September 2021 were consistent with the co-tenancy not being terminated. Rent continued to be paid from the appellant's bank account and the appellant did not return his set of keys to the landlord. The appellant also did not notify the landlord that there was another person living in the premises who was not identified as a co-tenant on the written residential tenancy agreement or was otherwise an approved occupant. 5. The appellant did not make an application to the Tribunal to terminate the co-tenancy under s 102 of the RT Act. Section 101 of the RT Act does not apply as the written residential tenancy agreement was within the period of the fixed term. If there had not been a valid termination of the co-tenancy under s 81 (4) (e) of the RT Act, the tenant could (and should) have made an application to the Tribunal for an order terminating the co-tenancy under s 102 of the RT Act. The appellant failed to do so. His lack of understanding of his legal rights and obligations is not a justification for failing to invoke those rights. Whether the Tribunal would have made an order terminating the co-tenancy under s 102 of the RT Act is a speculative matter we do not need to address.
11. Irrespective of whether we grant leave for the appellant to rely on evidence that was not before the Tribunal, the documents provided by the appellant to the Appeal Panel do not establish it is arguable the decision would have been any different had those documents been put in evidence before the Tribunal. We have addressed the email of the landlord's agent of 27 September 2021. The other exchanges between the landlord's agent and the appellant in January 2022 also do not support a finding that the landlord had agreed to terminate the co-tenancy, or that there was any unambiguous representation to that effect. The documents regarding the other premises of the appellant go no higher than demonstrating that the appellant was a co-tenant at two different residential premises.
12. The Tribunal was, in our view, correct in finding that the co-tenancy was not terminated. Accordingly, the appellant is jointly and severally liable for the rent arrears until the date of termination of the tenancy by the Tribunal on 4 March 2022.
13. No issue of abandonment of the tenancy arises under s 107 of the RT Act. That 'break lease' provision involves a remedy to the landlord for the abandonment of the residential premises by the tenant before the expiration of the fixed term, which by reason of s 81 (4) (d) of the RT Act terminates the entire residential tenancy agreement . A co-tenant merely moving out of residential premises during the fixed term while another co-tenant remains in possession does not terminate the residential tenancy agreement.
14. In this matter, the tenancy remained on foot until it was terminated by the Tribunal for non-payment of rent on 4 March 2022 and both co-tenants are jointly and severally liable for the payment of rent until the date of termination.
15. The circumstances of the matter also clearly do not involve any estoppel as a defence to any claim for rent arrears by the landlord under the principles set out in Walton Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 because (a) there was no representation by the landlord that the co-tenancy had ended; and (b) no detrimental reliance is established in any event. No estoppel arises irrespective of any debate as to whether the Tribunal has jurisdiction to consider that issue (see Pongrass v Small [2021] NSWCATAP 314 at [69]-[71]).
16. In our view, no error on a question of law has been established, or any other ground of appeal under Cl. 12 of Sch. 4 of the NCAT Act applying the principles in Collins v Urban.

ORDERS 1. Leave to appeal is refused. 2. Appeal 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: 07 November 2022