Phoenix v Guangyue Chen [2020] NSWCATAP 255 | Case summary

What happened

Phoenix was the tenant of premises owned by Chen. The tenancy began on 26 October 2018. Rent was $1,000 per fortnight, payable in advance, and Phoenix paid a $2,000 bond [Reasons, introductory facts, [1]].

On 19 December 2019, the landlord's agent gave a notice to terminate for non-payment of rent, requiring vacant possession on 2 January 2020 [2]. Chen applied to NCAT on 24 January 2020 seeking money orders, including for rent arrears, and termination-related relief [3]. At the first Tribunal hearing, on 11 February 2020, Phoenix handed the keys to the agent [4]. She had not attended an end-of-tenancy inspection for which she had been notified at that hearing [4].

The first-instance Tribunal ordered Phoenix to pay $5,897.95 in instalments. Its calculation included $4,642.95 rent arrears, $300 for wall dents, $400 for rubbish removal, $400 for internal and carpet cleaning, $150 for cleaning walls, and $5 for a mailbox key [7 and following calculation]. The Tribunal calculated rent to the date the keys were returned, rather than to the date Phoenix said she moved out. It also ordered the bond paid to Chen and credited against the money order.

Phoenix appealed. Her grounds included that she had moved out before 2 January 2020; that she had not agreed to Ventus Real Estate acting as managing agent; that the amounts for cleaning and repairs were not adequately supported; that she had not been given an opportunity to do the work herself; and that the rent should have been reduced because the air-conditioner was not working properly.

The Appeal Panel heard the appeal on 30 July 2020. It considered the appeal grounds, including additional grounds raised in a later document and orally at the hearing. It found the respondent would not be prejudiced by considering them. On 7 December 2020, it refused leave to appeal and dismissed the appeal.

Why the court decided this way

The central question was whether Phoenix had given vacant possession when she said she moved out, or only when she returned the keys on 11 February 2020. The Panel recognised that Phoenix gave sworn evidence that she had “moved out” before 2 January 2020, but noted that the first-instance Tribunal had made no finding about the actual date she left [Ground 1, paras 2-4]. The relevant issue was therefore not simply physical departure. It was whether vacant possession had been given.

Section 81 of the Residential Tenancies Act 2010 (NSW) (RTA) sets out the circumstances in which a tenancy terminates. Section 81(2) provides for termination by notice where the tenant gives vacant possession. Section 110 allows a tenant who has received a termination notice to give vacant possession before the specified termination date, with rent consequences tied to when vacant possession is given. The Panel also considered s 120, which restricts entry by a landlord to take possession unless the tenant has abandoned the premises or given vacant possession [Ground 1, statutory provisions].

The Panel treated the keys as significant because retaining them may mean that the tenant retains control of access. It referred to Thomas v Metropolitan Housing Corporation Ltd, where the English Court of Appeal considered the delivery of keys in connection with possession. The Panel also relied on NSW Land & Housing Corporation v Quinn (No 2), where the District Court treated the tenant's retention of keys as relevant to actual possession. The Panel's own conclusion was qualified: whether vacant possession has been given is a question of fact, but “ordinarily” it is not given until the keys are returned [Ground 1, discussion of authorities].

The facts made the key-return date decisive here. There was no evidence Phoenix had told Chen or the agent that she had left the premises before 8 February 2020. She returned the keys on 11 February. The Panel considered that, without the keys or notice of departure, a landlord could not safely assume an apparently empty property had been abandoned or that the tenant intended to terminate the tenancy. It concluded that the Tribunal had not made an error of law in using 11 February as the date vacant possession was given.

The other grounds did not alter the outcome. On the managing-agent issue, the tenancy was between Phoenix and Chen. The Panel found no term in the agreement or provision in the RTA that required Phoenix's agreement to Chen's choice of agent [Ground 2, para 1].

On the cleaning and repair amounts, the Panel identified photographs showing the wall dents, rubbish and dirt, as well as quotations and an invoice for the work. It noted that the Tribunal had rejected some of Chen's claims where evidence was insufficient. The evidence supported the particular amounts allowed, and the Tribunal had awarded less than the quoted amounts because GST was not included [Ground 3, paras 1-5].

On Phoenix's argument that she should have been able to clean or repair the premises herself after the tenancy, the Panel relied on clause 17 of the tenancy agreement and s 51(3) of the RTA. Those provisions required removal of goods and rubbish, reasonable cleanliness, the specified condition of the premises subject to fair wear and tear, and return of keys. The Panel said there was no right under the general law or the RTA to return after termination to fix a failure to meet those obligations [Ground 4, paras 1-4].

Finally, the Panel addressed the air-conditioner. The parties did not dispute that it had not worked satisfactorily for part of the tenancy. The Panel explained that ss 43 and 44 of the RTA provide a process for seeking a rent reduction when a landlord has reduced or withdrawn goods, services or facilities. A tenant's request does not oblige the landlord to agree. Because Phoenix had not made an application under s 44, the Panel held it had no jurisdiction in this proceeding to reduce the rent [Ground 5, paras 1-6].

Before and after state of the law

The decision did not describe a change in legislation. It applied the provisions of the RTA, including ss 43, 44, 51(3), 81, 106, 110 and 120, to a dispute about termination and rent arrears.

Its contribution in this judgment is an explanation of how the Panel understood vacant possession in the circumstances before it. It treated returning keys as the ordinary indicator that vacant possession has been given, while expressly retaining a fact-specific approach. That qualification matters: the decision does not say that keys are the only possible evidence in every case. It also discusses notice by a tenant that the premises have been vacated as a circumstance that may affect the landlord's ability to act.

The Panel explained two parts of the statutory context. First, s 120 restricts a landlord's entry to take possession unless there is a warrant or the tenant has abandoned the premises or given vacant possession. Second, where a landlord believes premises have been abandoned, s 106 permits an application for a declaration of abandonment. The Panel used those provisions to explain why a landlord may face uncertainty when premises appear empty but keys have not been returned and no notice has been given.

The decision also states that an end-of-tenancy obligation to leave premises in the required condition does not give the tenant a post-termination right to return and remedy deficiencies. For rent reductions, it distinguishes a request under s 43 from an application under s 44 where the landlord has not agreed. These are applications of the cited statutory provisions as described in this judgment, not statements that every issue in a future dispute will be resolved in the same way.

Key passages with plain-English translation

The central statement is: “The question whether a tenant has given vacant possession of premises is a question of fact in each case. However, in our view ... ordinarily a tenant does not give up vacant possession of premises until they return the keys to the landlord or the landlord's agent” [Ground 1, para 12, paragraph numbering in the supplied judgment restarts under headings]. In plain English, returning the keys will usually be important evidence that the tenant has handed control of the premises back, but the whole situation still matters.

The Panel explained the practical concern: without returned keys, a landlord may not know whether an empty property has been abandoned or whether the tenant still intends to retain possession [Ground 1, para 13]. The Panel connected this to s 120, which can expose a landlord to an offence if the landlord enters without the required basis. This helps explain why physical departure alone did not determine the result in Phoenix's case.

On notice, the Panel observed that there may be cases where a tenant tells the landlord the premises are vacated and leaves them empty without handing over the keys. In those circumstances, the landlord would generally be entitled to act on the notification and enter and change the locks [Ground 1, para 15]. This was a general observation, not the finding on Phoenix's facts: the Panel found no evidence of notice before 8 February.

On post-tenancy repairs, the Panel stated that a tenant who fails to meet end-of-tenancy obligations has no right under the general law or the RTA to return after termination to fix those shortcomings [Ground 4, para 2]. In plain English, the duties to clean, remove rubbish and leave the premises in the required condition are duties to be performed before giving vacant possession, rather than a right to re-enter later.

On rent reduction, the Panel said the route to a reduction that the landlord does not agree to is an application under s 44 [Ground 5, para 5]. A tenant's request by itself does not impose an obligation on the landlord to accept a lower rent.

What fact patterns trigger this precedent

The decision is directly relevant to a residential tenancy dispute where a tenant receives a termination notice, says they have moved out, but keeps the keys and does not clearly notify the landlord or managing agent that the premises have been vacated. Phoenix concerned rent arrears calculated up to the date of key return, where the landlord had no earlier notice of departure and the tenant later returned the keys at a Tribunal hearing.

The Panel's reasoning also identifies a potentially different fact pattern: the tenant has left the premises empty and notified the landlord that they have vacated, but has not physically returned the keys. The Panel said that, generally, the landlord would be entitled to act on such notice. Because this was not the situation it found in Phoenix, the observation should be read as a qualification rather than as a complete rule for all cases.

The decision also concerns disputes where the landlord claims end-of-tenancy cleaning or repair costs and has photographs, quotations or invoices supporting the work. It highlights the relevance of the tenancy's end-of-term obligations, including reasonable cleanliness, rubbish removal and returning keys. It may be relevant where a tenant argues that they should have been given a later opportunity to perform the work, because the Panel rejected a general post-termination right to return and rectify shortcomings.

For a claimed rent reduction due to a faulty facility, the decision addresses the distinction between requesting a reduction and applying to the Tribunal under s 44 when the landlord does not agree. Whether those provisions apply in a different dispute depends on that dispute's evidence, the relevant tenancy terms and the statutory circumstances.

How later courts have treated it

The supplied judgment contains no decisions made after 7 December 2020 and therefore does not establish how later courts or tribunals have treated Phoenix v Guangyue Chen. No later application, distinction, approval or rejection can be identified from this source alone.

Within the judgment itself, the Appeal Panel used several earlier authorities. It referred to Collins v Urban for the substantial-miscarriage-of-justice threshold and the usual considerations relevant to granting leave to appeal. It referred to Cominos v Di Rico when explaining its approach to identifying the grounds of appeal raised by a self-represented appellant. It cited Wilson v Walshe for the observation that the meaning of “vacant possession” varies with context. It discussed Thomas v Metropolitan Housing Corporation Ltd and followed the reasoning attributed to NSW Land & Housing Corporation v Quinn (No 2) about the significance of retaining keys.

Those relationships describe the sources relied on within this decision. They do not establish how Phoenix itself has been treated by later decisions.

Still-open questions

The Panel emphasised that vacant possession is a question of fact in each case. Its “ordinarily” formulation leaves room for other circumstances to matter. The judgment does not set out an exhaustive test for all situations in which a tenant has left, kept the keys, given some form of notice, or communicated with a managing agent.

The Panel's observation about a tenant's notification of departure raises questions the judgment does not resolve in detail. It does not specify what form of notification would be sufficient, how clear it must be, or how disputes about whether notice was actually given would be resolved. Those issues would depend on evidence and the statutory context.

The judgment also does not decide how abandonment under s 106 interacts with every possible form of departure, or what evidence would be enough to obtain a declaration in another case. It explains the available statutory route and the relevance of s 120, but does not provide a comprehensive account of those processes.

On rent reductions, the Panel dealt with the absence of a s 44 application in the proceeding before it. It did not determine a reduction amount for Phoenix or set out how the Tribunal should assess the amount of a reduction in another case. Nor did it determine other potential consequences of an air-conditioner fault beyond the rent-reduction issue raised on appeal.

Finally, the decision was an internal appeal concerning the evidence and grounds before the Appeal Panel. It does not determine the outcome of other disputes about key return, cleaning costs, repair evidence, managing agents or rent reductions. This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.

Judgment (10 paragraphs)

[1]

REASONS FOR DECISION

The appellant was a tenant of the respondent pursuant to a Residential Tenancy Agreement which commenced on 26 October 2018. The rent was $1,000 per fortnight payable in advance. The appellant paid a bond in the amount of $2,000 being 4 weeks rent.
On 19 December 2019 the respondent, by his agent, gave notice to terminate the tenancy agreement under the Residential Tenancies Act (2010) (NSW) (RTA) requiring the appellant to deliver up vacant possession of the premises on 2 January 2020. The termination was for non-payment of rent.
On 24 January 2020 the respondent lodged an application in the Consumer and Commercial Division of the Tribunal seeking orders for the payment of an amount of money including arrears of rent and a termination order where the tenant has breached the residential tenancy agreement.
The application first came before the Tribunal on 11 February 2020 on which occasion it is not disputed that the appellant handed the keys to the premises to the respondent's agent. On that occasion the appellant was given notice that the agent intended to carry out an inspection of the property to prepare an end of tenancy condition report. The appellant did not attend that inspection.
At the hearing on 11 February 2020 the respondent was given leave to amend his application to seek further payments arising in respect of the condition of the property.
The proceedings came before the Tribunal for hearing on 13 May 2020. The hearing was conducted by telephone by reason of the Covid-19 pandemic.
On 13 May 2020 the Tribunal made orders requiring the appellant to pay the respondent the sum of $5,897.95 by instalments of not less than $100 per fortnight commencing 20 May 2020. The calculation of the amount due was as follows: Rent arrears $4,642.95 Repair wall dents 300.00 Removal of rubbish 400.00 Internal cleaning and carpet cleaning 400.00 Clean walls 150.00 Locksmith 5.00
We note that the $5 in respect of the locksmith related to the failure to return a mailbox key.
The Tribunal calculated the arrears of rent on the basis that the appellant had not vacated the premises until 11 February 2020 when she had returned the keys to the respondent's agent.
The Tribunal also ordered that the bond be paid to the respondent and that any amount received was to be credited against the money order.
The appellant lodged her Notice of Appeal on 15 May 2020, within the time laid down for the lodgement of appeals in residential proceedings by Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW).
The appellant also filed an application for a stay. On 28 May 2020, the Appeal Panel made directions for the preparation of the appeal and dismissed the application for stay because the respondent had agreed not to commence enforcement proceedings until the appeal is determined.

[2]

The Scope and Nature of Internal Appeals

By virtue of s 80(2) of the NCAT Act, internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel.
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 Schedule 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 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).
In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 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.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
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; 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.

[3]

Grounds of appeal

The appellant's Notice of Appeal filed on 15 May 2020 set out the appellant's grounds of appeal as follows: Rent arrears - $4,642.95 - I have vacated the premises before the 2nd January 2020 and the agent has failed to comply with the agency's Termination Notice procedures to receive the vacant possession and keys on the 2nd January 2020. As I have brought to the Tribunal's attention already, I have rented this apartment from the Sky City Property in October 2018. On the 24th June 2019 Ventus Real Estate has advised me via email that they are my new managing agent. I have never been to the Agency's office as well as I was not given an option to have Ventus Real Estate as my managing [agent]"

[4]

We have inserted the word "agent" because it is apparent that that word was somehow cut off in the document filed by the appellant. The intention was clear and was confirmed in the further Notice of Appeal which the appellant filed after the hearing of the appeal in circumstances explained below.
The appellant also sought leave to appeal on the ground that the decision was against the weight of evidence. In support of that ground for seeking leave to appeal the appellant asserted that she had never met or spoken or exchanged any correspondence with Ms Feng from Ventus Real Estate, the respondent's current managing agent, who had appeared at the hearing on behalf of the respondent.
The hearing of the appeal (which also took place by telephone by reason of the Covid-19 pandemic) took place on 30 July 2020. The appellant appeared in person. Ms Feng again appeared for the respondent.
The appellant asserted that she had sent to the Tribunal by email on 15 June 2020 an amended Notice of Appeal which included complaints that the Member had awarded compensation in respect of repairs to and cleaning of the premises after termination of the tenancy without the respondent providing evidence of the amount of money spent; and that the appellant had not been given the opportunity herself to make good the cleaning and damage to the premises, in respect of which the Tribunal had awarded the respondent compensation.
In oral submissions the appellant also asserted that, because the air-conditioner in the premises had not been working for a period between June and December 2019, she was only obliged to pay $450 per week in rent and that therefore she was not liable to the respondent for arrears of rent even up to the date on which she asserted she had vacated the premises (that is, 2 January 2020).
Ms Feng denied that she had received a copy of an amended Notice of Appeal. No amended Notice of Appeal or any communication from the appellant dated 15 June 2019 appeared on the Tribunal file relating to the appeal.
This was not the only example of the appellant's inadequate preparation for the appeal and failure to comply with directions.
On 28 May 2020 the appellant was directed to lodge with the Tribunal and provide to the respondent the evidence upon which she intended to rely, her written submissions in support of the appeal, and "the sound recording of the hearing at first instance, if what happened at the hearing is being relied upon, and a typed copy of the relevant parts".

[5]

Ground 2 - the appellant did not accept Ventus Real Estate

This ground of appeal is clearly misconceived. The appellant's tenancy agreement was with the respondent. It was a matter for the respondent whether to employ an agent, and if so, who to employ as agent. There is no provision in the Residential Tenancy Agreement between the appellant and the respondent, or in the RTA, which might limit the respondent's entitlement to appoint an agent to manage the tenancy on his behalf, or to enter into an agency agreement with such managing agent as he saw fit.
This ground of appeal must be dismissed.

[6]

Ground 3 - alleged absence of evidence of the cleaning and remediation costs

The Tribunal in its decision rejected a number of claims made by the respondent on the basis that there was not before the Tribunal sufficient evidence of the amounts claimed or that the claims were otherwise not warranted.
In respect of each of the items in respect of which the Tribunal did allow compensation to the respondent there was clearly evidence in the material before the Tribunal (which the respondent put before the Appeal Panel) of the need for cleaning after the appellant had left the premises and of the damage in respect of which the Tribunal awarded compensation. There was also evidence of the costs incurred by the respondent in having the premises cleaned and damage repaired.
The respondent produced photographs which showed dents in the walls, the rubbish which had required removal, and the dirt on walls and carpets. The obligation to pay $5 for the replacement of the mailbox key was not disputed by the appellant.
The respondent also produced a quotation for repairs including $300 plus GST for repair of wall dents, and both a quotation and invoice for: "vacate cleaning and steam clean carpet" in the amount of $400 plus GST; "clean up wall marks", in the amount of $150 plus GST; and "remove furniture and wastes" in the amount of $400 plus GST. We note that the Tribunal appears to have awarded the respondent less than the amount to which he would have been entitled, as the Tribunal did not include GST in the amounts which it awarded.
There was clearly before the Tribunal evidence, on which the Tribunal was entitled to act, to establish the justification for and the amount of each of the items of damage and cleaning in respect of which the Tribunal awarded compensation. The Tribunal did not make an error of law in finding that the respondent had proved an entitlement to the cleaning and repair costs which it awarded. Nor could it be said that the Tribunal's conclusions in this respect were against the weight of evidence or not fair and equitable.
This ground of appeal must be dismissed.

[7]

Ground 4 - the appellant was not given the opportunity to make good the premises

Clause 17 of the Residential Tenancy Agreement between the appellant and respondent provides: 17. The tenant agrees, when this agreement ends and before giving vacant possession of the premises to the landlord: 17.1 to remove all the tenant's goods from the residential premises, and 17.2 to leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy, and 17.3 to leave the residential premises reasonably clean, having regard to their condition at the commencement of the tenancy, and 17.4 to remove or arrange for the removal of all rubbish from the residential premises, and 17.5 to make sure that all light fittings on the premises have working globes, and 17.6 to return to the landlord all keys, and other opening devices or similar devices, provided by the landlord.
The obligations set out in clauses 17.1-17.4 and 17.6 were also implied into the tenancy agreement by s 51(3) of the RTA.
The obligations upon a tenant in relation to the state of the premises at the end of a lease are to ensure the premises are "as nearly as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy", "reasonably clean, having regard to their condition at the commencement of the tenancy" and with all "tenant's goods" removed. A tenant who fails to comply with those obligations does not, under the general law or the RTA, have a right to return after the termination of the tenancy to attempt to rectify any shortcomings in their previous performance of their contractual obligations.
We note that the appellant, although given an opportunity to do so, did not attend the outgoing condition inspection on 11 February 2020, of which she was notified at the Tribunal hearing on that date.
Accordingly this ground of appeal must be dismissed.

[8]

Ground 5 - the entitlement claimed by the appellant to a reduction in rent by reason of the allegedly defective air-conditioner

It was not disputed that the air-conditioner had not been working satisfactorily during the term of the tenancy.
Ms Feng stated that the air-conditioner had been rectified by 2 December 2019 at the latest. The appellant did not appear to challenge that proposition. Her submission was that she should be entitled to a reduction in rent by reason of the fact that the air-conditioner had not been functional prior to that date.
Section 44 of the RTA makes provision for a tenant to make application to the Tribunal for a reduction in rent on the basis that the rent is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises.
Section 43 of the RTA permits a tenant to make a written request to the landlord for a reduction in rent if the landlord has reduced or withdrawn any goods, services or facilities provided with the residential premises.
There is some correspondence in the documents put before the Tribunal by the respondent which could be described as a written request by the appellant for a reduction in rent on the basis of issues with the air-conditioner. However the fact that a tenant makes such a request does not impose an obligation on the landlord to agree to such a request. The mechanism by which a tenant may obtain a reduction in rent to which a landlord does not agree is by application pursuant to s 44 of the RTA. The appellant did not make any such application and, in the absence of such an application, the Tribunal had no jurisdiction to reduce the rent otherwise payable to the respondent.
This ground of appeal must be dismissed.

[9]

Ground 1 - the date of termination of the tenancy

We now turn to the appellant's first ground of appeal.
The issue the Tribunal was required to determine was when the residential tenancy agreement had terminated, that is, whether the tenancy terminated when the appellant moved out of the property, which the appellant asserted was before 2 January 2020, or only when the appellant handed the keys to the agent on 11 February 2020.
The Tribunal did not make any finding of fact as to whether the appellant had in fact moved out of the premises on or before 2 January 2020. The Tribunal determined the amount owing to the respondent for arrears of rent on the basis that the relevant date was the date on which the appellant delivered the keys to the respondent's agent.
The appellant did give sworn evidence before the Tribunal that she had "moved out" before 2 January 2020.
It is appropriate before seeking to resolve this issue to set out a number of provisions of the RTA which may have relevance to our determination:
Section 81 relevantly provides: 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 - … (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, …
Sections 106 and 110 provide: 106 Abandoned premises (1) The Tribunal may, on application by a landlord, make an order declaring that the tenant abandoned the residential premises on a specified day. (2) The tenant is taken to have abandoned the residential premises on the specified day. (3) The landlord may take immediate possession of residential premises that have been abandoned by the tenant if there are no remaining occupants. Note - The residential tenancy agreement is terminated if a tenant abandons the residential premises (see section 81(4)(d)). (4) In determining whether a tenant has abandoned the residential premises the Tribunal may consider (but is not limited to considering) the following - (a) the failure by the tenant to pay rent under the residential tenancy agreement, (b) any evidence that the tenant no longer resides at the premises, (c) any failure by the tenant to carry out any obligations relating to the residential premises under the residential tenancy agreement. 110 Tenant may vacate at any time before termination date specified by landlord (1) A tenant who is given a termination notice by the landlord, or who gives a termination notice, may give vacant possession of the residential premises at any time before the termination date. (2) If a termination notice is given by a landlord, the tenant is not liable to pay any rent for any period after the tenant gives vacant possession of the residential premises and before the termination date. (3) Subsection (2) does not affect the liability of a tenant under a fixed term agreement to pay rent in respect of a period after the tenant gives vacant possession of the residential premises and before the end of the fixed term, if the termination notice is given by the landlord in accordance with section 84.

[10]

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 December 2020

Phoenix v Guangyue Chen

At a glance

Result

Key principles

Issues before the court

Plain English Summary

Cited legislation

Deep Dive

What happened

Why the court decided this way

Before and after state of the law

Key passages with plain-English translation

What fact patterns trigger this precedent

How later courts have treated it

Still-open questions

Judgment (10 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (3)

Cited By (4)

AI Analysis