Sebie v Abret Pty Limited

1. The residential tenancy agreement between the parties commenced on 24 November 2022, with agreed rent of $825.00 per week ("tenancy agreement").
2. There were 2 purported rent increases in dispute:

(1) From 12 October 2023 an increase from $825.00 to $875.00 per week pursuant to notice dated 8 August 2023 due to commence form 12 October 2023 ("first rent increase");

(2) From 17 September 2024 an increase from $875.00 to $900.00 per week pursuant to notice dated 17 September 2024 due to commence from 17 October 2024 ("second rent increase").

1. On 27 March 2025 the landlord issued a Notice of Termination for rent arrears pursuant to ss 87 and 88 of the RT Act specifying the date of vacant possession as 22 April 2025.

1. The application to the Tribunal was lodged by the landlord on 7 April 2025. The landlord sought termination of the tenancy due to rental arrears and payment of the bond.
2. The matter was first listed before the Tribunal on 7 May 2025 for conciliation and a group list hearing. The Tribunal made directions for the exchange of evidence.
3. On 4 June 2025 the application was listed before the Tribunal for a final hearing. The tenant appeared in person, and the landlord was represented by its agent Mr Udalov.
4. At [27] to [34] the Tribunal set out its findings:

"27. Having considered the evidence and submissions of both parties, the Tribunal makes the following findings of fact:

(1) On 15 November 2022 the landlord and the tenant made a tenancy agreement in relation to residential premises at Abbotsford which had a term of 26 weeks from 24 November 2022 and rent of $825 per week.

(2) On 8 August 2023 that rent was increased to $875 per week from 12 October 2023.

(3) On 17 September 2024 that rent was increased to $900 per week from 17

(4) On 21 December 2024 a notice of termination was issued to the tenant, based on arrears of rent.

(5) On 27 March 2025 that notice was superseded by a notice of termination, also based on arrears of rent, which specified a date for the tenant to provide vacant possession of 22 April 2025.

(6) As at 27 March 2025, the tenant was more than 14 days in arrears in relation

(7) As at the date of the hearing, the tenant was more than 14 days in arrears in relation to his obligation to pay rent.

28. It is noted that the tenant did not dispute the rent increase to $900 and that the single issue in these proceedings was whether the rent was validly increased from $825 to $875.

29. For the following reasons, the Tribunal is satisfied that a termination order

30. That issue, even if determined in favour of the tenant, would not assist him in his defence of this case. From the landlord's tenancy ledger, it is noted that the entry for 27 March 2025, the date of the termination notice, records that the rent was, at that time, paid to 18 February 2025. Even if an amount of $825 per week is used for rent, that suggests arrears of $4,360.71 (37 days at $825 per week). As the rent increase from $825 to $875 was said to have applied from 12 October 2023 until the rent was increased to $900 on 17 October 2024, the amount being disputed by the tenant is an extra $50 per week for 370 days, which is $2,642.86. Hence, the arrears, if the rent increase from $825 to $875 was not valid, as at 27 March 2025, when the notice of termination was issued, would have been $1,717.85 (ie $4,360.71 less $2,642.86). As a result, even if the rent had not been validly increased from $825 to $875, the tenant was still more than 14 days in arrears at the date when the notice of termination was

issued. That is the first reason which supports a termination order being made.

31. Secondly, in view of the findings set out above, the Tribunal is satisfied that the notice of termination dated 27 March 2025 was and is valid.

32. Thirdly, the Tribunal is satisfied that the 8 August 2023 email was sent and received, preferring the landlord's case to that of the tenant, notably that the form of the document at A34 is the result of the software used by the landlord's agent and that the landlord's agent was able to send a copy of that email as a pdf attachment to an email dated 14 November 2024 (R20).

33. Fourthly, Tribunal is satisfied that the tenant has frequently failed to pay the rent that was due.

34. Fifthly, the Tribunal is satisfied that its discretion should be exercised in favour of termination, having regard to the nature of the breach, being a persistent failure to pay the rent due, and the position taken by the tenant of refusing to accept that the rent was validly increased from $825 to $875."

(1) The tenancy agreement is terminated immediately and vacant possession to be given to the landlord on the date of termination.

(2) A finding under section 89(5) of the RT Act that the tenant had frequently failed to pay rent on time.

(3) Pursuant to s114(2) of the RT Act, that the order for possession is suspended until 05 July 2025.

(4) The tenant is to pay the landlord a daily occupation fee at the rate of $128.57 per day from the day after the date of termination, 06 June 2025 until the date vacant possession is given.

(5) The landlord may request the relisting of the application to determine the occupation fee owing, within 60 days from the date of possession.

1. No order was made for the rent arrears to be paid.
2. The tenant filed this appeal on 18 June 2025.
3. The tenant vacated the premises on 6 August 2025.
4. On 7 August 2025 the landlord requested the relisting of the Tribunal proceedings before the Tribunal to determine the total occupation fee owed by the tenant. To date this has not been determined, pending this appeal.
5. The landlord said at the hearing of this appeal that there are other end-of-tenancy claims, and a rent arrears claim will be the subject of new proceedings in the Consumer and Commercial Division of the Tribunal against the tenant.

1. In deciding the appeal, we have had regard to the following:

(1) The Notice of Appeal lodged on 18 June 2025 with 122 accompanying pages of evidence;

(2) The Reply to Appeal lodged on 24 June 2025 with accompanying documents (referred to as "Bundle B" by the landlord);

(3) The landlord's documents before the Tribunal at first instance (referred to as "Bundle A");

(4) Tenant's submissions lodged at the Appeal hearing (without objection from the landlord).

1. The tenant also sought to rely on evidence that was not before the Tribunal: an affidavit by Robert Sebie affirmed on 23 June 2025 and an affidavit by Robert Sebie affirmed on 26 June 2025.
2. The landlord also sought to rely on evidence that was not before the Tribunal being documents including screen shots that demonstrate how notices are issued to tenants via Property Tree mail merge.

1. The Notice of Appeal was lodged within the 14 day time period specified in cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW).
2. Because the tenant has now vacated the premises, at the commencement of the Appeal hearing, the tenant confirmed that the only order he appealed was the occupation fee being Order 4:

"The tenant is to pay the landlord a daily occupation fee at the rate of $128.57 per day from the day after the date of termination, 06 June 2025, until the date vacant possession is given."

1. The balance of the appeal was withdrawn on the basis that the tenant has vacated. We would otherwise have dismissed the balance of the appeal as being of no utility, because the other orders have been complied with (Ugur v Bridge Housing Limited [2024] NSWCATAP 203).

1. The basis upon which appeals from decisions of the Tribunal may be brought are identified in s 80 of the NCAT Act. An appeal may be made as of right on any question of law, or with leave of the Appeal Panel, on any other grounds (s 80(2)(b) of the NCAT Act).

1. 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]. A pure question of law does not depend on the facts found, and the question of law must be, self-evidently, a question of law and not depend on the answer. A question of law is distinct from a mixed question of fact and law, for which leave to appeal is required. 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.

1. Clause 12 of Sch 4 of the NCAT Act provides that, the Appeal Panel may grant leave to appeal a decision from the Consumer and Commercial Division pursuant to s 80(2)(b) of the NCAT Act, only if it is 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).

1. 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:

"... 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."

1. The principles to be applied by an Appeal Panel in determining whether leave to appeal should be granted are well settled. In Collins v Urban the Appeal Panel concluded at [84] that:

"(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:

(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; or

(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."

1. It is important to note that an appeal is not an opportunity for the losing party to re-run their case (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]).

(1) The Tribunal erred in finding "On 8 August 2023 that rent was increased to $875 per week from 12 October 2023" because the Notice of Rent Increase was "not valid" and the email purporting to serve the Notice was "non genuine";

(2) The Tribunal erred in finding that "On 17 September 2024 the rent was increased to $900 per week from 17 October 2024" because the landlord informed the Tribunal during the hearing that it had withdrawn that rent increase notice;

(3) The Tribunal erred in its calculations of the purported rent arrears;

(4) The Tribunal erred by failing to order that the landlord produce documents pursuant to a notice to produce served by the tenant;

(5) The Tribunal erred by failing to consider that the tenant only received the Notice of Hearing on 2 June 2025;

(6) The Tribunal erred by failing to consider and/or allow the tenant's adjournment application which he pressed at the hearing, to allow the tenant to adduce additional evidence and to sign his affidavit;

(7) The Tribunal erred by failing to allow the expert report by Mr Jemmott into evidence.

1. The appellant is self-represented. As the Appeal Panel explained in Cominos v Di Rico [2016] NSWCATAP 5 ("Cominos") at [13]:

"It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]- [316]). Relevantly, s 38(2) provides that that Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice'."

1. We consider that Grounds 1, 2 and 3 raise the same issue: whether the tenant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable.
2. For the reasons which follow, we grant leave to appeal and allow the appeal on that basis. There is therefore no utility in considering the other grounds raised by the tenant.

1. The appeal in essence concerns the calculation of the occupation fee, which was the subject of Order 4. The occupation fee is usually 1/7th of the weekly rent (s 123(2) of the RT Act). The Tribunal has ordered the occupation fee of $128.57 per day, which is 1/7th of the weekly rent of $900.
2. It is common ground that when making its finding in paragraph 27(3) of the decision, the Tribunal did not take into account the landlord's withdrawal of the second rent increase to $900.00 per week. Accordingly, the Tribunal erred in finding that on 17 September 2024 that the rent was increased to $900 per week from 17 October 2024.
3. The landlord submitted that the amount of the daily occupation fee which the Tribunal should have ordered was 1/7th of the weekly rent of $875, which equals $125, because $875 was the applicable weekly rent after the first rent increase which the landlord contended was the applicable rent from 12 October 2023 to the end of the tenancy.
4. The tenant's submission was that the first rent increase was also not valid, and therefore the weekly rent continued at the commencement rent of $825 per week until the end of the tenancy, which meant that the correct daily occupation as at the date of the orders was 1/7th of $825 being, $117.85 per day.
5. Both parties agreed that when the amount of the occupation fee is calculated as a money order, it would be calculated for the period of 6 June 2025 to 6 August 2025, being the date of vacant possession. The live issue is the correct amount.
6. Given that the parties still have the issue of rent arrears between them, the tenant's appeal of the Tribunal's decision with respect to the occupation fee is significant as the underlying finding in paragraph 27(3) as to the validity of the first rent increase is relevant to the calculation of rent arrears.
7. We turn now to consideration of the first rent increase.
8. Section 223 of the RT Act provides relevantly:

(1) A notice or other document that is authorised or required by this Act or the regulations or a residential tenancy agreement to be given to or served on any person may be given or served by -

(ii) delivering it personally to a person apparently of or above the age of 16 years at the person's residential or business address, or

(iii) delivering it in an envelope addressed to the person and leaving it in a mailbox at the person's residential or business address, or

(iv) sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or

(v) sending it to an email address specified by the person for the service of documents of that kind, or

(va) sending it by other electronic means to an address or location specified by the person for the service of documents of that kind, or

(vi) any other method authorised by the regulations for the service of documents of that kind ..."

1. The tenancy agreement between the parties allowed for the service of notices by email in accordance with s 223, provided the parties gave express consent. Both parties gave consent. Relevantly the agreement asked:

"Does the tenant give express consent to the electronic service of notices and documents? If yes, see clause 50."

1. The tenant ticked 'yes' and specified the email address to be used for the purpose of serving notices and documents: roberts@ena.com.au.
2. The landlord also nominated an email address to be used for the purpose of serving notices and documents: andrea@coastlineagency.com. That email belonged to Andrea Drajic, formally a property manager employed by the landlord's agent.
3. Clause 50 of the tenancy agreement states:

50.1 to only serve any notices and any other documents, authorised or required by the Residential Tenancies Act 2010 or the regulations or this agreement, on the other party by email if the other party has provided express consent, either as part of this agreement or otherwise, that a specified email address is to be used for the purpose of serving notices and other documents, and

50.2 to notify the other party in writing within 7 days if the email address specified for electronic service of notices and other documents changes, and

50.3 that they may withdraw their consent to the electronic service of notices and other documents at any time, by notifying the other party in writing, and

50.4 if a notice is given withdrawing consent to electronic service of notices and other documents, following the giving of such notice, no further notices or other documents are to be served by email."

1. An email from the tenant dated 9 December 2022 at page 20 of the tenant's documents ("the 9 December 2022 email") was sent to the landlord's agent andrea@coastlineagency.com and says:

Further to my discussion, sometimes I don't recieve (sic) your emails for some reason. Can you please send all formal communication by post.

1. When questioned by the Appeal Panel, Mr Udalov agreed that the 9 December 2022 email was sent to Ms Drajic, but later said he was 'not aware' of the email.
2. Both parties confirmed to the Appeal Panel that the 9 December 2022 email was before the Tribunal at first instance.
3. The landlord submitted that the first rent increase notice was by way of an email to the tenant on 8 August 2023 providing notice that the rent would increase to $875.00 per week from 12 October 2023. That purported email is at page 34 of the tenant's documents ("first rent increase email").
4. Mr Udalov confirmed that the first rent increase notice was not sent to the tenant by any other means.
5. The tenant disputes that the first rent increase email was ever sent to him.
6. Whether the first rent increase email was sent or not was the subject of much discussion at the appeal and also relevant to the new evidence that both parties sought to rely on. However, there is a more fundamental issue. Even if the first rent increase email had been sent, the tenant, by the 9 December 2022 email, withdrew his consent to the electronic service of notices and other documents, as was his right, pursuant to cl 50.3 of the tenancy agreement. From that date, no further notices or other documents should have been served by email.
7. Section 41 relevantly provides:

(1) The rent payable under a residential tenancy agreement may be increased only if -

(a) the tenant is given a written notice by the landlord or the landlord's agent specifying the increased rent and the day from which it is payable ...

(3) A rent increase is not payable by a tenant unless the rent is increased in accordance with this section or the rent is increased by the Tribunal."

1. While s 113 of the RT Act in some circumstances allows the Tribunal to waive defects in the manner of service of termination notices, there is no such provision relating to other notices including those for rent increases.
2. Section 88 of the RT Act provides relevantly:

"88 Termination notices for non-payment of rent or charges

(1) A termination notice given by a landlord on the ground of a breach of the residential tenancy agreement arising solely from a failure to pay -

(c) charges for the supply of electricity, gas or oil (utility charges),

payable by the tenant (a non-payment termination notice) has no effect unless the rent has, or the water usage charges or utility charges have, remained unpaid in breach of the agreement for not less than 14 days before the non-payment termination notice is given ..."

1. As to the calculation of the occupation fee which included the first rent increase, we conclude that the decision was not fair and equitable because the Tribunal did not consider:

(1) The landlord's withdrawal of the first rent increase;

(2) Clause 50 of the tenancy agreement which set out the parties' agreement on the giving of notices under the tenancy agreement;

(3) Whether the tenant had withdrawn consent for service by electronic means as he was entitled to under cl 50 of the tenancy agreement;

(4) Whether the first rent increase notice was served in accordance with s 223 of the RT Act;

(5) Whether the rent was validly increased to $875.00 per week in accordance with s 41 of the RT Act.

1. For the following reasons we are satisfied for the purposes of cl 12(1) of Sch 4 of the NCAT Act, that the tenant may have suffered a substantial miscarriage of justice because there is a significant possibility that a more favourable result would have been achieved for the following reasons:

(1) Given the tenant's withdrawal of consent, it would have been open to the Tribunal to conclude that the tenant was not given the first rent increase notice in accordance with the tenancy agreement and s 223 of the RT Act;

(2) If the Tribunal had so concluded, then the rent increase to $875.00 would not meet the precondition of s 41(1)(a) of the RT Act and would thus be prohibited;

(3) If both rent increases were of no effect, then at the date of termination the rent would only have been $825.00 per week and the applicable daily occupation fee would be $117.86, with the effect of reducing the total occupation fee owed by the tenant.

1. Further, more than the occupation fee is at issue because demand has been made by the landlord for payment of rent arrears calculated at $875 per week, instead of the lower rent of $825 per week. The difference in calculation is significant. The landlord has foreshadowed that the tenant's liability for the rent arrears may be the subject of a new application, as well as any other end-of-tenancy claims.
2. We are satisfied that it is appropriate to exercise our discretion to grant leave to appeal in relation to this ground because the errors involve an injustice which is reasonably clear.
3. For these reasons we grant leave and allow the appeal.
4. It is therefore not necessary to consider the other grounds of appeal. Nor is it necessary to determine whether the parties may rely on the new evidence they sought to adduce in the Appeal since the evidence was not material to our decision. This evidence may be filed on the remitted appeal, if the Tribunal so directs.
5. The Appeal Panel has the right to re-determine and substitute the Tribunal's decision with its own decision. Given that the issue of rent arrears is still a live issue between the parties and given that the appeal is allowed on the basis that we are satisfied that the Tribunal failed to consider the tenant's withdrawal of consent, making the decision not fair and equitable, we consider that it is more appropriate for the issue of the amount of the weekly rent, and therefore the occupation fee, to be remitted to the Tribunal for re-determination in accordance with all relevant evidence filed by the parties.
6. For reasons facilitating the just, quick and cheap resolution of the issues in dispute between the parties (which would be in accordance with the guiding principles of s 36 of the NCAT Act) it may be that the remitted appeal on the occupation fee can be heard with other end of tenancy claims and the rent arrears claim, if such new proceedings are commenced. Otherwise, the occupation fee may be heard as a remitted and single issue.

(1) Leave to appeal is granted;

(2) The appeal is allowed;

(3) Order 4 dated 4 June 2025 that the tenant is to pay the landlord a daily occupation fee at the rate of $128.57 per day from the day after the date of termination, 06 June 2025, until the date vacant possession is given, is set aside;

(4) The landlord's application for a daily occupation fee is remitted to the Tribunal, to be determined in accordance with the law and with such further evidence as the Tribunal decides;

(5) The balance of the appeal is otherwise dismissed under s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) as it is withdrawn.

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.