Abdel-Messih v Marshall

[2018] NSWSC 648

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Abdel-Messih v Marshall [2018] NSWSC 648
Hearing dates:	29 September 2017
Date of orders:	11 May 2018
Decision date:	11 May 2018
Jurisdiction:	Common Law
Before:	Walton J
Decision:	(1) The summons filed 19 July 2017 is dismissed.  (2) Costs are reserved.
Catchwords:	APPEAL – civil – appeal from the NSW Civil and Administrative Tribunal Appeal Panel – s 83 of the Civil and Administrative Tribunal Act 2013 – s 69 of the Supreme Court Act 1970 – principles governing grant of leave to appeal – discretion of the Tribunal pursuant to s 107 of the Residential Tenancies Act 2010 – construction of s 107 of the Residential Tenancies Act 2010 – whether questions of law were raised as to the miscarrying of a discretion under s 107 of the Residential Tenancies Act 2010 – procedural fairness in Appeal Panel proceedings – jurisdiction of Appeal Panel to make an order for payment of a bond – contention of bias of Appeal Panel – whether Appeal Panel should have issued certificate pursuant to s 128 of the Evidence Act 1995 – leave to appeal granted – incompetent grounds – leave to appeal refused – no error of law –summons dismissed – costs reserved
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Supreme Court Act 1970 (NSW) Residential Tenancies Act 2010 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Abdel-Messih v Marshall [2017] NSWCATAP 136 Altaranesi v Sydney Local Health District [2012] NSWCA 69 Attia v Health Care Complaints Commission [2017] NSWSC 1066 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41 Cain v New South Wales Land and Housing Corporation (2014) 86 NSWLR 1 Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2017] NSWSC 1322 House v King (1936) 55 CLR 499 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 Macdonald v Macdonald [2017] NSWSC 809 Nominal Defendant v Saleh [2011] NSWCA 16 Taylor v Public Service Board (1976) 137 CLR 208 Wende v Horwarth (No 2) (2015) 91 NSWLR 588 Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56
Category:	Principal judgment
Parties:	Bishoy Abdel-Messih (plaintiff) Simon Arthur Marshall (defendant)
Representation:	Solicitors: Public Interest Advocacy Centre (defendant)
File Number(s):	2017/219924
Decision under appeal	Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Appeal Panel Citation: [2017] NSWCATAP 136 Date of Decision: 21 June 2017 Before: S Westgarth, Deputy PresidentR Titteron, Senior Member File Number(s): AP 17/05534

Judgment

1. HIS HONOUR: This is an appeal from a decision made by an Appeal Panel constituted by Deputy President Stuart Westgarth and Senior Member Robert Titterton of the NSW Civil and Administrative Tribunal (“the Appeal Panel”). The decision was regarding a dispute over a ‘break fee’ under a standard form Residential Tenancy Agreement dated 23 August 2016 (“the agreement”).

2. The plaintiff, Mr Bishoy Abdel-Messih, and the defendant, Mr Simon Arthur Marshall, were the tenant and subtenant respectively of 5605/93 Liverpool Street, Sydney (“the unit”). Mr Marshall vacated the unit before the end of the term of the agreement on 5 November 2016. The break fee clause of the agreement (clause 41) provided that, if the subtenant ended the agreement before the end of the term, the subtenant would pay to the tenant a break fee in the amount of 4 weeks rent.

3. Mr Abdel-Messih brought proceedings in the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal (“the Tribunal”) to recover $1,600 as a break fee as a result of Mr Marshall terminating the agreement before the end of the term of the agreement. The Tribunal dismissed Mr Abdel-Messih’s application on 19 January 2017.

4. Mr Abdel-Messih appealed the Tribunal’s decision to the Appeal Panel pursuant to s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (“the Act”). On 21 June 2017, the Appeal Panel made two orders:

1. Except for the purposes of making order 2, the appeal is dismissed; and

2. The bond of $1,600 held by Rental Bond Services (reference number P0000626726) is to be paid to the defendant.

5. Mr Abdel-Messih brings an appeal to this Court from the decision of the Appeal Panel pursuant to s 83 of the Act which provision requires leave of the Court to appeal on a question of law and, additionally, under s 69 of the Supreme Court Act 1970 (NSW) where leave is not required to appeal on errors of law. (It should be noted that he also relied upon s 84 of the Act to bring the appeal, however, this must be incorrect because that provision clearly does not give the power to the Court to hear appeals; it is merely procedural).

FACTUAL BACKGROUND

6. There was no dispute as to the material facts as found by the Appeal Panel. In summary, they were as follows:

1. Mr Abdel-Messih and Mr Marshall entered into the agreement under which Mr Marshall was required to pay $800 rent per fortnight for bedroom two in the unit for a fixed term of 3 months commencing 24 August 2016 and ending on 24 November 2016.

2. The agreement contained clause 41 which provided:

The tenant agrees that, if the tenant ends the residential tenancy agreement before the end of the fixed term of the agreement, the tenant must pay a break fee of the following amount:

41.1 if the fixed term is 3 years or less, 6 weeks rent if less than half of the term has expired or 4 weeks rent in any case

…

This clause does not apply if the tenant terminates the residential tenancy agreement early for a reason that is permitted under the Residential Tenancies Act 2010.

Note: Permitted reasons for early termination include destruction of residential premises, breach of the agreement by the landlord and an order of social housing or a place in an aged care facility. Section 107 of the Residential Tenancies Act 2010 regulates the rights of the landlord and tenant under this clause.

3. During the term of the agreement, separate proceedings in the Tribunal were underway between Mr Abdel-Messih and the head landlord of the unit. Those separate proceedings concerned Mr Abdel-Messih’s alleged breaches of the head lease (namely, a failure to pay rent and subleasing without consent). Mr Abdel-Messih produced copies of termination notices with respect to the head lease dated 8, 14 and 16 September 2016 to the Tribunal (see page 2 of the Tribunal’s reasons for decision).

4. Mr Marshall vacated the unit on 5 November 2016 without providing the period notice of termination required by the agreement.

7. The Tribunal found that Mr Marshall had abandoned the unit. However it determined, in the exercise of its discretion, not to order Mr Marshall to pay Mr Abdel-Messih the break fee. In short, the Tribunal accepted Mr Marshall’s evidence that he reasonably believed it was imminent a person having superior title to Mr Abdel-Messih (i.e. the head landlord) was about to become entitled to possession of the unit at or around the time he abandoned the unit (see s 81(4)(a) of the Residential Tenancies Act 2010 (NSW) (“the RT Act”)).

PROCEDURAL HISTORY

The Tribunal Proceedings

8. The break fee for the abandonment of the tenancy was the genesis of proceedings brought by Mr Abdel-Messih on 7 November 2016 under the RT Act: see, as to the jurisdiction of the Tribunal sitting in that Division, s 16(1)(b) and Sch 4 Pt 3 of the Act.

9. The relief claimed fell within s 107 of the RT Act as a remedy available to landlords on abandonment of a residential premises by a tenant. Section 107 provides the following:

107 Landlord’s remedies on abandonment

(1) The Tribunal may, on application by a landlord, order a tenant to pay compensation to the landlord for any loss (including loss of rent) caused by the abandonment of the residential premises by the tenant.

(2) The landlord must take all reasonable steps to mitigate the loss and is not entitled to compensation for any loss that could have been avoided by taking those steps. This subsection does not apply in the case of a fixed term agreement that provides for the payment of a break fee.

(3) The compensation payable by a tenant under this section in respect of a fixed term agreement is the amount of the applicable break fee for the tenancy, if the agreement provides for the payment of a break fee.

(4) The break fee for a fixed term agreement for a fixed term of not more than 3 years is:

(a) an amount equal to 6 weeks rent if less than half of the fixed term had expired when the premises were abandoned, or

(b) an amount equal to 4 weeks rent in any other case.

(5) The break fee for a fixed term agreement for a fixed term of more than 3 years is the amount set out in subsection (4) or, if an amount is specified in the agreement, the amount specified. An agreement must not specify a break fee exceeding the amount (if any) specified by the regulations.

(6) The amount of any money paid by a tenant to a landlord on terminating a fixed term agreement before the end of the fixed term or before otherwise abandoning the premises (other than money previously due to the landlord under the residential tenancy agreement) is to be deducted from any amount payable to the landlord under this section.

(7) This section does not prevent a landlord from obtaining an occupation fee under Division 2 of Part 6 for goods left on the residential premises.

10. Mr Abdel-Messih sought the following orders from the Tribunal as follows:

1. payment of the break fee in the amount of $1,600 as compensation for the loss caused by the abandonment by Mr Marshall;

2. payment of $38.25 (as a cleaning fee) as further compensation; and

3. a copy of the key (presumably to the unit) to be given to the head landlord.

11. The Tribunal was constituted by Senior Member Mr David Charles. His decision was founded upon, inter alia, the following reasons (at page 3 of the Tribunal’s reasons for decision):

Having regard to the written and oral evidence at today’s hearing, the Tribunal makes the following findings of fact and law:

…

- the Tribunal accepts the respondent's affirmed evidence that he abandoned the premises on 5 November 2016 in circumstances where he reasonably believed that it was imminent a person having superior title to the applicant (i.e. the Head Landlord) was about to become entitled to possession of the residential tenancy premises in Unit 6505 (see s 81(4)(a) of the RTA) and also that the respondent required certainty about his accommodation arrangements which were not assuaged by the applicant's assurances that the Head Landlord's claims had no merit;

- in the exercise of its discretion under s 107 of the RTA, the Tribunal determines that it is not appropriate in the particular circumstances of this case for the Tribunal to order the respondent to pay compensation to the applicant by way of a break fee in the amount of $1,600.00 or any lesser amount;

- the Tribunal rejects the claim for a cleaning fee at the end of the tenancy as it is not supported by evidence that the subtenant left the part of the premises he occupied in a state of uncleanliness and there is also no ingoing condition report.

The Appeal Panel Proceedings

12. Mr Abdel-Messih filed a notice of appeal against the decision of the Tribunal. That appeal was brought under Pt 6 Div 2 of the Act (the matter was within the internal appeal jurisdiction of the Tribunal pursuant to s 32(1)(a) of the Act).

13. Section 80 of the Act permitted an appeal from the decision of the Tribunal at first instance “as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds”: s 80(2)(b).

14. As to leave to appeal, the provisions of Sch 4, Pt 6, cl 12(1) of the Act applied to the appeal before the Appeal Panel. Clause 12(1) provides as follows:

12 Limitations on internal appeals against Division decisions

(1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:

(a) the decision of the Tribunal under appeal was not fair and equitable, or

(b) the decision of the Tribunal under appeal was against the weight of evidence, or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

Note: Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds.

15. In the notice to appeal, Mr Abdel-Messih appealed on the ground that the decision was not fair and equitable because the Member “[continued] to ignore evidence and relevant legislation in guiding his decisions”. He sought the following orders:

1. The Tribunal declares the respondent had abandoned the premises on 05/11/2016 in accordance with s 106 of the Act.

2. The respondent is to pay the sum of $1600, being 4 weeks’ break lease fee as per cl 41 & 42 of the Residential Tenancy Agreement and s 107 of the Act.

16. Mr Abdel-Messih made an alternative submission that, if the break fee was not awarded, compensation for $256.06 should be awarded for the loss of rent otherwise payable by Mr Marshall from 5 November 2016 to the end of the term (24 November 2016) pursuant to s 107(2) of the Act. I note that s 107(2) however relates to an obligation on a landlord to mitigate its loss, and the Court will presume that he intended to refer to s 107(1).

17. The Appeal Panel dismissed the appeal on 21 June 2017 on the basis that no error of law had been identified and there was no basis for giving leave to appeal because the decision was not fair and equitable under cl 12 of Sch 4 of the Act: Abdel-Messih v Marshall [2017] NSWCATAP 136.

18. The Appeal Panel found the following:

1. As to the question of law raised by Mr Abdel-Messih as to whether a discretion existed under s 107 of the RT Act (at [28]-[29]):

[28] Section 15 of the RT Act provides that the Residential Tenancy Regulations 2010 (the Regulations) may prescribe a standard form of residential tenancy agreement and further states that a standard form of residential tenancy agreement must be consistent with the RT Act and the Regulations (s 15(3)). In addition, the last sentence in cl 41 confirms that s 107 regulates the parties’ rights under cl 41.

[29] In our view, s 107 does not mandate the payment of compensation. There was no error by the Member in determining that the Tribunal had a discretion under s 107 as to whether compensation should be awarded.

2. The Appeal Panel consequently found that the Tribunal’s decision did not display any error of law by the Tribunal in the exercise of its discretion under s 107 of the RT Act (at [31]-[35]):

[31] As stated in the Decision, the determination by the Tribunal not to award compensation was based upon “the particular circumstances of this case”. Those circumstances were set out earlier in the Decision and were based upon the finding that the subtenant reasonably believed that it was imminent that a person having superior title to the tenant (i.e. the head landlord) was about to become entitled to possession of the premises. The factual background supporting the subtenant’s belief and therefore the finding that the belief was reasonable is set out in the Decision. The factual background concerned the non-payment by the tenant of rent under the head lease and assertions concerning whether other subtenancies had been consented to by the head landlord.

[32] The Court of Appeal in Cain said that the factors which a Court or Tribunal may take into account may be characterised as mandatory, permissible or prohibited. In our view, the Tribunal relied upon a number of permissible factors, none of which were prohibited. Essentially, those factors (which we have summarised above) described the state of affairs between the tenant and the head landlord, which made it reasonable for the subtenant to believe that the subtenancy was likely to end imminently.

[33] The tenant makes the point that by 5 November 2016 (when the subtenant abandoned the premises) the subtenant was aware that the proceedings concerning the head landlord had been heard on 26 October 2016 and that there had been no termination order. However, at that time the Tribunal proceedings were not concluded. Indeed the proceedings were still pending at 5 November 2016 and remained pending when the decision was published on 19 January 2017. Accordingly, we are of the view that the Decision does not reveal that the Tribunal took into account factors which were not relevant to the exercise of the discretion under s 107 of the RT Act. One factor was obviously more relevant than others because the Tribunal gave it specific mention: that was the tenant’s failure to pay rent to the head landlord. The Decision records that in the opinion of the Tribunal, but for the adjournment of the proceedings on 26 October 2016, the agreement with the head landlord “would have been brought to an end for breaches by the [tenant] (at least in respect of the non-payment of rent)”.

[34] The tenant also made the point that the exercise of a discretion should not conflict with contractual obligations. Here, the relevant contractual obligation is that contained in cl 41. In our view, cl 41 does not inhibit or modify the exercise of the discretion under s 107 of the RT Act for two reasons. The first is that cl 41 is to be interpreted subject to s 107 for the reasons previously indicated in this decision. Indeed, cl 41 includes the statement that s 107 regulates “the rights of the landlord and tenant under this clause”. The second reason is that in our view, cl 41 does not determine whether the tenant is liable for the break fee but rather determines the amount of the break fee if compensation is payable (see s 107(3)) and if the tenancy agreement provides for a payment of a break fee. That interpretation is also justified upon the basis that cl 41 states that if the tenant ends the residential tenancy agreement before the end of the fixed term, “the tenant must pay a break fee of the following amount”. Then the clause goes on to provide how the amount is to be calculated.

[35] Our conclusion is that the Decision does not display any error of law by the Tribunal in the exercise of its discretion under s 107 of the RT Act.

3. As to the component of the appeal concerning whether the decision of the Tribunal was not just and equitable, the Appeal Panel found that leave to appeal pursuant to s 80(2)(b) of the Act was required.

4. The Appeal Panel found the following in regard to whether leave would granted in respect of that ground (at [37], [38] and [44]):

[37] We refer to the tenant’s submission that the Decision was not just and equitable and therefore the appeal should be upheld upon the basis set out in cl 12 of Sch 4 of the NCAT Act. We are not satisfied that the conditions of cl 12 have been met. We are not satisfied that the tenant may have suffered a substantial (or any miscarriage of justice) because the Decision was not just and equitable. Furthermore, applying the principles set out in the Appeal Panel decision in Collins v Urban [2014] NSWCATAP 17, this appeal raises no matter of principle or question of public importance and there is no injustice arising by reason of the Decision. Nor is there any error that is plain and readily apparent which is central to the Tribunal’s decision at first instance.

[38] Accordingly, we reject the tenant’s submissions that the appeal should be upheld on the basis of cl 12 of Sch 4 of the NCAT Act.

…

[44] In our view, no error of law has been identified and there is no basis for giving leave to the tenant under the provisions of cl 12 of Sch 4 of the NCAT Act. Accordingly, the appeal must be dismissed.

5. This finding by the Appeal Panel was not the subject of any contentions or submissions by Mr Abdel-Messih raised in these proceedings.

6. There was a further aspect to the Appeal Panel’s decision which corresponds to the second order made in disposition of the appeal brought to the Appeal Panel by Mr Abdel-Messih. After receiving written submissions from the parties after the appeal hearing, the Appeal Panel found as follows (at [39]-[43]):

The Bond

[39] At the appeal hearing, a question arose as to the whether the bond had been paid to the Rental Bond Services. Both parties had agreed that the bond had been paid and both were able to provide an identical receipt number. …

[40] We invited both parties to make submissions in writing after the hearing of the appeal concerning the payment of the bond. The subtenant produced an email from the Rental Bond Board dated 6 November 2016 which stated:

Your agent/landlord has completed the bond lodgement process for the premises above on 7/11/2016 10:54:13am.

Your bond number is SO40433-9

A bond amount of $1,600.00 is held on your behalf by NSW Fair Trading.

[41] On the other hand, the tenant’s submissions stated that the bond was paid on 29 September 2016. In this respect, the tenant relied upon an email from the Rental Bond Services dated 29 September 2016 which stated:

We have received $1,600.00 from the tenant for their rental bond on the above premises.

You should now arrange for the tenancy agreement to be signed and finalise the pending lodgement in Rental Bonds Online.

[42] We infer that the tenant did not complete his obligations under s 162 of the RT Act until 5 November 2016. Section 162(1) requires the landlord who receives an amount of rental bond to deposit that amount within the deposit period together with a notice in the approved form. The relevant deposit period is 10 working days (in this case, calculated from 24 August 2016).

[43] It is clear, and the tenant concedes, that the tenant did not comply with his obligations under s 162 of the RT Act in respect of the agreement with the subtenant.

Conclusion

[44] … It is necessary to dispose of the dispute between the parties by making an order for the payment of the bond. Accordingly, an additional order will be made that the bond is to be paid to the subtenant.

The Supreme Court Proceedings

Nature of Appeal

19. Mr Abdel-Messih filed a summons commencing an appeal in this Court on 19 July 2017 (“the summons”) pursuant to ss 83 and 84 of the Act, as well as s 69 of the Supreme Court Act.

Appeal Grounds and Relief Sought

20. Under the heading “Appeal Grounds” in the summons, Mr Abdel-Messih pleaded the following:

9. The Tribunal Internal Appeal Panel below, while not being bound by the rules of evidence, had drifted from its guiding principles in an unorthodox manner to deal with an undisputed issue. It inquired into a privileged matter, with disregard to the proper restraints of the rules of natural justice The Appellant apprehends bias and collusion in the Tribunal below.

PARTICULARS

I. The Appellant brought proceedings to recover the prescribed lease

agreement break-fee from the Respondent. At the hearing, the Appellant was prepared to deal with issues relating to the claim.

II. The Appellant alleged the Respondent capitalised on the dispute between him and the Landlord, and vacated accordingly.

III. Member S Westgarth found it relevant to deal with the issue of late bond lodgement date. Section 162(5) of the Residential Tenancies Act 2010 (the "Act") makes it an offence, with a maximum of 26 penalty units, for breaches of the section

IV. The Appellant contended that it is not a live issue, as the bond was already lodged, as also agreed by the parties, and the Tribunal has no jurisdiction to deal with offences. Section 202 of the Residential Tenancies Act 2010 stipulates that proceedings for an offence under the Act may be dealt with summarily before the Local Court.

V. The Appellant requested the Tribunal not deal with the issue. The Appellant further reminded the Tribunal of its guiding principles in resolving the real issues in dispute, and its lack of jurisdiction; which would have otherwise given its inquiry any meaning. The self-represented Appellant, with fear of being held in contempt, submitted the reason of delay of lodgement; being an inadvertent breach.

VI. The Tribunal still chose to deal with the issue. The Tribunal made the following directions subsequent to the Appeal hearing:

"1. The decision is reserved

2. If either party wishes to make further submissions concerning payment of the bond, they must do so within 14 days of today.

3. If submissions are received the other party may file and serve submissions in reply within 14 days thereafter.

4. Submissions must be filed with the Tribunal and a copy served on the other party/ (sic)

5. Submissions received after the period of 14 days will not be considered."

VII. It was necessary for the Appellant to Reply to the Respondent's allegations.

VIII. The Tribunal made adverse findings against the Appellant, and published them Online on 21 June 2017.

10. In making of its decision, the Tribunal's discretion was miscarried due to an error of legal principle, and the considering of immaterial Provisions; disentitling the appellant of a substantial contractual right and without consideration. The central finding upon which the discretion was grounded, being "an imminent a person having superior title to the tenant was about to become entitled to possession of the unit', is an error of law.

PARTICULARS

I. The Tribunal had found that the lease agreement was terminated on

ground of abandonment, (s 81(4)(d) of the Act)

II. When considering making an order for a lease agreement break-fee pursuant to s 107, the Tribunal returned to the grounds of termination contained in s 81, and used one of those grounds, s 81(4)(a), in justifying refusal to make an order for a lease agreement break-fee.

III. The Appellant submits that it is sufficient for a lease agreement to be terminated once, without a need for exploring a "second round" of possible, immaterial, termination grounds.

IV. The Appellant submits that the Tribunal's discretion was miscarried when it commenced exploring other possible grounds of termination, which had now then become irrelevant. The Appellant submits that this legal reasoning is internally inconsistent and constitutes an error of law

V. Even if s 81(4)(d) had come into effect, the Respondent would have been given a 14 days' termination notice as prescribed by the Act, and it was in no way "imminent" that a person having superior title to the tenant was about to become entitled to possession of the unit.

11. The Tribunal has failed to address the effects of s 95 of the Residential Tenancies Act 2010. The Appellant emphasised this point to the Tribunal. The Appellant submits that ignoring a relevant legal submission, is an error of law.

12. Prior to departure, the Respondent was put on notice that proceedings between the Head tenant and the Landlord were resolved The Respondent still vacated even after learning of that information In reality, the head lease remained on-foot, even to an extended period subsequent to the end-date indicated on the Respondent's lease agreement.

21. Mr Abdel-Messih sought the following orders:

1. Leave to appeal from the whole of the decision below.

2. Appeal allowed.

3. Orders 1 and 2 are set aside.

4. The Applicant be granted a certificate under s 128 of the Evidence Act 1995 (NSW).

5. Non-publication Order.

6. The matter is remitted before a differently constituted Tribunal for a re-hearing; or

7. The Respondent is to pay the Appellant $1600, being the amount of the lease agreement break fee.

RELEVANT PRINCIPLES

Principles regarding Leave under s 83 of the Act

22. Section 83(1) and (3) of the Act are in the following terms:

83 Appeals against appealable decisions

(1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.

…

(3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following:

(a) an order affirming, varying or setting aside the decision of the Tribunal,

(b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.

23. The principles regarding appeals under s 83 were summarised in the following extract from Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2017] NSWSC 1322 (“Gan”) (at [27]-[37]):

[27] The appeal brought by the plaintiff thereby requires the grant of leave and is an appeal “on a question of law”: Davis v NSW Land and Housing Corporation [2016] NSWCA 325 (“Davis”) at [44] (per McColl JA, with whom Meagher and Leeming JJA agreed) and Allen v TriCare (Hastings) Pty Ltd [2015] NSWSC 416 at [57] (per Beech-Jones J).

[28] The following observations by McColl JA in Davis (at [77]-[79]) identify the parameters application to an appeal on a “question of law” as follows:

[77] First, on such appeal, the existence of a question of law is not merely a qualifying condition to the right of appeal, but the question of law alone is the subject matter of the appeal. The Supreme Court cannot engage in a “review of the merits” of the decision.

[78] Secondly, such an appeal is in the nature of a judicial review in which it is necessary to examine for legal error what has been done in the Appeal Panel. That will almost inevitably require consideration of the Tribunal’s findings to determine whether the Appeal Panel’s conclusion on the question of law identified in respect of the Tribunal’s reasons was open.

[79] Thirdly, on such an appeal, in certain circumstances, a new issue, not raised before the Tribunal, may be raised. In considering whether to permit that course in the exercise of the court’s discretion, the court will take into account Coulton v Holcombe considerations. It will also take into account considerations specific to the limited nature of an appeal from the Tribunal on a question of law, for example that referred to by Gummow J in Federal Commissioner of Taxation v Raptis, “that there is difficulty in finding an ‘error of law’ in the failure in the Tribunal to make a finding first urged in this Court.”

[Footnotes omitted.]

[29] As to the third proposition by her Honour the following observations of Basten JA in Bronze Wing International at [11] may be mentioned:

[11] It would be a rare case in which the Supreme Court would grant leave to appeal on a question of law which had not been raised before the Appeal Panel and which, accordingly, had not been the subject of “any decision made by [the Appeal Panel] in the proceedings.” No such ground for leave was invoked in the present case. Accordingly, the grounds available before the primary judge in the Common Law Division were limited to matters of law which had been raised before the Appeal Panel.

[30] As mentioned above, an appeal to this Court under s 83(1) of the CAT Act can only be brought with leave of the Court. I agree with the observations of the Hamill J in The Owners - Strata Plan No 73943 v Gazebo Penthouse Pty Ltd [2014] NSWSC 1536 at [18] that the determination of leave should be the first matter considered by the Court in proceedings of that character and that the statements of principle enunciated by Basten JA (with whom Tobias AJA agreed) in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 (“Be Financial”) at [32]-[36] should be applied to applications for leave under s 83(1) of the CAT Act.

[31] Those passages from Be Financial, together with [37] of that judgment, are as follows:

[32] The principles governing cases such as these have recently been restated in Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56. As Campbell JA noted (with the agreement of Young JA) at [22]:

"It is of some importance to reiterate the principles that were stated in Carolan v AMF Bowling Pty Limited [1995] NSWCA 69, where Sheller JA said that an applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. Cole JA relied on a principle that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute."

[33] In Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Campbell JA, with the agreement of Young and Meagher JJA, expanded on his summary of Carolan, noting that Kirby P had recognised "that ordinarily it was appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond [what is] merely arguable": at [46].

[34] Kirby P in Carolan set out a number of reasons for the constraint on rights of appeal in such cases. Not all of them have been repeated in later cases. Not all are universally relevant. Thus, the delay in obtaining a hearing in this Court appears to have been greater at that time than is the case presently, although an overly liberal approach to leave applications might well result in an increase in the period between filing and hearing.

[35] In Coulter v The Queen [1988] HCA 3; 164 CLR 350, dealing with a challenge to a refusal of the South Australian Full Court to grant leave to appeal in a criminal matter, the majority noted that a leave requirement was a preliminary procedure "recognised by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention": at 356 (Mason CJ, Wilson and Brennan JJ). That statement is clearly applicable to civil, as well as criminal, appellate jurisdiction.

[36] As the High Court has noted, an application for leave is not a proceeding in the ordinary course of litigation but a preliminary procedure: Collins v The Queen [1975] HCA 60; 133 CLR 120 at 122; Coulter at 356. On the other hand, there is no reason to doubt that s 58 of the Civil Procedure Act 2005 (NSW), requiring a court to act in accordance with "the dictates of justice" when making an order or direction "for the management of proceedings", applies in respect of a leave application. One of the factors to be taken into account pursuant to s 58 is "the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction": s 58(2)(b)(vi). That provision, like s 56, identifying the overriding purpose of the Civil Procedure Act as being to facilitate the just, quick and cheap resolution of the real issues in the dispute, recognises that questions of injustice are relative. Similarly, the requirement that this Court not order a new trial unless it appears that "some substantial wrong or miscarriage" has been occasioned, also reflects a principle of parsimony in requiring that the parties be put to the expense of a second trial: UCPR, r 51.53.

[37] The idea that injustice may be measured on a scale reflects a number of underlying considerations. First, the ability to assess the existence of an injustice in a preliminary proceeding, such as a leave application, is limited. In assessing the merit of a proposed appeal, the Court may well apply a vague criterion, such as whether the judgment below is attended by "sufficient doubt". Secondly, injustice involves a balancing exercise. The delay and cost of further litigation will constitute a form of injustice to the successful party below, whatever the outcome of the appellate process. Thirdly, the entitlement of the parties to justice is not unconditional, but is dependent upon the resources of the court made available by the government and the appropriate allocation of resources by the parties, which may depend upon their individual assessments of the importance of the issues in dispute. The parties may well make disparate assessments in a particular case.

24. The solicitor for Mr Marshall correctly submitted that this appeal was confined to the decision of the Appeal Panel rather than the Senior Member of the Tribunal as ss 82 and 83 of the Act confine the scope for appeal under s 83 in the present case to one brought from the Appeal Panel: Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41 (“Bronze Wing International”) at [10] (per Basten JA).

Section 69 of the Supreme Court Act

25. Proceedings under s 69 of the Supreme Court Act are distinct from the rights of appeal under s 83 of the Act: see Altaranesi v Sydney Local Health District [2012] NSWCA 69 at [8]-[10] and Macdonald v Macdonald [2017] NSWSC 809 at [46].

26. Section 69 of the Supreme Court Act does not attract a requirement for leave and provides that the Court has the jurisdiction to quash the determination of the Tribunal if the determination was based on an error of law. Section 69 is in the following terms:

69 Proceedings in lieu of writs

…

(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.

(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

27. In Craig v The State of South Australia (1995) 184 CLR 163, Brennan, Deane, Toohey, Gaudron and McHugh JJ held (at 179):

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

28. The solicitor for Mr Marshall submitted that the grounds of appeal under s 69 of the Supreme Court Act must be restricted to an analysis of the decision by the Appeal Panel, and that transcripts and evidence put to the Tribunal do not form part of the record pursuant to s 69(3) and (4). Mr Marshall relied on the Court of Appeal’s decision in Wende v Horwarth (No 2) (2015) 91 NSWLR 588 at [15]:

[15] … First, as the proceedings before the court were brought pursuant to the Supreme Court Act 1970 (NSW), s 69 by way of judicial review, the court is concerned with error of law on the face of the record and/or jurisdictional error. The record, for the purpose of such an application includes the reasons of the inferior court for its ultimate determination: s 69(4).

GROUNDS OF APPEAL

29. The following summary represents a synthesis of the grounds of appeal and contentions advanced by the plaintiff based on his written and oral submissions as further informed by the joinder of issues by the defendant:

1. Ground 1: The Appeal Panel erred in finding that the discretion conferred by s 107(1) of the RT Act extended to monies payable under fixed term agreements by a break fee provisions for the purposes of s 107(3) (although this contention did not feature in the grounds of appeal).

2. Ground 2: In the alternative, if the Court considered there was a discretion under s 107(3), there was an error of law in that discretion was miscarried because:

1. the Tribunal took into account an irrelevant consideration relating to the operation of s 81(4)(a);

2. the Appeal Panel failed to have regard to Mr Abdel-Messih’s submissions on the application of s 95 of the RT Act on whether it was reasonable for Mr Marshall to believe the head landlord would soon take possession of the unit;

1. the Tribunal failed to consider the weight of the evidence regarding whether it was reasonable for Mr Marshall to believe the head landlord would soon have possession.

3. Ground 3: The Appeal Panel erred when it enquired into the payment of the bond, and this did not accord with the principles of procedural fairness.

4. Ground 4: The Appeal Panel acted outside its jurisdiction by making an order regarding the payment of the bond.

5. Ground 5: The Appeal Panel was biased.

6. Ground 6: The Appeal Panel erred in not informing Mr Abdel-Messih about his rights under s 128 of the Evidence Act 1995 (NSW) regarding evidence relating to self-incrimination.

30. This summary of the grounds of appeal has been constructed in this way from both the summons and his submissions to provide clarity as to Mr Abdel-Messih’s case considering he is self-represented,

Ground 1: Whether a Discretion Existed under s 107

31. The Appeal Panel found that there was no error in the Tribunal determining that it had a discretion under s 107 of the RT Act as to whether or not the break fee may be ordered. Mr Abdel-Messih contended in these proceedings, that the Tribunal had the discretion under s 107(1) of the Act but that discretion did not extend to a refusal to order the payment of a break fee payment due under a residential tenancy agreement due to the operation of s 107(3).

32. The issue raised by Mr Abdel-Messih, in this respect, concerns a question of law because it involves the construction of s 107 of the RT Act. Given the nature of the construction issue raised, it appears appropriate to grant leave under s 83 of the Act. In any event, the issues raised are amendable to review under s 69 of the Supreme Court Act.

33. Neither party addressed the question of whether Mr Abdel-Messih was a “landlord” and Mr Marshall a “tenant” for the purposes of s 107. Given the conclusion I will reach, it is unnecessary to finally resolve that question. However, it would appear Mr Abdel-Messih is a landlord for the purposes of the RT Act because he was “a tenant who granted the right to occupy residential premises to a sub-tenant”, and Mr Marshall is a tenant because he was “a sub-tenant of a tenant”: see s 3 of the RT Act.

34. Mr Abdel-Messih contended that the Tribunal lacked a discretion to not enforce the break fee in cl 41 of the agreement for the following reasons:

1. Section 107(3) prescribes that, in the case of disputes over break fee payments under a fixed term agreement, the Tribunal must order the payment of the same when it is due under an agreement.

2. That construction is preferable because to interpret s 107 otherwise would produce an outcome that was contrary to the common law principles of enforcement of a contract.

35. I do not agree. My reasons for that conclusion are as follows:

1. All parties accept that s 107(1) confers a discretion to the Tribunal. I accept this approach as:

1. The word “may” in s 107 indicates that a discretion exists unless a contrary intention is discerned: see Cain v New South Wales Land and Housing Corporation (2014) 86 NSWLR 1 (“Cain”) at [45] per Leeming JA. As will be discussed below, no contrary intention appears in the provision.

2. I accept Mr Marshall’s submission that there was a clear distinction between the legislature’s use of “may” and “must” within Pt 5 of the RT Act: see ss 84(3) and 85(3), which use “must”, and see ss 86(4), 87(4), 89(5), 90(1), 91(1), 93(1), 94(1), 95(3), 98(4), 105, 106(1), 107(1), 108(3), 109 and 111, which use “may”.

3. An analysis of s 91 of the RT Act in Cain is within the same part of the RT Act as s 107, and the Court of Appeal in that case found that “may”, in fact, indicated a discretion held by the Tribunal.

2. Section 107(1) comprehends break fees under fixed term agreements referred to in s 107(3) (a fixed term agreement means a residential tenancy agreement for a tenancy for a fixed term: see s 3 of the RT Act) because:

1. Section 107(1) does not, in terms, refer to the payment of a break fee. However, when the words of subs (1) are given their ordinary grammatical meaning and read in the context of the proceeding three sub-sections, the conclusion that s 107(1) extends to a break fee is overwhelming.

2. Section 107(1) refers to “compensation to the landlord for any loss (including loss of rent) caused by the abandonment of the residential premises by the tenant” (“the operative phrase”) (emphasis added). In determining whether a tenant has abandoned a premises, the Tribunal may have regard to: failure to pay rent, the fact the tenant no longer resides at the premises and a failure to carry out obligations under an agreement: s 106(4) of the RT Act.

3. The standard form of a residential tenancy agreement pursuant to s 15 of the RT Act refers to a break fee as a fee payable to the landlord if the tenant ends a residential tenancy agreement before the end of the fixed term (see cl 41 of the Agreement) which encompasses the aforementioned considerations as to abandonment under s 106(4). The break fee payment is directed to loss occasioned by the departure of the tenant earlier than the fixed term.

4. It is clear from the following reasons that subss (2) and (3) are the be read co-existing with subs (1) and those provisions each deal with break fee payment (in the latter case with respect to break fee clauses in fixed term agreements).

5. To understand the effect of the provisions of s 107(2) and (3), the principles of statutory interpretation must be applied which require the provisions not to be read in isolation. In K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 (at 315), Mason J held:

… to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context: Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation; Attorney-General v. Prince Ernest Augustus of Hanover. Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.

[Footnotes omitted].

6. As to interpreting words within a subsection, in Taylor v Public Service Board (1976) 137 CLR 208 (at 213), Barwick CJ held:

[T]he final words of the sub-section clearly have an impact upon what the sub-section as a whole provides. Even so, these must be read, not as displacing or rendering nugatory the earlier words of the sub-section. Their meaning and operation must be read with and accommodated to the rest of the section.

[Emphasis added].

7. The words “compensation for any loss” in s 107(2) correlate with the same expression used in s 107(1). Section 107(2) excludes the payment of a break fee but in doing so, the provision illustrates that the legislature otherwise intended that break fee payments would be comprehended in the subject matter to which s 107(1) relates, being the abandonment of a residential premises by a tenant (and consequential loss).

8. The opening words of s 107(3) connect the provision to reasons 107(1) because:

1. The reference to compensation payable to a tenant in subs (3) can only be sensibly understood by reference to “compensation to the landlord” in subs (1); and

2. the provision deals with the form of remedies for the abandonment of a residential premises by a tenant to which the provision of s 107(1) is directed.

3. There is no contrary intention to be discerned from s 107(3) as to the discretion in s 107(1) to order or refuse compensation for any loss occasioned by a landlord through abandonment because:

1. The power residing in the Tribunal under s 107(1) is a discretion to order “compensation for loss” occasioned by abandonment. In other words, that discretion is whether or not to award “compensation” whereas s 107(3) is directed solely to the fixing of an amount of compensation payable as is evidenced from the opening words of the subsection.

2. Thus, whether read in terms of the literal words of subss (1) and (3) or in the context of those provisions read together, s 107(3) merely operates so as to confine the amount of compensation payable under s 107(1) with respect to a fixed term agreement which provides for a break fee.

3. The word “is” appearing in s 107(3) is not inconsistent with the analysis such that a discretion applies to that subsection. Section 107(3) is focused on fixed term agreements, and grammatically, the word “is” creates a relationship between the expression “fixed term agreement” and the words “amount of the applicable break fee”. The effect of the word “is” is that where compensation is ordered, the amount payable with respect to such any agreement is the amount of the break fee provided.

4. To read s 107(3) in the way Mr Abdel-Messih purports it should be read, namely, that the break fee must be ordered if it was agreed in a fixed term agreement, would render nugatory any discretion a Tribunal had under s 107(1).

5. The evident purpose of s 107(1) and (3) when read together is that, in circumstances where the Tribunal exercises a discretion to compensate for loss, the loss is to be calculated by the sum fixed by the break fee.

4. Common law rights are not applicable because:

1. The provisions of under cl 41 of the agreement do not contemplate the remedy for early termination of the fixed term agreement will be damages for breach of contract. The clause itself clearly states that s 107 of the RT Act regulates the rights of the landlord and tenant under this clause. That brings with it, as I have found, discretion with respect to compensation for loss.

2. Furthermore, whether or not Mr Abdel-Messih has common law rights for breach of contract (the reference to s 107 is in a note accompanying the clause – it is unclear as to whether it forms part of the provision), the relevant legislation is not dealing with common law rights for damages for breach of contract. The RT Act deals with a special class of rights to redress residential tenancy disputes before the Tribunal in an informal manner allowing the exercise of a discretion to order compensation for loss. These are, in law and are conceptually, different classes of remedy. Specialist tribunals for residential tenancy disputes were established to ensure that residential tenancy legislation operates fairly, considering access to courts was seen as a disadvantage to tenants because of the role of lawyers in presenting cases.

3. Whilst the common law might give some guidance on how to construe the statute, it ultimately comes down to the construction of the statute itself that is relevant for the purposes of determining whether or not the Tribunal had a discretion.

36. Considering the above analysis, the Appeal Panel was correct in finding that the Tribunal had a discretion under s 107 of the RT Act to refuse compensation for loss occasioned by Mr Marshall departing from the unit before the end of the fixed term agreement (assuming that his action, in fact, constituted abandonment for the purposes of s 107(1)). By the terms of s 107(1), the Tribunal had a power to decline to grant compensation for an amount specified in an agreement for a break fee in the proper exercise of a discretion. As such, this ground of appeal is dismissed.

Ground 2: If the Discretion applied to s 107(3), that Discretion was Miscarried

37. Mr Abdel-Messih submitted that, if the Court found that there was a discretion under s 107(3), then exercise of that discretion miscarried because:

1. (1) the Tribunal relied on an irrelevant consideration by considering s 84(4)(a) of the RT Act;

2. (2) the Appeal Panel failed to take into account his submissions as to the effect of s 95 of the RT Act; and

3. (3) the Tribunal’s finding that Mr Marshall reasonably believed that the head agreement would be terminated by the head landlord was “against the weight of the evidence”.

Ground 2(a):The Tribunal relied on an irrelevant consideration

38. Mr Abdel-Messih contended that the Tribunal took into account an irrelevant matter when it considered s 81(4)(a) of the RT Act in its decision to not exercise its discretion under s 107.

39. These proceedings are an appeal from the Appeal Panel and not from the Tribunal (see Gan at [25] and Bronze Wing International at [10]), the ground of the appeal must fail. However, I will briefly consider the merits of the ground.

40. In Cain, Basten J found that “the factors which a court or tribunal takes into account may be characterised as mandatory, permissible or prohibited” (at [28]).

41. The Appeal Panel did not rely on s 81(4)(a) in coming to its decision, but rather found that the Tribunal was entitled to have regard to the fact of the impending termination of the head lease in reaching its decision.

42. No challenge was made as such by Mr Abdel-Messih to the Tribunal having regard, in the exercise of its discretion, to the prospective termination of the head lease as such.

43. Further, it was open for the Tribunal to have regard to s 81(4) in the exercise of its discretion in assessing the significance of the fact of whether Mr Marshall reasonably believed that it was imminent that the head landlord was about to come into possession of the unit. This is because the provision makes clear that Mr Marshall would have been deprived of accommodation if the Tribunal decided to terminate the head lease in the separate proceedings between Mr Abdel-Messih and the head landlord.

44. Whilst a ground that the Appeal Panel took into account a prohibited consideration (per Cain at [29]) or an irrelevant consideration would ordinarily raise a question of law, the ground proceeded upon a mistaken premise that the appeal should be brought from the Tribunal per se. In any event, I consider the proposition that the Appeal Panel may not take into account s 81(4)(a) of the RT Act is wrong. Leave to appeal should be refused.

Ground 2(b): The Appeal Panel failed to deal with submission on s 95 of the RT Act

45. Mr Abdel-Messih contended that the Appeal Panel failed to address his submissions as to the application of s 95 of the RT Act. Section 95(2) of the RT Act is in the following terms:

(2) The landlord may give any remaining occupant of the residential premises a notice requiring the occupant to give vacant possession of the premises within a period of not less than 14 days.

46. Mr Abdel-Messih contended that the requirement for the head landlord to give 14 days’ notice to occupants in the unit ‘casts doubt’ about whether Mr Marshall believed it was imminent that the head landlord was going to take possession, because Mr Marshall had not received such a notice.

47. I do not consider that the contentions advanced by Mr Abdel-Messih with respect to s 95, concern a question of law for the purposes of s 83 of the Act. Mr Abdel-Messih is effectively arguing that the Tribunal should have drawn a factual inference that the relevant notice had not been given by virtue of the operation of s 95, which in turn would have resulted in a factual finding that Mr Marshall could not have reasonably believed the head landlord was going to take possession. The question does not concern the construction of s 95 or its operation as such in the context of the resolution of the dispute before the Tribunal.

48. Nextly, even if there was a question of law, leave should not be granted because the issue was not raised below. As mentioned by Basten JA in Bronze Wing International, it would be a rare case in which the Supreme Court would grant leave on a question of law which had not been raised before the Appeal Panel (see at [11]).

49. Mr Abdel-Messih’s written submissions to the Appeal Panel are before this Court in tab 10 in Ex 2. They do not contain any submissions as to the operation of s 95. The official transcript and recordings of the Appeal Panel proceedings were not before this Court. (Mr Abdel-Messih was required to provide a copy of the transcript pursuant to r 50.14 of the Uniform Civil Procedure Rules 2005 (NSW)). (I note that during the hearing, Mr Abdel-Messih read out parts of a transcription of the recording of the Appeal Panel proceedings he had prepared himself. These were treated as part of his submissions).

50. In summary, Mr Abdel-Messih’s contention regarding the effect of s 95 of the RT Act is not a question of law. That ground of appeal should be dismissed. Even in the event that it was a question of law, leave would have been refused to appeal because, on the material before the Court, no submissions as to s 95 were raised at the Appeal Panel hearing.

Ground 2(c): The Tribunal’s finding was ‘against the weight of the evidence’

51. This appeal ground concerns an appeal from the Tribunal. The ground fails on that basis alone.

52. In any event, the ground is expressed in terms of “weight of evidence”, and, so expressed, concerns a question of fact, not law, that is, whether the Tribunal should have attached more weight to some factors as material factors than others in coming to a conclusion.

53. It is a well-established principle that the weight a tribunal attaches to a fact is not a question of law, but a question of fact. In McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 (at 9), it was held that:

But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact. If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence, because it is all one way. It can accept all, or some, or none of it.

54. In Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 (“Be Financial”), Basten JA (with whom Tobias AJA agreed) applied Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56 to applications for leave under s 83(1) of the Act (at [32]):

[32] The principles governing cases such as these have recently been restated in Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56. As Campbell JA noted (with the agreement of Young JA) at [22]:

"It is of some importance to reiterate the principles that were stated in Carolan v AMF Bowling Pty Limited [1995] NSWCA 69, where Sheller JA said that an applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. Cole JA relied on a principle that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute."

[Emphasis added].

55. The Appeal Panel carefully considered Mr Abdel-Messih’s contentions in its appeal and weighed a number of considerations which were before the Tribunal (at [33]):

[33] The tenant makes the point that by 5 November 2016 (when the subtenant abandoned the premises) the subtenant was aware that the proceedings concerning the head landlord had been heard on 26 October 2016 and that there had been no termination order. However, at that time the Tribunal proceedings were not concluded. Indeed the proceedings were still pending at 5 November 2016 and remained pending when the decision was published on 19 January 2017. Accordingly, we are of the view that the Decision does not reveal that the Tribunal took into account factors which were not relevant to the exercise of the discretion under s 107 of the RT Act. One factor was obviously more relevant than others because the Tribunal gave it specific mention: that was the tenant’s failure to pay rent to the head landlord. The Decision records that in the opinion of the Tribunal, but for the adjournment of the proceedings on 26 October 2016, the agreement with the head landlord “would have been brought to an end for breaches by the [tenant] (at least in respect of the non-payment of rent)”.

56. By that means, the Appeal Panel considered the competing contentions as to the gravamen of the issues ventilated by Mr Abdel-Messih.

57. It can be inferred from [35] of the Appeal Panel’s decision that it considered that there was no error of law in the Tribunal’s exercise of its discretion because the Tribunal had not failed to take into account or give insufficient weight to a relevant matter, or that it took into account an irrelevant matter: see House v King (1936) 55 CLR 499.

58. In any event, Mr Abdel-Messih’s contention is not a challenge to the adequacy of the reasons by the Appeal Panel as such.

59. For more abundant caution, Mr Abdel-Messih’s contentions did refer to the Tribunal failing of having regard to a relevant consideration. His contention was that there were text messages which proved that he had informed Mr Marshall the head lease had not been terminated at the hearing of the proceedings between him and the head landlord on 26 October 2016, and that this matter was not taken sufficiently into account.

60. Whilst it appears to be raised as a question of law concerning whether a relevant consideration should have been taken into account, in substance the matter is no more than an issue as to whether the Tribunal properly took into account evidence adduced by him (again noting that this is an appeal from the Appeal Panel). The relevant factor was the one the Tribunal dealt with, namely that Mr Marshall had a reasonable belief that it was imminent that the head landlord was about to take possession of the unit.

61. In truth, this contention (but not ground) never rose above a challenge to the Tribunal as opposed to the Appeal Panel as to a question of fact. The issue of the evidence of text messages raised by Mr Abdel-Messih goes to no more than a fact and the weight that may be attached to it. There was no statutory requirement to have regard to this consideration per se.

62. This ground of appeal fails because (a) it concerns an appeal from the Tribunal’s decision, and (b) no question of law was raised. To the extent that this ground brought a question of law regarding failure to have regard to a relevant consideration, I would refuse leave.

Grounds 3 and 4: The Issue of the Payment of the Bond

63. Paragraph 9 of the summons raised various contentions with regard to a bond issue, namely, that the Appeal Panel drifted from its “guiding principles”, it inquired into a “privileged matter”, and disregarded the “proper restraints of the rules of natural justice”.

64. Mr Abdel-Messih made extensive written submissions contending that he had been denied procedural fairness because the Appeal Panel dealt with the bond when it was not a “live issue” in the Tribunal proceedings.

65. It is quite unclear what Mr Abdel-Messih meant by these formulations, but it is clear that this complaint of a denial of procedural fairness raises a question of law. I shall proceed to deal with that issue and a further consideration concerning the jurisdiction of the Appeal Panel.

66. In his written submissions, Mr Abdel-Messih contended that the issue of the bond was not dealt with before the Tribunal and submitted “the Appeal Panel of the Tribunal was obliged to confine itself to the decision of the Tribunal below, and the evidence which underpinned that decision for the purposes of determining whether the Tribunal had erred”.

Material before the Court in these proceedings

67. As mentioned above, this Court does not have the transcript from the Appeal Panel proceedings. Nor does it have a copy of the directions of the Appeal Panel requesting submissions on the payment of the bond. However, it should be noted that the summons quoted the direction in para 9(VI) (extracted at [20] earlier in this judgment). Further, it is clear submissions were sought by the Appeal Panel on the question as to the payment of the bond to Mr Marshall.

68. Mr Abdel-Messih included his submissions in response to the Appeal Panel’s directions in tab 14 of Ex 2 in these proceedings. Those submissions reveal the following:

1. On 27 April 2017, Mr Abdel-Messih was notified via email that Mr Marshall had made a claim for the full amount of the bond held by Rental Bond Services. At this juncture, it should be noted that the Appeal Panel hearing was held on 25 May 2017.

2. Mr Abdel-Messih said in his submissions that he notified “Fair Trading” that the bond amount was “still subject to litigation”.

3. On 2 May 2017, Mr Abdel-Messih received an email from Rental Bond Services which said:

We have been notified that the above bond is subject to a Tribunal application. We will hold the bond until the Tribunal makes a decision, or we are notified that the application has been withdrawn [Emphasis added].

69. The email from Rental Bond Services to Mr Abdel-Messih was sent 23 days before the hearing before the Appeal Panel. As a result, Rental Bond Services were waiting on the decision of the Appeal Panel before releasing the bond.

70. Considering the material the Court had before it, it is clear that Mr Marshall made a claim for the bond from Rental Bond Services, Mr Abdel-Messih disputed that claim because the amount of the bond was subject to the Appeal Panel proceedings, and Rental Bond Services was holding the bond until it was notified of the Appeal Panel’s decision.

Inferences as to the Appeal Panel’s approach

71. Considering the absence of the transcript from the Appeal Panel proceedings, it can reasonably be inferred that at some point during the hearing, either party raised the fact that Mr Marshall had made a claim for the bond on or about 27 April 2017, and that Rental Bond Services were holding the bond until the Appeal Panel made a decision.

72. There is nothing explicit in the materials which states the exact steps the Appeal Panel took when considering the question of the bond. However, it appeared from the Appeal Panel’s decision and Mr Abdel-Messih’s submissions that the Appeal Panel enquired as to whether the bond should be paid to Mr Marshall in light of:

1. Mr Marshall’s application for the bond to Rental Bond Services on or around 27 April 2017; and

2. Mr Abdel-Messih’s breach of s 162 of the RT Act,

and then sought submissions as to the same.

Ground 3: Denial Procedural Fairness in Considering the Bond

73. Mr Abdel-Messih directed most of his submissions regarding the Appeal Panel’s treatment of the bond to the question of procedural fairness. Entwined with these submissions were challenges to the jurisdiction of the Appeal Panel to deal with the question of the bond. That issue will be dealt with separately below.

74. The question of “procedural unfairness” was considered in Nominal Defendant v Saleh [2011] NSWCA 16 (at [17]), where McColl JA (with whom Beazley and Giles JJA agreed) held:

[17] "Procedural unfairness" is a convenient description of the appellant's complaint that the primary judge's approach denied it a fair trial. The appellant's complaint may also be expressed as raising a "question of practical fairness and justice" (Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 (at [4]) per Giles JA) or a requirement of "fair play and commonsense": Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492 (at [32]) per Chernov JA (Warren CJ agreeing) citing Jobst v Inglis (1986) 41 SASR 399 per Jacobs J.

75. In Attia v Health Care Complaints Commission [2017] NSWSC 1066, the Court made the following observation as to the relevant principle regarding procedural fairness in the current context (at [174]):

[174] It is a fundamental rule of the common law that, generally speaking, when an order is to be made which will deprive the person of some right or interest he is entitled to know the case that is sought to be made against him and to be given an opportunity of replying to it: Kioa v West (1985) 159 CLR 550 at 582 (per Mason J).

76. Based on the aforementioned analysis of how the Appeal Panel dealt with the bond issue, in my view, Mr Abdel-Messih has failed to establish he was denied procedural fairness in the Appeal Panel proceedings. The Appeal Panel made clear at [39] of their decision that a question arose at the hearing as to whether the bond had been paid to Rental Bond Services. The Appeal Panel invited both parties to make submissions in writing concerning the payment of the bond. Mr Abdel-Messih was clearly on notice that the Appeal Panel was considering whether to make an order in favour of Mr Marshall regarding the bond he had paid with respect to the unit and both parties made submissions as to the same.

77. In my view, there has been no denial of procedural fairness. Mr Abdel-Messih was not denied a fair trial, and in fact, was even given the opportunity by the Appeal Panel to be heard by filing additional written submissions as to the bond. No issue was raised, as such, as to a miscarriage of the discretion of the Appeal Panel. However, I do consider that leave should be given to advance this ground although it should be rejected.

Ground 4: Jurisdiction of the Appeal Panel to Make Orders regarding the Payment of the Bond

78. Mr Abdel-Messih raised the issue of the jurisdiction of the Appeal Panel which he incorrectly contended was an issue of procedural fairness and natural justice. He submitted that “the Appeal Panel had directed its attention to an issue where it had no jurisdiction”.

79. He contended in the particulars of the summons (at para 9(V)) that he requested the Appeal Panel to not deal with the bond issue because of, inter alia, its lack of jurisdiction.

80. Again, whether the Appeal Panel had jurisdiction is a question of law.

81. Mr Abdel-Messih’s submitted the following:

45. The Appeal Panel, namely S Westgarth, found it 'relevant' to deal with the bond lodgement date. The roots of the Tribunal's jurisdiction had been described above. The constitution of the Tribunal during a hearing by a Deputy President, or otherwise, does not endow the Tribunal any more jurisdiction.

46. Proceedings for offences are expressly provided for by s 202 of the RTA. The presumed court appears to be the Local Court, unless elected otherwise. The Tribunal does not have jurisdiction in dealing with Offences committed under the RTA or the Regulation.

82. The solicitor for Mr Marshall did not address the question of jurisdiction in their submissions.

83. Mr Abdel-Messih contended that the Appeal Panel did not have jurisdiction to deal with “offences” under the RT Act, s 202(1), which provides:

202 Nature of proceedings for offences

(1) Proceedings for an offence under this Act or the regulations may be dealt with summarily before the Local Court.

84. The Appeal Panel proceedings were not proceedings for an offence pursuant to s 202 of the RT Act. The Appeal Panel did not charge Mr Abdel-Messih with an offence, nor did it impose a penalty under s 162(5) of the RT Act.

85. Rather, the Appeal Panel found that Mr Abdel-Messih “did not comply with his obligations under s 162 of the RT Act in respect of the agreement with [Mr Marshall]” (at [43]). That was a factor taken into account in the exercise of its discretion and did not constitute a finding of a breach of the provisions of the RT Act.

86. It is, however, necessary to consider whether the Appeal Panel had jurisdiction to make an order to dispose of the bond. In my view, the Appeal Panel had the requisite jurisdiction for the following reasons:

1. The scope of the Appeal Panel’s power to make a decision regarding the bond can be summarised as follows:

1. The Appeal Panel had the power to stand in the shoes of the Tribunal and consider the dispute at first instance pursuant to s 81(2) of the Act which provides as follows:

81 Determination of internal appeals

…

(2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.

[Emphasis added].

2. Therefore, the Appeal Panel had the power to exercise the functions conferred to the Tribunal under the RT Act at first instance. The Appeal Panel made a decision on the bond confirming (or perhaps varying) the decision made by the Tribunal. The order for the bond payment was necessary to dispose of the dispute between the parties and was available under s 81, provided the parties were afforded procedural fairness.

2. The Tribunal (and therefore the Appeal Panel by virtue of s 81 of the Act) had the power to make an order as to the payment of a bond. Section 175(1) of the RT Act provides the following:

175 Powers of Tribunal

(1) The Tribunal may, on application by a landlord or tenant or any other person (including a former co-tenant) who has an interest in the payment of a rental bond, make an order as to the payment of the amount of the rental bond.

3. Mr Marshall made an application for the payment of the bond and considering the inferences drawn at [71] and [72] of this judgment, the Appeal Panel was entitled to treat that application as one made before it. Mr Abdel-Messih was notified via email of that application on 27 April 2017. Rental Bond Services then confirmed via email that they were notified that the bond was “subject to a Tribunal application” and informed Mr Abdel-Messih that they will hold the bond until the Appeal Panel made a decision.

4. I consider that there was an application before the Appeal Panel for the payment of the bond, and that application gave the Appeal Panel the power to make an order as to the payment of the bond. Considering the analysis above, the Appeal Panel had the jurisdiction to make an order as to the payment of the bond pursuant to s 175 of the RT Act.

87. I would give leave to bring this ground of appeal but reject it for the reasons given above. This ground of appeal is dismissed.

Ground 5: Bias

88. In para 9 of the summons, Mr Abdel-Messih contended that he “apprehends bias and collusion in the Tribunal below”. As to the reference to “Tribunal”, this Court will infer from the proceeding particulars that he is referring to the Appeal Panel.

89. Mr Abdel-Messih submitted that bias was apparent because the Appeal Panel upheld “erroneous legal principles”. No further submissions of any substance were made.

90. The solicitor for Mr Marshall submitted that there was no basis for an assertion of actual or apprehended bias. I agree. There is no submission or evidence before the Court which would remotely constitute grounds for apprehended bias, let alone actual bias or collusion. It appears the real complaint is disgruntlement with the outcome of the appeal before the Appeal Panel or the reasons given for that decision. Whilst the ground may arguably raise a question of law, I would refuse leave to bring it.

Ground 6: Question of Self-Incrimination

91. In para 9 of the summons, Mr Abdel-Messih also pleaded that “while not being bound by the rules of evidence, [the Appeal Panel] … inquired into a privileged matter”. The particulars under para 9 relate to the Appeal Panel’s dealing with the bond (see extracted above at [20]).

92. It can be inferred that the question of self-incrimination, or rather the right to s 128 of the Evidence Act relates to the Appeal Panel’s findings at [42] and [43] that Mr Abdel-Messih did not comply with his obligations under s 162 of the RT Act. This was briefly discussed above at [85] in the context of the Appeal Panel’s jurisdiction.

93. Section 162 of the RT Act provides:

162 Deposit of rental bonds

(1) A landlord, landlord’s agent or other person who receives an amount of rental bond must deposit that amount with the Secretary within the deposit period together with a notice in the approved form.

…

(5) A person who contravenes this section is guilty of an offence.

Maximum penalty: 20 penalty units.

(6) This section does not apply if:

(a) the rental bond is refunded or becomes refundable, or

(b) the rental bond becomes the subject of proceedings before the Tribunal or a court in relation to a residential tenancy agreement.

94. As mentioned above at [84], the Appeal Panel did not impose a penalty upon Mr Abdel-Messih. Nor did it purport to convict him of an offence.

95. The solicitor for Mr Marshall submitted:

The plaintiff appears to imply that the NCAT Appeal Board committed an error of law in failing to inform the plaintiff of his right to request a certificate under s 128 of the Evidence Act 1995 (NSW) or alternatively by abusing its own process to incriminate the plaintiff.

96. Mr Abdel-Messih conceded in his submissions that “[i]t is unclear whether the Tribunal has an obligation to inform the Appellant of his right to make an objection under s 128 [of the Evidence Act]”.

97. The relevant subsections of s 128 of the Evidence Act provide as follows:

128 Privilege in respect of self-incrimination in other proceedings

(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:

(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or

(b) is liable to a civil penalty.

…

(4) The court may require the witness to give the evidence if the court is satisfied that:

(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and

(b) the interests of justice require that the witness give the evidence.

(5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence ...

[Emphasis added].

98. Section 128 of the Evidence Act is not applicable in these circumstances for the following reasons:

1. There was no objection from Mr Abdel-Messih to giving evidence on the payment of the bond to Rental Bond Services on the ground that he would be liable to a civil penalty (see s 128(1)(b) of the Evidence Act).

2. There was no obligation on the Appeal Panel to advise Mr Abdel-Messih of the privilege in respect of self-incrimination under s 128 because Mr Abdel-Messih did not, in fact, give evidence on that question, he merely made submissions concerning the payment of the bond.

99. Whilst the application of the requirements of s 128 may, in certain circumstances, have been a question of law, it appears that, without finally deciding upon that matter, this is not one of them as the provision clearly lacks any application in the present context. I would refuse leave to appeal on this ground. Furthermore, no error of law was demonstrated.

CONCLUSION

100. In all the circumstances, I consider that the proceedings should be disposed of as follows:

1. Ground 1, being that the Tribunal’s discretion did not extend to s 107(3), raised a question of law. Leave was granted and the ground dismissed. There was no error of law.

2. By ground 2 it was contended that, if a discretion applied to s 107(3), then the discretion miscarried. The following has been found with respect to the particular aspects of this ground:

1. Sub-ground 2(a), that the Tribunal took into account an irrelevant consideration, and sub-ground 2(c), that the Tribunal’s finding was against the weight of the evidence, are strictly incompetent because they are an appeal from the Tribunal’s decision.

2. As Mr Abdel-Messih was self-represented, the Court went on to consider whether, on the contentions made, any appeal may lie from the Appeal Panel. It was concluded that, in that event, sub-ground 2(a) raises a question of law, no error of law was demonstrated and leave should be refused. Sub-ground 2(c) does not raise a question of law and nor was error of law established. These grounds are dismissed.

3. Sub-ground 2(b) contended that the Appeal Panel failed to address Mr Abdel-Messih’s submissions on the effect of s 95 of the RT Act. This does not raise a question of law, and no error of law was identified. The ground is dismissed.

3. Ground 3 contended that Mr Abdel-Messih was denied procedural fairness when the Appeal Panel considered the payment of the bond. This ground raised a question of law. Leave to appeal was granted. No error of law was found. The ground is dismissed.

4. Ground 4 related to whether the Appeal Panel had the jurisdiction to consider the payment of the bond. This ground raised a question of law and leave to appeal was granted. No error of law was demonstrated. The ground is dismissed.

5. Ground 5 was that the Appeal Panel was biased. This ground raised a question of law but leave was refused. No error of law was identified. This ground is dismissed.

6. Ground 6 contended that the Appeal Panel erred by not informing Mr Abdel-Messih about his rights under s 128 of the Evidence Act. This ground did not appear to raise a question of law. No error of law was identified. The ground is dismissed.

101. The above conclusions represent the findings and determinations of the Court on the summons.

ORDERS

102. I make the following orders:

1. The summons filed 19 July 2017 is dismissed.

2. Costs are reserved.

Amendments

11 May 2018 - Corrected typographical errors at [100] and [102].

Decision last updated: 11 May 2018