Diago Lobo v Abdel-Messih

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Diago Lobo v Abdel-Messih [2016] NSWCATCD 14
Hearing dates:	24 November 2015 and 22 January 2016
Decision date:	24 February 2016
Jurisdiction:	Consumer and Commercial Division
Before:	K Rosser, Senior Member
Decision:	The respondent is to pay the applicant the sum of $3,000.00 immediately.
Catchwords:	TENANCY: Whether premises abandoned or tenancy terminated by consent: whether landlord entitled to a break lease fee; credibility
Legislation Cited:	Residential Tenancies Act 2010 Civil and Administrative Tribunal Act 2013
Category:	Principal judgment
Parties:	Natasha Diago Lobo (applicant) Bishoy Abdel-Messih (respondent)
Representation:	Both parties self-represented
File Number(s):	RT 15/60138
Publication restriction:	Nil

Reasons for decision

Introduction

1. The applicant (the tenant) seeks an order that the respondent (the landlord) refund to her a total of $3,000.00, being four weeks rent paid as a bond and two weeks rent paid in advance. An application for orders for compensation in respect of other issues was abandoned on the first day of the hearing on 24 November 2015. In addition, on that day the landlord paid the tenant $100.00, being the refund of a security key deposit.

2. The landlord claims that he is entitled to retain the bond and the rent paid in advance as a break lease fee under clause 41 of the residential tenancy agreement.

3. For the reasons set out below, I find that the tenancy agreement ended by consent on the day on which it commenced, which I find to be 31 October 2015. In these circumstances, I find that a break lease fee is not payable and have ordered that the landlord pay the tenant the sum of $3,000.00.

Background

4. The landlord is himself the tenant of the premises that are the subject of this application. He states that he has the landlord’s agent’s consent to sub-let the premises.

5. On 28 October 2015, the parties entered into a written residential tenancy agreement in the standard form. The agreement is said to commence on 1 November 2015. The evidence provided by the parties indicates that this date was the result of a compromise, with the tenant initially wanting to move in on or around 8 November 2015 (at least in part because rent in her existing accommodation was paid until then) and the landlord wanting her to move in in late October.

6. The tenant claims that prior to 31 October, the landlord agreed that she could move in on 31 October instead of on 1 November. The landlord disputes that any such agreement was made.

7. What is not in dispute is that on 31 October 2015, the landlord sent a text message to the tenant stating that he was “thinking of extending another week” – the landlord was occupying the premises himself at this point – as it would “make [his] life easier”. He also noted in his text message that this arrangement would mean that the tenant could get the most from her pre-paid rent in the other premises.

8. The tenant responded by text message,…