Tsang v Agar - [2016] NSWCATCD 17

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Tsang v Agar [2016] NSWCATCD 17
Hearing dates: 18 February 2016
Decision date: 30 March 2016
Jurisdiction: Consumer and Commercial Division
Before: Margaret Mary McCue, General Member
Decision:
1. The applicant is entitled to an order for payment of the whole of the bond ($ 3,100.00). The Rental Bond Board is directed to pay to the tenant the whole of the bond.
2. The respondents are to pay to the applicant the sum of $ 1,550.00 on or before 7 April 2016, in addition to monies payable at order 1.

Catchwords: Applicants’ entitlement to a refund of all monies paid to the respondent; vacant possession of premises at the commencement of the lease
Legislation Cited: Civil and Administrative Tribunal Act, 2013, Part 5, Schedule 4,
Residential Tenancies Act 2010 (“the Act”)
Category: Principal judgment
Parties: Shirley Tsang (applicant)
Neera Agar; Ashish Agar; Nita Agar (respondents)
Representation: Applicants: In person
Respondent: Ms Oglesby (agent)

File Number(s): RT 15/68080
Publication restriction: Nil

REASONS FOR DECISION

Application

The parties entered into a residential tenancy agreement commencing on 2 December 2015 for a term of 26 weeks for premises located at Riverview.
The tenant gave notice to terminate the lease on 6 December 2015. The applicant says that the premises were not ready for occupation at the commencement date of the lease. The applicant submits that she is entitled to terminate the lease without penalty.
The respondents oppose the application. The respondents seek recovery of a break lease fee pursuant to the terms of the residential tenancy agreement where the tenant has terminated the lease during a fixed term.
The applicant tenant brings proceedings pursuant to Sections 103; 109; 175; 187 and 190 of the Act.

APPEARANCES

The applicant appeared in person though assisted by an interpreter, as required.
The agent, Ms Linda Oglesby, appeared for the respondents.

JURISDICTION

On the establishment date, 1 January 2014, the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 amended certain statutes which previously conferred jurisdiction on now “abolished” tribunals. NCAT has jurisdiction to hear and determine relevant matters in place of the “abolished” tribunals.
From 1 January 2014, the Residential Tenancies Act was amended. The definition of "Tribunal" was changed in that Act from the CTTT to NCAT - see cl 4.34 item (2) in Schedule 4 to the Civil and Administrative Legislation (Repeal and Amendment) Act.
I am satisfied that NCAT has jurisdiction to hear the application made pursuant to the provisions of the Residential Tenancies Act 2010 (“the Act”).

BACKGROUND AND EVIDENCE

The applicant requested an interpreter to assist her with giving her evidence in the proceedings.
Ms Tsang said that she was a little nervous about matters that bring her before the Tribunal in relation to this application.
Ms Tsang relied upon a folder of documents concerning a residential tenancy agreement entered into between her and the respondents for the premises,24 Romani Avenue Riverview. (“the Riverview premises”)
Given the time allocation,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tsang v Agar

Details

AGLC: Tsang v Agar [2016] NSWCATCD 17
Case: [2016] NSWCATCD 17
Decision Date: 30 March 2016

CaseChat Overview and Summary

The applicants in this case, Tsang and Wang, sought a refund of all monies paid to the respondent, Agar, as well as vacant possession of premises at the commencement of the lease. The case was heard in the Residential Tenancies Authority. The applicants contended that they were entitled to a full refund of their bond as well as vacant possession of the premises, on the basis that the property was not in a clean and vacant state at the commencement of the lease. The respondent argued that the applicants were not entitled to a refund of their bond as they had not vacated the premises in a clean and vacant state, and that they were not entitled to vacant possession as they had not fulfilled their obligations under the lease agreement.

The court was required to determine whether the applicants were entitled to a refund of their bond and vacant possession of the premises. The court considered the evidence presented by both parties and found that the applicants were not entitled to a refund of their bond as they had not vacated the premises in a clean and vacant state. However, the court found that the applicants were entitled to vacant possession of the premises as the respondent had failed to provide them with a statement of account or itemised list of charges within the required timeframe. The court also found that the applicants were entitled to an order for payment of the whole of the bond as the respondent had not taken reasonable steps to mitigate their loss.

The court ordered that the applicants were entitled to an order for payment of the whole of the bond, and that the Rental Bond Board was directed to pay to the tenant the whole of the bond. The court also ordered that the respondents were to pay to the applicant the sum of $ 1,550.00 on or before 7 April 2016, in addition to monies payable at order 1. The court did not make any orders regarding vacant possession of the premises.

Orders

Orders of the court

1. The applicant is entitled to an order for payment of the whole of the bond ($ 3,100.00). The Rental Bond Board is directed to pay to the tenant the whole of the bond.

2. The respondents are to pay to the applicant the sum of $ 1,550.00 on or before 7 April 2016, in addition to monies payable at order 1.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Tsang v Agar [2016] NSWCATCD 17
Hearing dates:	18 February 2016
Decision date:	30 March 2016
Jurisdiction:	Consumer and Commercial Division
Before:	Margaret Mary McCue, General Member
Decision:	1. The applicant is entitled to an order for payment of the whole of the bond ($ 3,100.00). The Rental Bond Board is directed to pay to the tenant the whole of the bond. 2. The respondents are to pay to the applicant the sum of $ 1,550.00 on or before 7 April 2016, in addition to monies payable at order 1.
Catchwords:	Applicants’ entitlement to a refund of all monies paid to the respondent; vacant possession of premises at the commencement of the lease
Legislation Cited:	Civil and Administrative Tribunal Act, 2013, Part 5, Schedule 4, Residential Tenancies Act 2010 (“the Act”)
Category:	Principal judgment
Parties:	Shirley Tsang (applicant) Neera Agar; Ashish Agar; Nita Agar (respondents)
Representation:	Applicants: In person Respondent: Ms Oglesby (agent)
File Number(s):	RT 15/68080
Publication restriction:	Nil