Wang v Abdel-Messih;; Abdel-Messih v Wang - [2017] NSWCATCD 70

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Wang v Abdel-Messih;; Abdel-Messih v Wang [2017] NSWCATCD 70
Hearing dates: 21 July 2017
Decision date: 25 August 2017
Jurisdiction: Consumer and Commercial Division
Before: P French, General Member
Decision:
In RT 17/14436 and RT 17/19334 (the landlord’s applications)
Consent orders made on 21 July 2017
1. By consent, the Residential Tenancy Agreement is terminated immediately and possession is given to the landlord on the date of termination.
2. By consent, the order for possession is suspended to 25 July 2017.
3. By consent, the tenant is to pay the landlord an occupation fee at the rate of $154.29 per day from the day after the date of termination, namely 22 July 2017 until the date vacant possession is given to the landlord.
4. By consent, within 60 days of the date for possession of the premises specified in these orders, the landlord may request the relisting of these applications to determine the amount of the occupation fee owing.
NOTATION made on 21 July 2017
The Tribunal notes that the parties have also agreed that the landlord and the landlord’s Managing Agent will not list the tenant on any residential tenancy data base.
Order made by determination on 11 August 2017
5. The tenant, Bishoy Abdel-Messih, Unit 5605/93 Liverpool Street Sydney 2000 NSW Australia is to pay the landlord, Le Dong Wang, c/- Yueh Ying Chiu trading as Property Square Realty Suite 1 Level 7 377-383 Sussex Street Sydney 2000 NSW Australia the sum of $15,000.00 immediately.
In matter number RT 17/16177 (the tenant’s application)
Order made by determination on 26 July 2017
6. The tenant’s request for leave to file additional evidence and or submissions after the conclusion of the final hearing of this application is refused.
Order made by determination on 11 August 2017
7. The application is dismissed.

Catchwords: RESIDENTIAL TENANCIES – landlord’s application under section 87 of the Residential Tenancies Act 2010 for a termination order for breach of the residential tenancy agreement – keeping of a dog at the residential premises – landlord’s application under section 87 of the Residential Tenancies Act 2010 for a termination order for breach of the residential tenancy agreement – non-payment of rent in accordance with the residential tenancy agreement – tenant’s application under sections 75(2), 187 and 190 of the Residential Tenancies Act 2010 for compensation for damage and loss allegedly incurred as a result of the landlord’s alleged breach of the residential tenancy agreement in unreasonably withholding consent to the sub-letting of the residential premises
Category: Principal judgment
Parties: Le Dong Wang (applicant/cross respondent-landlord)
Bishoy Abdel-Messih (respondent/cross applicant - tenant)
Representation: Bishoy Abdel-Messih in person
Susan Chiu, Managing Agent for Landlord Le Dong Wang

File Number(s): RT 17/ 14436; RT 17/16177; RT 17/19334
Publication restriction: Nil

REASONS FOR DECISIOn

There are three applications before the Tribunal in these proceedings.
The first application in time (RT 17/14436) is an application made by Le Dong Wang (the landlord)…

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.

Keep reading for free

Create a free CaseChat account to read Wang v Abdel-Messih;; Abdel-Messih v Wang and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWCATCD 70
Decision Date: 25 August 2017

CaseChat Overview and Summary

Wang v Abdel-Messih and Abdel-Messih v Wang involved a dispute between a landlord and tenant over alleged breaches of a residential tenancy agreement. The landlord, Le Dong Wang, applied for termination of the tenancy and compensation for non-payment of rent, while the tenant, Bishoy Abdel-Messih, sought compensation for damages allegedly caused by the landlord's unreasonable refusal to consent to subletting. The matter was heard in the Residential Tenancy Tribunal of New South Wales. The legal issues before the Tribunal included whether the tenant had breached the tenancy agreement by keeping a dog and failing to pay rent, and whether the landlord had breached the agreement by unreasonably withholding consent to subletting and by failing to provide a safe and habitable living environment.

The Tribunal found that the tenant had breached the tenancy agreement by keeping a dog and by failing to pay rent. The Tribunal also found that the landlord had breached the agreement by unreasonably withholding consent to subletting, which resulted in the tenant incurring costs to relocate. However, the Tribunal dismissed the tenant's claim for compensation for damages, finding that the tenant had failed to prove that the landlord's actions had caused the alleged damage. The Tribunal ordered that the tenancy be terminated and possession be given to the landlord, with the tenant paying an occupation fee until the landlord regained possession. The Tribunal also ordered the tenant to pay the landlord $15,000 in compensation for non-payment of rent. The Tribunal refused the tenant's request to file additional evidence and dismissed the tenant's application for compensation for damages.

Orders

Orders of the court

In RT 17/14436 and RT 17/19334 (the landlord’s applications)

Consent orders made on 21 July 2017

1. By consent, the Residential Tenancy Agreement is terminated immediately and possession is given to the landlord on the date of termination.

2. By consent, the order for possession is suspended to 25 July 2017.

3. By consent, the tenant is to pay the landlord an occupation fee at the rate of $154.29 per day from the day after the date of termination, namely 22 July 2017 until the date vacant possession is given to the landlord.

4. By consent, within 60 days of the date for possession of the premises specified in these orders, the landlord may request the relisting of these applications to determine the amount of the occupation fee owing.

NOTATION made on 21 July 2017

The Tribunal notes that the parties have also agreed that the landlord and the landlord’s Managing Agent will not list the tenant on any residential tenancy data base.

Order made by determination on 11 August 2017

5. The tenant, Bishoy Abdel-Messih, Unit 5605/93 Liverpool Street Sydney 2000 NSW Australia is to pay the landlord, Le Dong Wang, c/- Yueh Ying Chiu trading as Property Square Realty Suite 1 Level 7 377-383 Sussex Street Sydney 2000 NSW Australia the sum of $15,000.00 immediately.

In matter number RT 17/16177 (the tenant’s application)

Order made by determination on 26 July 2017

6. The tenant’s request for leave to file additional evidence and or submissions after the conclusion of the final hearing of this application is refused.

Order made by determination on 11 August 2017

7. The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Wang v Abdel-Messih;; Abdel-Messih v Wang [2017] NSWCATCD 70
Hearing dates:	21 July 2017
Decision date:	25 August 2017
Jurisdiction:	Consumer and Commercial Division
Before:	P French, General Member
Decision:	In RT 17/14436 and RT 17/19334 (the landlord’s applications) Consent orders made on 21 July 2017 1. By consent, the Residential Tenancy Agreement is terminated immediately and possession is given to the landlord on the date of termination. 2. By consent, the order for possession is suspended to 25 July 2017. 3. By consent, the tenant is to pay the landlord an occupation fee at the rate of $154.29 per day from the day after the date of termination, namely 22 July 2017 until the date vacant possession is given to the landlord. 4. By consent, within 60 days of the date for possession of the premises specified in these orders, the landlord may request the relisting of these applications to determine the amount of the occupation fee owing. NOTATION made on 21 July 2017 The Tribunal notes that the parties have also agreed that the landlord and the landlord’s Managing Agent will not list the tenant on any residential tenancy data base. Order made by determination on 11 August 2017 5. The tenant, Bishoy Abdel-Messih, Unit 5605/93 Liverpool Street Sydney 2000 NSW Australia is to pay the landlord, Le Dong Wang, c/- Yueh Ying Chiu trading as Property Square Realty Suite 1 Level 7 377-383 Sussex Street Sydney 2000 NSW Australia the sum of $15,000.00 immediately. In matter number RT 17/16177 (the tenant’s application) Order made by determination on 26 July 2017 6. The tenant’s request for leave to file additional evidence and or submissions after the conclusion of the final hearing of this application is refused. Order made by determination on 11 August 2017 7. The application is dismissed.
Catchwords:	RESIDENTIAL TENANCIES – landlord’s application under section 87 of the Residential Tenancies Act 2010 for a termination order for breach of the residential tenancy agreement – keeping of a dog at the residential premises – landlord’s application under section 87 of the Residential Tenancies Act 2010 for a termination order for breach of the residential tenancy agreement – non-payment of rent in accordance with the residential tenancy agreement – tenant’s application under sections 75(2), 187 and 190 of the Residential Tenancies Act 2010 for compensation for damage and loss allegedly incurred as a result of the landlord’s alleged breach of the residential tenancy agreement in unreasonably withholding consent to the sub-letting of the residential premises
Category:	Principal judgment
Parties:	Le Dong Wang (applicant/cross respondent-landlord) Bishoy Abdel-Messih (respondent/cross applicant - tenant)
Representation:	Bishoy Abdel-Messih in person Susan Chiu, Managing Agent for Landlord Le Dong Wang
File Number(s):	RT 17/ 14436; RT 17/16177; RT 17/19334
Publication restriction:	Nil