Zhang v Misitano; Misitano v Zhang [2019] NSWCATCD 92

Zhang v Misitano; Misitano v Zhang [2019] NSWCATCD 92

The Tribunal was not satisfied, based on contemporaneous evidence and building inspection reports, that the premises were uninhabitable or that a breach by the landlord caused the alleged flooding and goods damage. The tenant could not succeed on the abatement or compensation claims. However, the landlord, through its agent, sent an email waiving the break lease penalty if the tenant vacated early. The tenant acted in reliance on this, and it would be unconscionable to permit the landlord to resile from this position; thus, the break lease fee was waived and the tenant entitled to the full bond.

Parties
Applicant (rt 19/19461), Respondent (rt 19/17314): Edwin Zi Yin Zhang; Respondent (rt 19/19461), Applicant (rt 19/17314): Victoria Misitano
Jurisdiction
Australia
Judgment Date
01 August 2019
Procedural Posture
Residential Tenancy Dispute / Final Decision and Orders
Outcome
Landlord's bond application dismissed; tenant's abatement of rent and compensation application dismissed; tenant awarded full bond.
Legal Topics
Bond Claim, Abatement of Rent, Landlord's Obligations to Repair, Break Lease Fee, Compensation for Loss of Goods
Residential Tenancy Law Bond Claim Abatement of Rent Landlord's Obligations to Repair Break Lease Fee Compensation for Loss of Goods

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Parties

Edwin Zi Yin Zhang

Applicant (rt 19/19461), Respondent (rt 19/17314)

Victoria Misitano

Respondent (rt 19/19461), Applicant (rt 19/17314)

Procedural Posture

Residential Tenancy Dispute / Final Decision and Orders

Legal Issues

  1. 1 Whether tenant is entitled to partial abatement of rent under s 45 Residential Tenancies Act 2010 (NSW) due to alleged uninhabitability
  2. 2 Whether tenant is entitled to compensation for damaged goods as a result of flooding
  3. 3 Whether landlord is entitled to break lease fee or release of bond

Ratio Decidendi

The Tribunal was not satisfied, based on contemporaneous evidence and building inspection reports, that the premises were uninhabitable or that a breach by the landlord caused the alleged flooding and goods damage. The tenant could not succeed on the abatement or compensation claims. However, the landlord, through its agent, sent an email waiving the break lease penalty if the tenant vacated early. The tenant acted in reliance on this, and it would be unconscionable to permit the landlord to resile from this position; thus, the break lease fee was waived and the tenant entitled to the full bond.

Court Disposition

Landlord's bond application dismissed; tenant's abatement of rent and compensation application dismissed; tenant awarded full bond.

Orders

  • The landlord's application for the release of the bond is dismissed. The RBB is directed to pay the whole of the bond to the tenant, Victoria Misitano.
  • The tenant's application for abatement of rent and compensation for loss of goods is dismissed.