Hayden v Rigney [2016] NSWCATCD 2

Hayden v Rigney [2016] NSWCATCD 2

On the balance of probabilities, the 11 June 2015 conversation and the agent's contemporaneous file note established an agreement that the tenants could vacate when their new house was ready without penalty if they allowed sales inspections. That agreement was a surrender of the tenancy with the landlord's consent under s 81(4)(e) of the Residential Tenancies Act 2010, so the tenancy validly ended on 13 July 2015 and no further rent was due. In any event, because the landlords chose to sell rather than re-let the premises and made no attempt to mitigate rental loss, they were not entitled to rent compensation after the tenants vacated. The bond was therefore refundable to the tenants less...

Jurisdiction
Australia
Judgment Date
05 January 2016
Procedural Posture
Residential Tenancy Cross Claim Concerning Bond Refund and Landlord Compensation for Alleged Early Lease Break / Final Decision After Hearing
Outcome
The landlords were ordered to pay the tenants $1,571.52 immediately, representing return of the bond less agreed outstanding water consumption and cleaning charges.
Legal Topics
['lease Break' 'early Termination' 'agreement to Surrender' 'bond Refund' 'landlord Consent' 'mitigation of Loss']
['residential Tenancy Law' 'consumer and Commercial Tenancy Disputes'] ['lease Break' 'early Termination' 'agreement to Surrender' 'bond Refund' 'landlord Consent' 'mitigation of Loss']

Case Brief

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Procedural Posture

Residential Tenancy Cross Claim Concerning Bond Refund and Landlord Compensation for Alleged Early Lease Break / Final Decision After Hearing

Legal Issues

  1. 1 ['Whether the tenants and landlords, through the managing agent, agreed that the tenants could end the fixed term tenancy early without penalty in return for allowing sales inspections.' "Whether the tenancy terminated by surrender under s 81(4)(e) of the Residential Tenancies Act 2010 when the tenants gave up possession with the landlord's consent." 'Whether the landlords were entitled to compensation for rent after the tenants vacated, including where the premises were put on the market for sale rather than re-let.' 'Whether the tenants were entitled to return of the bond less agreed cleaning and water consumption charges.']

Ratio Decidendi

On the balance of probabilities, the 11 June 2015 conversation and the agent's contemporaneous file note established an agreement that the tenants could vacate when their new house was ready without penalty if they allowed sales inspections. That agreement was a surrender of the tenancy with the landlord's consent under s 81(4)(e) of the Residential Tenancies Act 2010, so the tenancy validly ended on 13 July 2015 and no further rent was due. In any event, because the landlords chose to sell rather than re-let the premises and made no attempt to mitigate rental loss, they were not entitled to rent compensation after the tenants vacated. The bond was therefore refundable to the tenants less...

Court Disposition

The landlords were ordered to pay the tenants $1,571.52 immediately, representing return of the bond less agreed outstanding water consumption and cleaning charges.

Orders

  • ['The landlord is to pay the tenant the sum of $1,571.52 immediately.']