Scandolera v Dingwall [2017] NSWCATCD 41

Scandolera v Dingwall [2017] NSWCATCD 41

The tenant was not entitled to repayment of all rent paid because, even if the absence of Council approval meant there was a legal impediment or illegality, the tenant received the bargained-for benefit of occupying the flat, continued to occupy and pay rent after becoming aware of the issue, and proved no economic loss. Requiring repayment of all rent would be contrary to unjust enrichment principles. The agreed $230 per week was a reasonable amount for rent or occupation fee, and the unpaid amount secured by the bond exceeded the bond, so the bond was payable to the landlord.

Jurisdiction
Australia
Judgment Date
24 February 2017
Procedural Posture
Residential Tenancy Application for Repayment of Rent and Rental Bond / Principal Judgment
Outcome
The application was dismissed and the rental bond was directed to be paid to the landlord.
Legal Topics
['legal Impediment to Occupation of Residential Premises' 'illegality of Residential Tenancy Agreement' 'unjust Enrichment' 'quantum Meruit' 'rental Bond' 'unpaid Rent']
['residential Tenancies' 'consumer and Commercial' 'contract Law' 'restitution' 'environmental Planning'] ['legal Impediment to Occupation of Residential Premises' 'illegality of Residential Tenancy Agreement' 'unjust Enrichment' 'quantum Meruit' 'rental Bond' 'unpaid Rent']

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Procedural Posture

Residential Tenancy Application for Repayment of Rent and Rental Bond / Principal Judgment

Legal Issues

  1. 1 ['Whether the landlord breached Residential Tenancies Act 2010 s49(1) by failing to take all reasonable steps to ensure there was no legal impediment to occupation of the flat as a residence.' 'Whether absence of development consent or occupation approval made the residential tenancy agreement illegal, void and unenforceable.' 'Whether the tenant was entitled to repayment of all rent paid under the agreement.' 'Whether the landlord was entitled to recover unpaid rent from the rental bond.']

Ratio Decidendi

The tenant was not entitled to repayment of all rent paid because, even if the absence of Council approval meant there was a legal impediment or illegality, the tenant received the bargained-for benefit of occupying the flat, continued to occupy and pay rent after becoming aware of the issue, and proved no economic loss. Requiring repayment of all rent would be contrary to unjust enrichment principles. The agreed $230 per week was a reasonable amount for rent or occupation fee, and the unpaid amount secured by the bond exceeded the bond, so the bond was payable to the landlord.

Court Disposition

The application was dismissed and the rental bond was directed to be paid to the landlord.

Orders

  • ['The application is dismissed.' 'The Rental Bond Services is directed to pay the whole of Bond number E785856-8 of $920.00 plus any interest to the Landlord Terry Dingwall.']