Tang v Grondin [2018] NSWCATAP 165

Tang v Grondin [2018] NSWCATAP 165

Clause 41.1 of the residential tenancy agreement required payment of six weeks rent if the fixed term was for three years or less and less than half of the term had expired. The fixed term was 24 weeks and only about five weeks had expired when the tenants ended the agreement. The Tribunal therefore erred in law by construing the written agreement as requiring only a two-week break fee. The alleged oral agreement was not entertained because it was not raised below and the landlord could have given evidence about it.

Jurisdiction
Australia
Judgment Date
09 July 2018
Procedural Posture
Appeal From an Internally Appealable Decision of the NSW Civil and Administrative Tribunal, Consumer and Commercial Division, Concerning a Residential Tenancy Agreement / Appeal Panel Decision After Hearing on 22 June 2018
Outcome
Appeal allowed; Tribunal orders set aside; original proceedings to be re-heard and joined with related Tribunal proceedings; respondents ordered to pay the appellant $1,800 immediately.
Legal Topics
['proper Construction of Residential Tenancy Agreement' 'break Fee for Early Termination of Fixed Term Tenancy' 'question of Law on Appeal' 'raising New Issues on Appeal' 're Hearing and Joinder of Tribunal Proceedings']
['residential Tenancy Law' 'contract Law' 'civil Procedure' 'appeals'] ['proper Construction of Residential Tenancy Agreement' 'break Fee for Early Termination of Fixed Term Tenancy' 'question of Law on Appeal' 'raising New Issues on Appeal' 're Hearing and Joinder of Tribunal Proceedings']

Case Brief

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Procedural Posture

Appeal From an Internally Appealable Decision of the NSW Civil and Administrative Tribunal, Consumer and Commercial Division, Concerning a Residential Tenancy Agreement / Appeal Panel Decision After Hearing on 22 June 2018

Legal Issues

  1. 1 ['Whether the Tribunal erred in construing clause 41 of the residential tenancy agreement as providing for a two-week break fee when the tenants ended the fixed term agreement after about five weeks.' 'Whether the respondents could rely on an alleged oral agreement about a two-week break fee that was not raised before the Tribunal below.' 'What orders should be made following the identified error, including re-hearing and joinder with related proceedings.']

Ratio Decidendi

Clause 41.1 of the residential tenancy agreement required payment of six weeks rent if the fixed term was for three years or less and less than half of the term had expired. The fixed term was 24 weeks and only about five weeks had expired when the tenants ended the agreement. The Tribunal therefore erred in law by construing the written agreement as requiring only a two-week break fee. The alleged oral agreement was not entertained because it was not raised below and the landlord could have given evidence about it.

Court Disposition

Appeal allowed; Tribunal orders set aside; original proceedings to be re-heard and joined with related Tribunal proceedings; respondents ordered to pay the appellant $1,800 immediately.

Orders

  • ['Appeal allowed.' 'The orders of the Tribunal made on 24 May 2018 are set aside.' 'The original proceedings are to be re-heard by the Tribunal.' 'The respondents are to pay the appellant the sum of $1,800 immediately.' 'These proceedings are to be joined to and heard with proceedings RT 18 / 25700 in the Tribunal.']