Shik v Wu [2021] NSWCATCD 96

Shik v Wu [2021] NSWCATCD 96

The sewer flood was a supervening event not caused by either party and rendered the premises wholly uninhabitable because sewage water saturated the carpets and underlay and contaminated the premises. Rent therefore abated in full from 12 April 2021 to 16 June 2021, requiring repayment of rent paid for that period. The tenant's defective termination email, when read with surrounding communications, sufficiently disclosed termination on the ground of uninhabitability and caused the landlord no disadvantage, so the tenancy ended for a permissible reason and the landlord was not entitled to rent in lieu of notice or a break fee. The landlord was not liable for the tenant's damaged furniture...

Jurisdiction
Australia
Judgment Date
16 September 2021
Procedural Posture
Residential Tenancy Application for Rent Abatement, Compensation and Rental Bond Orders / Final Determination After Hearing
Outcome
The landlord was ordered to pay the tenant $3,265.43 after offsetting the allowed rubbish removal cost against the rent repayment. Rental Bond Services was directed to pay the tenant the whole rental bond. The application was otherwise dismissed.
Legal Topics
['rent Abatement' 'frustration of Residential Tenancy Agreement' 'uninhabitable Premises' 'termination Notice Defects' 'break Fee' 'rental Bond' 'compensation for Tenant Loss' 'landlord Repair Obligations' 'rubbish Removal Costs']
['residential Tenancy Law' 'consumer and Commercial Law'] ['rent Abatement' 'frustration of Residential Tenancy Agreement' 'uninhabitable Premises' 'termination Notice Defects' 'break Fee' 'rental Bond' 'compensation for Tenant Loss' 'landlord Repair Obligations' 'rubbish Removal Costs']

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Procedural Posture

Residential Tenancy Application for Rent Abatement, Compensation and Rental Bond Orders / Final Determination After Hearing

Legal Issues

  1. 1 ['Whether the residential tenancy agreement was frustrated by the sewer flood that occurred on 12 April 2021.' 'Whether the tenant terminated the residential tenancy agreement in accordance with law on the basis of frustration or uninhabitability.' 'Whether rent should be abated for the period the tenant remained in occupation after the sewer flood.' 'Whether the landlord was entitled to rent in lieu of notice or a break fee for early termination of the fixed term agreement.' 'Whether the landlord breached the obligation to maintain the premises in a reasonable state of repair by failing to promptly remove the carpets and treat the floor for sewage contamination.' 'Whether the tenant suffered compensable loss as a result of any breach by the landlord.' "Whether the tenant's refusal to provide access for further cleaning after 14 May 2021 disentitled her to compensation." 'Whether the tenant breached the residential tenancy agreement by failing to remove all rubbish and leave the premises reasonably clean.' 'Whether the landlord was entitled to compensation for rubbish removal or cleaning costs.']

Ratio Decidendi

The sewer flood was a supervening event not caused by either party and rendered the premises wholly uninhabitable because sewage water saturated the carpets and underlay and contaminated the premises. Rent therefore abated in full from 12 April 2021 to 16 June 2021, requiring repayment of rent paid for that period. The tenant's defective termination email, when read with surrounding communications, sufficiently disclosed termination on the ground of uninhabitability and caused the landlord no disadvantage, so the tenancy ended for a permissible reason and the landlord was not entitled to rent in lieu of notice or a break fee. The landlord was not liable for the tenant's damaged furniture...

Court Disposition

The landlord was ordered to pay the tenant $3,265.43 after offsetting the allowed rubbish removal cost against the rent repayment. Rental Bond Services was directed to pay the tenant the whole rental bond. The application was otherwise dismissed.

Orders

  • ['Shen Hua Wu must pay Lydiawati Shik $3,265.43 immediately.' 'Rental Bond Services must pay the tenant, Lydiawati Shik, the whole of Rental Bond No. S954405-7.' 'The application is otherwise dismissed.']