Zhu v Elrem Property No 2 Pty Limited [2024] NSWCATAP 214

Zhu v Elrem Property No 2 Pty Limited [2024] NSWCATAP 214

The Tribunal's finding that the tenant misrepresented the curtain installation date was against the weight of evidence. The evidence established both parties knew the curtains were installed on 24 April 2023 with minor deficiencies and replacement anticipated for 9 May 2023. Thus, the landlord's agreement to provide a further waiver was binding, and rent arrears should be reduced by $2000 accordingly. This justified varying the Tribunal's order under appeal.

Parties
Appellant; Tenant: Wei Zhu; Respondent; Landlord: Elrem Property No 2 Pty Limited ATF The Elrem Property Trust No 2
Jurisdiction
Australia
Judgment Date
31 October 2024
Procedural Posture
Internal Appeal From Tribunal Decision / Appeal Panel Decision
Outcome
Appeal allowed in part; leave to appeal granted
Legal Topics
Rent Arrears, Misrepresentation, Rent Waiver
Leases and Tenancies Rent Arrears Misrepresentation Rent Waiver

Case Brief

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Parties

Wei Zhu

Appellant; Tenant

Elrem Property No 2 Pty Limited ATF The Elrem Property Trust No 2

Respondent; Landlord

Procedural Posture

Internal Appeal From Tribunal Decision / Appeal Panel Decision

Legal Issues

  1. 1 Whether the quantum of rent arrears should reflect an additional two-week rent waiver based on the evidence of agreed terms between the parties
  2. 2 Whether the Tribunal erred in finding that the tenant misrepresented the date of curtain installation, affecting entitlement to rent waiver

Ratio Decidendi

The Tribunal's finding that the tenant misrepresented the curtain installation date was against the weight of evidence. The evidence established both parties knew the curtains were installed on 24 April 2023 with minor deficiencies and replacement anticipated for 9 May 2023. Thus, the landlord's agreement to provide a further waiver was binding, and rent arrears should be reduced by $2000 accordingly. This justified varying the Tribunal's order under appeal.

Court Disposition

Appeal allowed in part; leave to appeal granted

Orders

  • Leave to appeal is granted.
  • The appeal is allowed in part.