Foyel v Brukmann [2021] NSWCATAP 293

Foyel v Brukmann [2021] NSWCATAP 293

The Tribunal erred in its discretion by considering the impact on the tenants’ ability to secure alternate accommodation as relevant to the release of the bond. Only moneys due and payable at the hearing should have been paid from the bond. Payment of $250.92 for water, bank fees, and damages should have been ordered to the landlords from the bond. Otherwise, the Tribunal correctly construed the agreement and was correct in its approach to reasonable payment terms for the deferred rent.

Jurisdiction
Australia
Judgment Date
28 September 2021
Procedural Posture
Civil Appeal / Internal Appeal From Consumer and Commercial Division Decision
Outcome
Appeal allowed in part; otherwise dismissed
Legal Topics
['residential Tenancies Act 2010 (nsw)' 'covid 19 Rent Deferral' 'rental Bonds' 'contract Variation' 'exercise of Discretion']
['tenancy' 'contracts'] ['residential Tenancies Act 2010 (nsw)' 'covid 19 Rent Deferral' 'rental Bonds' 'contract Variation' 'exercise of Discretion']

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Procedural Posture

Civil Appeal / Internal Appeal From Consumer and Commercial Division Decision

Legal Issues

  1. 1 ['Whether the Tribunal erred in law by not directing payment of the whole bond to the landlords' 'Proper terms for repayment of deferred rent under an agreement to agree' 'Proper exercise of discretion under s 175 of the Residential Tenancies Act 2010 (NSW) in relation to bond payment']

Ratio Decidendi

The Tribunal erred in its discretion by considering the impact on the tenants’ ability to secure alternate accommodation as relevant to the release of the bond. Only moneys due and payable at the hearing should have been paid from the bond. Payment of $250.92 for water, bank fees, and damages should have been ordered to the landlords from the bond. Otherwise, the Tribunal correctly construed the agreement and was correct in its approach to reasonable payment terms for the deferred rent.

Court Disposition

Appeal allowed in part; otherwise dismissed

Orders

  • ['Amend Order 1 made on 29 April 2021 by inserting: (ab) the amount of $250.92 is to be paid on or before seven days from publication of the decision of the Appeal Panel.']