Zhu v Aspinall [2020] NSWCATAP 226

Zhu v Aspinall [2020] NSWCATAP 226

The Appeal Panel held that the rent arrears as at 9 July 2020 were $13,242.72, not $15,000, and that there was no legislative power to reduce the contractual rent merely because of COVID-19 hardship. However, the Tribunal erred in finding that the appellant was not an impacted tenant: the evidence showed the appellant's only income was rent from Ms Zenkis, a rent-paying household member, and that Ms Zenkis lost employment or income and left the premises due to COVID-19, reducing household income by more than 25%. Because the appellant was an impacted tenant and the landlord had issued the notice and applied for termination within the prohibited period without the required formal rent...

Jurisdiction
Australia
Judgment Date
30 October 2020
Procedural Posture
Residential Tenancy Appeal / Appeal Panel Appeal From Civil and Administrative Tribunal of New South Wales, Consumer and Commercial Division Decisions Dated 9 July 2020 and 24 September 2020
Outcome
Leave to amend and leave to appeal granted; appeal allowed in part.
Legal Topics
['termination for Non Payment of Rent' 'covid 19 Impacted Tenant' 'residential Tenancy Rent Arrears' 'occupation Fee' 'rental Bond' 'leave to Appeal']
['land Law' 'residential Tenancies' 'administrative Law'] ['termination for Non Payment of Rent' 'covid 19 Impacted Tenant' 'residential Tenancy Rent Arrears' 'occupation Fee' 'rental Bond' 'leave to Appeal']

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Procedural Posture

Residential Tenancy Appeal / Appeal Panel Appeal From Civil and Administrative Tribunal of New South Wales, Consumer and Commercial Division Decisions Dated 9 July 2020 and 24 September 2020

Legal Issues

  1. 1 ['Whether the Tribunal was correct to order payment of $15,000 for unpaid rent as at 9 July 2020.' 'Whether the landlord was prohibited from issuing the termination notice or applying for a termination order because the tenant was COVID-19 impacted.' 'Whether the order fixing an occupation fee at $5,400 should be set aside if the termination order was erroneous.' 'Whether the bond released to the landlord should be repaid to the tenant or offset against unpaid rent.']

Ratio Decidendi

The Appeal Panel held that the rent arrears as at 9 July 2020 were $13,242.72, not $15,000, and that there was no legislative power to reduce the contractual rent merely because of COVID-19 hardship. However, the Tribunal erred in finding that the appellant was not an impacted tenant: the evidence showed the appellant's only income was rent from Ms Zenkis, a rent-paying household member, and that Ms Zenkis lost employment or income and left the premises due to COVID-19, reducing household income by more than 25%. Because the appellant was an impacted tenant and the landlord had issued the notice and applied for termination within the prohibited period without the required formal rent...

Court Disposition

Leave to amend and leave to appeal granted; appeal allowed in part.

Orders

  • ['Leave is granted to the appellant to amend her Notice of Appeal to appeal the orders made 24 September 2020 (erroneously dated 30 September 2020) in application RT 20/19086 regarding the occupation fee and the orders made 24 September 2020 in application RT 20/37870 in respect of the bond.' 'Leave to appeal is...