Don De Rota and Sharon De Rota v Donna Golen [2014] NSWCATCD 145

Don De Rota and Sharon De Rota v Donna Golen [2014] NSWCATCD 145

Section 107 did not apply because the tenant vacated in response to the landlord's Notice of Termination and did not abandon the premises. Section 110(2) did not protect the tenant because vacant possession was given on the termination date, leaving no relevant gap period. The tenant's rent default was significant and repudiatory, and alternatively the short rental loss from 31 May 2014 to 13 June 2014 was caused by the time required to remedy the tenant's breach of the section 51 obligation to return the premises in proper condition. The landlord acted with due diligence in mitigating loss, and was entitled to rent arrears, lost rent to 13 June 2014, and cleaning costs.

Jurisdiction
Australia
Judgment Date
31 July 2014
Procedural Posture
Residential Tenancy Application for Termination Order and Compensation / Ex Parte Order; Reasons for Decision
Outcome
Application allowed; monetary and bond orders made in favour of the landlord.
Legal Topics
['termination in Fixed Term for Rent Default' 'compensation for Loss of Rent' 'abandonment' 'mitigation of Loss' 'rental Bond' 'cleaning Costs']
['residential Tenancies' 'civil and Administrative Law'] ['termination in Fixed Term for Rent Default' 'compensation for Loss of Rent' 'abandonment' 'mitigation of Loss' 'rental Bond' 'cleaning Costs']

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Procedural Posture

Residential Tenancy Application for Termination Order and Compensation / Ex Parte Order; Reasons for Decision

Legal Issues

  1. 1 ["Whether section 107 of the Residential Tenancies Act 2010 applied where the tenant vacated during the fixed term in accordance with the landlord's Notice of Termination for rent arrears." "How compensation for loss of rent should be calculated after the tenant vacated in the fixed term following a landlord's Notice of Termination." 'Whether section 110(2) of the Residential Tenancies Act 2010 protected the tenant from liability for rent after vacant possession was given.' 'Whether the landlord acted with due diligence in mitigating loss and was entitled to cleaning costs and rent loss until the premises were re-let.']

Ratio Decidendi

Section 107 did not apply because the tenant vacated in response to the landlord's Notice of Termination and did not abandon the premises. Section 110(2) did not protect the tenant because vacant possession was given on the termination date, leaving no relevant gap period. The tenant's rent default was significant and repudiatory, and alternatively the short rental loss from 31 May 2014 to 13 June 2014 was caused by the time required to remedy the tenant's breach of the section 51 obligation to return the premises in proper condition. The landlord acted with due diligence in mitigating loss, and was entitled to rent arrears, lost rent to 13 June 2014, and cleaning costs.

Court Disposition

Application allowed; monetary and bond orders made in favour of the landlord.

Orders

  • ['The Tenant, Donna Golen, 1/12 King Street Queanbeyan NSW is to pay the Landlord, Don De Rota and Sharon De Rota, C/-Elders Real Estate Queanbeyan, P.O. Box 24 Queanbeyan, the sum of $1,814.00, immediately.' 'The Rental Bond Services is directed to pay the landlord, Don De Rota and Sharon De Rota, C/- Elders Real...