Shuang Song v Edgar Kaler and Nabeela Caunhye; Edgar Kaler and Nabeela Caunhye v Shuang Song and Greg Timms [2023] NSWCATCD 70

Shuang Song v Edgar Kaler and Nabeela Caunhye; Edgar Kaler and Nabeela Caunhye v Shuang Song and Greg Timms [2023] NSWCATCD 70

The Tribunal found that although the landlord could not succeed on a claim for frustration (s 109) due to a defective notice, the special circumstances of threatened severe penalties for breach of FIRB conditions and associated hardship warranted termination under s 93 of the Residential Tenancies Act; it was just to order possession be suspended to allow tenants time to vacate and to award reasonable compensation for moving and rent differential, calculated on mitigation and actual loss.

Jurisdiction
Australia
Judgment Date
23 June 2023
Procedural Posture
Application for Termination and Compensation Under Residential Tenancy / Decision After Final Hearing
Outcome
Tenancy terminated under s 93 due to undue hardship to the landlord; possession to be given to landlord, order suspended to specified date; compensation awarded to tenants; application for frustration and for further compensation dismissed.
Legal Topics
['termination of Tenancy' 'undue Hardship' 'compensation' 'legal Impediment to Tenancy' 'hardship to Landlord' 'frustrated Agreement' 'breach of Statutory Duty']
['landlord and Tenant' 'residential Tenancies'] ['termination of Tenancy' 'undue Hardship' 'compensation' 'legal Impediment to Tenancy' 'hardship to Landlord' 'frustrated Agreement' 'breach of Statutory Duty']

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Procedural Posture

Application for Termination and Compensation Under Residential Tenancy / Decision After Final Hearing

Legal Issues

  1. 1 ['Whether the residential tenancy agreement should be terminated due to frustration under s 109 of the Residential Tenancies Act 2010 (NSW)' 'Whether the agreement should be terminated due to hardship to the landlord under s 93' 'Whether termination notice was validly given under the Act' 'Whether tenants are entitled to compensation for alleged breach of s 49' 'Whether the landlord breached section 49 by failing to ensure no legal impediment to occupation']

Ratio Decidendi

The Tribunal found that although the landlord could not succeed on a claim for frustration (s 109) due to a defective notice, the special circumstances of threatened severe penalties for breach of FIRB conditions and associated hardship warranted termination under s 93 of the Residential Tenancies Act; it was just to order possession be suspended to allow tenants time to vacate and to award reasonable compensation for moving and rent differential, calculated on mitigation and actual loss.

Court Disposition

Tenancy terminated under s 93 due to undue hardship to the landlord; possession to be given to landlord, order suspended to specified date; compensation awarded to tenants; application for frustration and for further compensation dismissed.

Orders

  • ['Greg Timms is removed as a respondent in matter RT 23/08058.' 'The Residential Tenancy Agreement is terminated in accordance with section 93 of the Residential Tenancies Act 2010 as the landlord would in the special circumstances suffer undue hardship if not terminated.' 'The Residential Tenancy Agreement is...