Yan v Yan [2024] NSWCATAP 32

Yan v Yan [2024] NSWCATAP 32

The tenants vacated the premises during the fixed term without the landlord's consent and without a Tribunal order, so the residential tenancy agreement had already terminated by abandonment under s 81(4)(d) of the Residential Tenancies Act 2010 (NSW) before the Tribunal made the s 103 termination order. The Tribunal therefore lacked jurisdiction to make that termination order and erred in concluding that the tenants had not abandoned the tenancy. Because the landlord suffered loss of at least three weeks' rent and the tenants had already been compensated for the air-conditioning breach, the discretion under s 107 should be exercised to order the tenants to pay the statutory three-week...

Jurisdiction
Australia
Judgment Date
04 March 2024
Procedural Posture
Residential Tenancy Appeal / Appeal From Orders of the Consumer and Commercial Division Made on 30 October 2023
Outcome
Appeal allowed in part.
Legal Topics
['termination of Residential Tenancy Agreement' 'abandonment of Residential Premises' 'break Fee' "landlord's Repair Obligations" 'apprehended Bias' 'adequacy of Reasons' 'leave to Appeal']
['residential Tenancy Law' 'civil Procedure' 'administrative Law'] ['termination of Residential Tenancy Agreement' 'abandonment of Residential Premises' 'break Fee' "landlord's Repair Obligations" 'apprehended Bias' 'adequacy of Reasons' 'leave to Appeal']

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Procedural Posture

Residential Tenancy Appeal / Appeal From Orders of the Consumer and Commercial Division Made on 30 October 2023

Legal Issues

  1. 1 ['Whether the Tribunal misapplied s 103 of the Residential Tenancies Act 2010 (NSW) by making a termination order after the tenants had already abandoned the premises and the agreement had terminated.' 'Whether the tenants were liable to pay a break fee under s 107 of the Residential Tenancies Act 2010 (NSW).' 'Whether the Tribunal demonstrated apprehended bias.' 'Whether the Tribunal provided inadequate reasons.' 'Whether leave should be granted to challenge the compensation order for the air-conditioning unit and the refusal of the cleaning costs claim.']

Ratio Decidendi

The tenants vacated the premises during the fixed term without the landlord's consent and without a Tribunal order, so the residential tenancy agreement had already terminated by abandonment under s 81(4)(d) of the Residential Tenancies Act 2010 (NSW) before the Tribunal made the s 103 termination order. The Tribunal therefore lacked jurisdiction to make that termination order and erred in concluding that the tenants had not abandoned the tenancy. Because the landlord suffered loss of at least three weeks' rent and the tenants had already been compensated for the air-conditioning breach, the discretion under s 107 should be exercised to order the tenants to pay the statutory three-week...

Court Disposition

Appeal allowed in part.

Orders

  • ['Appeal allowed in part.' "Set aside the order for termination of the residential tenancy agreement made by the Tribunal pursuant to s 103 of the Residential Tenancies Act 2010 (NSW) in the tenants' application RT 23/23449 on 30 October 2023." "Set aside the orders of the Tribunal made in the landlord's application...