Lam v Somchanmavong [2016] NSWCATCD 46

Lam v Somchanmavong [2016] NSWCATCD 46

The tenant breached the Residential Tenancy Agreement by failing to pay rent as required. Although all arrears had been paid by the relisted hearing, the tenant had not fully complied with the agreed repayment plan and had frequently failed to pay rent on time throughout the relevant tenancy history, so section 89(2) did not prevent consideration of termination and section 89(5) was satisfied. Given the seriousness and continuity of the breaches, the tenant's inability to demonstrate capacity to meet future rent obligations, the landlords' financial inconvenience, and the failure to comply with earlier consent orders, the breach was sufficient to justify termination under section 87 of...

Jurisdiction
Australia
Judgment Date
20 May 2016
Procedural Posture
Residential Tenancy Application for Termination of Tenancy for Non Payment of Rent / Relisted Hearing; Written Reasons Following Request by Respondent Tenant Under Section 62 of Civil and Administrative Tribunal Act 2013
Outcome
Residential Tenancy Agreement terminated immediately for failure to pay rent; possession ordered for the landlords with the order for possession suspended until 27 May 2016; tenant to pay a daily occupation fee until vacant possession is given.
Legal Topics
['termination of Tenancy' 'non Payment of Rent' 'frequent Failure to Pay Rent' 'rent Arrears' 'order for Possession' 'suspension of Possession Order' 'occupation Fee']
['residential Tenancy Law' 'consumer and Commercial Law'] ['termination of Tenancy' 'non Payment of Rent' 'frequent Failure to Pay Rent' 'rent Arrears' 'order for Possession' 'suspension of Possession Order' 'occupation Fee']

Case Brief

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Procedural Posture

Residential Tenancy Application for Termination of Tenancy for Non Payment of Rent / Relisted Hearing; Written Reasons Following Request by Respondent Tenant Under Section 62 of Civil and Administrative Tribunal Act 2013

Legal Issues

  1. 1 ['Whether the tenant breached the Residential Tenancy Agreement by failing to pay rent in accordance with the agreement.' 'Whether the termination notice complied with the Residential Tenancies Act 2010 and was properly served.' 'Whether section 89(2) of the Residential Tenancies Act 2010 prevented a termination order because rent arrears had been paid by the relisted hearing.' 'Whether the tenant had frequently failed to pay rent owing on or before the day set out in the Residential Tenancy Agreement within section 89(5) of the Residential Tenancies Act 2010.' 'Whether the breach was sufficient in all the circumstances to justify termination under section 87 of the Residential Tenancies Act 2010.' 'Whether the order for possession should be suspended and for how long.']

Ratio Decidendi

The tenant breached the Residential Tenancy Agreement by failing to pay rent as required. Although all arrears had been paid by the relisted hearing, the tenant had not fully complied with the agreed repayment plan and had frequently failed to pay rent on time throughout the relevant tenancy history, so section 89(2) did not prevent consideration of termination and section 89(5) was satisfied. Given the seriousness and continuity of the breaches, the tenant's inability to demonstrate capacity to meet future rent obligations, the landlords' financial inconvenience, and the failure to comply with earlier consent orders, the breach was sufficient to justify termination under section 87 of...

Court Disposition

Residential Tenancy Agreement terminated immediately for failure to pay rent; possession ordered for the landlords with the order for possession suspended until 27 May 2016; tenant to pay a daily occupation fee until vacant possession is given.

Orders

  • ['The Residential Tenancy Agreement is terminated in accordance with section 87 of the Residential Tenancies Act 2010 as the tenant has breached the agreement by failing to pay rent in accordance with the Agreement.' 'The Tribunal is satisfied in accordance with section 89(5) of the Residential Tenancies Act 2010...