Moller v Lau [2021] NSWCATCD 153

Moller v Lau [2021] NSWCATCD 153

Clause 28 of Schedule 2, Part 9, Residential Tenancies Act 2010 is not engaged, as tenant did not have COVID-19 rent arrears on date termination notice was served; section 85(3) mandates termination; suspension of possession is justified by greater hardship to tenant; landlords are estopped from claiming deferred rent not offset by Land Tax Relief due to promise and reliance.

Jurisdiction
Australia
Judgment Date
07 December 2021
Procedural Posture
Application for Termination of Residential Tenancy Agreement / Final Determination
Outcome
residential tenancy terminated; possession granted to landlords; orders for payment of arrears; suspension of possession; promissory estoppel applied to deferred rent
Legal Topics
['termination of Periodic Agreement' 'covid 19 Impacted Tenant' 'promissory Estoppel' 'rent Arrears' 'land Tax Relief' 'residential Tenancy Support Payment']
['residential Tenancy' 'consumer and Commercial'] ['termination of Periodic Agreement' 'covid 19 Impacted Tenant' 'promissory Estoppel' 'rent Arrears' 'land Tax Relief' 'residential Tenancy Support Payment']

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Procedural Posture

Application for Termination of Residential Tenancy Agreement / Final Determination

Legal Issues

  1. 1 ['Whether section 85(3) of the Residential Tenancies Act 2010 mandates termination of the tenancy agreement' 'Whether COVID-19 protections under Schedule 2, Part 9, clause 28 are engaged' 'Whether landlords are estopped from claiming deferred rent due to promissory estoppel regarding Land Tax Relief' 'Whether and for how long the order for possession should be suspended']

Ratio Decidendi

Clause 28 of Schedule 2, Part 9, Residential Tenancies Act 2010 is not engaged, as tenant did not have COVID-19 rent arrears on date termination notice was served; section 85(3) mandates termination; suspension of possession is justified by greater hardship to tenant; landlords are estopped from claiming deferred rent not offset by Land Tax Relief due to promise and reliance.

Court Disposition

residential tenancy terminated; possession granted to landlords; orders for payment of arrears; suspension of possession; promissory estoppel applied to deferred rent

Orders

  • ['The residential tenancy agreement is terminated in accordance with section 85(3) of the Residential Tenancies Act 2010.' 'The residential tenancy agreement is terminated immediately and possession of the residential premises is given to the landlord on the date of termination.' 'The order for possession is...