Lethorn v Wagenheim [2020] NSWCATAP 199

Lethorn v Wagenheim [2020] NSWCATAP 199

The Tribunal's finding of liability for a break lease fee was in error, as there was no finding of abandonment—a jurisdictional fact required to invoke s 107 of the Residential Tenancies Act 2010 (NSW); in this case, the tenancy ended by consent of the landlords, so no break fee could lawfully be ordered.

Jurisdiction
Australia
Judgment Date
30 September 2020
Procedural Posture
Internal Appeal / Appeal Decision
Outcome
Appeal allowed; tribunal orders set aside; substituted orders made
Legal Topics
['termination of Tenancy' 'break Lease Fee' 'jurisdictional Error' 'notice of Termination' 'abandonment of Premises']
['residential Tenancy Law'] ['termination of Tenancy' 'break Lease Fee' 'jurisdictional Error' 'notice of Termination' 'abandonment of Premises']

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Procedural Posture

Internal Appeal / Appeal Decision

Legal Issues

  1. 1 ['Whether the Tribunal made a jurisdictional error by ordering payment of a break lease fee without finding abandonment' 'Whether the tenancy ended by abandonment, notice and vacant possession, or with landlord consent' 'Whether the procedural requirements for termination by notice were met']

Ratio Decidendi

The Tribunal's finding of liability for a break lease fee was in error, as there was no finding of abandonment—a jurisdictional fact required to invoke s 107 of the Residential Tenancies Act 2010 (NSW); in this case, the tenancy ended by consent of the landlords, so no break fee could lawfully be ordered.

Court Disposition

Appeal allowed; tribunal orders set aside; substituted orders made

Orders

  • ['The name of the second named respondent is amended to Jaimie Wagenheim' 'The appellant is granted leave to be represented by Grace Crowley-Shaw' 'The appeal is allowed' 'The orders made by the Tribunal in proceedings RT 20/05814 are set aside' 'Colin Lethorn is to pay Michael Wagenheim and Jaimie Wagenheim...