Andrewartha v Weng [2019] NSWCATCD 55

Andrewartha v Weng [2019] NSWCATCD 55

Tenant did not establish a binding variation or agreement for early termination without penalty; tenancy was lawfully abandoned before the end of the fixed term, triggering liability for a break fee; landlord, however, had no contractual or statutory entitlement to impose or calculate a break fee on a basis other than that set out in the agreement, nor to deduct cleaning costs from rent paid in advance; statute prohibits such appropriation except as allowed; refund order for the impermissibly retained portion of the rent is justified.

Jurisdiction
Australia
Judgment Date
21 June 2019
Procedural Posture
Application for Repayment of Overpaid Rent (residential Tenancy) / First Instance Decision
Outcome
Partially in favour of tenant; landlord must repay portion of overpaid rent, remainder of application dismissed.
Legal Topics
['early Termination of Fixed Term Agreement' 'break Fee' 'appropriation of Rent' 'overpaid Rent' 'lawful Deductions From Rent']
['residential Tenancy' 'consumer Law'] ['early Termination of Fixed Term Agreement' 'break Fee' 'appropriation of Rent' 'overpaid Rent' 'lawful Deductions From Rent']

Case Brief

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Procedural Posture

Application for Repayment of Overpaid Rent (residential Tenancy) / First Instance Decision

Legal Issues

  1. 1 ['Whether landlord can retain rent paid in advance as a break fee or compensation for cleaning after tenant vacated premises before end of fixed term' 'Whether tenancy agreement was terminated by agreement or by abandonment' 'Whether landlord is entitled to deduct break fee and cleaning costs from rent paid in advance']

Ratio Decidendi

Tenant did not establish a binding variation or agreement for early termination without penalty; tenancy was lawfully abandoned before the end of the fixed term, triggering liability for a break fee; landlord, however, had no contractual or statutory entitlement to impose or calculate a break fee on a basis other than that set out in the agreement, nor to deduct cleaning costs from rent paid in advance; statute prohibits such appropriation except as allowed; refund order for the impermissibly retained portion of the rent is justified.

Court Disposition

Partially in favour of tenant; landlord must repay portion of overpaid rent, remainder of application dismissed.

Orders

  • ['The landlord, Vicky Weng, must pay the tenant, Ian Andrewartha, the sum of $1,014.79 within fourteen days of the date of these orders.' 'The application is otherwise dismissed.']