Bayfield v Everall [2016] NSWCATAP 227

Bayfield v Everall [2016] NSWCATAP 227

Special Condition 2 of the tenancy agreement is void because it is inconsistent with s 107 of the Residential Tenancies Act 2010 (NSW) and purports to allow for compensation and charges not permitted by the Act, including waiving the obligation to mitigate loss. In the absence of a valid break-fee clause, the landlord is entitled under s 107(1) to compensation for actual loss caused by abandonment, which in this case was $5,568. As this amount has already been paid, there is no further amount owing.

Parties
Appellant: Kathleen Bayfield; Respondents: Anthony Donald and Philippa Anne Everall
Jurisdiction
Australia
Judgment Date
13 October 2016
Procedural Posture
Residential Tenancy (civil Appeal) / Internal Appeal (decision of Tribunal Appealed to Appeal Panel)
Outcome
Appeal allowed; decision under appeal varied
Legal Topics
Void Terms in Tenancy Agreements, Break Fee Provisions, Compensation for Abandonment of Premises, Mitigation of Loss
Residential Tenancy Contract Law Consumer Law Void Terms in Tenancy Agreements Break Fee Provisions Compensation for Abandonment of Premises Mitigation of Loss

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Parties

Kathleen Bayfield

Appellant

Anthony Donald and Philippa Anne Everall

Respondents

Procedural Posture

Residential Tenancy (civil Appeal) / Internal Appeal (decision of Tribunal Appealed to Appeal Panel)

Legal Issues

  1. 1 Whether Special Condition 2 of the tenancy agreement is void under s 21 or s 219 of the Residential Tenancies Act 2010 (NSW)
  2. 2 Whether the landlord is entitled to compensation under s 107 for loss due to tenant abandonment
  3. 3 Calculation of compensation for abandonment under the Act

Ratio Decidendi

Special Condition 2 of the tenancy agreement is void because it is inconsistent with s 107 of the Residential Tenancies Act 2010 (NSW) and purports to allow for compensation and charges not permitted by the Act, including waiving the obligation to mitigate loss. In the absence of a valid break-fee clause, the landlord is entitled under s 107(1) to compensation for actual loss caused by abandonment, which in this case was $5,568. As this amount has already been paid, there is no further amount owing.

Court Disposition

Appeal allowed; decision under appeal varied

Orders

  • Declare that Special Condition 2 of the Residential Tenancy Agreement dated 6 July 2015 is void.
  • Order that the respondents pay to the appellant compensation for loss caused by abandonment assessed in the sum of $5,568.