Gho v Niew [2022] NSWCATAP 56

Gho v Niew [2022] NSWCATAP 56

The Tribunal applied the wrong version of s 107 of the Residential Tenancies Act 2010 (NSW); the correct version entitled the landlord to four weeks rent as break fee, not one. The landlord could not raise the rent arrears and key replacement issues on appeal as they were not pursued before the Tribunal and might have been met with evidence or different conduct by the tenant.

Parties
Appellant: Queenta Sylia Gho; Respondent: Ai Chuan Niew
Jurisdiction
Australia
Judgment Date
02 March 2022
Procedural Posture
Appeal / Decision on Appeal
Outcome
Appeal upheld in part
Legal Topics
Break Fee, Default and Termination, Abandonment of Premises, Applicable Legislation, Point Not Taken Below
Leases and Tenancies Appeals Break Fee Default and Termination Abandonment of Premises Applicable Legislation Point Not Taken Below

Case Brief

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Parties

Queenta Sylia Gho

Appellant

Ai Chuan Niew

Respondent

Procedural Posture

Appeal / Decision on Appeal

Legal Issues

  1. 1 Whether the correct break fee was applied under the applicable version of s 107 of the Residential Tenancies Act 2010 (NSW)
  2. 2 Whether the landlord was entitled to additional rent arrears
  3. 3 Whether a claim for key replacement can be raised for the first time on appeal

Ratio Decidendi

The Tribunal applied the wrong version of s 107 of the Residential Tenancies Act 2010 (NSW); the correct version entitled the landlord to four weeks rent as break fee, not one. The landlord could not raise the rent arrears and key replacement issues on appeal as they were not pursued before the Tribunal and might have been met with evidence or different conduct by the tenant.

Court Disposition

Appeal upheld in part

Orders

  • Appeal upheld.
  • The orders of the Tribunal dated 16 September 2021 are set aside.