Unlukaplan v Habbouchi [2023] NSWCATCD 106

Unlukaplan v Habbouchi [2023] NSWCATCD 106

The landlord failed to establish undue hardship as required by s 93 because the hardship arose from his knowing purchase of the property subject to the existing tenancy and his personal choices. He is of substantial means and must use his wealth to fund the consequences until the agreement ends. Even if undue hardship were established, discretion would not be exercised to terminate, as the tenants would suffer greater hardship—including higher rent, disruption, and loss that could not adequately be compensated—if terminated before the fixed term expired.

Jurisdiction
Australia
Judgment Date
10 August 2023
Procedural Posture
Application Under Residential Tenancies Act 2010 (nsw) S 93 for Termination Order / Final Hearing and Decision
Outcome
Application dismissed
Legal Topics
['termination of Tenancy for Landlord Hardship' 'undue Hardship' 'fixed Term Tenancy' 'obligations on Purchase With Existing Tenancy']
['landlord and Tenant' 'residential Tenancy'] ['termination of Tenancy for Landlord Hardship' 'undue Hardship' 'fixed Term Tenancy' 'obligations on Purchase With Existing Tenancy']

Case Brief

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Procedural Posture

Application Under Residential Tenancies Act 2010 (nsw) S 93 for Termination Order / Final Hearing and Decision

Legal Issues

  1. 1 ['Whether the landlord would suffer undue hardship if the tenancy agreement was not terminated under s 93 of the Residential Tenancies Act 2010 (NSW)' 'Whether, if undue hardship established, discretion should be exercised to order termination of tenancy' 'Whether relative hardship to tenants outweighs landlord hardship']

Ratio Decidendi

The landlord failed to establish undue hardship as required by s 93 because the hardship arose from his knowing purchase of the property subject to the existing tenancy and his personal choices. He is of substantial means and must use his wealth to fund the consequences until the agreement ends. Even if undue hardship were established, discretion would not be exercised to terminate, as the tenants would suffer greater hardship—including higher rent, disruption, and loss that could not adequately be compensated—if terminated before the fixed term expired.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.']