Tsang v Agar [2016] NSWCATCD 17

Tsang v Agar [2016] NSWCATCD 17

The landlords failed to deliver vacant possession at the commencement date because rubbish and the landlords' possessions, including items stored in the shed, impeded the applicant's right to possession while the landlords claimed a use of the premises inconsistent with the tenant's entitlement under the lease. That breach of the residential tenancy agreement was sufficient to justify the applicant terminating the fixed-term lease without penalty, so the respondents were not entitled to break lease costs and the applicant was entitled to the whole bond and the additional ordered amount.

Jurisdiction
Australia
Judgment Date
30 March 2016
Procedural Posture
Residential Tenancy Application / Principal Judgment
Outcome
Application allowed; the applicant was entitled to terminate the lease without penalty, the respondents were not entitled to break lease costs, and payment orders were made in favour of the applicant.
Legal Topics
['vacant Possession' 'termination of Fixed Term Residential Tenancy Agreement' 'rental Bond Refund' 'break Lease Fee' 'landlord Obligations at Commencement of Tenancy']
['residential Tenancy Law'] ['vacant Possession' 'termination of Fixed Term Residential Tenancy Agreement' 'rental Bond Refund' 'break Lease Fee' 'landlord Obligations at Commencement of Tenancy']

Case Brief

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Procedural Posture

Residential Tenancy Application / Principal Judgment

Legal Issues

  1. 1 ['Whether the landlords failed to provide vacant possession of the residential premises at the commencement of the lease.' 'Whether the tenant was entitled to terminate the fixed-term residential tenancy agreement without penalty.' 'Whether the respondents were entitled to recover a break lease fee.' 'Whether the applicant was entitled to payment of the whole rental bond and an additional sum.']

Ratio Decidendi

The landlords failed to deliver vacant possession at the commencement date because rubbish and the landlords' possessions, including items stored in the shed, impeded the applicant's right to possession while the landlords claimed a use of the premises inconsistent with the tenant's entitlement under the lease. That breach of the residential tenancy agreement was sufficient to justify the applicant terminating the fixed-term lease without penalty, so the respondents were not entitled to break lease costs and the applicant was entitled to the whole bond and the additional ordered amount.

Court Disposition

Application allowed; the applicant was entitled to terminate the lease without penalty, the respondents were not entitled to break lease costs, and payment orders were made in favour of the applicant.

Orders

  • ['The applicant is entitled to an order for payment of the whole of the bond ($ 3,100.00). The Rental Bond Board is directed to pay to the tenant the whole of the bond.' 'The respondents are to pay to the applicant the sum of $ 1,550.00 on or before 7 April 2016, in addition to monies payable at order 1.' 'The...