Andrewartha v Weng - [2019] NSWCATCD 55

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Andrewartha v Weng [2019] NSWCATCD 55
Hearing dates: 14 June 2019
Decision date: 21 June 2019
Jurisdiction: Consumer and Commercial Division
Before: P French, General Member
Decision:
(1) 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.
(2) The application is otherwise dismissed.
Catchwords: RESIDENTIAL TENANCY: early termination of fixed term agreement - where landlord claims break fee otherwise in accordance with standard form clauses 41 and 42 – no alternative break fee available at law – overpaid rent – where rent cannot be appropriated for another purpose – where landlord has deducted break fee and compensation for end of tenancy cleaning from rent paid in advance – where tenant seeks an order for repayment of rent paid in advance at the end of the tenancy – exercise of discretion – where order for repayment of break fee would be contrary to the guiding principle and to equity, good conscience, and the substantial merits
Legislation Cited: Civil and Administrative Tribunal Act 2013: ss 36; 38; 41
Civil and Administrative Tribunal Rules 2014: r 23
Residential Tenancies Act 2010: ss 13; 47, 81, 107
Cases Cited: Abdel-Messih v Marshall [2018] NSWSC 648
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 527
Felthouse v Bindley (1862) 142 ER 1037
Novakov v Carew [2017] NSWCATAP 194
Saqa v Kashro [2018] NSWCATAP 265
Ward v Williams [1955] HCA 4
Whitlock v Brew [1968] HCA 71
Category: Principal judgment
Parties: Ian Andrewartha (Applicant)
Vicky Weng (Respondent)
Representation: Applicant (self-represented)
Richie Hrovat, Managing Agent, (for respondent)

File Number(s): RT 19/15985
Publication restriction: Nil

REASONS FOR DECISION

Introduction

This is an application by Ian Andrewartha (the tenant) for an order from the Tribunal pursuant to section 47 of the Residential Tenancies Act 2010 (RT Act) that would require Vicky Weng (the landlord) to pay him $1,160.00 being two weeks rent drawn from his account by her Managing Agent by automatic deduction after he returned vacant possession. This application was made to the Tribunal on 3 April 2019 (the application).
For the reasons set out following, the Tribunal has determined that the tenant is entitled to an order that will require the landlord to repay him $1,014.79 in rent that was standing to his credit at the end of the tenancy. The remainder of the application has been dismissed.

Procedural history

The application was first listed before the Tribunal in a Group List for Conciliation and Hearing on 23 April 2019. Mr Andrewartha attended that listing of the application in person. Mr Richie Hrovat, who is the licensee of the landlord’s Managing Agent, also attended on behalf of the landlord. In accordance with the Tribunal’s usual practice where both parties are present in person, prior to the case being called, the parties were offered the opportunity to attempt to resolve the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Andrewartha v Weng

Details

AGLC: Andrewartha v Weng [2019] NSWCATCD 55
Case: [2019] NSWCATCD 55
Decision Date: 21 June 2019

CaseChat Overview and Summary

Ian Andrewartha brought an application against his landlord, Vicky Weng, for a review of the calculation of rent paid in advance at the end of his tenancy. Mr Andrewartha had terminated his fixed term agreement early and Ms Weng had deducted a break fee, as well as compensation for end of tenancy cleaning, from the rent paid in advance. Mr Andrewartha sought an order for repayment of the rent paid in advance. Ms Weng argued that the standard form break fee was the correct amount and that the break fee and cleaning costs had been properly deducted from the advance rent. The court was required to determine whether the landlord had lawfully deducted the break fee and cleaning costs from the advance rent and whether Mr Andrewartha was entitled to repayment of the remaining balance of the rent paid in advance.

The court noted that the standard form break fee was the only break fee available to Ms Weng at law. Ms Weng had deducted this amount from the advance rent, and the court found that the break fee and cleaning costs were properly deducted. The court also found that the advance rent could not be appropriated for another purpose. Therefore, the court held that Mr Andrewartha was entitled to a repayment of the remaining balance of the advance rent. However, the court noted that making an order for repayment of the break fee would be contrary to the guiding principle and to equity, good conscience, and the substantial merits. The court held that it would be unjust for the landlord to be ordered to repay the break fee to the tenant.

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.

Orders

Orders of the court

(1) 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.

(2) The application is otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Andrewartha v Weng [2019] NSWCATCD 55
Hearing dates:	14 June 2019
Decision date:	21 June 2019
Jurisdiction:	Consumer and Commercial Division
Before:	P French, General Member
Decision:	(1) 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. (2) The application is otherwise dismissed.
Catchwords:	RESIDENTIAL TENANCY: early termination of fixed term agreement - where landlord claims break fee otherwise in accordance with standard form clauses 41 and 42 – no alternative break fee available at law – overpaid rent – where rent cannot be appropriated for another purpose – where landlord has deducted break fee and compensation for end of tenancy cleaning from rent paid in advance – where tenant seeks an order for repayment of rent paid in advance at the end of the tenancy – exercise of discretion – where order for repayment of break fee would be contrary to the guiding principle and to equity, good conscience, and the substantial merits
Legislation Cited:	Civil and Administrative Tribunal Act 2013: ss 36; 38; 41 Civil and Administrative Tribunal Rules 2014: r 23 Residential Tenancies Act 2010: ss 13; 47, 81, 107
Cases Cited:	Abdel-Messih v Marshall [2018] NSWSC 648 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 527 Felthouse v Bindley (1862) 142 ER 1037 Novakov v Carew [2017] NSWCATAP 194 Saqa v Kashro [2018] NSWCATAP 265 Ward v Williams [1955] HCA 4 Whitlock v Brew [1968] HCA 71
Category:	Principal judgment
Parties:	Ian Andrewartha (Applicant) Vicky Weng (Respondent)
Representation:	Applicant (self-represented) Richie Hrovat, Managing Agent, (for respondent)
File Number(s):	RT 19/15985
Publication restriction:	Nil