Bannister v Cheung

[2014] NSWCATCD 105

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Keith Bannister v David and Mariam Cheung [2014] NSWCATCD 105

Hearing dates:

12 May 2014

Decision date:

19 June 2014

Before:

G.J Sarginson, General Member

Decision:

1.Rental Bond Services is directed to pay the landlord David and Mariam Cheung the sum of $1,440.00 from Rental Bond Number O999884-8. The remainder of the bond is to be paid to the tenant Keith Bannister.

Legislation Cited:

Residential Tenancies Act 2010
Residential Tenancies Regulation 2010

Cases Cited:

Summers v Salford Corporation [1943] AC 283
Gray v Queensland Housing Commission [2004] QSC 276
Hampel v South Australian Housing Trust [2007] SADC 64
McLeish v FT Eastment & Sons Pty Limited [1970] 2 NSWR 282, 91WN (NSW) 268
Proudfoot v Hart (1890) 25 QBD 42
De Solei v Palmhide Pty Limited [2010] NSWCTTT 464
Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313
Jones v Bartlett (2000) 205 CLR 166
Sakaua v Williams [2005] NSWCA 405
Roberts v Bell [2001] NSWRT 6
Finn v Finarto [2004] NSWCTTT 179
Bartley and Zawiolkowski v Harris Park
Holdings Pty Limited [2010] NSWCTTT 592

British Westinghouse Electric and
Manufacturing Company Limited v Underground Electric Railways Company of London Limited [1912] AC 673

BM & JA Holdings Pty Limited v Clarence Street Developments Pty Limited [2012] NSWSC 1236

Texts Cited:

Anforth, Christensen and Taylor, Residential Tenancies Law and Practice NSW 5th edition (2011)

Category:

Principal judgment

Parties:

Keith Bannister (applicant)
David and Mariam Cheung (respondent)

Representation:

Keith Bannister and Michelle Bannister (applicants/cross respondent)
Tanja Cosic and Frank Carmarda, Property Managers (respondents/cross applicant)

File Number(s):

RT 14/10239 RT 14/16140

reasons for decision

BACKGROUND

1. The proceedings involve a claim for compensation by Mr Bannister ('the tenant') against Mr and Ms Cheung ('the landlord') in respect of alleged breach by the landlord of its obligations under Sections 52 and 63 of the Residential Tenancies Act 2010 ('the RTA'). The landlord brought a cross application against the tenant for payment of the bond under Section 175 of the Act, as a result of the tenant's alleged unlawful early termination of the lease.

1. The tenant's proceedings were filed on 21 February 2014. The landlord's proceedings were filed on 24 March 2014. The Tribunal made interlocutory orders that each party file and serve evidence; and that both sets of proceedings be heard together. The hearing took place at the Tribunal in Sydney on 12 May 2014. The tenant and his wife appeared. Ms Cosic and Mr Carmarda, property managers, appeared as agent of the landlord. The tenant called an expert witness, Ms Penny Tralau, of 'Mould Rescue'. The respective witnesses gave sworn evidence and were cross examined.

1. There is no dispute that the parties entered into a written residential tenancy agreement for a fixed term of 6 months on 2 January 2014 for the tenant to rent a townhouse at Marsfield NSW. The premises had been inspected by Ms Bannister on 21 December 2013. The tenant and his family moved out of the…