Chang v Wang - [2022] NSWCATCD 7

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Chang v Wang [2022] NSWCATCD 7
Hearing dates: 23 December 2021
Date of orders: 11 February 2022
Decision date: 17 February 2022
Jurisdiction: Consumer and Commercial Division
Before: K Timbs, General Member
Decision:
(1) The tenant, Hannah Chang, is to pay the landlords, Jin Wang and Yidong Lu, $1,300 immediately.
(2) Rental Bond Services must pay the landlords $1,300 from Rental Bond number S677167-2
(3) The balance of the rental bond is to be paid to the tenant, Hannah Chang.
(4) The amount paid to the landlord in order (2) is to be credited against the amount to be paid to the landlords in order (1).

Catchwords:
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Bond —Break lease fee — Were the premises uninhabitable?

Legislation Cited:
Residential Tenancies Act 2010 (NSW)

Cases Cited:
Menashi v Ly [1997] NSWRT 162
De Soleil v Palmhide P/L [2010] CTTT 464
Hughes v De Silva; De Silva v Hughes [2019] NSWCATCD 86
Talbot-Price v Jacobs [2008] NSWCA 189

Texts Cited:
Nil

Category: Principal judgment
Parties: Hannah Chang (Applicant)
Jin Jang Wang (Respondent)
Representation: Applicant (Self-represented)
Respondent (Self-represented)

File Number(s): RT 21/44008
Publication restriction: Nil

REASONS FOR DECISION

Background

The tenant, Ms Chang, entered into a residential tenancy agreement with the landlords, Jin Jang Wang and Yidong Lu, on 12 March 2020. The agreement was for residential premises in Ryde for 104 weeks starting 17 March 2020 for weekly rent of $650 (the agreement). The tenants paid a bond of $2,600 and the landlords deposited it with the Rental Bond Board. The bond reference number is S677167-2.
Ms Wang gave notice to terminate the tenancy on 14 October 2021 and vacated the premises on 18 October 2021. On 15 October 2021, the landlords made a claim for $2,600 from the rental bond.
On 25 October 2021, Ms Chang applied to the Tribunal for an order for the release of the whole of the rental bond plus interest.
The Tribunal heard the application on 23 December 2021. The tenant appeared in person and Ms Mostronardo, licensed real estate agent, represented the landlords.

Relevant law

Clause 41 of the agreement states that the tenant must pay a break lease fee if they end the agreement before the fixed term. The amount payable under that clause in this case is four weeks rent (because more than half of the fixed term had expired). Section 107 of the Residential Tenancies Act 2010 (NSW) (RTA) provides that the Tribunal may order compensation to be paid to the landlord if a tenant abandons the premises. The maximum amounts that may be ordered for an agreement made before 23 March 2020 are the same amounts as in clause 41 of the agreement.
The tenant claims the property was not habitable for the reasons set out below. If that was the case:

section 98 of the RTA applies if the property was uninhabitable because of a breach of the agreement by…

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 Chang v Wang

Details

AGLC: Chang v Wang [2022] NSWCATCD 7
Case: [2022] NSWCATCD 7
Decision Date: 17 February 2022

CaseChat Overview and Summary

The case of Chang v Wang was heard in the Local Court of New South Wales, where the primary issue was the return of a rental bond following the termination of a residential tenancy. The landlords, Jin Wang and Yidong Lu, sought a determination regarding the distribution of the rental bond held by Rental Bond Services, after the tenant, Hannah Chang, vacated the premises. The landlords argued that the tenant had breached the lease by vacating early and that the premises were habitable, thus entitling them to retain the entire bond. The tenant contended that the premises were uninhabitable, justifying a refund of the entire bond.

The court was required to determine whether the landlords were entitled to retain the rental bond in full or whether the tenant was entitled to a refund due to alleged uninhabitable conditions. The court had to examine the provisions of the Residential Tenancies Act 2010 (NSW) regarding bond retention and the circumstances under which a landlord can lawfully retain a bond. Specifically, the court needed to decide whether there were grounds to justify the landlords' claim that the tenant had breached the lease by vacating early and whether the premises were indeed habitable at the time of vacating.

The court found that the tenant had breached the lease agreement by vacating early, which justified the landlords in retaining part of the bond. However, the court also determined that the landlords were not entitled to retain the entire bond because the premises were habitable. The court ordered that $1,300 of the bond be paid to the landlords, with the balance to be refunded to the tenant. The court directed that the payment from Rental Bond Services to the landlords be credited against the amount owed by the tenant to the landlords.

Orders

Orders of the court

(1) The tenant, Hannah Chang, is to pay the landlords, Jin Wang and Yidong Lu, $1,300 immediately.

(2) Rental Bond Services must pay the landlords $1,300 from Rental Bond number S677167-2

(3) The balance of the rental bond is to be paid to the tenant, Hannah Chang.

(4) The amount paid to the landlord in order (2) is to be credited against the amount to be paid to the landlords in order (1).

Background

Background to the litigation

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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:	Chang v Wang [2022] NSWCATCD 7
Hearing dates:	23 December 2021
Date of orders:	11 February 2022
Decision date:	17 February 2022
Jurisdiction:	Consumer and Commercial Division
Before:	K Timbs, General Member
Decision:	(1) The tenant, Hannah Chang, is to pay the landlords, Jin Wang and Yidong Lu, $1,300 immediately. (2) Rental Bond Services must pay the landlords $1,300 from Rental Bond number S677167-2 (3) The balance of the rental bond is to be paid to the tenant, Hannah Chang. (4) The amount paid to the landlord in order (2) is to be credited against the amount to be paid to the landlords in order (1).
Catchwords:	LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Bond —Break lease fee — Were the premises uninhabitable?
Legislation Cited:	Residential Tenancies Act 2010 (NSW)
Cases Cited:	Menashi v Ly [1997] NSWRT 162 De Soleil v Palmhide P/L [2010] CTTT 464 Hughes v De Silva; De Silva v Hughes [2019] NSWCATCD 86 Talbot-Price v Jacobs [2008] NSWCA 189
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Hannah Chang (Applicant) Jin Jang Wang (Respondent)
Representation:	Applicant (Self-represented) Respondent (Self-represented)
File Number(s):	RT 21/44008
Publication restriction:	Nil