McKerlie v Leeser; Leeser v McKerlie - [2023] NSWCATCD 6

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: McKerlie v Leeser; Leeser v McKerlie [2023] NSWCATCD 6
Hearing dates: 30 January 2023
Date of orders: 10 February 2023
Decision date: 10 February 2023
Jurisdiction: Consumer and Commercial Division
Before: G Sarginson, Senior Member
Decision:
1. The Residential Tenancy Agreement is terminated in accordance with s 87 of the Residential Tenancies Act 2010 (NSW) as the tenant has breached the agreement by failure to pay rent in accordance with the agreement.
2. The Tribunal is satisfied in accordance with s 89 (5) of the Residential Tenancies Act 2010 (NSW) the tenant has frequently failed to pay rent owing for the premises.
3. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination.
4. The order for possession is suspended to 20 February 2023.
5. The tenant shall pay the landlord a daily occupation fee at the rate of $60 per day from the date of termination, namely 10 February 2023, until the date vacant possession is given to the landlord.
6. Within 60 days of the date of possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing.
7. The landlord’s agent is to advise the tenant in writing by the delivery of a letter to the premises by 6.00 pm on 10 February 2023 of the orders made today.
8. The tenant, Colin McKerlie, is to pay the landlord, Sylvia Leeser, the sum of $6,680 immediately in respect of:
(a) Rent from 15 September 2022 to 30 January 2023 - $8,280
(b) Less $1,600 for compensation to the tenant in Matter RT 22/43591
Net Total: $6,680

Catchwords:
LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---Repair of premises---Compensation payable to tenant---Failure to pay rent by tenant---Termination for non-payment of rent---Whether notice to terminate retaliatory

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Property and Stock Agents Act 2002 (NSW)
Residential Tenancies Act 2010 (NSW)
Residential Tenancies Regulation 2019 (NSW)

Cases Cited:
Armee v Brearley [2017] NSWCATAP 141
Bannister v Chueng [2014] NSWCATCD 105
Bhandari v Laming [2015] NSWCATAP 224
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Charisteas v Charisteas [2021] HCA 29 (2021) 393 ALR 389
Colombini v De Berigny [2021] NSWSC 374
Cowling v Tran; Tran v Cowling [2021] NSWCATCD 128
David v Langham [2021] NSWCATAP 360
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Karacominiakis v Big Country Developments Pty Ltd [2000] NSWCA 313
Koompahtoo Local Aboriginal Land Council & Anor v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115.
McKerlie v Leeser [2023] NSWCATAP 11
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Murphy v Lewkovitz; Lewkovitz v Murphy…

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.

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Details

Case: [2023] NSWCATCD 6
Decision Date: 10 February 2023

CaseChat Overview and Summary

The dispute between Colin McKerlie and Sylvia Leeser, heard by the NSW Civil and Administrative Tribunal (NCAT), involved issues related to a residential tenancy under the Residential Tenancies Act 2010 (NSW). McKerlie, the tenant, alleged that Leeser, the landlord, had not fulfilled her obligations to repair the premises. Conversely, Leeser sought termination of the tenancy and compensation due to McKerlie's failure to pay rent and his retaliatory actions against her. The crux of the case revolved around whether Leeser's notice to terminate the tenancy for non-payment of rent was valid and retaliatory, and whether McKerlie was entitled to compensation for alleged disrepair.

The tribunal addressed whether Leeser's notice to terminate the tenancy for non-payment of rent was retaliatory, and whether McKerlie was entitled to compensation for alleged disrepair. It also considered if McKerlie's failure to pay rent constituted a breach warranting termination of the tenancy. The tribunal examined the evidence and submissions from both parties regarding the condition of the premises, the timeline of events, and the interplay between the landlord's right to terminate and the tenant's claims of retaliation.

In its decision, the tribunal found that Leeser's notice to terminate the tenancy for non-payment of rent was not retaliatory, as it was issued within the statutory timeframe and was based on McKerlie's failure to pay rent. The tribunal also concluded that McKerlie had indeed frequently failed to pay rent, thus justifying the termination under section 87 of the Act. The tribunal further determined that McKerlie was not entitled to compensation for alleged disrepair as the evidence did not support his claims. The tribunal ordered the termination of the Residential Tenancy Agreement, the payment of a daily occupation fee by McKerlie to Leeser, and the immediate payment of overdue rent by McKerlie to Leeser. The order for possession was suspended until 20 February 2023, allowing McKerlie time to vacate the premises.

The tribunal made several orders including the immediate termination of the Residential Tenancy Agreement, the payment of overdue rent by McKerlie to Leeser, the imposition of a daily occupation fee, and the suspension of the possession order until 20 February 2023. The tribunal also mandated that Leeser's agent notify McKerlie of the orders in writing. The landlord was granted the right to request relisting of the application within 60 days of taking possession to determine any outstanding occupation fee. These orders provided a clear framework for the resolution of the tenancy dispute, balancing the rights and obligations of both parties under the Act.

Orders

Orders of the court

1. The Residential Tenancy Agreement is terminated in accordance with s 87 of the Residential Tenancies Act 2010 (NSW) as the tenant has breached the agreement by failure to pay rent in accordance with the agreement.

2. The Tribunal is satisfied in accordance with s 89 (5) of the Residential Tenancies Act 2010 (NSW) the tenant has frequently failed to pay rent owing for the premises.

3. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination.

4. The order for possession is suspended to 20 February 2023.

5. The tenant shall pay the landlord a daily occupation fee at the rate of $60 per day from the date of termination, namely 10 February 2023, until the date vacant possession is given to the landlord.

6. Within 60 days of the date of possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing.

7. The landlord’s agent is to advise the tenant in writing by the delivery of a letter to the premises by 6.00 pm on 10 February 2023 of the orders made today.

8. The tenant, Colin McKerlie, is to pay the landlord, Sylvia Leeser, the sum of $6,680 immediately in respect of:

(a) Rent from 15 September 2022 to 30 January 2023 - $8,280

(b) Less $1,600 for compensation to the tenant in Matter RT 22/43591

Net Total: $6,680

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	McKerlie v Leeser; Leeser v McKerlie [2023] NSWCATCD 6
Hearing dates:	30 January 2023
Date of orders:	10 February 2023
Decision date:	10 February 2023
Jurisdiction:	Consumer and Commercial Division
Before:	G Sarginson, Senior Member
Decision:	1. The Residential Tenancy Agreement is terminated in accordance with s 87 of the Residential Tenancies Act 2010 (NSW) as the tenant has breached the agreement by failure to pay rent in accordance with the agreement. 2. The Tribunal is satisfied in accordance with s 89 (5) of the Residential Tenancies Act 2010 (NSW) the tenant has frequently failed to pay rent owing for the premises. 3. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 4. The order for possession is suspended to 20 February 2023. 5. The tenant shall pay the landlord a daily occupation fee at the rate of $60 per day from the date of termination, namely 10 February 2023, until the date vacant possession is given to the landlord. 6. Within 60 days of the date of possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. 7. The landlord’s agent is to advise the tenant in writing by the delivery of a letter to the premises by 6.00 pm on 10 February 2023 of the orders made today. 8. The tenant, Colin McKerlie, is to pay the landlord, Sylvia Leeser, the sum of $6,680 immediately in respect of: (a) Rent from 15 September 2022 to 30 January 2023 - $8,280 (b) Less $1,600 for compensation to the tenant in Matter RT 22/43591 Net Total: $6,680
Catchwords:	LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---Repair of premises---Compensation payable to tenant---Failure to pay rent by tenant---Termination for non-payment of rent---Whether notice to terminate retaliatory
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Property and Stock Agents Act 2002 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW)
Cases Cited:	Armee v Brearley [2017] NSWCATAP 141 Bannister v Chueng [2014] NSWCATCD 105 Bhandari v Laming [2015] NSWCATAP 224 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 Charisteas v Charisteas [2021] HCA 29 (2021) 393 ALR 389 Colombini v De Berigny [2021] NSWSC 374 Cowling v Tran; Tran v Cowling [2021] NSWCATCD 128 David v Langham [2021] NSWCATAP 360 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Karacominiakis v Big Country Developments Pty Ltd [2000] NSWCA 313 Koompahtoo Local Aboriginal Land Council & Anor v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115. McKerlie v Leeser [2023] NSWCATAP 11 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 Murphy v Lewkovitz; Lewkovitz v Murphy…