Moller v Lau [2021] NSWCATCD 153

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Moller v Lau [2021] NSWCATCD 153 Hearing dates: 16 November 2021 Date of orders: 07 December 2021 Decision date: 07 December 2021 Jurisdiction: Consumer and Commercial Division Before: P French, Senior Member Decision: (1) The residential tenancy agreement is terminated in accordance with section 85(3) of the Residential Tenancies Act 2010 on the ground that the landlord has served the tenant with an end of periodic agreement termination notice. (2) The residential tenancy agreement is terminated immediately and possession of the residential premises is given to the landlord on the date of termination. (3) The order for possession of the premises is suspended until 21 January 2022. (4) The tenant is to pay the landlords an occupation fee calculated at the rate of $214.29 per day from 7 December 2021 until possession is the premises is returned to the landlords. (5) The landlords may relist the application to determine any occupation fee that is owing within 60 days of the date for possession specified in these orders. (6) The landlords are estopped from claiming from the tenant any amount of the $10,930.00 in rent deferral approved by them on 2 August 2021 subject to: (a) the tenant doing anything necessary to enable the landlords to apply for the NSW's Government's COVID-19 Land Tax Relief; and (b) the amount of any Land Tax Relief granted being equal to the deferred rent. The tenant shall be liable for any amount of deferred rent not offset by Land Tax Relief, provided that the landlords have made a bona fide application for such Relief in accordance with that scheme's guidelines. (7) The tenant, Anthony Lau, must pay the landlords Malcolm Moller and Eraina Moller $4,649.94 for rent owed up to 16 November 2021 (other than the amount of deferred rent) by 30 March 2022. (8) The application is otherwise dismissed. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Residential Tenancies Act 2010 — Whether COVID-19 impacted tenant — Section 85 termination notice issued to tenant during transitional period after first and second moratorium periods — Whether Schedule 2, Part 9, clause 28 is engaged — Whether landlords are estopped from claiming deferred rent from tenant in circumstances where they previously agreed to obtain Land Tax Relief in relation to the deferred rent Legislation Cited: Law Reform (Law and Equity) Act 1972 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW) Cases Cited: Waltons Stores (interstate) Ltd v Maher (1988) 164 CLR 387 Texts Cited: Coronavirus (COVID 19) Temporary Changes to NCAT Operations procedure (18 March 2020 and as subsequently updated) Category: Principal judgment Parties: Malcolm Moller (First Applicant) Eraina Moller (Second Applicant) Anthony Lau (Respondent) Representation: Belle Property Avalon (Agent) (First and Second Applicant) Respondent (Self-represented) File Number(s): RT 21/36366, RT 21/39964 Publication restriction: Nil