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

Civil and Administrative Tribunal New South Wales 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 [2021] NSWDC 361 Re: Force Corp Pty Ltd (in liq) [2018] NSWSC 896 Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Seymour v Wu [2021] NSWCATAP 289 Torpey v Stewart [2021] NSWCATAP 248 Touma v Colantuono [2021] NSWCATAP 152 Tuckwell v Ientile [2022] NSWCATCD 124 Universal Press Pty Limited v Provest Limited [1989] FCA 402 Category: Principal judgment Parties: Matter RT 22/43591 and RT 22/53016: