Susan Trevallion v Vivian Puccini-Scuderi and Peter Puccini [2014] NSWCATCD 81

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Susan Trevallion v Vivian Puccini-Scuderi and Peter Puccini [2014] NSWCATCD 81 Hearing dates: 30 April 2014 Decision date: 20 May 2014 Before: B Howe, General Member Decision: The Residential Tenancy Agreement is terminated in accordance with section 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement by failing to comply with clauses 15.2, 15.4 and 27.1 of that agreement. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. The order for possession is suspended until 22 May 2014. The tenant shall pay the landlord a daily occupation fee at the rate of $124.28 per day from the day after the date of termination, namely 7 May 2014 until the date vacant possession is given to the landlord. Within 60 days of the date for 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. Catchwords: Nuisance, damage to premises, unauthorised alterations Legislation Cited: Residential Tenancies Act 2010 (the "Act") Strata Schemes Management Act 1996 Cases Cited: None Texts Cited: None Category: Principal judgment Parties: Susan Trevallion (applicant) (the "landlord") Vivian Puccini-Scuderi and Peter Puccini (respondents) (the "tenant") File Number(s): RT 14/20843 Publication restriction: None

reasons for decision 1The landlord leased premises to the tenant. The lease commenced on 13 September 2013 and the fixed term of 52 weeks concludes on 11 September 2014. The rent was declared to be $870.00 per week. 2The landlord's property manager posted a notice of termination to the tenant on 4 March 2014. The notice claimed the tenant had breached section 87 of the Act by failing to comply with clauses 15.2, 15.4 and 27.1 of the tenancy agreement. The notice was posted to the tenant and so it is deemed served on 10 March 2014. It required the tenant to give the landlord possession of the property on 25 March 2014, some 15 days later. The tenant has not vacated the premises, leading to this application being lodged. 3The landlord seeks orders that prohibit the tenant from removing a fixture; that the tenant pay compensation for the cost of rectifying work done by the tenant on the residential premises, and termination of the tenancy agreement and for possession of the premises to be surrendered. 4Section 87 of the Act reads - 87 Breach of agreement (1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement. (2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given. (3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement. (4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that: (a) the tenant has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and (c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the tenant to remedy the breach, (d) any steps taken by the landlord about the breach, (e) the previous history of the tenancy. (6) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach." 5The Tribunal is satisfied that the notice of termination is valid and that it satisfies the requirements of subsections 87(2) and (3). The requirements of subsections 87(4) and (5) are now dealt with.