Andrewartha v Weng [2019] NSWCATCD 55

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Andrewartha v Weng [2019] NSWCATCD 55 Hearing dates: 14 June 2019 Decision date: 21 June 2019 Jurisdiction: Consumer and Commercial Division Before: P French, General Member Decision: (1) The landlord, Vicky Weng, must pay the tenant, Ian Andrewartha, the sum of $1,014.79 within fourteen days of the date of these orders.

(2) The application is otherwise dismissed. Catchwords: RESIDENTIAL TENANCY: early termination of fixed term agreement - where landlord claims break fee otherwise in accordance with standard form clauses 41 and 42 – no alternative break fee available at law – overpaid rent – where rent cannot be appropriated for another purpose – where landlord has deducted break fee and compensation for end of tenancy cleaning from rent paid in advance – where tenant seeks an order for repayment of rent paid in advance at the end of the tenancy – exercise of discretion – where order for repayment of break fee would be contrary to the guiding principle and to equity, good conscience, and the substantial merits Legislation Cited: Civil and Administrative Tribunal Act 2013: ss 36; 38; 41 Civil and Administrative Tribunal Rules 2014: r 23 Residential Tenancies Act 2010: ss 13; 47, 81, 107 Cases Cited: Abdel-Messih v Marshall [2018] NSWSC 648 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 527 Felthouse v Bindley (1862) 142 ER 1037 Novakov v Carew [2017] NSWCATAP 194 Saqa v Kashro [2018] NSWCATAP 265 Ward v Williams [1955] HCA 4 Whitlock v Brew [1968] HCA 71 Category: Principal judgment Parties: Ian Andrewartha (Applicant) Vicky Weng (Respondent) Representation: Applicant (self-represented) Richie Hrovat, Managing Agent, (for respondent) File Number(s): RT 19/15985 Publication restriction: Nil