Ahmad v Coskap Pty Ltd

[2022] NSWCATCD 197

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Ahmad v Coskap Pty Ltd & Ors [2022] NSWCATCD 197

Hearing dates:

31 August 2022

Date of orders:

17 October 2022

Decision date:

17 October 2022

Jurisdiction:

Consumer and Commercial Division

Before:

G Bassett, General Member

Decision:

(1) Coskap Pty Ltd is removed as a party.

(2) Conkara Pty Ltd is removed as a party.

(3) The application is dismissed because, having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent — Rent reductions — definitions of landlord, agent

Legislation Cited:

Residential Tenancies Act 2010, sections 21, 187

Category:

Principal judgment

Parties:

Applicant: Waqqas Ahmad

First Respondent: Coskap Pty Ltd

Second Respondent: Conkara Pty Ltd

Third Respondent: Stella Chan

Fourth Respondent: Wendy Chan

Representation:

Applicant (tenant): self-represented

Respondents (landlords): Steve Psomadelis

File Number(s):

RT 22/33624

Publication restriction:

unrestricted

REASONS FOR DECISION

1. On 14 June 2022, the landlords applied for a payment of $570.00 from the tenant (RT 22/26365). The matter came before the Tribunal for a conciliation hearing on 12 July 2022. It did not settle. The tenant was given the opportunity to make a cross-application and the usual directions were made setting up a contested hearing for both matters.

2. On 4 July the landlords applied for further orders in RT 22/29724. A termination order was sought for the tenancy agreement based on rent arrears. Both 22/26365 and RT 22/29724 were withdrawn at the beginning of the hearing of the application subject of this determination.

3. On 26 July 2022, the tenant cross-applicant applied for orders as allowed in RT 22/26365. He applied for orders for:

1. the landlord to remedy a breach of the tenancy agreement

2. that under section 21 a term of the agreement was void

3. a rent reduction under section 44(1)(b)

4. for repayment of rent under section 47

5. repairs under section 65(1)(a)

6. section 73 change to security device or lock.

4. An application for an urgent hearing of the tenant’s cross-application due to an alleged lockout from the premises was determined on 29 July 2022 when the landlord was ordered to return possession of the premises to the tenant.

5. On 1 August the matter was listed for hearing on 31 August. Orders were made in respect of lodging and serving documents for contested hearing.

Evidence and submissions of the parties

6. Parties provided documents for hearing and gave oral evidence. The tenant also relied on an affidavit sworn 10 August 2022. Th agent relied on a chronology or events and gave oral evidence. All this material was considered in coming to this decision.

7. At the beginning of the hearing the tenant also added an order sought for breach of quiet enjoyment for unlawful access to the premises.

8. With respect to the claim that a term of the tenancy was void, the tenant submitted the landlord was the corporate agency who managed the property under a managing agency agreement. He said the landlords provided no address in the tenancy agreement. He relied on section 3 of the Residential Tenancies Act 2010 (“the Act”) in relation to definitions of landlord and agent. He made submissions that under sections 6 and 21 of the Interpretation Act 1987 the definition of a landlord “should not be confused with how people perceive it or being tricked by the bad agents to believe in the existing status quo of the rental ecosystem”. He said only a higher court of law could determine the definition question of law. He submitted that in general terms landlords and real estate agents were “one specie” and acted as a “cartel”. He said corporations that held real estate licences were landlords too. The tenant wished to have the landlords removed from the application. He said the managing agency agreement was a fabrication.

9. He also said he only received the documents of the landlords on 26 August and had not had enough time to prepare for hearing. He said he needed to show the documents to his lawyer. The matter was stood down to allow the tenant time to further review landlord documents. The application for adjournment was not allowed. Oral reasons were given.

10. The hearing continued. The tenant then asked for the matter to be transferred to a local court. He said any determination in the matter relating to the definition of a landlord, agent and tenant would impact thousands of tenants across the state. The presiding member refused to transfer the matter to a local court and gave oral reasons for this decision.

11. The hearing continued. With respect to the claim for a rent reduction the tenant said problems arose with the air conditioning, the oven and security system. He did not have any evidence of complaint to the agent about these issues in his documents for hearing. He said blinds at the premises never worked. He sought a rent reduction of 30 percent from 23 June 2019. He was unaware the Tribunal could not make an order for rent reduction for a period of more than 12 months.

12. In relation the claim for breach of quiet enjoyment the tenant deposed in his affidavit that on 3 September 2019 he was woken by noise from people in the front yard. He answered the door to find two estate agents who introduced themselves. He said he found this confronting and intimidating. He said the agents told him they were checking the premises as they considered the premises may have been abandoned.

13. In his affidavit the tenant also deposed that the landlord’s agent gained unlawful access to the premises on 29 July 2022. He said there was an altercation with the agent banging at the door and yelling. He said he had to escape the premises.

14. The agent indicated the tenant advised of a leak in a shower on 12 May 2022. A plumber attended on 2 June 2022 and replaced washers, a toilet seat, shower rose and advised that walls would need to be removed to allow access for inspection of waterproofing to see if it had failed. Strata was advised as the wall impacted was a neighbouring wall. Landlord asserted the tenant advised of the need for repairs for the thirst time on 12 July to air conditioner, oven, security system, room door handles and a fallen curtain. This occurred in a context where the landlord had issued a notice of termination for rent arrears. On 21 July the tenant refused access to as tradesperson for repairs alleging that the agent should stop breaching his right to quiet enjoyment. From late July, on numerous occasions the tenant was notified of the need for the strata repairer to access the premises to fix the leak. On 29 July two agents and a plumber attended the property. As the agency was concerned about the relationship with the tenant the visit was filmed and this film shown at hearing. The agent said the tenant refused to open the door and asked them to leave. They left. When they returned later the property was open, no one was there, and they entered the premises. No film footage showed any altercations between the tenant and the the agents. The tenant was not present. The plumber ran tests to eliminate the possibilities in relation to the leak. The agents and plumber then left the premises without seeing the tenant. An agent locked the property when he left. The tenant informed he was locked out and it was unlocked.

15. The tenant alleged the landlords’ agent has a personal grudge against him and sought opportunities to initiate and harass him.

Findings and determination

16. The landlords on the tenancy agreement were named as “Stella Chan” and “Wendy Chan”. No address was given for them. The agent gave oral evidence the managing agency agreement named the same people as owners.

17. Section 3 of the Act contains the following definitions:

"landlord" means--

(a) the person who grants the right to occupy residential premises under a residential tenancy agreement, or

(b) a successor in title to the residential premises whose interest is subject to the interest of the tenant, or

(c) a tenant who has granted the right to occupy residential premises to a sub-tenant,

and includes a prospective landlord.

"landlord's agent" means a person who acts as the agent of a landlord and who (whether or not the person carries on any other business) carries on business as an agent for--

(a) the letting of residential premises, or

(b) the collection of rents payable for any tenancy of residential premises.

Note: A person who acts as such an agent is required to be licensed under the Property and Stock Agents Act 2002.

18. These definitions are plain on their face. The tenancy agreement only named the landlord Chans. There was no mention of the agency corporate owners as landlords. The tenant’s claim there was a “cartel” arrangement between landlords and tenants to allow agents to be landlords was not supported by any evidence other than a bare assertion. Evidence that might lend weight to there being a cartel, such as documents that identify an agreement and the parties to it or oral or written statements to conspire of cartel participants, were not in evidence. Documents that were in evidence clearly showed the relationship between agent and landlord to be none other than the standard agreement to provide managing agency services for the premises. The Act also indicates that if a landlord is in an agency agreement there is no obligation on a landlord to include their personal address in the tenancy agreement, only that of the agency.

19. The tenant seeks an order for rent reduction under section 44(1)(b) alleging that having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises, the rent should be reduced and backdated. The Tribunal may make an order that the landlord carry out specified repairs only if it determines that the landlord has breached the obligation under this Act to maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. In addition, backdated rent to 2019 as sought would be in the form of compensation under section 187 of the Act. A party is required to bring a claim for compensation within 3 months of becoming aware of the breach. Any claim for compensation from 2019 was out of time.

20. The only claim for rent reduction and backdated compensation that was in time was due to the leak in the bathroom and the oven, air-conditioner and other issues as reported from May 2022. However, the Tribunal finds that the landlord made reasonable efforts to inspect and assess and repair these items but was denied access by the tenant even as late as 29 July 2022 when the tenant fled the premises when a repairer and agents attended. The claim is not allowed. Furthermore, the agents and repairer did not breach the right to quiet enjoyment. The agent gave proper notice for the need for access. Nothing on the video of 29 July 2022 supported the tenant allegation that agents were abusive in any way. The tenant left the premises of his own accord on that date. As to the incident alleged to have occurred on 3 September 2019, it too is out of time. Even if it had not been out of time, the Tribunal accepts the agents attended the property as they had concerns it had been abandoned.

Orders

21. The Tribunal makes the following orders:

1. Coskap Pty Ltd is removed as a party.

2. Conkara Pty Ltd is removed as a party.

3. The application is dismissed because, having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

07 September 2023 - Formatting amendments.

Decision last updated: 07 September 2023