Bal v Nguyen; Nguyen v Bal - [2025] NSWCATCD 20

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Bal v Nguyen; Nguyen v Bal [2025] NSWCATCD 20
Hearing dates: 02 December 2024
Date of orders: 24 March 2025 (Amended 10 April 2025)
Decision date: 24 March 2025
Jurisdiction: Consumer and Commercial Division
Before:
J Alder, General Member

The Tribunal makes the following amended orders under section 63 of the Civil and Administrative Tribunal Act 2013

Amendments
09/04/2025 – “Huong” in order 2 and 3 and changed to “Hong”.
09/04/2025 - Coversheet – corrected name of Respondent/cross claimant
Decision:
1 Rental Bond Services is directed to pay the tenants, April Bal and Michael Wessell, the full bond plus interest of rental bond number T674365-6.
2 Order pursuant to s 187(1)(d) of the Residential Tenancies Act 2010 (NSW) that Hong Nguyen is to pay April Bal and Michael Wessell the sum of $162.75 within 7 days.
3 Monies held by the Tribunal in the sum of $4,714.28 are to be immediately released to the landlord, Hong Nguyen.
4 Both applications are otherwise dismissed.

Catchwords:
LANDLORD AND TENANT – electricity disconnected by Energy Australia when in landlord’s name due to failure to pay bill – Tribunal’s discretion to order a repayment of excessive electricity charges - order to pay rent into Tribunal - breach of quiet enjoyment – access for repairs - circumstances of termination – break fee - rental bond

Legislation Cited:
Residential Tenancies Act (NSW) 2010, ss 3, 21, 38, 39, 40, 44, 47, 50, 51, 52, 55, 56, 60, 63, 81, 87, 88, 106, 107, 175, 187,190
Civil and Administrative Tribunal Act 2013, s 41

Cases Cited:
Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264
Abdel-Messih v Marshall [2017] NSWCATAP 136
Saqa v Kashro [2018] NSWCATAP 265

Category: Principal judgment
Parties: Applicants/cross respondents: April Bal and Michael Wessell
File Number(s): 2024/00265237
2024/00339519
Publication restriction: Nil

REASONS FOR DECISION

Background

On 5 October 2023, the parties entered into a three month residential tenancy agreement (RTA) for a two bedroom house at [address] (Premises). The RTA was renewed on 10 January 2024 for 13 months, expiring 7 February 2025. The weekly rent commenced at $695 per week and was most recently $750.
On or about 9 November 2024 the tenants vacated. The date the keys were returned is in dispute.
The tenancy was managed by Noonan Real Estate (Agent) but became self-managed after the Agent terminated the agency agreement on 27 September 2024 with immediate effect.
The rental bond of $2,780 (Bond) is frozen at the Rental Bond Board pending the outcome of these disputes.
Pursuant to orders, an amount of rent is held by the Tribunal in the sum of $4,714.28.
Each party claims an amount of compensation of approximately $10,000.
Both during and after the tenancy, the relationship between the parties has been acrimonious, with allegations of fraud on both sides.
The tenants complain about the disconnection of electricity, fraudulent utility bills and harassment by the landlord by emails and surveillance.
The landlord complains about refusal to give access after a storm in April 2024 and the tenants supplying false information to the landlord’s insurer, causing a denial of an insurance claim and a failure to pay for electricity from May 2024.

Tenants’ application (2024/00265237)

On 18 July 2024 the tenants, Ms Bal and Mr Wessell (tenants) filed an application under the Residential Tenancies Act NSW 2010 (Act) seeking orders they be allowed to break the RTA without penalty, the Bond be returned to them and compensation for breaches of their quiet enjoyment.
At the final hearing, which took place before me on 2 December 2024, the orders sought were confirmed to be for the Bond plus compensation of $10,058.46 (reduced from $17,859) quantified as follows:

$3,000 for breach of their quiet enjoyment

$3,248.30 for moving out costs pursuant to an invoice dated 11 November 2024.

$2,231.79 for reimbursement of electricity charges due to irregular billing and excessive usage:

$161.68 from 7 October 2023 to 8 November 2023 (no supplier invoice has been tendered)

$111.37 (Energy Australia) for 9 November to 30 November 2023

$390.33 (Simply Energy) for 1 December 2023 to 1 January 2024

$1,568.41 (Energy Australia) for 13 February 2024 to 8 May 2024 (including $550.38 from 2 January to 12 February 2024)

$266.24 for water usage reimbursement of three invoices (due to no water efficiency):

$85.44

$106.80

$75

$776.43 economic loss due to having no electricity for five days from 25 September to 30 September 2024 comprising:

$470 for loss of food; and

$306.43 for other losses.

$535.70 rent refund for the above five day period due to disconnection of electricity at $107.14 per day.

Landlord’s application

On 12 September 2024, the landlord filed an application seeking orders for access, outstanding rent and electricity and water bills, and for compensation for various breaches, including failing to report storm damage and installing a gym at the premises which damaged the walls.
The landlord did not seek a termination order per se, but an order: “approve tenant’s application to break the lease ASAP and charge them a $1,500 break fee”. (However, on 21 August 2024 the landlord had served a termination notice in relation to the above breaches pursuant to ss 87 and 88 of Act, which had expired on 4 September 2024. On 28 October 2024, the landlord filed an application for termination and possession in proceedings 2024/400324 (Termination Application) which came before the Tribunal on 20 November 2024. By that stage the tenants had already vacated and the termination application was dismissed).
At the final hearing the landlord confirmed she sought a money order for the following items totalling $9,666.49 and for the Bond to be applied:

$1,500 two week break lease fee.

$1,666.24 rent arrears from 14 September 2024 to 30 September 2024 (16 days). The landlord also seeks an order that all rent paid to the Tribunal from 1 October 2024 be released to her.

$2,358.45 for electricity charges pursuant to an invoice from Energy Australia addressed to the landlord dated 30 September 2024 for the period 9 August 2024 to 25 September 2024. (This invoice includes $1,698.62 for the previous quarter 9 May 2024 to 8 August 2024 pursuant to an invoice dated 15 August 2024).

$106.80 for unpaid water usage.

$3,500 (incl GST) to repair damage to the hallway ceiling pursuant to a quotation dated 17 November 2024 from Handyman and Maintenance Services. The landlord says she has suffered a loss as a result of an insurance claim being denied because of false information supplied by the tenants.

$40 for the cost to clean the air conditioner vents in accordance with the special condition in the RTA pursuant to a cleaning quotation dated 14 November 2024 from Handyman and Maintenance Services. (This was reduced from the quoted amount of $170 which includes cleaning other items not being claimed. Damage to the air conditioner is also no longer being claimed).

$330 reimbursement of a tax invoice from Angelo Electrical dated 26 June 2024 who attended on 17 June 2024 to make safe a burning power point in the kitchen caused by the tenants on 17 June 2024.

$165 fee due to tenant’s denial of access to a roofer on 20 August 2024.

Facts/chronology

The landlord also owns [address], which is across the road from the Premises.
The RTA specified there were to be no more than two occupants.
The electricity was in the name of the landlord and all bills were addressed to the landlord at the Premises.
On 5 April 2024 following a heavy storm, the tenants reported water ingress in the fireplace area in the living room.
On 29 April the landlord attended the Premises, the tenants say without notice.
On 30 April a contractor from the landlord’s insurer, Crawford & Co inspected, also without notice.
On 17 June 2024, the landlord alleges one of the tenants caused a fire at the Premises.
On 20 August 2024 the Agent conducted a routine inspection. A roofer also attended on this day, the tenants say without notice.
On 21 August the landlord served a 14 day termination notice under ss 87 and 88 of the Act requiring possession by 4 September 2024 (First Termination Notice) on grounds of non-payment of rent and other breaches including:

failure to provide access to carry out roof repairs

failure to report a roof leak; and

installing unauthorised gym equipment.

On 21 September 2024 the landlord served a termination notice for non-payment of rent with a vacate date of 5 October 2024 (Second Termination Notice).
On 27 September the Agent gave notice of immediate termination to the landlord.
On 28 October the landlord served an end of fixed term termination notice expiring 7 February 2025 (Third Termination Notice). The end of fixed term notice also referred to terminating for breach under s 87 of the Act, specifically for breach of s 92 of the Act and alleging persistent threatening, harassment and abuse of the Agent, landlord and tradesman.
On 9 November the tenants sent an email to the landlord stating the keys had been returned.

Procedural history/Tribunal orders

On 7 August 2024, the tenants’ application was first listed for conciliation. Neither landlord nor Agent appeared. Directions were made for the filing of documents on the tenants’ claim and the matter was adjourned to 30 September for a formal hearing.
On 13 September 2024 the landlord’s application was first listed for conciliation and joined to be heard together with the tenants’ application. Directions were made for the filing of documents on the landlord’s claim.
On 26 September 2024, the Tribunal granted the tenants’ application for an urgent hearing as the electricity had been disconnected the day before.

Urgent interim order

On 27 September 2024 at an urgent (virtual) Directions Hearing (with one of the tenants attending in person), the Tribunal ordered the landlord to immediately restore the electricity and pay any outstanding bills.

Specific performance order and order rent to be paid into Tribunal

On 30 September, both applications came before the Tribunal for a 90 minute hearing. Due to insufficient time and the matter not resolving, the Tribunal directed the matter be listed for a further full day hearing and made directions for the parties to file and serve any final documents. The Tribunal also made orders:

that weekly rent of $750 was be paid to the Tribunal from 1 October 2024 pursuant to s187(1)(f) of the Act, which gives the Tribunal jurisdiction to order that payment of part or all of the rent payable under a residential tenancy agreement be paid to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined; and

that the landlord comply with the terms of the RTA, specifically, not to access the Premises without notice, not to interfere with the supply of utilities and to ensure all bills are paid and services remain connected.

On three occasions, being 30 September, 2 October and 9 October 2024, the Tribunal refused the landlord’s application for an urgent hearing.

Access order

However, on 2 October 2024 the Tribunal made an access order that upon the 36 hours’ notice in writing, the tenants were to give access to the landlord’s contractors for the purpose of preparing quotes and identifying roof and ceiling repairs.

Termination Application

On 28 October 2024 the landlord filed the Termination Application and made two further applications for urgent hearings on medical grounds which were both refused, on 29 October and 4 November 2024. On 14 November by email sent to the Registry, the landlord had attempted to amend the Termination Application to include what seems to be the damages the subject of her present application and further damages, together totalling $18,646. As mentioned, the Termination Application was ultimately dismissed on 20 November 2024 given the tenants had already left, with no order made granting leave to amend.

Electricity bills

The parties relied on the following supplier bills and invoices issued by the Agent:

$161.68 (missing bill – 7 October to 8 November 2023).

$111.37 from 9 November to 30 November 2023 from Energy Australia. On 6 May 2024 the Agent sent an invoice 387212 on its letterhead attaching a copy of Energy Australia’s (undated) invoice which had been due on 10 January 2024.

$390.33 (Final invoice) from Simply Energy dated 5 February 2024 for the period 1 December 2023 to 1 January 2024. The tenants received an invoice 374110 on the Agent’s letterhead dated 14 March 2024 requiring payment. They paid $200 direct to Simply Energy on 20 March 2024. The balance of $190.33 was paid to the Agent on 4 April 2024. The Agent raised separate invoices 381381 dated 12 April 2024 for $190.33 and 387213 dated 6 May 2024 for $200.

$550.38 from Energy Australia dated 26 April 2024 for the period 2 January to 12 February 2024. The tenants received an invoice 387241 on the Agent’s letterhead dated 6 May 2024 requiring payment.

$1,568.41 from Energy Australia dated 16 May 2024 for the period 13 February to 8 May 2024. This was for $1,018.03 new charges plus $550.38 outstanding. On 21 May 2024 the Agents sent an invoice 391038 for $1,568.41. This was paid in 3 lots: $1,301.68 paid on 28 June and $266.73 in September ($214.29 paid on 2 September and $52.44 paid on 5 September). The Agent sent this supplier bill again, raising another invoice 402029 on 1 July 2024.

$1,698.62 (9 May to 8 August) from Energy Australia dated 15 August 2024 $1,431.89 new charges (plus $266.73 which was paid by 5 September). The tenants received an email from the Agent on 16 August 2024 with a copy of the bill and requiring payment.

$2,358.45 dated 30 September 2024 (Final) invoice from Energy Australia for the period 9 August 2024 to 25 September (date of disconnection) (including $1,431.89) plus new charges of $436.85 and a disconnection fee of $222.98. The tenants received an email from the owner on 25 October 2024 with a copy of the bill requiring payment.

No bill has been tendered for approximately 6 weeks from 1 October 2024 (when the power was reconnected) to the end of the RTA (9 November 2024).

Electricity complaints

The tenants raised problems with billing on multiple occasions.
On 21 May the tenants sent an email to the Agents about the electricity bills (p 13).
On 18 August 2024 the tenants sent the Agent an email requesting an electricity bill audit of energy efficiency and supply by a Class 2 licensed electrician and refused to pay any further bills. They said:

“There has been no system maintenance carried out, there has been no assurance the ‘solar energy system’ or any other energy related infrastructure have been properly maintained and operating efficiently. I request that the electrician has knowledge of the main switchboard to come and assess the property in full.”

On 17 September the tenants sent an email to the Agent again requesting an electricity bill audit. ( p 21).
On 25 September the electricity was disconnected by Energy Australia at approximately 12.25pm.
On 25 September the tenants sent an email to the Agent (4.55pm) demanding immediate reconnection.
On 26 September the tenants gave notice that the Premises were uninhabitable aa a result of the disconnection and rent should abate and they stopped paying rent and they sought “a transparent and detailed explanation of the electricity charges in question and the acknowledgement that the tenants have the right to dispute charges deemed unreasonable or unjustified.”
On 26 September the Agent sent the tenants an email (1.18pm): “please be advised that you need to reconnect the electricity under your name.”
On 27 September the landlord sent an email (12.29pm) to the tenants requiring them to pay $1,698.62 so the electricity could be reconnected.

Documents relied upon

The tenants rely on the following bundles:

224 pages filed and served on 21 August 2024 (Exhibit T1)

58 pages filed 24 September 2024 (Exhibit T2)

36 pages filed 11 October 2024 (Exhibit T3)

27 pages filed 12 November 2024 (Exhibit T4)

The landlord relies on:

35 pages comprising the original Application and attachments (Exhibit L1).

80 pages filed 18 September 2024 (Exhibit L2).

Termination Application and attachments filed 28 (Exhibit L3).

29 pages filed 28 October 2024 (Exhibit L4).

The tenants handed up a bundle of documents (9 pages) (Exhibit T5).
The landlord handed up a bundle of loose documents (Exhibit L5).

Hearing on 2 December 2024

Both matters came before me for a full day hearing on 2 December 2024.
The tenants appeared as did the owner who was assisted by a Vietnamese interpreter.

Return of keys

There was an initial discussion concerning return of keys and service of documents. The landlord said she had not received any keys. The tenants said they had returned the keys by hand delivery to the address of a new managing agent, St George Real Estate at 8/3 Connelly St, Penshurst, as instructed by the owner. The owner confirmed her new agent from about 12 November 2024 was Michael at St George.
On Saturday, 9 November 2024 at 11.09pm the tenants emailed the owner:

Dear Ms. Nguyen, This email serves as formal confirmation that we have vacated the property located at [address], as of today, November 9th. The property has been thoroughly cleaned, and all necessary preparations have been completed in accordance with the termination notice. The keys to the property have been returned to your nominated postal address as per your instructions. Should you have any concerns or queries regarding the property, please direct all communication to me via email. Any further issues can be addressed formally through the appropriate channels, including NCAT.

At the start of the hearing, I telephoned St George Real Estate and spoke to a male representative who said that he had not received any keys to the Premises, the landlord had not asked for his permission to use St George’s address as a service address for Tribunal proceedings and that he had been engaged by the landlord to find a new tenant for the Premises (and no 17 across the road). He had received documents and had delivered them to the owner’s address at 64 Orient Street Padstow. The owner said she did not live at this address.

Service of documents

The tenants said they had experienced difficulties serving documents as the landlord refused to accept documents by email, she had terminated Noonans as her Agent and wanted the tenants to serve her in person at her doctor’s surgery, at [address] between a specific time period, which the tenants considered inappropriate. They then served the documents at St George’s address.
On 21 November the landlord had written to the Tribunal Registry stating her address for service was [address], which appears to be the address of another agency, Morton Riverwood - Morton Real Estate Southern Sydney.
On 25 November the landlord informed the Tribunal she had reverted to the Premises at [address] as her address for service.
I find the service requests made by the landlord to be unreasonable and in breach of the RTA whereby she had given express consent to the electronic service of notices and documents.
The parties were content to proceed with the hearing based on the documents they had received.

Onus of proof

The onus is on each party to prove their respective claims to the civil standard, being the balance of probabilities.

Landlord’s alleged breaches

Quiet enjoyment

The tenants say the actions of the landlord and Agent have interfered with their enjoyment of the Premises.
A tenant’s right to quiet enjoyment is conferred by s 50 of the Act and is a term of every residential tenancy agreement (clause 15).

Enjoyment is a broad concept and can involve loss of use of premises/loss of an amenity and losses such as stress and anxiety directly related to the inconvenience and discomfort caused by the breach of the tenancy agreement by the landlord.
The test for determining whether a landlord has breached the obligation to provide the tenant with quiet enjoyment is set out in the judgment of Austin J in Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264 at [111]. It is whether there had been substantial interference with the enjoyment of the premises through an act or omission that was either deliberate or negligent in the sense that the consequences were reasonably foreseeable.

Rent abatement

Section 45(1) of the Act provides that the Tribunal may on application by a landlord or tenant make an order determining the amount of the rent payable if the rent is abated under section 43(2). The Tribunal may order that from a specified day the rent for the residential premises must not exceed a specified amount and the landlord must repay to the tenant any rent paid by the tenant since the specified day that is in excess of the specified amount: section 45(2).
Section 43(2) provides that the rent payable under a residential tenancy agreement abates if the residential premises under a residential tenancy agreement are, relevantly: “(a) otherwise than as a result of a breach of the residential tenancy agreement, destroyed or become wholly or partly uninhabitable, or (b) cease to be lawfully usable as a residence, …”

Rent reduction for withdrawal etc of services

An order that rent is excessive under s 44(1)(b) proceeds on the basis that the physical characteristics or qualities of the premises have been withdrawn or reduced such as to affect the tenant’s use of the premises.
In determining whether rent is excessive, as specified in s44(5) of the Act, the Tribunal may have regard to the following factors:

…
(c) any fittings, appliances or other goods, services or facilities provided with the residential premises,
(d)  the state of repair of the residential premises,
(e)  the accommodation and amenities provided in the residential premises,
…
(h)  any other matter it considers relevant (other than the income of the tenant or the tenant’s ability to afford the rent increase or rent).

Obligation of landlord to pay for utilities

Section 40(1)(c) (clause 10.3) states that a landlord must pay for electricity and gas if the premises are not separately metered.
A landlord must pay all charges in connection with a water supply service to residential premises that are not separately metered: s 40(1)(f) (clause 10.6).
Changes to the Act from 23 March 2020 brought in a definition for ‘separately metered’, for electricity, gas and water usage charges, a term that was previously undefined.
Section 3 of the Act states as follows:

3 DEFINITIONS
(1) In this Act …
“separately metered” means that there is, in respect of residential premises, a meter--
(a) that satisfies an Australian Standard prescribed by the regulations (if any) dealing with electrical, gas, oil or water metering equipment, and
(b) that has been installed in accordance with the manufacturer’s instructions for installation or industry practice, and
(c) that measures the quantity of electricity, gas, oil or water that is supplied to, or used at, only those residential premises, and
(d) that enables a separate bill to be issued by the supplier for all charges for the supply and use of the electricity, gas, oil or water at those residential premises, and
(e) if the meter is to measure the supply of electricity--in respect of which an NMI, within the meaning of the National Energy Retail Law (NSW), has been assigned,

Under s 52(2), a landlord must not interfere with the supply of gas, electricity, water, telecommunications services or other services to the residential premises unless the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out.

Right of repayment under s 47

Section 47 gives the tenant the right to seek a repayment of excess charges paid by the tenant over the amount that is properly payable under the Act or the RTA. The section relevantly provides:

47 Tenant’s remedies for repayment of rent and excess charges
(1)    Requests to landlord A tenant may make a written request to the landlord that the landlord repay to the tenant any rent, or other amounts, paid by the tenant that are not required to be paid under this Act or the residential tenancy agreement.
(2)    A request may be made during or after the termination of a residential tenancy agreement.
(3)    A landlord must, within 14 days of a written request by a tenant, repay to the tenant the amount of any rent or other amount paid in excess of the amount payable by the tenant under this Act or the residential tenancy agreement.
(4)    Tribunal orders A tenant may apply to the Tribunal for an order for the repayment of rent or any other amount paid by the tenant if a written request by the tenant for payment is not complied with by the landlord within 14 days.
(5)    The Tribunal may order that rent or any other amount be repaid to the tenant if it finds that the rent or amount was not required to be paid by the tenant under this Act or the residential tenancy agreement.

The Act does not specify a timeframe in which a demand may be brought under s 47(1).

Tenants’ alleged breaches

Notify of damage

Under s 51(2)(b) of the Act (cl 17.2 of the RTA), a tenant must notify the landlord of any damage to the residential premises as soon as practicable after becoming aware of the damage.

Obligation to give access

Pursuant to s 56, a landlord may enter the premises at any time with the tenant’s consent, otherwise a landlord must give 7 days’ notice under s 55(2)(a) if he wishes to carry out a general inspection.
If there is no consent and no notice, s 55(1) provides that:

A landlord, the landlord’s agent or any other person authorised by the landlord may enter residential premises during a residential tenancy agreement without the consent of the tenant, and without giving notice to the tenant, only in the following circumstances--

in an emergency,

to carry out urgent repairs,

if the landlord, landlord’s agent or person has made a reasonable attempt to obtain entry with consent and has reasonable cause for serious concern about the health or safety of the tenant or any other person that the landlord, landlord’s agent or person believes is on the residential premises,

if the landlord forms a reasonable belief that the residential premises have been abandoned,

in accordance with an order of the Tribunal.

Obligation upon vacating

Section 51(3) of the Act sets out the obligations of the tenant when giving vacant possession of the leased premises back to the landlord. The obligations include – removing all personal items from the premises, leaving the premises as nearly as possible in the same condition as at the beginning of the tenancy (fair wear and tear excepted), leaving the premises reasonably clean, removing all rubbish from the premises and returning all keys.

Obligation for tenant to pay for utilities

Electricity

Section 38(1)(a) of the Act (clause 11.1 of the RTA) states that a tenant must pay all charges for the supply of electricity and gas to the tenant at the residential premises if the premises are separately metered.

Water

Section 39(1) (clause 11.6) states that a tenant must pay the water usage charges for the residential premises, but only if:

the premises are separately metered or the premises are not connected to a water supply service and water is delivered to the premises by vehicle, and

the premises contain water efficiency measures prescribed by the regulations for the purposes of this section, and

the charges do not exceed the amount payable by the landlord for water used by the tenant.

Further, s 39(2) (clause 12.1) states a tenant is not required to pay the water usage charges unless the landlord gives the tenant a copy of the part of the water supply authority’s bill setting out the charges, or other evidence of the cost of water used by the tenant.

Special Conditions

Special Conditions of the RTA (at pages 19-21) included:

Electricity is under landlord name and tenants will reimburse the landlord in 21 days when receiving the bill.

The tenants agree to have the electricity bill under the owner’s name. The tenant agrees not to make any changes to the electricity bill during the tenancy. The tenant agrees to pay the bill in full within 21 days.

To regularly clean the air conditioner vents and to notify the agent if air conditioner is not working.

The tenant shall keep all electrical and gas appliances in good condition. All power points, switches, globes and light fittings shall be kept in god working order and good repair by the tenants.

In the event whereby a tradesman has booked an appointment with the tenant, to attend their property to undertake a repair, service, quote, inspection, or for any other reason and the tenant fails to provide access on the scheduled date and time, then any call out fee charged by the tradesman to the landlord will be payable by the tenant.. “A call out fee of up to a maximum of $165 is applicable..”

Inconsistent term unenforceable

To the extent that a clause in the RTA is inconsistent with a section of the Act, s 21 of the Act provides that the clause is void.

Break fee

The landlord claims two weeks break fee, which she is entitled to do under s 107(1) of the Act and clause 51 of the RTA if the Tribunal makes a declaration under s 106 the tenants have abandoned the tenancy prior to the end of the tenancy agreement. In such a situation, the landlord is entitled to claim compensation under s 107 for any loss caused by the abandonment of the tenancy.
Even in the instance of proven loss, the Tribunal has a discretion as to whether or not to make an award for the payment of a break-fee under s 107 of the Act: Abdel-Messih v Marshall [2017] NSWCATAP 136 at [25]-[29].

Compensation

If a breach of any Act or RTA is established, a party is entitled to compensation for their proven loss and damage.
Section 187 of the Act sets out the orders the Tribunal may make, such as the compensation under s 187(1)(d). But this power does not exist in abstract. It is only enlivened when a substantive provision of the Act is engaged, for example, a breach of the RTA.
Section 190(1) provides that a landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement.

Time limits for compensation

Claims for breach under s 190 must be made within the period prescribed by the Residential Tenancies Regulation (NSW) 2019 after the tenant became aware of the breach, which is three months: reg 39(9).

Heads of loss /assessment of damages

The tenants claim to have suffered both economic loss associated with the disconnected electricity and non-economic loss arising from the inconvenience and stress which they have quantified at $3,000.
Damages for personal injuries are not recoverable under the Act as s 16(1) of the Civil Liability Act (NSW) (CLA) provides damages for non-economic loss cannot be awarded unless the severity of the non-economic loss is at least 15% of the most extreme case. There is no basis upon which to make such a finding.
However mental distress, as long as it is unassociated with physical injury, is not a “personal injury” within the meaning of s 16(1), and is recoverable.
The consequence of this being, any stress suffered by April Bal, as long as it is not associated with any physical conditions or mental illnesses, is recoverable as it is not caught by s 16(1) of the CLA.

Tenants’ evidence and submissions in chief

Harassment

The landlord’s harassment began in December 2023 around the time of the lease renewal.
They felt she had no boundaries. They received emails direct from the landlord after business hours and they repeatedly emailed Chris Wright of the Agent’s office to request the landlord not contact them and they not be contacted at all after hours.
The landlord was always coming in and out of no.17 across the road and walking past and taking photos and videos of the Premises without notice or consent. They felt they were under constant surveillance.
The landlord continually insisted on access for no legitimate purpose to harass them.

Landlord insurance claim/leak from fireplace

On 5 April 2024, the tenants reported a leak at the fireplace in the lounge after a heavy storm. The issue was not addressed promptly and the Agent took three weeks to organise a roofer to inspect, on 29 April, which they had agreed to.
However, on 29 April the landlord attended without notice. She arrived in the morning before the roofer arrived and forced herself in and took photos focusing on the hallway, even though it was unrelated to the fireplace damage they had reported. She stayed on the property throughout the day supervising the tradesmen. They notified the Agent who told them the owner should not be inside and they threatened to report the owner to the Police.
On 30 April the landlord sent an assessor who turned up with no notice and inspected the loft, again unrelated to the fireplace. Even the Agent was unaware of this appointment.
There were no other leaks following the storm in April, from the roof or loft or hallway. However, the landlord continued to push for access for non-urgent repairs and a fabricated urgent roof leak so she could make an insurance claim, but the damage she attempted to claim was determined to be pre-existing by her insurer Allianz and insurer’s builder, Ezy Projects. The ingoing report of 6 October 2023 shows pre-existing damage in the hallway. The tenants threatened to notify the fraud division of Allianz.
On 14 May they agreed to the Agent’s request for the insurer’s roofer to inspect outside on 20 May.
There was no update on the roof repairs until 18 July when the Agent asked if a roofer could attend to investigate a water leak.
On 20 August during the routine, the landlord sent a roofer with notice only given by the Agent the night before.
During the routine, it was the landlord who was aggressive, not the tenants. She attempted to photograph areas not related to the property’s condition, such as their personal items. The tenants did not refuse entry, as the Agent and owner claim.
They had always been cooperative providing access prior to 29 April.

Energy bills

The first month they did not receive a bill from the provider showing energy consumption, what rates applied and whether any solar credits or discounts were applied.
The issues with invoicing began in March 2024.
The first time they received a supplier invoice was on 14 March 2024. They received an invoice from the Agent that day for $429.36 for “December 2023 to January 2024” and sent an email the same day:

“can you confirm the original electricity invoice, I notice it was missing on the last invoice occasion as well.”

The bill from Energy Australia did not match up as it was for $390.33. $429.36 ended up being the wrong amount and the Agent’s invoice was reissued for $390.33.
The landlord did not provide the tenant with fair billing and transparent charges.
There were three different retailers and there was likely overlap.
The bills have jumped from $390 a quarter in January to $1,600 a quarter.
They received duplicate invoices, part payments were applied to rent and not to electricity invoices and on one occasion they paid monies direct to the supplier as they thought they would be late and the Agent was not responding to their queries.
When they paid an amount of $200 direct to the electricity supplier, the Agent told them to ring the supplier and ask for a refund. On 10 April she sent an email to the Agent (p 124):

I would not be able to pay the invoice directly because of your poor communication. I had no other choice other than to pay on time. Why is it taking 4 weeks to allocate the funds.. I am not the account holder.. this responsibility would go to you.’

On 1 July 2024, the Agent requested payment of a supplier bill they had already paid, raising another invoice 402029 on 1 July 2024. The tenant complained: (p 203):

“Mate what is going on with these invoices it’s becoming a joke 2 invoices for the same bill every time it’s causing stress for us think no we haven’t paid out bills.”

A former tenant of no. 17 (across the road), Amanda Aguis, had similar billing issues.
On 17 June 2024 when they contacted the emergency electrician for the power point that was smoking, he informed the tenants the solar had been turned off.
On 18 August, upon receiving on 16 August an electricity bill for $1,698 for a quarter, the tenants requested the landlord arrange for a licensed electrician to carry out an audit of the energy efficiency and supply, causing significant disruption and hardship.
On 25 September the electricity was disconnected because the landlord failed to pay the bills. This affected not just electricity, but hot water, internet and telecommunications
On 26 November 2024, the tenants ultimately sent an email to the Police as they believe that the invoices from Energy Australia had been doctored.
The tenants say that they have paid all invoices for electricity and water, except for the electricity invoice for $1,698.62 which they disputed due to the steep rise in cost.

Power point/gym/rent

The tenants say they had a portable dance pole in the kitchen, not a gym, which had been there when they moved in and had been seen at two previous inspections without issue.
They say they were both home when they reported the flames from the power point and the owner’s version of Ms Bal leaving the house whilst the kitchen was on fire is false. Mr Wessells was on crutches due to foot surgery and could not drive. The kitchen was not on fire. The owner initially claimed the fire damaged the air conditioner and sought to recover the repair costs from the tenants, but withdrew the claim during the hearing.
Ms Bal relies on various letters from Dr Robyn Hughes of the Hyde Park Medical Centre which refer to her “constant stress and anxiety with her landlord’s constant surveillance and alleged assaults” and made reference in a report of 19 August 2024 to a “history of anxiety and PTSD from a previous event at work”.
They seek their moving costs as they says they were forced out by the landlord. Dr Hughes says Ms Bal is unable to stay in the house due to fear for her own safety.
They rely on the ledger to show all rental payments have been paid. They returned the keys to the Agent on 9 November 2024. They sent an email to the owner at 11pm on Saturday, 9 November 2024 that the keys had been delivered.

Landlord’s evidence and submissions

Access/roof repairs

The tenants reported water ingress from the chimney in the lounge after a heavy storm on 5 April 2024. In her application the landlord states the heavy rain caused damage to the roof, including tiles, chimney and skylight and that water ingress damaged the floor and ceilings in the lounge and the hallway ceiling was also damaged.
The landlord lodged an insurance claim with her insurer, Allianz for storm damage to the lounge room ceiling and floors, hallway ceiling and roof.
Allianz appointed Crawford and Co to assess the claim. Crawford and Co appointed builders, Ezy Projects to report on the cause of damage.

29 April

29 April was the first day that Crawford and Co and Ezy Projects were available to inspect. The tenants agreed to the date. There was not any significant delay.
The landlord also attended, but the tenants accused her and the assessor of trespass as they said they had only been notified a roofer would attend. There was an altercation.
The landlord submits that the tenants in retaliation told the assessors that the landlord had made a false storm claim which the landlord alleges led to Allianz’s rejection of the hall ceiling and roof repairs. The living room repairs were approved as an insured claim.

The landlord submits there was no pre-existing damage on the hall roof, as the tenants assert. The ingoing condition report merely refers to “paint starting to crack and peel”.
There was an obvious hole in the hall ceiling and peeling paint on 29 April which the landlord says the tenants failed to report.
Some temporary repairs were carried out by Ezy Projects on 29 April 2024. The Builders Roof Report prepared by Trent Baker of Ezy Projects dated 20 May 2024 states that caps, ridges and flashing required work before the roof could be fixed/leak addressed. It also states: “the roof above the hallway doesn’t have any issues that would contribute to water entry in the hallway.”
In their report dated 4 August 2024, Allianz stated:

“…inspection of the roof evidenced maintenance related issues including deteriorated sealant around the flashing, deteriorated and cracked bed and pointing, rusted valleys and broken roof tiles. The builder noted damage to the hallway wall is pre existing and not the result of the storm event.”

After 29 April, the tenants unreasonably refused further access for roof repairs. With further rain, the landlord submits the roof and ceiling condition deteriorated and her repair costs increased.
On 7 May the Agent requested the insurer’s roofer attend the following day, which was refused as the tenants insisted on two days’ notice being given.
On 18 July the Agent notified the tenants by email of a routine for Tuesday, 6 August. On 19 July, the tenants responded they would see the Agent then.
On 2 August, the Agent sent an email to the tenants asking if a roofer could attend the routine inspection (on the 6^th).
On 2 August the tenants replied that they required a reason for the “random roofer inspection”.
The routine proposed for the 6^th was cancelled by the Agent and on 12 August the Agent informed the tenants of a new date for a routine, on 20 August.

20 August

At the routine, the tenants would not allow the owner and Agent in, claiming they had not received notice. The Agent and owner had to use a master key. The roofer was denied access. The tenant, Mr Wessell was aggressive and blocked the roofer’s exit with his car.
Mr Seunghun Oh of the Agent’s office who attended the routine inspection reported: (p 45)

“The landlord along with me and the tradesman arrived to carry out the necessary repairs and a routine inspection. However, the tenants denied us access to the property for the roof inspection… both tenants were extremely aggressive, using profane language.. they even attempted to physically attack [the owner], while also intimidating and ridiculing her, insisting that the roof inspection was unnecessary…. There was visible damage to the ceilings that will require immediate repair.”

The landlord seeks $165 for a call out fee for the roofer who was refused access and the Agent advised the tenants by email in the afternoon following the inspection they would seek to recover that cost as the tenants had obstructed his access.
The routine report states:

The tenants refused to allow the landlord to take photos and only provided 15 minutes to complete the inspection. They denied the need for urgent repairs for the roof leak.

The tenants falsely accused the roofer of harassment and threatened to call the police and reported the insurance claim to Allianz National Fraud & Detection.
On 20 August Crawford and Co sent her an email stating that Allianz required a further causation report for the damage to the hallway and recommending she engage a roofing specialist to carry out their recommended preliminary maintenance works (repair roof tiles, replace flashing around chimney), as only temporary sealing had been carried out to mitigate water ingress.
She needed to carry out these recommended preliminary maintenance works urgently. Otherwise the owner submits “the roof and ceiling are at risk of falling, causing personal injuries.”
On 21 August she issued the First Termination Notice for breach for refusing access to inspect the roof, threatening and intimidation the owner, Agent and contractors and insurer, and failure to pay utilities.
On 11 September she emailed the tenants giving notice her trade would access on 20 September to assess the property for a roof leak, stating:

“This is 9 days’ notice for my tradesman to gain access for roof leak… on 20 December 2024. If no response from you by 2 PM tomorrow… I will use the master keys to gain access.”

On 17 September the tenants emailed the Agent that they were willing to allow access, but wanted to know the purpose stating, “there are no emergency repairs required that would justify an interruption to our lives at this time…. any general maintenance or non-urgent repairs should be deferred until we are no longer residing at the property.”
On 30 September Abigail Hope, internal claims adjuster from Crawford and Co sent the owner an email stating:

“In regards to hallway damages, we have appointed trades for a leak detection test to test if there is a leak under the solar panels as this has previously been reported as non storm related damages. We need this to be carried out to be able to further access this part of the claim. It is imperative our trades gain access to the property so we can confirm policy coverage.”

Despite the repairs being urgent, the owner by email dated 30 September gave ample notice she and contractors would attend on 10 October.
On 2 October the tenants sent an email stating:

Should any one attempt to attend the property on October 10^th, or if you continue to harass Michael and me, I will immediately contact the authorities and/or Police…

On 3 October the owner again emailed the tenants seeking access for herself and a roofer on 10 October. (In the meantime, the Tribunal had ordered on 2 October that the landlord only had to give 36 hours’ notice for the purpose of preparing quotes and identifying roof and ceiling repairs).
In her email of 3 October, the owner stated:

You have… obstructed, denied and evicted agent’s and my roof specialist to carry out urgent roof repairs on many occasions.

The insurer’s assessor, Ms Hope of Crawford and Co then reported being harassed by the tenants. On 4 October Ms Bal had called Ms Hope to advise the assessor not to send a roofer as it was not an urgent repair.
On 4 October the owner emailed Crawford and Co stating:

“From the.. phone call with you today.. you notified me that the tenant April.. wanted you to disclose the claim details to her…Because tenants denied access, threatened to call Police and you don’t want your roofers to be assaulted by.. Michael, therefore you cancelled all of the job orders relating to fixing the roof and leaking test.”

As a result, Crawford and Co cancelled the 10 October inspection as no roofer was willing to attend.
On 9 October the tenants sent an email refusing access on the basis:

“as per the terms set out by [the Tribunal], no general maintenance or repairs should take place at the property unless deemed urgent. While we understand you have scheduled roofers to inspect the property for repairs, we will only accept their presence for the purpose of providing quotes for maintenance, as outlined in the orders.
Additionally there is no need for you to attend the property under the guise of a property inspection. We have not received the correct notice for sun an inspection and given that e have recently had a property inspection, you already have the necessary photos and evidence provided by the real estate. Please note that if you attempt to enter or attend the property without proper authorisation, we will be forced to deny you access and contact the authorities… ”

The tenants installed a security cameras and intimidated her by calling her repeatedly from a no caller ID.

Outstanding electricity bill

She changed energy suppliers because Energy Australia was more reputable.
The tenants agreed to pay bills within 21 days of receiving a bill. They purposely delayed payment.
The tenant requested an investigation of the meter to avoid paying bills but would not agree to pay the investigation fee to Energy Australia.
The tenants did not turn off electronic equipment and their usage is higher than a large family’s.
She received the electricity disconnection notice after-hours from the Agent on 25 September. She spent the “whole night and next days to rectify”.
On 26 September the Agent told the tenants to reconnect the power in their own name, but the tenants refused to do so. The tenants did not attempt to mitigate their loss. They were home when the electrician from Energy Australia attended and could easily have arranged to pay the bills and have the electricity reconnected in their own names. They preferred to have free electricity.

Water bill

The water bill for 1 February to 2 May for $106.80 is outstanding.

Gym/cleaning fee/electrician fee

The landlord says the tenants had installed gym equipment without her consent and used the kitchen as a gym and damaged the walls. She discovered this at the routine. Her house is made of fibro and is not strong enough for the installation of gym equipment.
The tenant did not clean the air conditioner filters and the outgoing photo shows it was filthy.
On 17 June 2024, Ms Bal who suffered from depression caused a fire from the kitchen and then left the house. Mr Wessell found the fire and smoking kitchen. All he had to do was switch the power off. An emergency electrician attended who put out the fire caused by Ms Bal’s negligence.

Findings – Tenants’ application

Inaccurate electricity billing

The tenants seek a refund of all five electricity bills paid to the landlord (and an order they not be required to pay any further invoices the subject of the landlord’s claim) because:

of an excessive increase in usage billed by the supplier;

they did not always receive a copy of the supplier’s bill from the Agent, or they did not receive it in a timely fashion;

there were discrepancies in charging by the Agent, such as double billing and incorrect crediting

the owner changed suppliers three times;

the solar had been turned off and they were not receiving a discount;

the electrical system at the Premises was unsafe; on 17 June 2024 a power point had caught fire; and

the owner caused the electricity to be disconnected.

As the account was in the owner’s name, the bills were addressed to the owner. The address details were the Premises.
The Agent presented the supplier’s energy bills to the tenants by email for payment on the following dates (generally raising their own invoice as well):

On 16 November 2023 - $161.68 for 7 October to 8 November 2023. There is no copy of this invoice in evidence. The ledger as at 16 September 2024 reflects the tenants were invoiced $161.68 for “electric bill” on 16 November 2023 and they paid in full on 14 December 2023.

On 14 March 2024 - $390.33 bill dated 5 February 2024 for 1 December 2023 to 1 January 2024. The ledger shows this was initially invoiced for $429.36, cancelled on 14 March 2024 and re-issued on 14 March for $390.33. On 4 April 2024, $314.65 was applied as a credit, leaving a balance of $75.68, but the credit was reversed as the tenants had paid $200 on 20 March direct to the retailer. The tenants paid the balance of $190.33 on 4 April 2024.

On 6 May 2024 - $111.37 undated bill due 10 January 2024 for 9 November to 30 November 2023. The ledger shows the tenants paid on 23 May, the invoice was reversed on 11 June and they paid (again) on 18 June 2024.

On 6 May 2024 - $550.38 bill dated 26 April 2024 for 2 January to 12 February 2024.

On 21 May 2024 - $1,568.41 bill dated 16 May 2024 for 13 February to 8 May 2024. The supplier’s bill included $550.38 previously invoiced. The tenants paid $1,301.68 on 28 June 2024, leaving a balance of $266.73, which they paid on 2 September 2024 ($214.29) and 5 September 2024 ($52.44).

On 16 August 2024 - $1,698 dated 15 August 2024 for 9 May to 8 August

On 25 October 2024 - $2,358.45 dated 30 September 2024 for 9 August 2024 to 25 September (date of disconnection).

The ledger shows the tenants have paid the first five bills (the fifth bill including the fourth) totalling $2,231.79 for 7 months usage from 5 October 2023 to 8 May 2024. This represents $318.00 per month/$1,200 per quarter for two adult occupants.
Invoices 6 and 7 remain substantially unpaid.
Invoice no.6 for $1,698.62 included $1,431.89 for new charges plus $266.73 carried over from the previous bill. As noted above, $266.73 was subsequently paid by 5 September 2024.
Invoice no. 7 for $2,358 includes $1,698.62 from the previous bill, plus new charges of $436.85 and a disconnection fee of $222.98.
Therefore I find the outstanding unpaid usage up to 25 September 2024 is $1,431.89 plus $436.85, totalling $1,868.74. This means having already paid $2,231.79, the tenants are potentially liable for $4,100.53 for 5 October 2023 to 25 September 2024 (12 months) which is $341 per month.
No final bill has been tendered for 1 October 2024 (when reconnected) to 9 November 2024.
The tenants challenged the usage and rely on the bills to support that they have been overpaying.
The onus is on the tenants to show the usage is excessive.
There is no evidence of any faults at the Premises that may have led to excessive usage.
They did not point to any evidence there was a problem with the meter, or have it inspected by a licensed electrician or show that the method used by the supplier to calculate the amounts payable was incorrect.
The tenants did not query their electricity with the suppler or ombudsman or ask them to check their meter. The special condition says that “the tenants agree not to make any changes (emphasis added) to the electricity bill during the tenancy”. Whilst it is unclear to me what this means, I find it would not prevent the tenants from disputing unreasonable charges within a bill. This would be inconsistent with a tenants’ rights to bring a claim with the Energy and Water Ombudsmen.
They did however, on at least two occasions (18 August and 17 September), ask the Agent to investigate and carry out an audit. As the account was in the owner’s name, this presented difficulties in the tenants disputing bills with the supplier direct. Pursuant to the special condition in the RTA, both parties agreed to the electricity being in the owner’s name, but there is no clause in the RTA to address excessive electricity usage.
The tenants’ requests for an audit were ignored by the Agent and owner.
The supplier’s bills show the tenants’ usage tripled two months into the tenancy after 1 December 2023, from 144kws per week/$37 per week, to approximately 414kws per week/$119 per week as follows:

$161.68 for the period of 7 October to 8 November 2023 (no bill).

$111.37 from 9 November to 30 November 2023 from Energy Australia. The bill shows approximately 432 kws in usage over three weeks at the rates of $0.3775 for peak consumption and $0.1907per kw for circuit 2 consumption (144 kws per week/$37 per week).

$390.33 (Final invoice) from Simply Energy dated 5 February 2024 for the period 1 December 2023 to 1 January 2024. The usage for 4 weeks was approximately 1,192kws at the rate of $0.338 per kw (298 kws per week/$97.50 per week). This was a big jump in usage, but Simply Energy’s rate was lower than Energy Australia’s.

$550.38 from Energy Australia dated 26 April 2024 for the period 2 January to 12 February 2024. The sum of $550.38 was for approximately 1,761 kws over six weeks predominantly at the rate of $0.3775 per kw (293 kws per week/$91.73 per week).

$1,568.41 from Energy Australia dated 16 May 2024 for the period 13 February to 8 May 2024. This included $1,018.03 in new charges plus $550.38 outstanding. The new charges were for usage of 3,486 kws over 11 weeks at the rates of $0.3775 and $0.1907 per kw (316 kws per week/$92 per week).

$1,698.62 from Energy Australia dated 15 August 2024 for 9 May to 8 August. $1,431.89 are new charges plus $266.73 outstanding ($266.73 was paid by 5 September). The new charges of $1,431 were for usage of approximately 4,970 kws over 12 weeks at the rates of $0.3775 and $0.1907 per kw (414 kws per week/$119 per week).

$2,358.45 dated 30 September 2024 (Final) invoice from Energy Australia for the period 9 August 2024 to 25 September (date of disconnection), which included $1,431 plus new charges of $436.85 and a disconnection fee of $222.98. The new charges of $436.85 were for usage of 1,549 kws over 6 weeks at the rates of $0.3775 and $0.1907 per kw for 9 August to 31 August and from 1 September $0.3717 and $0.179 (258kws per week/$72 per week).

The tenants remain liable to pay for their electricity usage if the property is “separately metered”, meaning there is a dedicated meter for the Premises.
There was no evidence to suggest the Premises were not separately metered. There is no evidence the meter was reading other properties. The Premises are not a dual occupancy or duplex. The Premises have a National Meter Identifier (NMI 41026555432) and had bills issued to the Premises c/- the owner. There was no evidence the bills were estimated because the actual meter reading could not be taken (i.e. due to inaccessibility issues).
Whilst there is no requirement in the legislation for the landlord to give to the tenant an invoice from the electricity supplier (unlike the requirements for water usage charges in s 39 of the Act), if the landlord is responsible for the electricity account, she must still provide the tenants with a copy of the bill to demonstrate their usage. This is stated in the special conditions of the RTA which requires the tenants to pay within 21 days of receiving a bill. I do not find this to be inconsistent with the Act.
The special condition refers only to a “bill”, which I presume to be the energy supplier’s bill. The Agent’s invoice would be insufficient as it would not contain usage and retail charges per kilowatt.
There is one instance where a bill for $161.68 (for the first month) was not supplied, but the tenants were content to pay it, as the cost was reasonable and what they said they would expect to be charged.
I make the following observations:

In relation to the first unpaid bill for $1,698.62 dated 15 August 2024 for the three month period of May, June and July 2024 with usage of 4,9770kws, the tenants queried it straight away, on 18 August 2024.

There were only two people at the Premises and the average electricity cost in Sydney is $92 per month for a two person household ($276 for 3 months). Even taking into account the change of season to Winter, the tenants’ new costs of $1,431 for that three month period were five times the average. The average usage is 400kws per month and the tenants’ usage for that period was approximately1,600 kws per month.

The increased charges are not due to any increase in cost by the supplier as the cost of electricity charged by Energy Australia remained the same for the tenancy ($0.3775 for peak consumption and $0.1907 for circuit 2 consumption) and in fact the price decreased for both consumption rates in the final bill, to $0.3717 and $0.1796 respectively.

The landlord changed suppliers three times, from Energy Australia to Simply Energy and back to Energy Australia, causing confusion.

On two occasions, the Agent provided invoices to the tenants late; $390.33 was emailed five weeks after the date on the bill and $111.37 was emailed five months after the billing period had ended.

There appear to be anomalies on the actual supplier’s bill, for instance;

Energy Australia’s bills are generally dated 7 days after the billing period has ended, but the bill for $550.38 for the period 2 January to 12 February is dated some 10 weeks later, on 26 April 2024.

the bill for $111.37 from Energy Australia for the period 9 November to 30 November 2023 strangely has no date and was emailed to the tenants by the Agent some five months later, on 6 May 2024.

In relation to (6), the tenants say they scanned the bar code for the $2,358.45 bill at their post office and a different amount ($1,434.43) came up and they reported the matter to Constable Samantha Robinson of Bankstown Police on 26 November 2024 and received event number E98789172. However, I find there to be insufficient evidence of fraud. When I asked the owner during the hearing if she had altered the bills, she said she did not. There is no Police report despite the complaint lodged.

The owner submitted she did not arrange an electricity audit because the tenants refused to pay for one. However, it is the owner who must pay for any reasonable costs incurred in diagnosing the fault by a suitably qualified tradesperson. Clause 10.9 of the RTA states the landlord is to pay for the repair and maintenance of any faulty electricity meter.

Notwithstanding all of the above, s 38(1) is mandatory and has no room for discretion to be exercised. It states that a tenant must, not may, pay all charges for the supply of electricity at residential premises that are separately metered.
It is unclear how the problem has come about, but it has not been shown that it is a result of any lack of separate metering.
I find therefore the tenants were required to pay under s 38 within 21 days of receiving the supplier’s bill and would not be entitled to a refund of the five bills they have paid.

Discretionary powers

However, unlike s 38, s 47 is a discretionary power which would allow the Tribunal to take into consideration other matters.
I find s 47 is engaged as I find the tenants made various written requests for payment and compensation during the tenancy that have not been complied with by the landlord, within 14 days, or at all.
In the exercise of my discretion under s 47 I have taken into account the conduct of the landlord, the unexplained exorbitant increase in usage and the landlord’s refusal to investigate and the change in supplier three times.
Of the five bills the tenants seek to be reimbursed totalling $2,231.79 up to 8 May 2024 (7 months), I disallow a refund of the first amount of $161.68 as although the tenant made payment without a bill, they stated this was a reasonable charge.
The tenants challenged the next four invoices provided to them from March 2024 primarily on the basis the prices had quadrupled.
Under s 47(5), the Tribunal may order that “any other amount” be repaid to the tenant if it finds that amount was not required to be paid by the tenant under this Act or the residential tenancy agreement.
In my view, the tenants should still pay for some usage as they would otherwise be unjustly enriched.
Doing the best I can, I assess reasonable usage at $161.68 per month based on the first month’s usage. This comes to $1,131.76 for October to April (7 months x $161.68). I will deduct $1,131.76 from the $2,231.79 already paid. This means the tenants receive a refund of $1,100.03.

Landlord’s unpaid electricity invoice

As to the landlord’s claim for the unpaid bill of $2,358.45 dated 30 September 2024, this was emailed to the tenants by the landlord on 25 October and under the RTA was due to be paid to the landlord 21 days later, by 8 November. It included $1,431 due earlier, by 6 September.
The tenants acknowledged they withheld this payment given the discrepancies they had raised about billing, particularly after receiving multiple bills on 6 May 2024 that were old, very high, from a different supplier and included duplicates.
The tenants did not pay and have breached s 38.
Applying the same discretionary principles, I refuse to allow the landlord’s claim in full for the invoice of $2,358.45 dated 30 September 2024. The tenants twice requested an investigation and audit immediately upon receiving the bill for $1,698.62 on 16 August 2024, which the landlord ignored and the usage is still excessive.
Of the opening balance of $1,698.62, only $1,431.89 should be claimed for usage, as $266.73 has been paid. I exclude the disconnection fee of $222.98.
When adding the new charges of $436.85 to $1,431.89, this adds up to $1,868.74 said to be owing for usage for May to 30 September 2024 (5 months).
Again, my view is that this is overly excessive, at $373.74 per month.
I allow slightly more than $161.68 per month from May, given the change in season to Winter. I will also make an allowance for October 2024, even though a bill was not presented for October at the time of the hearing. I will allow $180 per month x 6 months (May to October), being $1,080.
The tenants are to pay the landlord $1,080.
The net result for electricity is that the landlord is to repay the tenants $20.83 ($1,100.83 minus $1,080).

Refund of water

The tenants seeks a refund of three water bills: $85.44, $106.80 and $75 on the basis the Premises were not water compliant.
The ledger shows the $85.44 and $75 have been paid and $106.80 has not.
The ingoing report states the Premises have water efficiency measures and the tenants have not proven otherwise.
The tenants have failed to discharge their onus of proof as to why they should not be required to pay for water usage and I disallow this claim.

Electricity disconnection

I find a breach of s 19.4 of the RTA and s 52(2) of the Act as the landlord did not pay the electricity to the retailer, causing it to be disconnected by Energy Australia, thus interfering with the supply to the Premises.
The tenants claim economic loss for having no electricity for five days from 25 September to 30 September 2024 comprising:

$470 for loss of food; and

$306.43 for other costs incurred due to loss of services.

They have provided receipts (which do not match the above) for:

Food:

Rydges hotel breakfast ($99.20 incl late check out fee), Mad Mex ($18.81), Dapto Hotdogs ($37.04), McDonalds Oreo McFlurry ($5.40), Woolworths ($66.53), Taste of Aromatic bakery ($25.27), Sydney Airport salmon scallop box x 2 ($43.00), coffee ($4.45), water ($8.28) and confectionary ($6.40)

Transport:

Taxi 27 September ($18.90)

Uber 28 September ($6.39)

Printer charges:

Paper ($41.50)

Toner ($162)

I disallow the cost of transport and printer charges as they are unrelated to a failure of electricity. Further, according to the Officeworks receipt, the printer charges were incurred on 21 August 2024, before the disconnection.
I disallow water and confectionary also bought at Officeworks on 21 August. I disallow the Woolworths invoice on 29 September as there is no description as to what was purchased. I disallow $5.40 for McDonalds and $4.45 for coffee as these are takeaway items that would be bought in any event.
I allow meal costs/food of: $79.20 for Rydges breakfast (I disallow $20 accommodation late departure fee), $18.81 for Mad Mex, $37.40 for Dapto Hotdogs, $25.27 for Taste of Aromatic bakery and $43.00 for Sydney airport, totalling $203.68.

Rent reduction

I allow $535.70 rent refund of five days rent from 25 September 2024 to 30 September 2024 at the daily rate of $107.14 as the tenant lost a crucial amenity for that period.

Quiet enjoyment

I find that by having the electricity switched off by Energy Australia on 25 September 2024, the tenants’ enjoyment of the Premises was affected.
As to the claim for harassment, in my view, the requests for access were not unreasonable. A landlord is entitled to inspect her home for repairs and maintenance upon giving the required notice. It was clear the repairs carried out by her insurer’s builder on 29 April were only temporary and further maintenance works were required before the approved insured works could commence. The assessor turned up announced on 30 April, but equally the tenants continually challenged requests for a roofer to re-attend. The tenants developed a fixation with their belief the landlord was attempting to “defraud” their insurer.
On 2 October at 5.25pm the tenants refused the landlord’s request made on 30 September for access for a roofer to attend on 10 October, stating they would call the Police if anyone attempted to attend the property on 10 October.
This was in breach of Tribunal access orders made earlier that day by Senior Member Alkadamani that:

2. Upon the landlord giving the tenants 36 hours’ notice in writing, including by way of text message, the tenants are to give access to the residential premises the subject of these proceedings to persons retained by the landlord for the purpose of preparation of quotes and identification of repairs that may be required to the ceiling and/or roof.
3 The access referred to in order 2 is to be exercised at a time agreed between the parties in writing and in the event the parties do not agree then it is to be during the period 8:00am to 5pm as notified by the landlord, such time to not be less than 36 hours after the notice referred to in order 2.

The Senior Member made it clear by his Order 4 that, “the tenants’ obligations to give access to the residential premises for the purposes of repair as set out under the Residential Tenancies Act continue to subsist.”
Nowhere in his Orders made on 30 September does Member Hennings state that no general repairs or maintenance will be addressed until after the tenants have vacated, or that the Police should otherwise be contacted, as the tenants assert in their email of 2 October.
There was nothing in the orders of Member Hennings that specified, “no general maintenance or repairs should take place unless deemed urgent”, as the tenants assert in their email of 9 October.
These are misrepresentations by the tenants of the Tribunal orders.
I reject the tenants’ submission that prior to 29 April they had always been cooperative with access. Contrary to this, the tenants have a history of being unreasonable with access. The correspondence reflects that in February and March 2024, Sydney Water had difficulty obtaining access to conduct testing of sewer and storm water systems.
In my view, the tenants have at times acted unreasonably and vindictively in their attempts to thwart access and are not entitled to complain that they were harassed by the owner in her attempts to secure access for roof repairs.
Receiving emails after hours does not in my view amount to a “substantial inconvenience”.
I am not persuaded there was unauthorised surveillance of the Premises by the landlord.
The tenants have already been compensated by way of a rent reduction for the loss of electricity and are not entitled to be doubly compensated.
I am not inclined to award any amount for distress as Ms Bal had a pre-existing condition of PTSD and as mentioned earlier, any claim in respect of physical or psychiatric injury (or any claim for stress associated with such a personal injury) is precluded by ss 16 and 11 of the CLA, which excludes damages for personal injuries, such as an impairment of a person’s mental condition.
In the circumstances, I find the amount of $3,000 to be excessive.
I will allow $300, which includes a small award for inconvenience suffered due to the disconnection of electricity and the assessor attending without notice on April 30. I dismiss any claim for harassment.
I make the comment that many of these claims are retaliatory on both sides which has caused an escalation and exaggeration of claims. The tipping point of the disconnection was reached by an unexplained rise in electricity charges, a failure to investigate and a failure to pay anything substantial towards electricity since June. This was compounded by the access issues.

Moving cost

I disallow the moving costs of $3,248.30 claimed for allegedly being forced out due to harassment. I have dismissed the claim for harassment. Moving and packing costs a tenant would pay in any event upon vacating and they have not had to pay a break fee. Further, the invoice the tenants handed up at the hearing has no particulars of the name and address of the removalist/packing provider.

Findings - Landlord’s application

Break fee

The tenants were served with various termination notices for rent arrears and breaches. A separate application for termination was brought by the landlord relying upon the First Termination Notice which sought possession on 4 September 2024, which was prior to the end of fixed term of 7 February 2025. When the tenants vacated by handing back the key on or about 7 November 2024, I find the tenancy was not abandoned, but terminated pursuant to s 81(2) of the Act, that is, by service of the First Termination Notice and the tenants giving up possession, albeit later than the required date. Whilst the tenants may have sought an order in their application filed 18 July 2024 that they be allowed to break the lease without penalty, they did not do so. Consequently, I find that the landlord is not entitled to a break fee, which is the remedy for an abandoned tenancy.

Rent arrears

The landlord seeks rent arrears from 14 September 2024 to the vacate date.
The tenants say they have paid all rent due and owing.
The Agent’s rental ledger as at 27 September 2024 reflects (page 6 of 7) that the tenants made a final payment to the Agent of $750 on 20 September 2024 and were paid to 13 September 2024 with an effective ‘paid to’ date of 18 September as there was a credit of $535.71.
I have calculated the rent arrears from 19 September to 30 September 2024 to be $1,178.54 (11 days x $197.14).
Following the Tribunal order of 30 September 2024 that future rent be paid to the Tribunal from 1 October 2024, no evidence was given as to what amounts were paid by the tenants to the Tribunal.
A search of the Tribunal trust records shows that the sum of $4,714.28 was paid by the tenants to Tribunal as follows:

2 October $750

2 October $750

11 October 750

17 October $750.00

24 October $750.00

30 October $750.00.

13 November $214.28

I have calculated the rent arrears from 1 October 2024 to the vacate date of 9 November 2024 is $4,178.46 (39 days x $107.14).
The total number of days from 19 September to 9 November 2024 is 51 days at $107.14 per day, which is $5,464.14.
I will order that monies for rent paid by the tenants to the Tribunal from 1 October 2024 in the sum of $4,714.28 be immediately released to the landlord and applied in reduction of the amount of $5,464.14.
The net result is that $749.86 is owed for rent by the tenants.
There was some suggestion by the landlord that 9 November 2024 was not the correct vacate date, however there is no evidence to suggest otherwise.

Unpaid water invoice - $106.80

The landlord claims an amount of water usage of $106.80 for the period 1 February 2024 to 2 May 2024 pursuant to a bill from Sydney Water dated 3 May 2024 and due 24 May 2024. A copy of the bill was emailed to the tenants on 6 May 2024 by the Agent. The ledger also reflects the Agent raised an invoice #387215 on 6 May. The bill was therefore due to be paid by 27 May 2024.
The ledger as at 16 September 2024 records the Agent’s invoice was cancelled on 6 May. There is no indication it was re-issued (although the ledger shows an earlier water bill for $136.17 for 4 November to 31 January issued on 1 March 2024 was cancelled on 12 April and reissued in two parts: $61.17 (paid on 4 April) and $75.00, as the tenants had paid $75 direct to Sydney Water on 20 March 2024).
There was some suggestion by the tenants the Premises may not have water efficiency devices, however as mentioned in relation to the tenants’ claim above, the ingoing report states water efficiency devices were compliant and the Premises were separately metered for water.
The tenants say they have paid the bill.
The Agent and owner have chased it up on a number of occasions.
I allow this amount as based on the ledger I find on balance that it is an amount that is due and owing.

Storm damage to hall ceiling - $3,500

The landlord says the tenants should pay for the repairs for which she is out of pocket as the tenants misled her insurers and told them she had committed fraud.
The tenants appear to have involved themselves in all aspects of the landlord’s insurance claim, telephoning the insurer’s assessors and making allegations of fraud to the insurer’s fraud department. Whilst they may have had other genuine complaints, this was not their business.
However, the Allianz report is clear in that the insurer’s decision to reject part of the owner’s claim was based on the report of their assessor and assessor’s appointed builder, who determined the damages were due to depreciation, gradual deterioration, wear and tear and rust and not falling within the terms of the policy cover.
I reject the submission that any act or omission of the tenants caused the insurer to reject the landlord’s claim.
I disallow this claim.

Cancelled tradesman appointment - $165

The landlord claims a call out fee for a roofer who she says was denied access by the tenants at the routine inspection on 20 August.
I reject the tenant’s submission that they were not notified in advance a roofer would attend. The correspondence shows the date of the routine was agreed and the Agent had requested access specifically for the roofer two weeks prior, on 2 August.
The landlord relies on the special condition of the RTA to charge a $165 call out fee for the roofer. No invoice or receipt has been tendered. It is unclear if the roofer was arranged by the insurer as works to be covered under the policy, or by the landlord as part of the uninsured claim.
The terms of the special condition have not been fulfilled as it was not a tenant requested repair, but an inspection organised by either the owner or her insurer and the nature of the repair was contested.
On balance, I am not inclined to allow this fee as the landlord has not provided sufficient evidence to demonstrate a loss.

Electrician invoice reimbursement

I disallow the cost of $330 for the electrician’s invoice dated 24 June 2024. It refers to “isolate and repair burning wires in kitchen, replace melted power point” and “urgent wiring repair”. There is no mention that the tenants caused a fire or that it was caused by their misuse or that they were not home at the time. This is a maintenance issue and an emergency repair, for which a landlord is responsible. The electrician called out was the one nominated by the landlord in the RTA for urgent repairs. I consider the actions of the tenants in calling the emergency plumber were appropriate.

Cleaning - $40

I allow the cost to clean the kitchen air conditioner vents as the end of tenancy photos shows a dirty vent and this was a specific requirement in the special conditions of the RTA.

Summary of orders in favour of landlord

The tenants are to pay the landlord the sum of $1,976.66:

$749.86 rent arrears

$1,080 for electricity charges – s 38(1)(a)

$106.80 for water bill - s 39

$40 for cleaning air conditioner vent – s 51(3)

Summary of orders in favour of tenants

The landlord is to pay the tenants the sum of $2,139.41

$300 breach of s 50

$203.68 breach of s 52(2)

$535.70 rent reduction - s 44(1)(b)

$1,100.03 for electricity reimbursement - s 47

Orders

The net result is the landlord is to pay the tenants the sum of $162.75.
I will order the Bond be paid to the tenants in full.
I will order monies held by the Tribunal in the sum of $4,714.28 be released to the landlord.
The balance of both applications are dismissed.

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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

Decision last updated: 27 May 2025

Medium Neutral Citation:	Bal v Nguyen; Nguyen v Bal [2025] NSWCATCD 20
Hearing dates:	02 December 2024
Date of orders:	24 March 2025 (Amended 10 April 2025)
Decision date:	24 March 2025
Jurisdiction:	Consumer and Commercial Division
Before:	J Alder, General Member The Tribunal makes the following amended orders under section 63 of the Civil and Administrative Tribunal Act 2013 Amendments 09/04/2025 – “Huong” in order 2 and 3 and changed to “Hong”. 09/04/2025 - Coversheet – corrected name of Respondent/cross claimant
Decision:	1 Rental Bond Services is directed to pay the tenants, April Bal and Michael Wessell, the full bond plus interest of rental bond number T674365-6. 2 Order pursuant to s 187(1)(d) of the Residential Tenancies Act 2010 (NSW) that Hong Nguyen is to pay April Bal and Michael Wessell the sum of $162.75 within 7 days. 3 Monies held by the Tribunal in the sum of $4,714.28 are to be immediately released to the landlord, Hong Nguyen. 4 Both applications are otherwise dismissed.
Catchwords:	LANDLORD AND TENANT – electricity disconnected by Energy Australia when in landlord’s name due to failure to pay bill – Tribunal’s discretion to order a repayment of excessive electricity charges - order to pay rent into Tribunal - breach of quiet enjoyment – access for repairs - circumstances of termination – break fee - rental bond
Legislation Cited:	Residential Tenancies Act (NSW) 2010, ss 3, 21, 38, 39, 40, 44, 47, 50, 51, 52, 55, 56, 60, 63, 81, 87, 88, 106, 107, 175, 187,190 Civil and Administrative Tribunal Act 2013, s 41
Cases Cited:	Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264 Abdel-Messih v Marshall [2017] NSWCATAP 136 Saqa v Kashro [2018] NSWCATAP 265
Category:	Principal judgment
Parties:	Applicants/cross respondents: April Bal and Michael Wessell
File Number(s):	2024/00265237 2024/00339519
Publication restriction:	Nil