Couley v Elaro

[2025] NSWCATCD 115

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Couley v Elaro [2025] NSWCATCD 115

Hearing dates:

27 June 2025

Date of orders:

13 August 2025

Decision date:

13 August 2025

Jurisdiction:

Consumer and Commercial Division

Before:

S Hunt, General Member

Decision:

(1) Under s 44 of the Residential Tenancies Act 2010, it is ordered that the rent shall not exceed the sum of $635.00 per week from 28 June 2024 to 27 June 2025, having regard to a reduction or withdrawal of facilities provided with the premises.

(2)   The excess rent paid by Judith Couley as a result of Order (1) should be refunded to her by Bakhous Elaro within 14 days of the date of these orders.

(3)   The landlord, Bakhous Elaro, is to pay the tenant, Judith Couley, the sum of $400 within 14 days of the date of these orders.

(a) $400 as compensation for breach of quiet enjoyment, and breach of notice requirements for access.

(4)   All other claims by the tenant are dismissed.

Catchwords:

RESIDENTIAL TENANCY – quiet enjoyment – rent reduction - repairs

Legislation Cited:

Residential Tenancies Act 2010 NSW

Cases Cited:

Advance Fitness v Bondi Diggers [1999] NSWSC 264

Mulcair v Callum [2024] NSWCATAP

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Judith Couley (applicant)

Bakhous Elaro (respondent)

Representation:

Mr Orman, Seniors Rights Service (applicant)

Mr Bui, Kims Realty (respondent)

File Number(s):

2025/00113034

Publication restriction:

Nil

REASONS

Background

1. The application concerns a written residential tenancy agreement for a house at Greenacre, NSW, between the Ms Couley, the applicant tenant, and Bakhous Elaro, the respondent landlord. There was a fixed term agreement between the parties for the period 24 August 2023 to 25 August 2025. The tenancy continued on a periodic basis. The rent was $660/week.

The application

2. The application was received by the tribunal on 21 March 2025. At the time of lodging the application, the applicant sought, broadly: orders under the Residential Tenancies Act 2010 (NSW)(the RT Act) for particular work and repairs to be undertaken by the respondent; orders for compensation to be paid to the applicant for damage to personal goods; and order for rent reduction on the basis of a withdrawal or reduction in services or facilities.

3. On 30 April 2025, when the matter was before the tribunal for conciliation and hearing, orders were made by consent for the landlord to undertake certain work, including installing a window and removing certain rubbish. At that time, the orders sought by the applicant were clarified to include, in summary: orders for repairs to be undertaken to the workroom/garage roof and to the back patio to resolve leaks; an order for $92 compensation for damaged sewing materials; and an order for rent reduction during the period the stove, oven and work/room garage leaks were not repaired; as well as an order for compensation in the amount of $500 for breach of quiet enjoyment for 7 attendances at the premises by the landlord without notice, which had occurred since commencement of proceedings. The tribunal at that time ordered that the parties continue to have leave to be legally represented in proceedings, and made other directions.

The hearing and evidence

4. I heard the application at a special fixture hearing at Campbelltown on 27 June 2025. At the hearing before me, the applicant was represented by Mr Orman, solicitor, for the Seniors Rights Service. Ms Couley also appeared and gave evidence. The respondent was represented by Mr Bui of Kims Realty, managing agent. Mr Bui also gave evidence.

5. The parties had exchanged and submitted documentary evidence prior to the hearing before me, with the applicant’s documents submitted on 21 March 2025, with the application, and 16 May 2025. The respondent’s documents were submitted on 8 April 2025.

6. At the hearing, the applicant confirmed that she was no longer seeking work orders, and withdrew the application for those orders, as she intended to move out soon, but that her other claims were pressed.

Issues

7. The issues I have considered in making a decision in this matter are:

(1)   Is the applicant entitled to an excessive rent order equivalent to a 20% rent reduction for a period of 12 months on the basis that the respondent has withdrawn or reduced facilities or services?

(1)   Is the applicant entitled to $92 for damage to her personal possessions?

(1)   Is the applicant entitled to $500 compensation for breach of her right to quiet enjoyment?

Relevant law

8. Under section 44(3) of the Residential Tenancies Act 2010 (NSW)(the RTA), a tenant may, before the end of the tenancy, make an application to the tribunal for an order that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises. The tribunal may make such an order under s 44(1)(b). A non-exhaustive list of factors the tribunal may consider in making an excessive rent order are set out in s 44(5).

9. In Mulcair v Callum [2024] NSWCATAP 30 at 65-69, the NCAT Appeal Panel set out the steps to generally consider when determining a rent reduction claim under s 44(1)(b) as a result of breach of landlord’s obligations. In summary:

1. Firstly, it is necessary to identify what were the obligations of the landlord under the residential tenancy agreement concerning the residential premises and the provision of goods, services and facilities.

2. Secondly, identify any breaches in connection with the obligations.

3. Thirdly, determine whether any defects in or repairs required to the goods, services or facilities resulted in a relevant reduction or withdrawal. In so far as facilities are concerned, this requires the tribunal to be satisfied that:

1. There had been an inability to use or enjoy the particular facilities in whole or in part.

2. The inability arose because of the landlord’s conduct, being a failure to supply relevant facilities, make good defects or correct any breaches affecting the relevant use and enjoyment.

4. Fourthly, if there are discrete matters said to give rise to separate reductions or withdrawals, the tribunal ordinarily needs to consider each in terms of cause and effect, and the period a reduction should apply. Any separate awards for breach or compensation should be considered in the overall appropriateness and reasonableness of the proposed rent reduction order.

10. Under s 52 of the RTA, a landlord is under a general obligation to provide the residential premises in a ‘reasonable state of cleanliness’ and ‘fit for habitation’ by the tenant: s 52(1) RTA. Section 52(1A) sets out a non-exhaustive list of requirements for a premises to be ‘fit for habitation’, which includes ‘have adequate plumbing and drainage’ and ‘structurally sound’ as defined. The obligation is not limited to the state of the premises at the beginning of the tenancy, but is ongoing.

11. Under s 63 of the RTA, a landlord must also provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, and rent payable for and prospective life of the premises: s 63(1). The obligation applies even though the tenant had notice of the state of repair before entering into occupation: s 63(2). A landlord is not in breach of the obligation if the disrepair is caused by the tenant’s breach: s 63(3), and cannot be found in breach of the obligation undertake repairs, when considering a repair order under s 65, unless it is satisfied that the landlord had note of the need to repair or ought reasonably to have known of the need for repair.

12. Section 50 of the Residential Tenancies Act 2010 (the RTA) provides as follows:

50 Tenant’s right to quiet enjoyment

(1)   A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord.

(1)   A landlord or landlord’s agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises.

(1)   Maximum penalty—10 penalty units.

(1)   A landlord or landlord’s agent must take all reasonable steps to ensure that the landlord’s other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises.

(1)   This section is a term of every residential tenancy agreement.

13. While the right to quiet enjoyment is expressed in absolute terms in s 50(1), the breach provisions in s50(2) and s50(3) refer to interference with the ‘reasonable’ peace, comfort or privacy of the tenant.

14. In respect of a tenant’s right to quiet enjoyment and the landlord’s breach of that right, a ‘mere interference’ with the comfort of a tenant from an annoyance is insufficient to constitute a breach of a tenant’s right to quiet enjoyment. There must be a 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: Advance Fitness v Bondi Diggers [1999] NSWSC 264.

Consideration

Is the applicant entitled to an excessive rent order?

15. I have considered each area of the applicant’s complaints

The ‘leaks’ in the workroom/garage

16. The tenant claims that the landlord has failed to repair the leaks in the workroom in breach of their obligations despite complaints since soon after she moved in.

17. Having considered and weighed the evidence, I make the following findings of regarding the factual basis of the issue:

1. The room in question, which is variously referred to as a ‘workroom’ (the applicant), ‘garage’, ‘storage room’ (by the respondent) is a converted garage, with a storage room as part of it. The garage was lined and tiled by a previous tenant without permission. This is based on the evidence of Mr Bui and accords with the photographic evidence in the incoming condition report and with the evidence of the applicant.

2. The room was not advertised as a ‘workroom’ when the property was advertised prior to the tenant moving in. This claim is not made out. The solicitor for the applicant claimed this in submissions, but the respondent disputes this, and there is no evidence to support the solicitor’s claim. There is no statement to this effect in the tenant’s statutory declarations nor in her other evidence. There is no evidence before the tribunal of the text of the advertisement. It is described as a general garage/carport/storeroom and general garden shed in the incoming condition report.

3. The tenant discussed with the agent using the room for her sewing business prior to entering into the agreement. This is primarily based on the tenant’s sworn statement. Despite this, I note that the agreement contains an express term that the premises be used for residential use only.

4. The water ingress into the room is occasional, when rain is particularly heavy. The applicant stated in her first statement that it shortly after she moved in, she became aware that the room “had leaks causing water to enter every time there was rain”, and subsequent complaints reiterated similar claims, and the claim was repeated at the hearing. But in evidence during the hearing, and in explaining why she had continued to use the workroom for her business, the applicant gave sworn evidence that water had entered the room on about 10 days during the tenancy. I note that at the time of the hearing, the tenant had resided in the premises for over 18 months.

5. The water ingress is likely caused by water flowing under the door, due to the tile floor being below the level of the ground outside, rather than what is commonly understood as ‘leaks’. While the tenant has repeatedly complained of ‘leaks’ to the room, the evidence does not support the fact that there are ‘leaks’ in the common sense as in leaks in the roof. The landlord’s evidence was that a new roof and guttering was put on the room shortly before the tenancy commenced, and their only explanation, prior to recently establishing the water under the door theory, was that the gutters lacked capacity to deal with torrential rain. It also accords with the applicant’s evidence that the SES had sandbagged the door at one point, that water flowed under the sliding door, the photos showing water on the floor of the room, and the nature of the damage to the fabric claimed by the applicant.

6. The landlord did investigate the ‘leaking’ room on 10 October 2023, noted that there were plants climbing onto the roof which they suspected was the cause, and stated they would cut the plants and monitor the situation. Later they advised that the roof and guttering were new.

18. I have next considered whether the landlord has breached any obligations in respect of the workroom/garage.

19. The applicant’s claim was primarily based on the alleged failure to repair the leak in the room despite being on notice of the issue. I am persuaded that the landlord was on notice of the issue of water ingress into the room from very early in the tenancy, and the issue was not rectified at the time of hearing. The landlord’s task was not assisted by the description of the issue as a ‘leak’ and the fact that the issue was occasional and not directly observed. And I note that the landlord did, in fact, take steps to investigate the issue and address it. First by inspecting, theorising that it was overgrown vines, and making a plan to rectify. In the circumstances, I am not persuaded that there was a failure of the duty in s 63 of the RT Act. It was not an issue of maintenance of state of repair.

20. I have also considered whether there was a breach of the landlord’s obligation to provide premises that are fit for habitation under s 52 of the RT Act.

21. One of the requirements for a premises to be considered ‘structurally sound’ and ‘fit for habitation’ is that: with respect to the floors, ceilings, walls and supporting structures – are not subject to significant dampness: s 52 (1B)(b). Another is that: with respect to the roof, ceilings and windows – do not allow water penetration into the premises: s 52(1B)(c).

22. I am persuaded that in light of the occasional but significant water ingress into the workroom/garage that the room is subject to significant dampness and consequently not fit for habitation because it is not structurally sound.

23. I have considered that the room is a converted garage. There may not be an expectation that a garage is ‘habitable’ or that it does not suffer from the weather. But in the circumstances of this case, I am persuaded that the room in question was presented, when the tenant entered the agreement, as a habitable room. It had a tiled floor, walls and a ceiling, despite the labels on the photos in the incoming report. Even though tenant was proposing and has in fact used the room for a non-permitted purpose, in carrying on a business, she could have used the room for any purpose. There was no disclaimer in the agreement that the room was a garage or not habitable. It is contrasted the separate ‘garden shed’ which was clearly a shed.

24. As a consequence, I find that the respondent is in breach of their obligation to provide habitable premises in respect of the workroom/garage. The room has not been habitable throughout the tenancy.

The stovetop and oven

25. The tenant claims that she was without a functioning stovetop and oven from the beginning of the tenancy in September 2023 until they were fixed earlier in 2025, and that she is entitled to an excessive rent order as a result, impliedly on the basis that the landlord has breached their obligations to maintain and repair the premises.

26. The evidence about the state of the oven and cooktop during the tenancy is confusing and conflicting. That evidence includes: the applicant’s statutory declaration, the incoming condition report, correspondence between the applicant’s caseworker, Ms Everingham and the agent, references to two Department of Fair Trading complaints made by the applicant and related correspondence between the DFT and the agent, and invoices for work.

27. In general, the applicant claims that the landlord did not take sufficient action in relation to her complaints regarding and failed to repair the stove top and oven adequately until February 2025. In general, the respondent claims that they have acted promptly and diligently to the issues regarding the stove top and oven.

28. More specifically, the applicant claims and states at various times that the stove-top hobs were incorrect when she move in, that they were rusted throughout, that they were unsafe and leaking gas, and that an igniter was required to light them (though this may only have been the oven), and that a plumber engaged to fix them in October or November was not successful. She also gave evidence that she never used them.

29. As to whether the initial problem with the stove hobs was addressed, I find, on the evidence before me, and on the balance of probabilities, that it was addressed, and was fixed promptly. The respondent has produced an invoice from Hon Maintenance dated 27 September 2023 for $150 to fix the cooktop. Further, a record of the applicant’s complaint to the Department of Fair Trading dated 10 October 2023, and reproduced in email correspondence between the DFT and the agent in the respondent’s documents, the applicant acknowledges that the stovetop had been repaired.

30. As to whether the landlord acted promptly and appropriately to the complaint received via the DFT in October 2023 that the stovetop was leaking gas, I find again, on the evidence before me, that they did so. The complaint was apparently received visa the DFT rather than directly. The agent reports in their response that they had visited the premises to inspect, and found no gas leak, but rather a weak flame, which was being investigated through the gas company. Evidence submitted by the respondent indicates, and I find that the landlord engaged a plumber in December to run a new 24-meter gas line to the premises and re-commission the stove.

31. While there was some suggestion of an incident involving the fire brigade and gas leak, there is insufficient evidence about this incident to make any findings regarding whether there was a leak and if so, what might have been the cause.

32. In respect of the oven, while the applicant, often through a third party, has consistently complained about the lack of use of the oven, her direct evidence on this at the hearing was that after the plumber visited in late 2023, the auto igniter did not work, and complained about having to light the oven with a match. I am persuaded that between late 2023 and early 2025, the oven in the premises only functioned if it was manually lighted with a match or a handheld igniter. The applicant said this was inconvenient, having to bend down, but I consider that it is not generally and objectively more than an inconvenience. I do not accept, on the basis of the evidence before me, that the applicant was without a functioning oven at any time during the tenancy.

Rubbish and other

33. In submissions and at the hearing, in addition to the claims regarding the stove/oven and workroom/garage, the applicant pressed the issue that there was rubbish left in the yard, which had reduced the use of the premises. While there were complaints about rubbish left on the premises, and a consequent claim that the landlord had breached their obligation by not letting the premises reasonably clean nor free of rubbish, I find that this claim is not made out. I am positively persuaded that there was one item left at the side of the premises, which was subsequently removed. But in relation to the claim that goods were left at the back corner of the large yard, I am not persuaded that it is made out. The photo presented is not dated, and does not accord with the photos in the incoming condition report. It appears possible that any goods may have been later deposited by others, perhaps neighbours. If I am wrong, and the good were there at commencement, I find that there was not substantial loss of amenity as a result, and the application was made out of time.

33. In relation to other claims mentioned, regarding security, the garage/carport, the patio, I am not persuaded, on the evidence, that any breach is made out nor any loss demonstrated.

Is an excessive rent order warranted?

35. In considering the applicant’s claim for an excessive rent, I have found that the landlord breached their obligation to provide habitable premises in respect of the room described as workroom/garage, but I have not accepted the applicant’s other claims regarding the stove and oven or rubbish.

36. I find that the landlord’s failure resulted in an inability to enjoy the room in part. I note the applicant’s evidence at the hearing that there had been water ingress on about 10 days, but I accept that outside those days the threat of rain may well have restricted the use of that room. She had continued to use the room throughout. I have considered that the room in question was just one additional room in what was otherwise a 3-bedroom house, with a kitchen, living room and bathroom, a large yard, car port and a garden shed. It was not represented as a bedroom. It was a relatively minor space in the premises, and its use was only restricted in part. I do not think it fair or appropriate to give additional consideration to its use for business purposes in circumstances where the agreement specifically stipulated that the premises were for residential use only. The advertisements for other premises presented by the respondent, which are not date, suggest but do not demonstrate that the rent paid by the applicant may be lower than for other comparable properties.

37. Doing the best I can on the evidence presented, I consider that a $25/week rent reduction by way of excessive rent order is appropriate in all the circumstances of this case.

Is the applicant entitled to compensation for the damage to her sewing materials?

38. The applicant claims the sum of $92 in compensation for sewing material that weas damaged after water ingress to the storeroom attached to the workroom/garage. The damage was claimed to have occurred in September 2024. The applicant claimed that while she was aware of water ingress to the workroom/garage, the goods were in the attached storeroom. An application for an extension of time to make this claim was made.

39. In circumstances where the applicant was aware of the issue of water ingress to the floor of the garage/workroom, which I infer shared a floor with the storeroom from about 12 months prior to the incident where the fabric was damaged, I find that the applicant failed to mitigate any losses. She was on notice of the issue, and could have moved anything of any value into the house proper. In these circumstances, I dismiss the claim, without considering her application for an extension of time to make it.

Is the applicant entitled to compensation for breach of her right to quiet enjoyment of the premises?

40. The applicant claims $500 compensation for what she claims were 7 attendances by the respondent landlord at the premises without notice during April 2025. Her statutory declaration of 15 May 2025 recounts the incidents.

41. The respondent conceded that the respondent landlord had been involved with prior issues of attending the premises without notice and had been counselled against it. They conceded that the first incident was not permissible but claimed that on the other occasions the landlord had attended to undertake work that the applicant had requested, including cutting down the step so that her car could enter into the car park and removing rubbish.

42. I find that the first incident recounted of attendance without notice on 2 April 2025 is serious and compensable. The applicant recounts that the landlord attended to challenge her about having made an application to the tribunal for redress. She recounts that the landlord shouted at her and she perceived his tone as aggressive. This evidence was not contested. There was a second incident when the landlord attended on 20 April 2025 and told her to cancel the application. Again the applicant’s evidence regarding this incident was not challenged.

43. The other incidents recounted were: a visit on 19 April 2025 where the landlord requested to borrow her bins, then visits on 22 and 23 April 2025 where the landlord attended to complete work on the front step without notice, and further visits on 24 and 26 April 2025.

44. A landlord can access residential premises at any time with the consent of the tenant. For non-urgent necessary repairs, two days’ notice is required: s 55 (2)(c) of the RT Act. For general inspections, generally 7 days’ notice is required.

45. I find that the landlord attended the premises and breached the tenant’s right to quiet enjoyment on 2 and 20 April 2025. I find that the interference was substantial on those dates because they were retaliatory and distressed the applicant. I award $250 for the visit on 2 April 2025 and $100 for the visit on 20 April 2025. In respect of the other visits, I find that they were breaches of the obligation by the landlord to provide notice of access under s 55 of the RT Act, but at the same time they appear to be related to the landlord seeking to comply with orders of the tribunal or undertaking work requested by the applicant. While the applicant may have been feeling ongoing effects from the earlier visit, the visits also appeared to have a legitimate purpose. For each of those breaches, I award nominal compensation of $10 each.

46. I conclude that the total award of compensation for the landlord’s visits in April should be $400.

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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: 24 October 2025