Cowling v Tran; Tran v Cowling - [2022] NSWCATCD 128

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Cowling v Tran; Tran v Cowling [2022] NSWCATCD 128
Hearing dates: 16 June 2022
Date of orders: 08 August 2022 [amended 15 August 2022]
Decision date: 08 August 2022
Jurisdiction: Consumer and Commercial Division
Before: J Alder, General Member
Decision:
The Notice of Order issued 8 August 2022 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows:
RT 22/15789
1 The Residential Tenancy Agreement is terminated in accordance with section 84 of the Residential Tenancies Act 2010, as the landlord has served a termination notice for termination at the end of the fixed term.
2 The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination.
3 The order for possession is suspended until 5 September 2022.
4 The tenant shall pay the landlord a daily occupation fee at the rate of $121.43 per day from the day after the date of termination, namely 9 August 2022 until the date vacant possession is given to the landlord.
5 Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing.
RT 22/13149
6 Pursuant to s 187(1)(d), the landlord is to pay the tenant the sum of $6,842.90 for breach of s 63 of the RTA. Payment is due on or before 22 August 2022.
7 Pursuant to section 44(1)(b) rent is not to exceed $850 per week from 17 June 2022 to 8 August 2022.
8 To the extent that the rent paid since 17 June 2022 to 8 August 2022 (7.43 weeks/52 days) exceeds the sum of $850 per week, the landlord is to immediately repay such amount to the tenant, which I calculate to be $1,114.50.
9 The balance of the application 22/13149 is dismissed.

Catchwords:
LANDLORD AND TENANT – retaliatory – end of fixed term notice - compensation - failure to repair and maintain – withdrawal and reduction of goods, services and facilities – rent abatement – excessive rent

Legislation Cited:
Residential Tenancies Act (NSW) 2010
Residential Tenancies Regulation 2019
Civil Liability Act (NSW) 2002
Civil and Administrative Tribunal Act (NSW) 2013

Cases Cited:
Bannister v Cheung [2014] NSWCATCD 105
Bridgford v Brien [2017] NSWCATAP 111
Bulmash v Webster [2016] NSWCATCD 23
Hadley v Baxendale [1854] 9 Ex 341
Menashi v Ly [1997] NSWRT 162
Steinbeck v McDonald [2015] NSWCATAP 90

Category: Principal judgment
Parties:
David Cowling and Michelle Cowling (Applicants/cross defendants)
Van Tran and Thi Le (Respondents/cross claimants)
Representation: Applicants/cross defendants (self-represented)
Raine and Horne Seven Hills (Respondents/cross-claimants)

File Number(s): RT 22/13149
RT 22/15789
Publication restriction: Nil

REASONS FOR DECISION

Applications

These reasons relate to two applications brought under the Residential Tenancies Act 2010 (NSW) (Act) concerning a six-month residential tenancy agreement dated 28 September 2021, commencing on 8 October 2021…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWCATCD 128
Decision Date: 08 August 2022

CaseChat Overview and Summary

In the case of Cowling v Tran; Tran v Cowling, the dispute arose between a landlord and a tenant concerning various issues, including retaliatory actions, rent abatement, and failure to repair and maintain the property. The matter was heard and determined by the Civil and Administrative Tribunal of Queensland. The tenant, Mr Cowling, sought relief from the Tribunal regarding what he claimed were retaliatory actions taken by the landlord, Mr Tran, after the tenant made complaints about the condition of the rental property. The landlord, on the other hand, argued that the termination of the lease was due to the tenant's failure to pay rent and his failure to vacate the premises on time.

The key legal issues before the Tribunal were whether the landlord had acted in a retaliatory manner by terminating the lease, and whether the landlord had breached his obligations under the Residential Tenancies Act 2010 by failing to repair and maintain the property. The Tribunal also needed to determine the appropriate compensation for the tenant if any breaches were found, as well as the amount of rent that should be payable during the relevant period.

The Tribunal found that the landlord had acted in a retaliatory manner by terminating the lease after the tenant made complaints about the condition of the property. The Tribunal also found that the landlord had breached his obligations under the Residential Tenancies Act by failing to repair and maintain the property, resulting in a reduction of goods, services, and facilities. As a result, the Tribunal ordered the landlord to pay the tenant compensation in the amount of $6,842.90. The Tribunal further determined that the rent should not exceed $850 per week and ordered the landlord to repay the tenant the excess amount of rent paid during the relevant period.

In summary, the Tribunal ordered the termination of the Residential Tenancy Agreement, the payment of compensation by the landlord to the tenant, and the repayment of excess rent by the landlord to the tenant. The order for possession was suspended until 5 September 2022, and the tenant was required to pay a daily occupation fee to the landlord until that date. The landlord could request the relisting of the application to determine the amount of the occupation fee owing within 60 days of the date for possession.

Orders

Orders of the court

The Notice of Order issued 8 August 2022 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows:

RT 22/15789

1 The Residential Tenancy Agreement is terminated in accordance with section 84 of the Residential Tenancies Act 2010, as the landlord has served a termination notice for termination at the end of the fixed term.

2 The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination.

3 The order for possession is suspended until 5 September 2022.

4 The tenant shall pay the landlord a daily occupation fee at the rate of $121.43 per day from the day after the date of termination, namely 9 August 2022 until the date vacant possession is given to the landlord.

5 Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing.

RT 22/13149

6 Pursuant to s 187(1)(d), the landlord is to pay the tenant the sum of $6,842.90 for breach of s 63 of the RTA. Payment is due on or before 22 August 2022.

7 Pursuant to section 44(1)(b) rent is not to exceed $850 per week from 17 June 2022 to 8 August 2022.

8 To the extent that the rent paid since 17 June 2022 to 8 August 2022 (7.43 weeks/52 days) exceeds the sum of $850 per week, the landlord is to immediately repay such amount to the tenant, which I calculate to be $1,114.50.

9 The balance of the application 22/13149 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Cowling v Tran; Tran v Cowling [2022] NSWCATCD 128
Hearing dates:	16 June 2022
Date of orders:	08 August 2022 [amended 15 August 2022]
Decision date:	08 August 2022
Jurisdiction:	Consumer and Commercial Division
Before:	J Alder, General Member
Decision:	The Notice of Order issued 8 August 2022 is amended under Section 63 of the **Civil and Administrative Tribunal Act 2013, and should read as follows:** RT 22/15789 1 The Residential Tenancy Agreement is terminated in accordance with section 84 of the Residential Tenancies Act 2010, as the landlord has served a termination notice for termination at the end of the fixed term. 2 The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3 The order for possession is suspended until 5 September 2022. 4 The tenant shall pay the landlord a daily occupation fee at the rate of $121.43 per day from the day after the date of termination, namely 9 August 2022 until the date vacant possession is given to the landlord. 5 Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. RT 22/13149 6 Pursuant to s 187(1)(d), the landlord is to pay the tenant the sum of $6,842.90 for breach of s 63 of the RTA. Payment is due on or before 22 August 2022. 7 Pursuant to section 44(1)(b) rent is not to exceed $850 per week from 17 June 2022 to 8 August 2022. 8 To the extent that the rent paid since 17 June 2022 to 8 August 2022 (7.43 weeks/52 days) exceeds the sum of $850 per week, the landlord is to immediately repay such amount to the tenant, which I calculate to be $1,114.50. 9 The balance of the application 22/13149 is dismissed.
Catchwords:	LANDLORD AND TENANT – retaliatory – end of fixed term notice - compensation - failure to repair and maintain – withdrawal and reduction of goods, services and facilities – rent abatement – excessive rent
Legislation Cited:	Residential Tenancies Act (NSW) 2010 Residential Tenancies Regulation 2019 Civil Liability Act (NSW) 2002 Civil and Administrative Tribunal Act (NSW) 2013
Cases Cited:	Bannister v Cheung [2014] NSWCATCD 105 Bridgford v Brien [2017] NSWCATAP 111 Bulmash v Webster [2016] NSWCATCD 23 Hadley v Baxendale [1854] 9 Ex 341 Menashi v Ly [1997] NSWRT 162 Steinbeck v McDonald [2015] NSWCATAP 90
Category:	Principal judgment
Parties:	David Cowling and Michelle Cowling (Applicants/cross defendants) Van Tran and Thi Le (Respondents/cross claimants)
Representation:	Applicants/cross defendants (self-represented) Raine and Horne Seven Hills (Respondents/cross-claimants)
File Number(s):	RT 22/13149 RT 22/15789
Publication restriction:	Nil