Dawson v G&J Investments Pty Limited - [2024] NSWCATCD 40

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Dawson v G&J Investments Pty Limited [2024] NSWCATCD 40
Hearing dates: 5 February 2024
Date of orders: 12 April 2024
Decision date: 12 April 2024
Jurisdiction: Consumer and Commercial Division
Before: JA Rose, General Member
Decision:
(1) Pursuant to s 115 of the Residential Tenancies Act 2010 (NSW), the Tribunal is satisfied that the termination notice issued by the respondent landlord, bearing the date 21 November 2023 was a retaliatory notice, and declares that the notice has no effect.
(2) Pursuant to s 65(1) of the Residential Tenancies Act 2010 (NSW), the respondent landlord must carry out the following specified repair work, in a proper and workmanlike manner, on or before 31 May 2024:
(a)   Repair or replace, and otherwise make good and working, the air-conditioning units provided with and/or forming part of the residential premises at 8 Henderson Road, Alexandria NSW; and
(b)   To the extent that the works specified in paragraph (a) requires any work or repair to be undertaken on any common property owned by the owners corporation for the strata plan in which the premises are situated, to use its best endeavours to arrange, cause or permit that work or those repairs to be undertaken on or in respect of that common property, including obtaining all necessary consents and approvals to undertake that work or for that work to be undertaken.
(3) The applicant tenant may, on payment of the applicable filing fee, renew these proceedings under clause 8 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) if the respondent landlord does not comply with the preceding order within the period specified in that order.
(4) Pursuant to s 187(1) of the Residential Tenancies Act 2010 (NSW), the respondent landlord is ordered to specifically perform:
(a)   clause 14.2 of the residential tenancy agreement between the parties (the “tenancy agreement”), by not interfering with, or causing or permitting any interference with, the reasonable peace, comfort or privacy of the applicant tenant in using the residential premises; and
(b)   clause 18.3 of the tenancy agreement, by keeping the residential premises in a reasonable state of repair, considering the age of, the rent paid for and the prospective life of the premises; and
(c)   clause 18.5 of the tenancy agreement, by complying with all statutory obligations relating to the health or safety of the residential premises;
(d) clause 65(f) of the tenancy agreement, by permitting or allowing the tenant to access Personal Information (as defined in the Privacy Act 1988 (Cth)) and to require correction or amendment of any inaccuracies, incomplete, out of date or irrelevant information; and
(e)   clause 65(g) of the tenancy agreement by providing (where applicable), on request, a copy of its Privacy Policy.
(5)   The balance of the claim in these proceedings is dismissed on the ground that the Tribunal is not satisfied on the balance of probabilities by the material that has been put before it that there are sufficient grounds for the relief sought to be awarded.

Catchwords:
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Condition reports
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Termination — Notices — Retaliatory notices
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord’s duty
LAND LAW — Strata title — Common property — Maintenance and repair of common property
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Orders for specific performance
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Default and termination — Damages

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Privacy Act 1988 (Cth)
Residential Tenancies Act 2010 (NSW)
Residential Tenancies Regulation 2010 (NSW)
Residential Tenancies Regulation 2019 (NSW)
Strata Schemes Management Act 2015 (NSW)
Swimming Pools Act 1992 (NSW)

Cases Cited:
Camilleri v Eastlake [2018] NSWCATAP 176
Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81
De Chazol v Scala [2010] NSWCTTT 135
Dupont and Rowe v Lawrence [1997] NSWRT 213
Hanney v McCabe Toshack [2014] NSWCATCD 239
Ho v Powell [2001] NSWCA 168
Howard v B Miles Womens Foundation Inc [2012] NSWSC 1173
Hughes v Hume Community Housing Association Co Ltd [2023] NSWCATAP 109
Kwok v Tahiri [2015] NSWCATAP 244
Lee v Fuzessery [2010] NSWCTTT 205
Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120
Mercieca v Fu [2017] NSWCATAP 205
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
Nulla Nulla Aboriginal Lands Council v Lucas [2013] NSWCTTT 219
Quader v Bell [2016] NSWSC 632
Quader v Bell [2017] NSWCATAP 24
Re Magistrate Crawford; Ex parte McCormack [2020] WASC 236
Reiss v Helson [2001] NSWSC 486
Sewell v Zvirblis [2022] NSWCATAP 337
Shrestha v Crandell Pty Ltd [2010] NSWCTTT 240
Smith v Li [2020] NSWCATAP 59
Steinbeck v McDonald [2015] NSWCATAP 90
Williams v Gerringong Housing Aboriginal Corporation [2022] NSWCATAP 144

Texts Cited:
Residential Tenancies Law and Practice New South Wales (8th edition, 2022), Federation Press

Category: Principal judgment
Parties: Neil Dawson (Applicant)
G&J Investments Pty Limited (Respondent)
Representation: N Dawson, in person (Applicant)
C Anderson, real estate agent (Respondent)

File Number(s): 2023/00440392
Publication restriction: Nil

REASONS FOR DECISION

Introduction

These proceedings arise out of a residential tenancy agreement between the applicant as tenant (the "tenant") and the respondent as landlord (the "landlord") in respect of a 4-storey residential house at Henderson Road, Alexandria NSW (the "premises") dated 3 February 2020 (the "tenancy agreement"). The tenancy agreement (which was entered into as the renewal of a previous tenancy agreement between the landlord and a group of 3 original tenants, including the applicant) provided for the tenant to occupy the premises for an initial fixed term of 26 weeks, starting on 3 February 2020 and ending on 2 August 2020. The tenancy agreement has continued as a periodic tenancy since the end of that fixed term.
The landlord gave the tenant a termination notice on 21 November 2023, under s 85 of the Residential Tenancies Act 2010 (NSW) (the "RT Act"), seeking to terminate the periodic tenancy "without reason" on 21 February 2024 (the “termination notice”). The tenant subsequently lodged his application in these proceedings on 5 December 2023, seeking orders to the following effect under the RT Act:

an order seeking to amend a condition report for the premises: s 31;

an order declaring the termination notice invalid on the ground that it is a retaliatory notice: s 115;

an order that the landlord carry out specified repairs to the premises: s 65;

further, or in the alternative, orders that the landlord perform the tenancy agreement and/or perform such work or take such step as the order specifies to remedy a breach of the agreement: s 187(1)(b) and (e); and

an order that the landlord pay money to the tenant (which the tenant had then calculated at $5,460.21): s 187(1)(c) and (d).

The tenant described the basis of his claim to those orders in the “Reasons for the Order/s” panel on his application form, as follows (the paragraph breaks are mine, and have been inserted for ease of reading):

Section 115: - 10+ year tenancy - Termination notice received 4 days after plea for support sent to owner, stating: "this notice is under no grounds other than the works at the property needing to take place with vacant possession" (despite contracted repairers confirming this is false), and "this is the easiest way to move forward" (despite not engaging in any negotiation with tenant) - Agent indicated on multiple occasions landlord keen to increase rent and suggested that owner consider termination if repairs are not completed before summer due to concerns that the tenant "will be pushing for every cent of compensation he can get" - Urgent repairs remain unscheduled over 7 months since issue reported (despite available funds & repairers) - I am willing to pay increased rent [above what the owner has asked] once all outstanding urgent maintenance items are remedied
Section 65(1)(a): Repair broken reverse-cycle air-conditioning - approve & schedule job ASAP
Section 187(1)(b): The landlord agrees: - 14.2 that the landlord or the landlord's agent will not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises - 18.3 to keep the residential premises in a reasonable state of repair - 18.5 to comply with all statutory obligations relating to the health or safety of the residential premises
Section 187(1)(c): Fund immediate cooling solutions for all occupied bedrooms - Occupied bedrooms reaching 10 degrees hotter than external ambient temperatures at night due to: broken AC; poorly insulated/ventilated premises; hot summer forecast; very high air/noise pollution environment - $457.05: rental AC - $998.00: portable AC purchase
Section 187(1)(e): - Broken terms: As per Section 187(1)(b) response - Remedy: As per Section 187(1)(c) response; in addition: provide assistance with properly ducting temporary portable AC exhaust; ensure cooling capacity sufficient for summer

The proceedings came before the Tribunal for conciliation and an initial hearing on 20 December 2023. Conciliation was not successful, so the Tribunal adjourned the claim for hearing as a special fixture on a date and time to be confirmed by the Registrar. In doing so, the Tribunal made orders that the parties provide to each other, and lodge with the Tribunal, copies of the documents on which they relied, by certain dates.

The hearing

The proceedings were subsequently listed for hearing before me on Monday, 5 February 2024, with an allocation of 3 hours. The tenant represented himself at the hearing. The landlord was represented by Chloe Anderson from its managing agents, The Agency Real Estate (the “managing agents”).
Both parties were given the opportunity to present the evidence they wished to rely on in support of their claim or defence; to ask questions of each other; and to make details submissions to the Tribunal in support of their position. I engaged in detailed questioning of both parties on their respective claims and defences. I am satisfied that both parties received adequate procedural fairness in presenting their position to the Tribunal.
The tenant confirmed at the start of the hearing that he continued to seek orders requested in his application form. He also stated that the particular landlord obligations that he sought to enforce were contained in clauses 14.2 (quiet enjoyment), 18.3 (the landlord's repair obligations) and 18.5 (the landlord's obligation to comply with statutory duties) of the tenancy agreement.
Ms Anderson stated in her opening submissions that the landlord disputed the whole of the tenant’s claim, adding that the landlord sought to terminate the tenancy agreement so that it could refurbish the premises, 10 years after they were last refurbished. She also stated that the landlord opposed the claim for air-conditioning repairs on the basis that the property is part of a strata scheme, and that the repair work concerned related to or included work on the common property, owned by the owners’ corporation for that strata scheme.

Jurisdiction

I am satisfied on the evidence (identified below) that there was, at the time of the hearing, an ongoing residential tenancy agreement between the landlord and the tenant that is regulated by the RT Act and that the Tribunal has jurisdiction to hear and determine the tenant's claims in these proceedings. I am also satisfied that the relief claimed by the tenant is within the Tribunal's jurisdiction under the RT Act.

The applicable law

The landlords’ obligations under a residential tenancy agreement

Sections 50, 52 and 63 of the RT Act prescribe the landlord's main obligations under a residential tenancy agreement, relating to quiet enjoyment, the performance of the landlord’s statutory duties and repairs and maintenance. Those sections relevantly provide (my underlining):

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.
(2)    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.
: Maximum penalty--10 penalty units.
(3)    …
(4)    This section is a term of every residential tenancy agreement.
52 Landlord's general obligations for residential premises
(1)    A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant.
…
(3)    A landlord must comply with the landlord's statutory obligations relating to the health or safety of the residential premises.
Note : Such obligations include obligations relating to swimming pools under the Swimming Pools Act 1992 .
(4)    This section is a term of every residential tenancy agreement.
63 Landlord's general obligation
(1)    A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.
(2)    A landlord's obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises.
(3)    A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant's breach of this Part.
(4)    This section is a term of every residential tenancy agreement.

Section 65 of the RT Act gives the tenant the right to seek work orders against the landlord where the landlord has not complied with its obligation under s 63. That section provides (relevantly, my underlining):

65 Tenants' remedies for repairs--Tribunal orders
(1)    Orders for which tenant may apply The Tribunal may, on application by a tenant, make any of the following orders--
(a)    an order that the landlord carry out specified repairs,
…
(2)    Orders for repairs The Tribunal may make an order that the landlord carry out specified repairs only if it determines that the landlord has breached the obligation under this Act to maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.
(3)    In deciding whether to make an order under this section, the Tribunal--
(a)    …
(b)    may take into consideration whether the landlord failed to act with reasonable diligence to have the repair carried out.
(3A)    The Tribunal must not determine that a landlord has breached the obligation unless it is satisfied that the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair.
…

"Residential premises" is defined in s3 of the RT Act for the purposes of the Act, and means:

“residential premises” means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence.

The phrase is given an expanded meaning in s 62 of Act for the purposes of ss 63-65 of the Act (my underlining):

"residential premises" includes everything provided with the premises (whether under the residential tenancy agreement or not) for use by the tenant.

Amendment of condition reports

Section 31 of the RT Act empowers the Tribunal, on the application of the landlord or tenant, to make orders either requiring a condition report to be amended; or determining that a condition report is not required to be amended.

No-grounds termination notices and retaliatory termination notices

Section 85 of the RT Act permits a landlord to give the tenant notice terminating a periodic tenancy agreement on 90 days’ notice without having any specific ground for termination. The section relevantly provides:

85 Termination of periodic agreement--no grounds required to be given
(1) A landlord may, at any time, give a termination notice for a periodic agreement.
(2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given.
…

Section 115 of the RT Act empowers Tribunal to declare a termination notice invalid on the ground is a retaliatory notice. That section relevantly provides (my underlining):

115 Retaliatory evictions
(1)    The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice--
(a)    declare that a termination notice has no effect …
…
if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application.
(2)    The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons--
(a)    the tenant had applied or proposed to apply to the Tribunal for an order,
(b)    the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law,
(c)    an order of the Tribunal was in force in relation to the landlord and tenant.
(3)    A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant.

Section 39(4)(a) of the Residential Tenancies Regulation 2019 (NSW) (the “2019 regulation”) prescribes a period of 30 days after the termination notice is given, for a tenant to make an application may be made to the Tribunal under s 115 in respect of a termination notice served under s 85 of the RT Act.

The Tribunal’s general powers

Lastly, s 187 (1) of the RT Act sets out the Tribunal's general powers, including (relevantly):

187 Orders that may be made by Tribunal
(1)    The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders--
(a)    an order that restrains any action in breach of a residential tenancy agreement,
(b)    an order that requires an action in performance of a residential tenancy agreement,
(c)    an order for the payment of an amount of money,
(d)    an order as to compensation,
(e)    an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement,
…
(h)    an order directing a landlord, landlord's agent or tenant to comply with a requirement of this Act or the regulations,
…
(2) Without limiting the Tribunal's power to make an order as to compensation, the Tribunal may order compensation to be paid for the following--
(a) loss of rent,
(b) any other breach of a residential tenancy agreement,
(c) loss or damage suffered by a person as a result of inaccurate, ambiguous or out-of-date information being listed about the person on a residential tenancy database.
(3) An order under subsection (1)(a) or (b) may be made even though it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which such a remedy would not otherwise be available.
(4) The Tribunal must not make an order for--
(a) the payment of an amount that exceeds the amount (if any) prescribed by the regulations for the purposes of this section, or
(b) the performance of work or the taking of steps the cost of which is likely to or will exceed the amount (if any) prescribed by the regulations for the purposes of this section.

I have considered the applicant's claim in accordance with these principles. I have also considered the applicable case law affecting these provisions, as I set out below.

The tenant’s evidence and his submissions

The tenant relied on the bundle of documents that he provided to the landlord and lodged with the Tribunal on 4 January, 2024, which I marked as exhibit T1. Those documents included:

several written statements prepared by the applicant, all dated 5 December 2023, which I have taken to be his unsworn witness statements and his submissions on the issues before the Tribunal, bearing the headings:

current status;

retaliatory termination evidence;

AC repair timeline;

reasons AC is crucial in summer;

stats;

duration;

requested orders;

tenancy agreement/lease;

compensation;

strata;

local external environmental conditions;

recorded bedroom temperatures;

weather almanac;

historical electricity bill; and

equivalent rental prices without AC;

the tenancy agreement;

a previous residential tenancy agreement between the parties;

a floor plan for the premises;

the conciliation report for the conciliation hearing held on 25 May 2023;

minutes of meeting of the owner’s corporation, dated 28 September 2023;

the termination notice served by the landlord on the tenant, dated 21 November 2023;

a bundle of email communications between the tenant and his subtenants, concerning the tenancy and the living conditions at the premises;

a medical certificate from a Dr Jie Jiang, concerning Mr Dawson’s history of asthma;

a bundle of invoices for monies spent by the tenant; and

a bundle of aerial photographs of the premises.

The tenant also relied on a supplementary bundle of documents in reply to the landlord’s evidence, which he handed up at the hearing and which I marked as Exhibit T2. Those documents included:

additional written statements prepared by the applicant, dated 5 February 2024, bearing the headings:

expenses addendum;

rental prices addendum;

an additional bundle of email correspondence; and

a bundle of photographs of a portable air-conditioning unit installed at the premises.

The landlord did not object to any of those documents being used as evidence in the proceedings.
The tenant did not give any sworn testimony to the Tribunal. The landlord also did not seek to question the tenant on any of the evidence or the issues in the proceedings.
The tenant argued in support of his claim that the broken air-conditioning system was diminishing his quiet enjoyment of the premises, and needed repair. He further asserted that the owner was only looking to refurbish the premises because of the difficult situation with the tenant, so as to avoid the tenant, and that termination notice was issued because the air-conditioning system was still not fixed. He pointed to an email from the managing agents to the landlord in August 2023, which encouraged the landlord to issue the termination notice by saying was the effective “why would you keep this tenant on they will keep asking for every cent of compensation”, as evidence that the termination notice was retaliatory for the tenant’s frequent repair requests concerning the air-conditioning. He further asserted that there were large heatwaves in Sydney in September-October during which the tenant was pressing for the air-conditioning repairs to be completed or for other strategies to be implemented, such as hiring temporary rental air-conditioners. He asserted that it was necessary to purchase 2 temporary air-conditioning units because of the landlord’s failure to organise the repairs and to cooperate with the tenant.
On the issue of repairs, the tenant argued that the landlord had failed to rectify the air-conditioning issues with due diligence and that a full replacement of the air-conditioning system was necessary to repair the system to its former state of repair, without improving it beyond that. He asserted in conclusion that the landlord was not meeting his obligations under the tenancy agreement.
The tenant did not make much in the way of argument in relation to the condition report claim, asserting that he did not know if there was one and that the owner had self-managed the property before 2019.
Lastly, the tenant pressed for payment of the money items set out in exhibits T1 and T2, including compensation for the tenant’s own time and labour in dealing with the air-conditioning issues and in bringing these proceedings before the Tribunal.

The landlord's evidence and its submissions

The landlord relied on the bundle of documents it provided to the tenant and lodged with the Tribunal on 12 January, 2024, which I marked as exhibit L1. Those documents included:

completed hearing notes;

the managing agent’s agency agreement;

documents titled “Synopsis” and “chronology of events”, prepared by the managing agents, which I have taken to be unsworn evidence and the landlord’s written submissions on the matters before the Tribunal;

a comparable rentals analysis, prepared by the managing agents;

the tenancy agreement;

the termination notice;

bundles of email correspondence between the landlord/the managing agents and the tenant, dated variously;

an air-conditioning installation quote from Licensed to Chill Installations, dated 29 September 2023;

quotes for blinds, waterproofing, painting and flooring issues;

a bundle of correspondence between the tenant and Licensed to Chill Installations; and

a bundle of correspondence between the managing agents and Premium Strata, the building managers for the strata scheme containing the premises.

The tenant did not object to any of those documents being used as evidence in the proceedings.

The landlord also did not adduce any sworn oral testimony in support of its defence. The tenant asked Ms Anderson some questions in relation to the documents and the issues in the proceedings, which Ms Anderson answered.
The landlord submitted that the tenant’s claim was more concerned with financial points, such as cost of the Tribunal proceedings and the tenant’s own time, and not whether the notice was retaliatory. He asserted that the tenant has already received compensation by agreement with the landlord through the reduced rental instalments of $200 per week.
The landlord further submitted that he has the power, and should have the power, to take the premises back during a periodic tenancy, and that he was not trying to penalise the tenant by doing this. He further argued that the previously good relationship between the landlord and the tenant was essentially severed by these issues and would be hard to reinstate, adding that the hurdle with the air-conditioning issue was from the owners corporation, not the landlord.
On the issue of the condition report, the landlord submitted that was nothing the Tribunal to do as though evidence had been provided of any ingoing condition report that needed to be rectified.
The landlord further submitted that the repair orders were unnecessary as the landlord wanted to refurbish the premises when the tenant vacated them. In the event that the Tribunal finds the termination notice retaliatory, he submitted that it would not be a problem to repair the blinds as claimed by the tenant, however the air-conditioning would be a problem as the landlord has no control over the owners corporation. To this extent, it submitted, the landlord would be prevented from complying with the specific performance orders proposed by the tenant because of the owners corporation’s actions.
Lastly, on the issue of compensation, the landlord submitted that the rent reduction the landlord had already provided the tenant potentially overlapped with any need to provide compensation to the tenant, so that no extra compensation was needed. This, he argued, covered the costs incurred by the tenant in hiring or purchasing air-conditioning units.

The tenant’s submissions in response

On the issue of compensation, the tenant argued in reply that the relevant issue was the tenant’s comfort in using the premises. He asserted that the termination notice retaliates against his taking steps to enforce his quiet enjoyment of the premises. He argued the compensation should be paid in addition to the “by consent” rent reduction negotiated in May 2023. He further asserted that he would have moved out of the premises if he knew in May 2023 that the air-conditioning system would not be repaired or replaced until 2024.
Lastly, the tenant argued that the solution of the air-conditioning problem is not just for himself, but also applies to his subtenants to occupy the premises with him.

Findings of fact

I have carefully reviewed and considered all the evidence produced by both parties – the majority of which was not the subject of any controversy. The evidence satisfies me on the balance of probabilities that the background facts of the matter are as follows.
The premises is a free standing residential house that is located within a strata scheme at Henderson Road, Alexandria NSW. It contains 4 levels, including 4 bedrooms, 2 decks, a terrace, a double underground security car space and a storage room. It also includes ducted air-conditioning that operates from a utilities room on level 4 of the premises.
The landlord (which was registered as a company in Victoria in 1993) owns the premises. On or about 18 July 2013 the landlord and 3 original tenants (including the current applicant) entered into a residential tenancy agreement (the "original tenancy agreement"), under which the landlord let the premises to those original tenants for an initial term of 12 months that started on 29 July 2013 and was scheduled to end on 29 July 2014.
The original tenancy agreement contained the terms and conditions prescribed under the Residential Tenancies Regulation 2010 (as it then was – the “2010 regulation”), together with various additional terms. The original tenants were required to pay rent at the rate of $1,200 per week under the original tenancy agreement, starting on 12 August 2013.
The landlord and the applicant, Mr Dawson, entered into the current tenancy agreement on 3 February 2020, under which the landlord let the premises to Mr Dawson for a further fixed term of 26 weeks that started on 3 February 2020 and was scheduled to end on 2 August 2020. That tenancy agreement again primarily contained the terms and conditions prescribed under the Residential Tenancies Regulation 2010, together with additional terms. The relevant terms of current tenancy agreement included the following:

Rent was payable by the tenant at the rate of $2,400 per fortnight (equivalent to the previous rate of $1,200 per week), in advance starting on 3 February 2020.

No more than 5 persons would ordinarily live in the premises at any one time.

The RT Act and the 2010 regulation applied to the tenancy agreement, and both the landlord and the tenant must comply with those laws.

At clause 14.1, the landlord agreed that the tenant would have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through or under landlord or having a superior title to that of the landlord. The landlord further agreed at clause 14.2 that the landlord or its agent would not interfere with, or cause or permit an interference with, the tenant's reasonable peace, comfort or privacy in using the premises.

At clause 18, the landlord further agreed:

to keep the premises in a reasonable state of repair, considering the age of, the rent paid for in the prospective life of the premises (clause 18.3); and

to comply with all statutory obligations relating to health or safety of the premises (clause 18.5).

At the end of the fixed term, the agreement continued in force on the same terms as a periodic agreement, unless the agreement was terminated by the landlord or the tenant in accordance with the RT Act. The landlord may end the periodic agreement by giving at least 90 days’ notice to the tenant.

The landlord and tenant agreed that the condition report prepared for the original tenancy agreement would also apply to the tenancy agreement.

For quite some time (the length of which was left unstated at the hearing) the tenant has sublet parts of the premises to subtenants, for them to use as their residences. The tenant collects rent from those subtenants. I infer from this (but without making any particular findings) that the tenant is likely to owe those subtenants similar obligations to those that owed by the landlord to the tenant under the tenancy agreement, including obligations to provide them quiet enjoyment, and to repair the premises they have use of as part of the subtenancy arrangements between the tenant and those subtenants.
The fixed term of the tenancy agreement expired on 2 August 2020. Since then, the tenant has been in possession of the premises on a periodic tenancy basis.
On 6 April 2023, the managing agents served a rent increase notice on the tenant informing him that the rent would increase by $150 per week, to $1,350 per week, after 60 days had expired.
On 13 April 2023, the tenant wrote to the managing agents, stating in part:

“Several of our air-conditioning units no longer provide cooling” and that “This cooling is incredibly important […] get extremely hot on sunny days due to all day. An exposure and limited insulation. This problem was first notice on 6 April 2023.”

On 27 April 2023, the tenant wrote again to the managing agents. This time, he requested a rent reduction of $80 per week as compensation for 3 rooms losing climate control through winter.
On 28 April 2023, the tenant lodged an application in Tribunal proceedings number RT 23/19539 (the “tenant’s previous claim”), in which he sought an order under s 65(5) of the RT Act that (according to the application form filed with the Tribunal in those proceedings) all or part of his rent be paid into the Tribunal until repairs were carried out. The tenant recorded the basis of that application in the “Reasons for the Order/s” panel on his application form, as follows:

06/04/2023: received notice for rent increase +$150 (+12.5%) from Chloe Anderson effective 19/06/2023
13/04/2023: sent notice to agent Chloe Anderson that AC units required urgent maintenance - cooling no longer operational in 3 bedrooms urgent because I work from home, from a top floor room that is exposed to all day sun, with no opening windows and limited insulation (my bedroom where I sleep) 13/04/2023: received notice that rent increase still stands from Chloe Anderson
27/04/2023: AC repairs assessed by technician from Lion Air - recommended that entire multi-split system be replaced as condition of 10+ year old units is in a state of disrepair, which will take quite some time to complete additionally technician stated that a portable AC unit would be insufficient for the space/conditions
27/04/2023: sent notice to agent Chloe Anderson requesting $80 reduction in rent effective from 27/04/2023 until AC repairs are completed, as compensations for inability to work/sleep in reasonable conditions, and the fact that resolution of the matter will further disturb my work due to access of the AC units being via my work space, and the job requiring multiple site visits to resolve
28/04/2023: waiting for response from The Agency / owner regarding rent reduction, rent increase, and AC repairs (the current implication is that rent will possibly increase before AC repairs are completed, rather than decrease until they're completed):

On 18 May 2023, the managing agents obtained a quote from H&R Property Maintenance to supply and install 2 block-out roller blinds and a pair of curtains at the premises, for a total price of $1,160. The landlord did not subsequently purchase those blinds for installation at the premises.
The tenant’s previous claim came before the Tribunal for conciliation on 25 May 2023. Through conciliation, the parties agreed to resolve the tenant’s claim on the following terms, which they set out in a written conciliation agreement:

1    Rent is not to exceed $1120 per week [a reduction of $230 per week] from 13/4/23 to date and continuing to the date of commencement of the building work for replacement of air-conditioners and compressors "works".
2   The rent is not to exceed $960 per week from the date of works commencement set out in order 1 to the end of the "works".
3   Upon completion of the "works" the rent will increase in accordance with the rent increase notice dated 06-04-23 with rent $1350 per week.

The Tribunal then dismissed the proceedings, noting that the tenant’s application was withdrawn and that the parties had reached an agreement resolving the issues in the proceedings.

Ms Anderson confirmed that agreement between the parties by an email to the tenant the following afternoon, 26 May 2023, writing in part:

As per our discussion yesterday at the tribunal we agreed to continue the $80 rent reduction and then change to a $240 rent reduction whilst aircon work takes place.
The rent reduction [sic – increase?] will be deferred until the works are completed.
At least we came to an agreement to dismiss the tribunal case.

On 9 June 2023, the managing agents wrote to the tenant, stating that “the rental increase has been removed but will be reinstated once the works are completed to help manage the owners increasing mortgage payments.”
On 24 July 2023, Ms Anderson wrote to the strata manager, informing them that the landlord had agreed to bear the costs of holding a general meeting of the owners corporation and asking for one to be called to consider the landlord’s request to conduct air-conditioning works at the premises, adding:

As you can understand time is of the essence here as the owner is currently having to provide a rent reduction due to no working air conditioning.

The strata manager responded the same day, advising Ms Anderson that they would issue details for a meeting of the owners corporation, which would be held via Zoom.

On 2 August 2023, the tenant wrote to the managing agents, stating in part:

“If this isn’t resolved by October […] it’s highly likely that hot temperatures and humidity[…] Will begin to become very uncomfortable multiple nights per week, in which case I will be requesting a further rent reduction in the range of $295-370 pw … Unfortunately cooling down the bedrooms is not as simple as opening a window and turning a fan on, because the bricks retain heat from the sun hours after sunset, and we are located on one of the busiest streets in Sydney, adjacent to the NSW Ambulance and Transport Management Centre, meaning sirens and 18 wheelers are a regular occurrence day and night, not to mention the poor air quality, and lack of windows and/or fly screens.”

Ms Anderson replied to the tenant the same day, writing in part:

“A rent decrease of $370 a week is beyond a rent increase that a tribunal would award. The owner will consider what he would like to do with the tenancy and the property and be in touch.”

Ms Anderson also wrote to the strata manager the same day, asking for an update. The strata manager responded to Ms Anderson 2 days later, apologising for the delay on the basis that they were “waiting to hear back from Monika”, and noting that the by-laws for granting the approval were being completed.

On 20 August 2023, Ms Anderson wrote to the strata manager, asking them to:

“… confirm what the update is now as we have been going back and forth on this for two months and each week we are providing tenant with rental compensation for the air-conditioning/heating”

No response from the strata manager has been produced to the Tribunal.

On 22 August 2023, the managing agents wrote to the landlord about rectifying the situation with the air-conditioning issue, stating in part:

“If this doesn’t happen before summer I would be considering whether you want to keep this tenant on as he will be pushing for every cent of compensation he can get.”

Two days later, on 24 August, the managing agents wrote again to the landlord, stating that “the rent is well below market rent for a 5 bedroom home”.

From mid-September 2023 onwards, Sydney started to experience summer-like temperatures with daytime temperatures over 30°C and overnight minimum temperatures over 20°C. On 25 September, the tenant wrote again to the managing agents, providing temperature readouts taken from within the bedroom on the top floor of the premises and stating in part:

“Here are some temperature readouts in my bedroom taken from the heatwave a week ago. There is another heatwave on the way, with 1^st and 3^rd of Oct reaching 33 again. 19 Sep 21:49 - 9 degrees hotter inside late evening: 22 degrees outside, 31 degrees inside, doors to balcony open, ensuite window open, kitchenette door open; 20 Sep 23:06 - 9 degrees hotter inside, late evening: 19 degrees outside, 28 degrees inside, doors to balcony open, ensuite window open, kitchenette door open; 21 Sep 07:16 = 8 degrees hotter inside, early-morning: 18 degrees outside, 26 degrees inside, ensuite window open, kitchenette door open. If the AC cannot be repaired within the next 4 weeks – which will be over 6 months from when the issue was reported – I will need you to look into providing a portable AC unit as the heat is already impacting my ability to get quality sleep.”

On 28 September 2023, the owners corporation for the strata plan held a general meeting at which the corporation resolved to unanimously to authorise the landlord carry out alterations and additions of the common property for the installation of air conditioning to the premises. The owners corporation also resolved to create a bylaw regulating common property rights in respect of that air-conditioning installation work, along the lines of the form previously drafted.
On 29 September 2023, the managing agents obtained a quotation from Licensed to Chill Installations, an air-conditioning installer, to supply and install a 14 kW 7-zone air-conditioning system as a replacement for the air-conditioning system at the premises,, removing and disposing of the old air-conditioning system, at a total price of $25,508.08.
On 19 October 2023, the managing agents wrote to the tenant, stating in part:

“[We have] kept the rent below market rent for you”.

A week later, on 26 October, the managing agents wrote again to the tenant, this time stating

“If you are unhappy at the property you are not in a lease at the property locking you into a fixed period and can provide notice to vacate.”

The tenant responded that same day, writing in part:

“Now that the issue has drawn out for over 6 months, we are in a different season and the issue is no longer affordable to mitigate. So we now need to either: (a) come to an agreement for an increased discount that will cover the rental of AC units – since the current discount will not cover the rental of a single AC unit (and three rooms are effected); OR (b) have rental AC units provided. Either solution works for us, however the existing arrangement is not sufficient.”

On 10 November 2023, Ms Anderson wrote to the landlord, informing him that she had still not received a response from the strata scheme. Ms Anderson wrote again to the strata manager, stating in part:

it’s unacceptable that we have had absolutely no response from you from what [the landlord] has provided.
“[The landlord] is paying compensation to the tenant weekly and the only hold now is no response from you.”

On 15 November 2023, the tenant sent a long email to the managing agents, seeking an update on the status of the air-conditioning repair job. The tenant’s email stated in part:

It’s been over 2 weeks since the last milestone was expected to be completed. Are you able to provide any updates on the AC repair job status?
I have been incredibly reasonable, flexible & patient; reliably paid rent on time (something over $600,000.00); taken responsibility for maintaining the house for over 10 years at minimal cost to the owner; suffered through countless contractors being on-site for extended periods of time; tolerated repairs taking anywhere from 3 months to over 5 years; and continue to do everything in my power to be an easy-going, reliable, high quality tenant; who continues to offer the owner dependent stability for the foreseeable future (years to come).
However I'm afraid the inability to provide an effective solution sooner regarding the broken air-conditioning is forcing me to make the following proposition: If we are unable to come to an agreement and I don't hear confirmation that the owner is able to provide any immediate interim solution by Friday Nov 17, I will be forced to rent a sea units myself from Monday Nov 20 (the current cheapest cost estimate is looking to be around $680 per week + $300 delivery/ installation) and additionally seek the following warns from the tribunal:
● Section 65(1)(a) – An order that the landlord carry out repairs
●   Section 187(1)(e) – An order that a party to a residential tenancy agreement perform such work will take such other steps as the order specifies to remedy a breach of the agreement
●   Section 187(1)(f) – An order that requires payment of part or all of the rent payable under a residential tenancy agreement to the Tribunal until the whole or part of agreement has been performed or any application for compensation has been determined
●   Section 187(1)(g) – an order that requires rent paid to the Tribunal to be paid towards the cost of remedying a breach of the residential tenancy agreement or towards the amount of compensation
●   Section 44(1)(b) – An order that the rent payable is excessive due to a reduction or withdrawal of the goods, services or facilities provided with the residential premises
●   Section 46 – An order for the payment of rent paid in excess of specified by the Tribunal
●   Section 187(1)(d) – An order as to compensation $
…
My proposal to Tribunal would be supported by the following weather data:
[which the tenant then set out, before continuing:]
Please ensure that additional resources are allocated to this issue in order to save the owner, [the managing agents], and myself any further wasted time, money, and discomfort.

The managing agents responded to the tenant the next day, asserting that statements made in that email were incorrect and indicating that the tenant was “welcome to proceed how you wish”.

The tenant then wrote directly to the landlord on 17 November 2023, in relation to the air-conditioning issues he and his subtenants were experiencing at the premises. He informed the landlord that he had booked and paid for a rental air-conditioner that would be delivered the following day, and asked if the landlord accepted covering that cost, adding:

I am simply pursuing reasonable safe comfortable living conditions, and I want to achieve this in a way that is as quick, easy, and cheap for you as possible.
I have reasonably expected if any issues arise that fall under your responsibility, adequate action will be taken in a timely manner to circumvent any impact on us residents to the extent possible, as contained within our agreement and covered by industry regulations. I’m afraid that providing a small rent discount does not come close to circumventing any of our current issues and I have made this very clear on numerous occasions to no avail. While I appreciate that replacing the AC is neither a cheap nor easy problem to solve, circumventing the impact on us residents is not complicated (I have already offered to solutions); still costs less than we are paying you in rent; and you are obligated to do so – so I really do not appreciate the fact that no attempt has been made.
It’s come to my attention that you may not be aware of the reasons for my urgency in pursuing repairs to the AC and finding an interim solution, as you may have never spent a summer’s day/night in the top-floor bedroom where I live. I’m not being pedantic or troublesome – anyone residing within this room would raise the same concerns with at least as much vigour (after 10 years here, I have a pretty good idea). Here’s a little background:
…
We’ve already been doing everything within our control – without considerable expenditure – to cool the house down, including:
●   multiple fans in every room
●   ventilating rooms by leaving doors & windows open despite aforementioned problems with this
●   spending time in cooler areas of the house when possible
For what it’s worth, the excess heat in the house due to the broken AC has and continues to negatively impact our lives in the following ways:
●   sleep: the heat is leading to us getting insufficient sleep most nights, which I have personally had to start taking medication for (can provide a doctor’s certificate)
●   work: several residents – including myself – work-from-home on a routine basis within the impacted rooms, primarily during the hours of peak heat
●   personal relationships: it’s too hot for intimacy
●   routine: interruptions; emails; calls; intrusions due to contractors & construction; moving furniture; etc.
●   mental well-being: due to the aforementioned items; additionally, during the stress of disagreements, uncertainty, delays, poor communication, etc.
Moving forward, all that is required to restore harmony to our agreement and interactions is as follows:
●   climate control: including the following items (that require doors & windows to be closed):
o   noise
o   pollution
o   pests
o   temperature
●   concise timely professional communication, including: …
●   security: including: …
●   privacy: including: …
…
I’m sympathetic for the inconvenience that these issues have caused you – I’m fully aware that it’s a pain for everyone involved to deal with; one that none of us would wish for anyone to have to endure. So here’s hoping it’s smooth sailing from here on out, wishing you all the best, and let me know if there’s anything I can do to help make life easier.

The same day (17 November), the managing agents obtained a quote from H&R Property Maintenance to patch and paint the walls and ceilings, and to and/or sand and revarnish the flooring at the premises, for a total cost of $34,309.
On 21 November 2023, the landlord served the termination notice on the tenant pursuant to s 85 of the RT Act, on the stated grounds of "Termination of periodic tenancy without a reason", requiring the tenant to vacate the premises on 21 February 2024. The covering email sent by Ms Anderson to the tenant with the termination notice stated that the termination notice:

… is on grounds other than the works at the property needing to take place with vacant possession, the complexity beyond reason that we are not aware of.

The tenant responded late that afternoon, asking the landlord and the managing agents to “get in touch if you’re interested in exploring some alternative options I can offer that will help mitigate the expense of the property being vacant and unlet”, suggesting that he was open to coming to an agreement whereby the whole of the premises would be vacated temporarily while the works were performed. He also stated that he was open to negotiating and coordinating a “mutually beneficial costs-effective solution” for an “interim climate-control solution”. Ms Anderson responded further that evening, stating (relevantly):

“This has been a discussion between contractors, strata, the owner and myself.”
“We have made the decision that this is the easiest way to move forward and will need vacant possession for 21^st February 2024 as per the attached notice provided. …”

On 24 November 2023, Matthew Mitchell at Licence to Chill sent an email to the tenant, stating that he wasn't not able to provide a date for the works until he received approval from "strata/real estate". He added that a replacement of the system of this kind:

… has minimal impact to the interior, 80% of the work will take place outside and in the plant room via the top floor bedroom. The necessary work required to replace the indoor units is estimated at 2 hours per room. Any furniture that can remove prior to us beginning would be great but not essential.

On 29 November 2023, the tenant sent an email to the strata manager for the building, stating in part:

I am the tenant at this address. We are currently suffering extreme heat in the house due to hold-ups with these approvals to the bylaw amendments that are required to complete repairs to our air-conditioning, which broke over 7 months ago.
Can you please provide me an update regarding whether the changes have been approved or an estimate of the best/worst case scenario regarding how much longer this may be expected to take, in order to help support us coordinating contingencies in order to survive the summer heat without further risk of heatstroke; inflammation of respiratory conditions; anti-interference with sleep, peace, comfort, pest control, and noise pollution.
This matter is urgent. Our independent building is poorly insulated and considerably hotter than the primary strata complex. I live in the attic which accumulates heat from the 3 floors below as well as the gas water heater, the bedroom has no windows, is exposed to fall all day sun on all walls, which are brick veneer with no insulation, under a north facing metal roof with only 20 cm of insulation.
FYI, I am taking this matter to the Tribunal, and your response will be used as evidence in the matter.

The strata manager responded to the tenant, suggesting that he “Please contact your strata agency”. Ms Anderson then wrote to the strata manager, later the same day (29 November), asking for an update on the approval of the air conditioning but no response appears to have been provided, as Ms Anderson pressed her enquiry a week later, on 7 December.

On 30 November 2023, Ms Anderson sent an email to the tenant, in which she informed the tenant that his rent would be reduced by $200 per week until he vacated the property, noting that the tenant was required to provide vacant possession on 21 February 2024. In a subsequent email that same day, Ms Anderson confirmed that the tenant's rent was to be $2,000 per fortnight. The tenant replied the same day, confirming that his scheduled fortnightly payments had been adjusted to $2,000 per fortnight.
As noted above, the tenant subsequently lodged his application in these proceedings on 5 December 2023, bringing the dispute before the Tribunal.

Consideration – applying the law to the facts as found

The condition report claim

The evidence establishes that the parties expressly agreed, when entering into the tenancy agreement, that the condition report prepared for the original tenancy agreement would apply for the purposes of the (replacement) tenancy agreement. While it would be difficult to make out a claim to amend the report under s 31 against that background, it would still be potentially possible where the evidence shows that the condition of the premises at the time the report was entered into was other than as stated in the report.
However, the evidence produced to the Tribunal did not contain a copy of the allegedly defective condition report or any evidence of the true condition of the premises at the time the report was prepared. In these circumstances, the tenant has not demonstrated that there is any need to amend the report under s 31. This part of the tenant’s claim is therefore dismissed.

The retaliatory notice claim

Section 85 does not expressly state that s 115 operates as an exception to the mandatory direction given to the Tribunal in subsection 85(3), however various Appeal Panel decisions have confirmed that the Tribunal can refuse to make a termination order under s 85 on the ground that a termination notice or termination application was retaliatory under s 115, including Quader v Bell [2017] NSWCATAP 24 at [51]; Mercieca v Fu [2017] NSWCATAP 205 at [40]-[44]; Camilleri v Eastlake [2018] NSWCATAP 176 at [16]- [24]; Smith v Li [2020] NSWCATAP 59 at [55]; and (most recently) Williams v Gerringong Housing Aboriginal Corporation [2022] NSWCATAP 144, which was decided in May 2022.
The Tribunal’s power under s 115 is discretionary. Even if the Tribunal finds the notice to be retaliatory the Tribunal does not have to set aside the notice: Nulla Nulla Aboriginal Lands Council v Lucas [2013] NSWCTTT 219. In exercising the discretion, the Tribunal should look at all the relevant matters, including the existence of non-retaliatory reasons for serving the notice or making the application: Re Magistrate Crawford; Ex parte McCormack [2020] WASC 236.
The Appeal Panel recently summarised the law on applying s 115 of the RT Act to a termination notice issued under s 85 of the Act, in Hughes v Hume Community Housing Association Co Ltd [2023] NSWCATAP 109 (Hughes), writing at [97]ff (my underlining):

97. It is well established that a tenant can rely on s 115 of the RT Act to assert that a s 85 RT Act ‘no grounds’ termination notice is retaliatory, and seek to have that notice declared invalid.
…
99. In Steinbeck v McDonald [2015] NSWCATAP 90 (‘Steinbeck’), the Appeal Panel described the operation of s 115 of the RT Act as follows (at [29]-[33]):
Section 115(2) of the Act requires the tribunal to undertake a two-step process. First, the tribunal must ask — “Is the subject notice a retaliatory notice?” That is, was the landlord wholly or partly motivated to give the notice for one or more of the reasons listed in paras (a) to (c) of s 115(2). Second, if the answer to that question is yes, the tribunal “may” declare that the termination notice has no effect (s 115(1)(a)).
…
The mischief s 115 seeks to remedy is the termination of a tenancy in circumstances where the landlord is motivated to do so, wholly or partly, because the tenant has, or proposes to, exercise their rights under a tenancy agreement and/or the Act. In short, its purpose is to protect tenants against “retaliatory evictions.”
…

100. In respect of the ‘second step’ under s 115 (2) of the RT Act, the Appeal Panel stated in Steinbeck at [57]:
The Act does not prescribe any factors that must be taken into account in deciding whether to exercise the power conferred by s 115. The relevant considerations therefore must be implied by considering the subject matter, scope and purpose of the Act. The Member identified the “interests of both parties” as relevant considerations and described the task required to be undertaken by s 155 (sic) as “to balance the competing rights of the landlord and tenant”. We see no error in that approach.

The ‘First Step’ (i.e. Was the Notice or Termination Application Retaliatory?)
101. In respect of a “retaliatory notice” or a “retaliatory application” under s 115 (1) of the RT Act, what makes the notice or application “retaliatory” is that it is motivated, in whole or part, by any of the matters in s 115 (2) (a)-(c). The legislature used the word “is” in s 115 (2) of the RT Act, not the word “includes”. The focus of the inquiry in the ‘first step’ under s 115 (2) of the RT Act is whether the landlord was wholly or partially motivated to issue the Notice to Terminate, or make a termination application to the Tribunal, by reasons only of the matters set out in s 115 (2) (a)-(c).
102. There is no motivation that is “retaliatory” and falls within the meaning of s 115 of the RT Act, unless it involves the matters in s 115 (2) of the RT Act. The language of s 115 (2) prescribes what is “retaliatory”.
…
105. Determination of whether a termination notice or termination application is retaliatory under s 115 of the RT Act does not involve a general inquiry as to whether the landlord was acting in an unreasonable, excessive, vindictive, spiteful or vengeful way when issuing the termination notice or filing the termination application in the Tribunal.
106. A landlord can be wholly or partially motivated to issue a Notice to Terminate or file a termination application by reason of one or more of the matters in s 115 (2) (a)-(c) without acting in an unreasonable, excessive, vindictive, spiteful or vengeful manner. Concomitantly, a landlord may be acting in an unreasonable, excessive, vindictive, spiteful or vengeful manner when issuing a Notice to Terminate or making a termination application, but unless the motivation falls within the matters set out in s 115 (2) (a)-(c) the termination notice cannot be invalidated or the termination order refused under s 115.

113. … none of the NSW Supreme Court or NCAT Appeal Panel decisions which have dealt with s 115 of the RT Act have suggested that there is any grounds upon which a notice to terminate or application to the Tribunal may be retaliatory other than in respect of whether the landlord was wholly or partially motivated by the matters set out in s 115 (2) (a)-(c) of the RT Act (e.g. Howard v B Miles Womens Foundation Inc [2012] NSWSC 1173; Quader v Bell [2016] NSWSC 632; Mercieca v Fu [2017] NSWCATAP 205; Smith v Li [2020] NSWCATAP 59; Williams v Gerringong Aboriginal Housing Aboriginal Corporation [2022] NSWCATAP 144).
114.   Whether a landlord was “wholly or partially motivated” to issue the termination notice or file the termination application by reason of one of the matters set out in s 115 (2) (a)-(c) is a question of fact to be determined objectively based on an assessment of all the relevant evidence. The tenant bears the onus of proving, on the balance of probabilities, that the landlord was wholly or partially motivated to issue the termination notice or file the termination application proceedings by reason of one or more of the matters in s 115 (2) (a)-(c).
..
116. As the tenant has the evidentiary onus of proving on the balance of probabilities that the landlord was “wholly or partially motivated” to issue the termination notice or file termination proceedings by reason of one or more of the matters in s 115 (2) (a)-(c), the landlord does not have to prove it was not motivated by reason of one of those matters.
117.   The landlord’s motivation may be proved by evidence sufficient to draw an inference irrespective of whether the landlord gives an explanation of why it issued the notice of termination or took termination proceedings, as all evidence is to be weighed according to the power of one side to have produced, and in the power of the other side to have contradicted (Ho v Powell [2001] NSWCA 168 at [15]).
118. Further, the mere fact that a landlord gives evidence that the landlord was not wholly or partially motivated by reason of one or more of the matters in s 115 (2) (a)-(c) of the RT Act does not mean that, when all of the evidence is considered, the Tribunal cannot be satisfied that the tenant has discharged the onus of proof.
The Second Step (i.e. If a Notice or Termination Application is Retaliatory, Should the Tribunal Declare It Has No Effect Or Refuse to Terminate the Tenancy)?
119.   As discussed previously, if the Tribunal is satisfied that the landlord was wholly or partially motivated by reason of one or more of the matters in s 115 (2) (a)-(c) of the RT Act, the Tribunal has a discretion whether or not to declare the Notice as having no effect; or refuse to terminate the tenancy. Neither party bears an onus in respect of the ‘second step.’ The Tribunal must simply determine whether it should, or should not, exercise its discretion to invalidate the Notice to Terminate and/or not make a termination order.
120.   As the Appeal Panel identified in Steinbeck, although the discretion is broad, the matters to be taken into account should appropriately focus upon the competing rights and interests of the landlord and tenant under the RT Act and the residential tenancy agreement. The Tribunal must then identify and weigh the matters taken into account and explain why it is satisfied that the discretion should, or should not, be exercised in favour of declaring the termination notice as having no effect, or refusing to make the termination order.
121.   Such matters may include, depending on the circumstances of the case:
(1)   The reasons the landlord seeks possession of the premises.
(2) If the landlord was only partially motivated to issue the Notice or file the termination application by reason of one or more of the matters in s 115 (2) (a)-(c), the degree to which those matters motivated the landlord in comparison to other matters that fall outside of s 115 (2) (a)-(c).
(3)   If the landlord is a social housing provider, the waiting list for social housing.
(4) Whether there is substantial hardship to either the landlord or the tenant if the tenancy is not terminated despite the fact that the landlord was wholly or partially motivated to issue the Notice or file termination proceedings by reason of one or more of the matters in s 115 (2) (a)-(c) of the RT Act.
(5) Whether the relationship between the parties has broken down to such a degree that it is in the overall interests of the parties to terminate the tenancy so that both parties may move forward. In this regard, a relevant enquiry is why the relationship has broken down and whether the parties have been involved in a cycle of disputation and litigation that is likely to continue if the tenancy is not terminated. However, any such enquiry must be careful not to unfairly benefit a party who has not complied with its obligations under the RT Act and should consider the conduct of both parties.

These are the principles that I have applied in determining the retaliatory notice claim.
On 21 November 2023, when the landlord served the termination notice on the tenant:

The air conditioning unit at the premises was not working, and had not been working since April 2023.

The tenant’s previous claim concerning the air conditioning had been filed and had subsequently been withdrawn, effectively being replaced by the conciliation agreement between the parties, dated 25 May 2023.

The tenant was continuing to receive a rent reduction of $200 per week under that conciliation agreement. He had also foreshadowed seeking larger rent reductions from the landlord in future weeks or months, because of the broken air-conditioning system at the premises.

The managing agents had previously advised the landlord on 22 August 2023 that if the air-conditioning issue had not been rectified before summer, the managing agents “would be” (and, by inference, the landlord should be) “considering whether you want to keep this tenant on as he will be pushing for every cent of compensation he can get”.

The Tenant, the managing agents and the landlord were continuing to exchange regular correspondence with each other and with the strata manager about the air conditioning works, which had not started. The tenant’s correspondence had foreshadowed seeking further relief against the landlord, through the Tribunal, in respect of the broken air-conditioning system at the premises.

The air conditioning works had not yet been commenced, even though the owners corporation had approved the works and voted on a by-law to regulate the works on 28 September 2023, some 2 months earlier.

The managing agents had stated to the tenant on 26 October that he was not locked into a fixed term lease and that he could provide notice to vacate if he was “unhappy at the property”.

The tenant had written to the managing agents again on 17 November – a few days before the termination notice was issued – asserting that he would “need to escalate matters” if the landlord/managing agents were unable to cover the cost of hiring rental air-conditioning units “before my credit card bill is due”.

The day the landlord issued the termination notice (21 November), the managing agents advised the tenant that “we have made the decision that this is the easiest way to move forward”, instead of exploring alternative options proposed by the tenant for mitigating the expense of the property being vacant and unlet, or for the tenant to vacate the premises temporarily while the works were performed.

Those events establish that at the time the termination notice was served on the tenant:

the tenant had both applied to the Tribunal the once, and had proposed to apply to the Tribunal again for orders against the landlord in respect of the broken air-conditioning system; and

the tenant had taken action to enforce his rights under the tenancy agreement and had further proposed to take other actions to enforce his rights under the tenancy agreement and the RT Act.

The landlord submitted that he had issued the termination notice to the tenant for the purpose of obtaining vacant possession of the premises and refurbishing them, as they had not been refurbished in about 10 years, while the tenant and his cohort of co-tenants or subtenants were occupying the premises. I do not accept that submission. Firstly, there is little-to-no evidence before the Tribunal to establish that the landlord was intending or preparing to undertake any such refurbishment. Secondly, the landlord’s arguments that the it needed possession of the premises in order to conduct the air-conditioning works was contradicted by the email from the landlord’s air-conditioning contractor, produced by the tenant, which provided evidence that the air-conditioning works could be conducted while the tenant remained in possession of the premises and would not substantially interfere with the tenant’s occupation of the premises.
I am satisfied on the evidence, and particularly by these matters, that the landlord was wholly or partially motivated by reason of the matters listed in s 115(2)(a)-(b) of the RT Act when the landlord issued the termination notice. This finding leads me to consider the second issue – the exercise of the Tribunal’s discretion.
As set out in Hughes, the matters that I have taken into account in exercising my discretion focus upon the competing rights and interests of the landlord and tenant under the RT Act and the tenancy agreement, including those identified in Hughes at [121], quoted above. The matters that I have taken into account include:

The premises ultimately belong to the landlord, not the tenant. The landlord is entitled by s 85 of the RT Act to take back possession of the premises from the tenant without having or demonstrating any particular “grounds”. This is a powerful factor that favours the landlord.

The repairs have taken several months to complete since the air-conditioning issue was first raised, yet they are not complete. There is no suggestion in the evidence that the landlord has experienced difficulties in dealing with the tenant in order to gain access to the premises in order to repair the premises. However there is evidence that it has taken a long time for the landlord to obtain the necessary consent and authorisation from the owners corporation to deal with the common property in conducting those repairs. I consider this a neutral factor.

As just noted, I do not consider the reasons raised by the landlord for seeking possession of the premises to be persuasive. I am satisfied that the landlord was taking a retaliatory step against a tenant who was exercising his rights under the RT Act in relation to the long-running air-conditioning issue. The rationale behind s 115 is that a landlord should be restrained from exercising its termination rights in appropriate cases, even though they can be exercised without “grounds”. The section is designed to protect the tenant who is exercising those rights, unless there are factors that outweigh that outcome, as a matter of discretion. That is a significant discretionary factor in the tenant’s favour.

This is not a social housing matter. There has also been no assertion that the tenant or his subtenants would become homeless, and unable to find replacement rental accommodation, if the termination notice was not declared void and a termination order was ultimately made. Those factors therefore do not influence the Tribunal’s discretion in this case.

While the relationship between the landlord and the tenant has become strained by these events, I do not consider it to have deteriorated to a point where it would be unjust to force the parties to continue a relationship of landlord and tenant. This factor is therefore neutral in my decision on this case.

Similarly, there has been no evidence that either the landlord or the tenant would incur substantial hardship if the tenancy is not terminated, despite the fact that the landlord was motivated to issue the Notice by reason of one or more of the matters in s 115 (2) (a)-(c) of the RT Act. The evidence establishes that the landlord would be able to complete the necessary repairs with, or without, the tenant remaining in occupation of the premises.

Weighing those factors, I consider the intent of the section and the fact that the tenant has only sought to enforce his rights under the tenancy agreement – which the evidence shows he has done calmly and respectfully – outweighs the landlord’s interest in terminating the tenancy agreement without having any “grounds” for doing so. In my view, the tenant’s tenancy agreement should not be terminated in the circumstances of this case.
As a result, I am satisfied that the Tribunal should exercise its discretion in the tenant’s favour in this case, and make an order under s 115 declaring the landlord’s termination notice to be a retaliatory notice.

The repair orders claim

Section 63 of the RT Act, described above, requires a landlord to both “provide” and “maintain” the premises under a residential tenancy agreement in a “reasonable” state of repair, having regard to 3 matters – the age of the premises, the rent paid for the premises and the prospective life of the premises. As indicated by the position of the word reasonable in the section, the word qualifies the state of repair and not the character or extent of the landlord’s efforts or actions in seeking to repair the premises.
The landlord’s obligation under s 63 applies even though the tenant had notice of the state of disrepair before entering into occupation of the premises: s 63(2), but not if the repair issue has arisen through a breach by the tenant of a tenant’s obligation under Part 3 of the RT Act or the tenancy agreement: s 63(3).
For the purpose of s 63, s 62 defines residential premises to include “everything provided with the premises (whether under the residential tenancy agreement or not) for use by the tenant”. The “residential premises” therefore includes such things as the fittings and fixtures contained in the premises.
Gummow J stated in In Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, at 370-371:

In general, there is no breach of an express covenant by a landlord to keep the demised premises in repair unless two criteria have been met. First the landlord must have information as to the existence of the defect such as would put a reasonable landlord on inquiry as to whether works of repair are needed and, secondly, thereafter the landlord must have failed to carry out the necessary works with reasonable expedition.

The concept of “reasonable state of repair” primarily addresses the issues of safety and functionality. In addition to that, it also goes to whether the premises are in a state of repair that is commensurate with the parties’ tenancy agreement as a contract between them. Consequently, a landlord’s failure to repair defective services and facilities in the premises is a failure to maintain the premises in a fair state of repair, even though they may not be inherently unsafe or failing to function because of the defect that has been raised. See, for example:

Dupont and Rowe v Lawrence [1997] NSWRT 213, where the Tribunal said (my underlining):

Section 25 [the former equivalent of s 63] imports a term into the agreement which requires that the landlord maintain a reasonable state of repair having regard to the factors set out in section 25(1)(b). A lease is an contract and is governed by the law of contract. It is a fundamental tenet of contract law that a party warrants or guarantees strict performance, subject only to any qualification to be found in the contract or a statute (iv). The only relevant qualifications in the agreement are those imported by section 25(1)(b) as to reasonableness. In this context the word reasonable functions as an adjective qualifying the words state of repair. It does not bear upon the nature of the landlord's circumstances. For example, it would not avail the landlord anything to argue that financial problems, problems with the builder or other such problems, precluded the repairs being done. The term reasonable does not go to these issues, and deals only with the actual state of repair. It is open to the landlord to argue that the actual state of repair is reasonable having regard to the rent, age and life expectancy of the premises. In this case the rent was commercial in nature and there is no suggestion that the age or life expectancy of the premises entered into the decision making process.

Kwok v Tahiri [2015] NSWCATAP 244 at [27], where the Appeal Panel wrote (my underlining):

The High Court in Northern Sandblasting Pty Ltd v Harris did not, as Mr Kwok contends, consider the proper construction of s 63 of the Act. Indeed the Act did not come into operation until three years after that decision. Nonetheless we agree with the proposition advanced by Mr Kwok that s 63 does not mandate that a landlord must rectify any and all things or services reported by a tenant as requiring repair. Section 63 simply requires the landlord to maintain the premises in a “reasonable state of repair having regard to the age of, rent payable for and prospective life of the premises”. Whether the landlord has failed to comply with their obligation to maintain the premises in a “reasonable state of repair” is a question of fact to be objectively assessed. It requires consideration of, among other things, the nature of the thing or service said to require repair and the age of, rent payable for and the prospective life of the subject premises.

The landlord’s obligation must be carried out in a reasonably diligent time. It is not excused by conduct or delay caused by tradesmen or suppliers, or if any delay was due to difficulties such as the time of year, poor availability of tradesmen and the like. See, in addition to the above, Shrestha v Crandell Pty Ltd [2010] NSWCTTT 240; De Chazol v Scala [2010] NSWCTTT 135; Hanney v McCabe Toshack [2014] NSWCATCD 239 at [49]-[50].
As noted in s 65(2), for the Tribunal to make an order under s 65 Tribunal must first find that the landlord has breached the obligation under s 63 to maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.
Special considerations arise in the case of common property of a strata scheme that may be used by the tenant in conjunction with the residential premises. As the Appeal Panel noted in Sewell v Zvirblis [2022] NSWCATAP 337, [41]-[50]:

41 ….the focus of the [RT Act] is on premises or part of premises provided as (and with) a residence for tenants to reside in with exclusive possession. In that sense we do not agree that a security gate on common property was “provided with” the premises for use by the tenant within the meaning of s 62.
42 “(P)rovided with” in s 62 has the sense of being provided by the landlord or provided by someone else with the permission of or tacit acceptance by the landlord, although the words “by the landlord” do not appear in s 62.
43 The tenant’s argument was necessarily based on the proposition that if the tenant used any part of common property, then that common property was “provided with” her premises within the meaning of “residential premises” in s 62. But we do not think s 62 is so wide because if the tenant’s argument was accepted all common property which the tenant was permitted to access would fall within s 62, and the landlord’s obligation to repair under s 63 would extend to all that common property. We do not consider that that was the intention of Parliament. Taken to its extreme the tenant’s argument would extend to asserting that the footpath and roadway outside the unit block had been “provided with” the premises for the use of the tenant.
44 In our view it strains the language of “provided with” to say that any part of common property used by the tenant was therefore “provided with” the premises.

45 The word “provided” involves, in its ordinary meaning, the concept of active supply or making available, and in the RTA – which governs the relationship between landlords and tenants – the sense is that the source of the supply or availability is the landlord. In our view “provided” does not extend to the passive and incidental right to use common property which is a necessary incident of a tenancy of a lot in a strata scheme.
46 We note that Parliament provided tenants with rights against body corporates in relation to the maintenance of common property. Parliament enacted the Strata Schemes Management Act 2015 (NSW) (the “SSMA”) and its predecessors to govern the relationship between lot owners (including landlords) and body corporates. Under the SSMA body corporates have obligations toward lot owners for the maintenance of common property. But tenants also have rights against body corporates under the SSMA in relation to common property.
…
49 In all of those circumstances we consider that s 62 is confined to things expressly or tacitly provided, supplied or made available by a landlord “with the premises” and for the use of the tenant. An example might be a car space or storage locker which was not included in the residential tenancy agreement, or things like washing machines and dryers, either in the leased premises or perhaps provided for the exclusive use of the tenant by the landlord but located on common property (in a shared laundry room). Common property, in our view, does not fall within the definition of “residential premises” in s 62 of the RTA.
50 Our conclusion is fortified by the fact that, given the definition of “urgent repairs” in s 62 – which excludes work needed to repair premises that are owned by a person other than the landlord or a person having superior title (such as a head landlord) to the landlord - a landlord is not required under s 64 to reimburse a tenant for the reasonable costs of making urgent repairs to, amongst other things, common property. It would seem incongruous to exclude a landlord from liability for urgent repairs to common property and yet include such a liability for landlords in relation to non-urgent repairs in s 63.

However, as this and other cases have noted, a landlord who is a lot owner has the right to vote at general meetings of the owners corporation and may use its rights and best endeavours, including its rights under the Strata Scheme Management Act 2015 (NSW) to cause the owners corporation to carry out repair works to common property that is available to and used by a tenant. This is particularly important where that work is required in order to repair property belonging to a landlord that is provided to a tenant with residential premises. See, for example, Lee v Fuzessery [2010] NSWCTTT 205 and Reiss v Helson [2001] NSWSC 486.
With these principles in mind, I now turn to the tenant’s repair request concerning the air-conditioning unit at the premises.
The air conditioning units installed at the premises were a part of the residential premises for the purposes of s 63 of the RT Act and clause 18.3 of the tenancy agreement. As set out above, the landlord had a contractual obligation under those provisions, to provide and maintain those air-conditioning units in a reasonable state of repair, having regard to the age of the premises, the rent paid for the premises and the prospective life of the premises. I am satisfied on the evidence that the rent paid by the tenant should be regarded as a sufficiently commercial market rent for the premises and that it would not justify any reduction in the scope of the landlord’s maintenance obligations under s 63. There being insufficient evidence of the age of the premises or the prospective life of the premises, I am not satisfied that either of these factors justify any reduction in the scope of the landlord’s maintenance obligations under s 63. Accordingly, I am satisfied that the landlord was contractually obligated to maintain the air-conditioning units at the premises in a reasonable state of repair. That obligation was driven by the objective state of the air conditioning units and the premises, and not by the actions or inactions of any third party, such as the availability of trades or the approval of the owners corporation. They are matters that the landlord must negotiate for itself, in order to be able to deliver on the contractual promise contained in the tenancy agreement.
On the evidence before the Tribunal, it is clear that several of the air conditioning units at the premises have not worked properly since a time before 13 April 2023. In my assessment of the available evidence, it follows that those air conditioning units were not maintained in a reasonable state of repair over that period.
The evidence establishes that the tenants drew to the managing agents’ attention (and, therefore, to the landlord’s attention), in mid-April 2023, that several of the air conditioning units servicing the premises were not working, and required investigation and/or repair. A technician engaged by the landlord subsequently assessed the air conditioning systems at the premises on 27 April 2023 and confirmed that those air-conditioning units were not working, recommending that the entire system be replaced.
It is clear on those facts that the two criteria identified by Gummow J in Northern Sandblasting have been satisfied. Firstly, the landlord received information from the tenant on 13 April 2023 that was sufficient to put a reasonable landlord on inquiry about the existence of defects in the air conditioning system and whether repair works were needed. That information was corroborated by the landlord’s own technician two weeks later, on 27 April. The landlord therefore had notice of the need for the repair or ought reasonably to have known of the need for the repair, for the purposes of s 65(3A).
Secondly, it is also clear that the landlord has failed to carry out the necessary repair works recommended by its own technician to rectify the air conditioning at the premises with reasonable diligence or expedition: as at the date of the hearing in this matter – some 9 months later – the air conditioning systems at the premises have not been repaired or replaced so as to restore the air-conditioning equipment at the premises to a reasonable state of repair. The delays that the landlord has experienced in obtaining the approval or co-operation of the owners corporation, for the replacement of the air-conditioning system at the premises, do not obviate the landlord’s contractual duty, owed to this tenant, to maintain the air-conditioning units at the premises in a reasonable state of repair. The consequences of those delays must fall on the landlord, and not the tenant.
For these reasons, I am satisfied that the landlord has breached the obligation under s 63 and clause 18.3 of the tenancy agreement, to maintain the premises in a reasonable state of repair having regard to the age of, rent payable for and prospective life of the premises. The pre-condition to the Tribunal making a repair order, as set out in s 65(2), is therefore satisfied.
There are no relevant regulations that require consideration under s 65(3)(a). Given the length of time that has passed since the need for repair was first drawn to the landlord’s attention, I am satisfied for the purposes of s 65(3)(b) that the landlord has failed to act with reasonable diligence to have the repairs carried out. Taking that into consideration, I am satisfied that it is appropriate for the Tribunal to make an order under s 65(1)(a), to direct the landlord to carry out repairs to the air conditioning at the premises, insofar as it was provided by the landlord to the tenant for use with the premises.
Where the repair work would involve undertaking work on the common property of the strata scheme, it is appropriate for the Tribunal to further order that the landlord use its best endeavours to cause, permit and enable that work to be done, including by obtaining all necessary approvals and consents, so as to enable the repair work on the air conditioning at the premises to be completed. This overcomes the landlord’s concern about undertaking work on common property, which is not owned by the landlord.
Nothing in the evidence suggests that any particular lead time would be required to enable that work to be conducted. In the absence of evidence or submissions to the contrary, I am of the view that the work should be completed by the end of May 2024. The tenant should have liberty to renew the proceedings in the event that the work is not completed within the period specified by the Tribunal’s orders.

The specific performance claim

By the “requested orders” statement on pages 9-10 of exhibit T1, the tenant seeks orders that require the landlord to specifically perform its obligations under the following clauses of the tenancy agreement (in summary):

clause 14.2 – to not interfere with the tenant’s rights of quiet enjoyment;

clause 18.3 – to keep the premises in a reasonable state of repair;

clause 18.5 – to comply with all statutory requirements relating to the health or safety of the premises;

clause 65(f) – to give the tenant access to the tenant’s personal information kept by the landlord; and

clause 65(g) – to provide on request a copy of the landlord’s privacy policy.

As noted at paragraph [2.187.17] of Residential Tenancies Law and Practice New South Wales (8^th edition, 2022):

a specific performance order is nothing more than an order that a party comply with the terms of the tenancy agreement;

such orders are an important element in the Tribunal’s policy of attempting to preserve tenancies where possible, rather than unhousing people;

section 187(3) of the RT Act permits the making of specific performance orders in circumstances where the common law (including the rules of equity) would not otherwise permit the remedy – including where damages would be an adequate remedy.

An order that the landlord perform its obligations under clause 18.3, to keep the premises in a reasonable state of repair, is a broader remedy than a repair order under s 65; nevertheless the two orders can coalesce.
As for the claim for an order that the landlord perform its obligations under clause 18.5, the tenant has not identified any particular statutory requirements that it seeks to enforce at this time. Consequently, it is not possible to direct the landlord to comply with a specific requirement; nevertheless it is still appropriate in the circumstances of a given case to make an order enforcing that clause in general terms. Whether that order is ultimately useful to the tenant would remain to be seen.
The parties agree on the terms of the tenancy agreement that exists between them, as both parties have produced copies of that agreement in their evidence and have made submissions in respect of it. The landlord has not raised any particular objections to the Tribunal making specific performance orders that the landlord comply with the provisions of the tenancy agreement listed above. In those circumstances, and given the facts of the case that I have described, I consider it appropriate to make orders requiring that the landlord comply with its obligations under those provisions.

The money order claim

General principles

Where a party has sustained a loss as a result of the breach of a contract, which includes a residential tenancy agreement, they could be entitled to damages. The guiding principle for the award of damages/compensation/money is that the injured party should be left, so much as is possible, in the same position as if the contract had been performed by the other party. The damages awarded reflect the amount of the loss that may fairly and reasonably be considered to have resulted from the breach. A prospective loss as well as an actual loss can be taken into account when assessing damages.
Where the contract/agreement does not specify the value of the loss or damage which a party may suffer as a result of a breach of the contract, and no formula for calculating that value, the court or tribunal will award damages to cover the amount of the economic or non-economic loss that the injured party has actually incurred. If a party has not actually suffered a loss, but has been affected by the infringing of a legal right, the court can award a small amount as nominal damages.
A party that is seeking damages for breach of contract must do everything possible to mitigate its losses. Failure to do so may mean that the party is not entitled to claim damages to cover all of its losses.
In the present case, the tenant has established that the landlord has breached its obligation to maintain the air-conditioning at the premises in a reasonable state of repair. He seeks, as a result, an order that the landlord pay him a total of $5,613.71 for that breach, comprising of:

$1,320.00 in compensation for hot days without the use of air conditioning (at $200 per week);

$112.76 in Tribunal fees;

$450.40 for 1 week’s rental of a portable air conditioner;

$85.00 for the additional cost of running the rental air conditioner, compared to the cost of running a split system, for 1 week;

$649.00 for the purchase of an air-conditioner for the master bedroom;

$340.00 for the additional cost of running the rental air conditioner, compared to the cost of running a split system, for 4 weeks at $85 per week;

$199.00 for the purchase of an air purifier for the master bedroom;

$349.00 for the purchase of an air conditioner for bedroom 3;

$200.00 for the additional costs of running a (second) rental portable air conditioner, compared to the cost of running a split system for 4 weeks at $50 per week;

$56.05 for the purchase of a roof cooling system;

$19.00 for an ASIC extract;

$93.50 for the purchase of door seals/draught excluders; and

$1,740 for the tenant’s time (described as “wasted time”), for 58 hours at $30 per hour for various tasks, including preparing for and attending the tribunal hearings, researching and installing air-conditioning systems, roof cooling systems and/or door seals.

The various items claimed by the tenant raise different issues in determining the appropriate level of compensation that would put the tenant back into the position that he would have been in if the tenancy agreement, as a contract, had been performed. It is therefore necessary to deal with the various elements of the tenant’s claim separately, by category.

The amounts claimed for the time incurred by the tenant as a result of the landlord’s breaches

As noted above, a party that is seeking damages for breach of contract must do everything possible to mitigate its losses. While the reasonable expenses which a party may incur in mitigating the losses it incurs may be claimed as a head of damage, the time that is spent by the innocent party in responding to or remediating the consequences of the other party’s breach is not compensable – either as a head of loss or as a cost of mitigating the innocent party’s losses. One of the policy reasons for that is that the time incurred personally by a party in undertaking a task for themselves is regarded by the law to have no financial or compensable value.
A specific example of this is the common law principle that a party to proceedings is not entitled to compensation or a costs order for the time spent by them in conducting court (or tribunal) proceedings in his or her own name. In this regard, the long-standing common law rule concerning costs is that self-represented litigants are not entitled to claim compensation or recover legal costs against the opposing party since they didn't actually engage lawyers to act for them – as there is no financial outlay by the self-represented party, there is no entitlement for them to recover time spent in lieu of “legal costs”.
For these reasons, the amounts claimed by the tenant (which are included in item (13) above) for his time in responding to the landlord’s breaches in this case are not recoverable, and must be rejected.

The amounts claimed in relation to the conduct of these proceedings in the Tribunal

Section 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW) provides that each party to proceedings in the Tribunal is to pay the party’s own costs. "Costs" is defined in s 60(5) to include the party’s costs of or incidental to proceedings in the Tribunal.
By subsection 60(2), the Tribunal may award costs in relation to proceedings before the Tribunal only if the Tribunal is satisfied that there are special circumstances warranting an award of costs. “Special circumstances” means circumstances that are out of the ordinary but not necessarily extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11] referring to Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 per Santow JA at [60]. Subsection 60(3) lists a series of items which the Tribunal may have regard to in determining whether there are special circumstances warranting an award of costs, including:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
(f) whether a party has refused or failed to comply with the duty imposed by section 36(3) [to cooperate with the Tribunal in fulfilling its overriding purpose of facilitating the just, quick and cheap resolution of the issues in the proceedings, under s 36],
(g) any other matter that the Tribunal considers relevant.

Having considered those factors, I am not satisfied that the proceedings have been sufficiently out of the ordinary to warrant an order for the landlord to pay the tenant’s costs of or incidental to the proceedings, including the filing fees, ASIC search fees and time spent by the tenant in conducting these proceedings. Accordingly, I do not consider there to have been special circumstances in this case that warrant an award of costs in favour of the tenant.
The parts of the tenant’s claim that relate to his costs of the proceedings (contained in items (2), (11) and (13) above) are therefore rejected.

The amounts claimed for loss of use of the air conditioners at the premises

As I have found, several of the air conditioning units supplied with the premises were not working from 14 April 2023, onwards. As agreed in conciliation on 25 May 2023, the tenant’s rent was reduced by $80 per week, to $1,120 per week, backdated to 14 April 2023 to account for the loss of heating in the premises. The tenant’s rent was subsequently reduced to $1,000 per week, a total reduction of $200 per week, because of the absence of heating at the premises while the air conditioning was being repaired. The tenant now seeks to claim a further $1,320 in monetary compensation on top of that, calculated at the rate of $200 per week since the first hot date of the 2023-24 summer season, on the basis that it has been too hot in the premises without working air conditioning.
The landlord opposes this part of the tenant’s claim on the basis that the reduction of $200 per week that the tenant is receiving is sufficient, and substantially overlaps with the compensation that the tenant seeks to claim. Consequently, the landlord asserts that no extra payment is required. The landlord relies on an analysis of other rentals in the local area, which it says is comparable to these premises, arguing that the $200 per week already allowed to the tenant is well above the market rate for compensation particularly as the reduced rental of $1,000 per week is now well below the market rent for a 5-bedroom house in the surrounding area.

In rebuttal, the tenant argues that the rent reduction that the landlord is already providing does not compensate the tenant for the discomfort that he and his subtenants are receiving through the summer, and that they are in a “bad situation” with the summer heat until the air conditioning is repaired.
I am satisfied that the rent which the tenant would normally be paying, while still a market rent, is below the passing rent that the landlord could receive for the premises, as demonstrated by the rental analysis produced by the landlord. The tenant has not persuaded me that further compensation is required over and above the reduction of $200 per week that the tenant is already receiving from that normal rate of rent, under the agreement negotiated between the parties. In my assessment, that reduction – which represents 1/6^th of the rent the tenant is normally paying – is an adequate reduction for the average loss of amenity that the tenant is experiencing in the premises from the air conditioning not working. That average loss of amenity takes into account the exceptionally hot days that the tenant is referring to, the exceptionally cold days that the tenant may have experienced during the past winter, as well as other days when the prevailing temperature was more normal, between those extremes.
For these reasons, the tenant’s claim for payment of the $1,320 must fail.

The amounts claimed for the purchase, rental and operation of air conditioners and/or air purifiers

The tenant then separately claims for the cost of purchasing or renting other items, such as portable air conditioning, an air purifier and a water misting kit, which he says was necessary to cool the premises while the air conditioning was not working.
I accept that the evidence shows that the tenant purchased or rented equipment to the total value of $1,703.45, in order to cool the premises from mid-November 2023 onwards, while the air conditioning units supplied with the premises were not working:

On 17 November 2023, the tenant hired a portable air conditioner for use at the premises for the week ending on 25 November 2023, for which he paid $450.40.

On 24 November 2023, the tenant purchased an air purifier from an online store, for which he paid $199.00.

On 27 November 2023, the tenant purchased 2 portable air conditioners from a hardware store, for which he paid a total of $998.00.

On 15 December 2023, the tenant purchased a water misting kit from a hardware store, for which he paid $56.05.

The tenant also claims operating costs for running this equipment. He does so by comparing the cost he reportedly paid for electricity over the 3-month period between 30 August and 28 November 2023 (which he says was 4,698 kWh at a cost of $1,453.37 – an average of 30.9 cents per kWh), an increase of 538 kWh against the reported usage of electricity over another 3-month period, 20 months earlier, between 3 December 2021 and 8 March 2022 (which he says was 4,160 kWh at a cost of $1,222.88 – an average of 29.4 cents per kWh).
I accept that, more probably than not, the tenant would not have made above hires and purchases if the landlord had maintained the air conditioning units at the premises in a reasonable state of repair throughout the term of the tenancy agreement. I also agree that the purchase of the 2 portable air conditioners for $998 was more economical than continuing to hire a single portable air conditioner on an ongoing basis, at the rate of $450 per week. However I am not satisfied that the tenant should recover compensation for these items when the tenant is also in receipt of a rent reduction that started at $80 per week in April 2023, and has now increased to $200 per week.
To allow the tenant to recover compensation for those purchases and hires, in addition to receiving the rent reduction, would be to compensate the tenant twice for the same issue. If the landlord had done nothing (or not enough) to remedy the deterioration in the state of repair of the premises, or to compensate the tenant for the breach of the tenancy agreement brought about by the deterioration in the state of repair of the premises, then the tenant would be entitled to recover from the landlord for the cost of hiring and/or purchasing, and then operating, the equipment that would be necessary to restore the premises to the state that he was entitled to expect under the tenancy agreement, with working equipment, in order to put himself back into the position that he would have been if the landlord had complied with the tenancy agreement. However, where the landlord has already sufficiently compensated the tenant for that breach, then the tenant would be entitled to use that compensation to hire or purchase, and then operate, the equipment necessary to remediate the loss of condition caused by the breach, but he is not entitled to recover those payments from the landlord in addition to the compensation that he has received.
That is the issue that arises on this part of the tenant’s money claim. In my assessment, the rent reduction that the landlord has provided to the tenant already adequately compensates the tenant for the landlord’s breach of s 63 and clause 18.3 of the tenancy agreement. Consequently, I am not satisfied that the tenant is entitled to recover further amounts from the landlord to purchase or hire, and then operate, temporary air conditioning while the repair remains outstanding.
There is a subsidiary issue concerning the re-sale value of that equipment once the repair has been completed, however it is not necessary to deal with that issue because of my finding on the principle issue, just described.
Additionally, the tenant has also not produced any electricity usage invoices to substantiate the usage figures he has provided. I am not satisfied on the evidence before the Tribunal that the operating cost of the air conditioning equipment he has purchased or rented was necessarily higher than the operating cost of the landlord’s air conditioning equipment, when it was working. On this basis, I would not have awarded the tenant any amount for electricity consumption.
Consequently, this part of the tenant’s claim also fails.

Conclusion on the tenant’s money claim

For the reasons just described, I find that the tenant is not entitled to recover from the landlord any part of the monetary claim he has made in these proceedings.

Conclusion and orders

The conclusion that I have reached on the above matters is summarised as follows:

The tenant’s retaliatory notice claim is successful. The Tribunal should make an order under s 115, declaring the landlord’s termination notice to be a retaliatory notice.

The tenant’s repair orders claim is successful. The Tribunal should make an order under s 65, directing the landlord to repair or replace the air conditioning units that were provided with the premises, so as to restore the air conditioning at the premises to a reasonable state of repair. The tenant should also be entitled to renew the proceedings within 12 months, on payment of the appropriate filing fee, if the landlord does not comply with that work order.

The tenant’s specific performance claim is successful. The Tribunal should make orders requiring the landlord to specifically perform its obligations under clauses 14.2, 18.3, 18.5, 65(f) and 65(g) of the tenancy agreement.

The balance of the tenant’s claim, including the condition report claim and the tenant’s money order claim, fails and should be dismissed.

For these reasons, the orders made by the Tribunal are as follows:

Pursuant to s 115 of the Residential Tenancies Act 2010 (NSW), the Tribunal is satisfied that the termination notice issued by the respondent landlord, bearing the date 21 November 2023 was a retaliatory notice, and declares that the notice has no effect.

Pursuant to s 65(1) of the Residential Tenancies Act 2010 (NSW), the respondent landlord must carry out the following specified repair work, in a proper and workmanlike manner, on or before 31 May 2024:

Repair or replace, and otherwise make good and working, the air-conditioning units provided with and/or forming part of the residential premises at 8 Henderson Road, Alexandria NSW; and

To the extent that the works specified in paragraph (a) requires any work or repair to be undertaken on any common property owned by the owners corporation for the strata plan in which the premises are situated, to use its best endeavours to arrange, cause or permit that work or those repairs to be undertaken on or in respect of that common property, including obtaining all necessary consents and approvals to undertake that work or for that work to be undertaken.

The applicant tenant may, on payment of the applicable filing fee, renew these proceedings under clause 8 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) if the respondent landlord does not comply with the preceding order within the period specified in that order.

Pursuant to s 187(1) of the Residential Tenancies Act 2010 (NSW), the respondent landlord is ordered to specifically perform:

clause 14.2 of the residential tenancy agreement between the parties (the “tenancy agreement”), by not interfering with, or causing or permitting any interference with, the reasonable peace, comfort or privacy of the applicant tenant in using the residential premises; and

clause 18.3 of the tenancy agreement, by keeping the residential premises in a reasonable state of repair, considering the age of, the rent paid for and the prospective life of the premises; and

clause 18.5 of the tenancy agreement, by complying with all statutory obligations relating to the health or safety of the residential premises;

clause 65(f) of the tenancy agreement, by permitting or allowing the tenant to access Personal Information (as defined in the Privacy Act 1988 (Cth)) and to require correction or amendment of any inaccuracies, incomplete, out of date or irrelevant information; and

clause 65(g) of the tenancy agreement by providing (where applicable), on request, a copy of its Privacy Policy.

The balance of the claim in these proceedings is dismissed on the ground that the Tribunal is not satisfied on the balance of probabilities by the material that has been put before it that there are sufficient grounds for the relief sought to be awarded.

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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: 20 December 2024

Medium Neutral Citation:	Dawson v G&J Investments Pty Limited [2024] NSWCATCD 40
Hearing dates:	5 February 2024
Date of orders:	12 April 2024
Decision date:	12 April 2024
Jurisdiction:	Consumer and Commercial Division
Before:	JA Rose, General Member
Decision:	(1) Pursuant to s 115 of the Residential Tenancies Act 2010 (NSW), the Tribunal is satisfied that the termination notice issued by the respondent landlord, bearing the date 21 November 2023 was a retaliatory notice, and declares that the notice has no effect. (2) Pursuant to s 65(1) of the Residential Tenancies Act 2010 (NSW), the respondent landlord must carry out the following specified repair work, in a proper and workmanlike manner, on or before 31 May 2024: (a) Repair or replace, and otherwise make good and working, the air-conditioning units provided with and/or forming part of the residential premises at 8 Henderson Road, Alexandria NSW; and (b) To the extent that the works specified in paragraph (a) requires any work or repair to be undertaken on any common property owned by the owners corporation for the strata plan in which the premises are situated, to use its best endeavours to arrange, cause or permit that work or those repairs to be undertaken on or in respect of that common property, including obtaining all necessary consents and approvals to undertake that work or for that work to be undertaken. (3) The applicant tenant may, on payment of the applicable filing fee, renew these proceedings under clause 8 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) if the respondent landlord does not comply with the preceding order within the period specified in that order. (4) Pursuant to s 187(1) of the Residential Tenancies Act 2010 (NSW), the respondent landlord is ordered to specifically perform: (a) clause 14.2 of the residential tenancy agreement between the parties (the “tenancy agreement”), by not interfering with, or causing or permitting any interference with, the reasonable peace, comfort or privacy of the applicant tenant in using the residential premises; and (b) clause 18.3 of the tenancy agreement, by keeping the residential premises in a reasonable state of repair, considering the age of, the rent paid for and the prospective life of the premises; and (c) clause 18.5 of the tenancy agreement, by complying with all statutory obligations relating to the health or safety of the residential premises; (d) clause 65(f) of the tenancy agreement, by permitting or allowing the tenant to access Personal Information (as defined in the Privacy Act 1988 (Cth)) and to require correction or amendment of any inaccuracies, incomplete, out of date or irrelevant information; and (e) clause 65(g) of the tenancy agreement by providing (where applicable), on request, a copy of its Privacy Policy. (5) The balance of the claim in these proceedings is dismissed on the ground that the Tribunal is not satisfied on the balance of probabilities by the material that has been put before it that there are sufficient grounds for the relief sought to be awarded.
Catchwords:	LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Condition reports LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Termination — Notices — Retaliatory notices LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord’s duty LAND LAW — Strata title — Common property — Maintenance and repair of common property LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Orders for specific performance LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Default and termination — Damages
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Privacy Act 1988 (Cth) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2010 (NSW) Residential Tenancies Regulation 2019 (NSW) Strata Schemes Management Act 2015 (NSW) Swimming Pools Act 1992 (NSW)
Cases Cited:	Camilleri v Eastlake [2018] NSWCATAP 176 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 De Chazol v Scala [2010] NSWCTTT 135 Dupont and Rowe v Lawrence [1997] NSWRT 213 Hanney v McCabe Toshack [2014] NSWCATCD 239 Ho v Powell [2001] NSWCA 168 Howard v B Miles Womens Foundation Inc [2012] NSWSC 1173 Hughes v Hume Community Housing Association Co Ltd [2023] NSWCATAP 109 Kwok v Tahiri [2015] NSWCATAP 244 Lee v Fuzessery [2010] NSWCTTT 205 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Mercieca v Fu [2017] NSWCATAP 205 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 Nulla Nulla Aboriginal Lands Council v Lucas [2013] NSWCTTT 219 Quader v Bell [2016] NSWSC 632 Quader v Bell [2017] NSWCATAP 24 Re Magistrate Crawford; Ex parte McCormack [2020] WASC 236 Reiss v Helson [2001] NSWSC 486 Sewell v Zvirblis [2022] NSWCATAP 337 Shrestha v Crandell Pty Ltd [2010] NSWCTTT 240 Smith v Li [2020] NSWCATAP 59 Steinbeck v McDonald [2015] NSWCATAP 90 Williams v Gerringong Housing Aboriginal Corporation [2022] NSWCATAP 144
Texts Cited:	Residential Tenancies Law and Practice New South Wales (8th edition, 2022), Federation Press
Category:	Principal judgment
Parties:	Neil Dawson (Applicant) G&J Investments Pty Limited (Respondent)
Representation:	N Dawson, in person (Applicant) C Anderson, real estate agent (Respondent)
File Number(s):	2023/00440392
Publication restriction:	Nil