Evans v Jayandan

[2023] NSWCATCD 129

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Evans v Jayandan [2023] NSWCATCD 129

Hearing dates:

14 September 2023

Date of orders:

30 October 2023

Decision date:

30 October 2023

Jurisdiction:

Consumer and Commercial Division

Before:

R Alkadamani, Senior Member

Decision:

1. Declare pursuant to section 115 of the Residential Tenancies Act 2010 that the notice of termination dated 30 March 2023 served on the applicant by or on behalf of the respondents was a retaliatory notice and that it is of no effect.

2. Order pursuant to section 44(1)(b) of the Residential Tenancies Act 2010 that the rent for the period from 1 April 2023 until 30 October 2023 not exceed $374.00 per week.

3. Order that the respondents pay the applicant within 7 days the sum of $1,000.00 in respect of the contravention of section 50 of the Residential Tenancies Act, 2010.

4. Order that within 28 days the respondents engage suitably qualified builders, tradesperson or such other persons as may be required to assess the awning over the porch of the Premises and carry out any necessary repairs within 42 days thereafter.

5. Order that the respondents within 42 days undertake the painting of the premises the subject of the residential tenancy agreement between the parties as ordered by the Tribunal on 16 March 2023.

6. Order that the respondents within 42 days complete the mould treatment including the application of mould inhibiting product onto affected surfaces in the Premises.

7. Otherwise dismiss the application.

Catchwords:

RESIDENTIAL TENANCY – notice of termination – whether retaliatory notice – whether notice should be set aside

RESIDENTIAL TENANCY – excessive rent - withdrawal of amenities or facilities provided with residential premises

RESIDENTIAL TENANCY – consent to sub-let – whether consent unreasonably withheld

Legislation Cited:

Residential Tenancies Act, 2010 (NSW), ss 43-45, 50, 74-75, 115

Cases Cited:

Jeyarajah v Evans [2023] NSWCATAP 247

Pan v Malveholm [2021] NSWCATAP 101

Parker v Lowe [2022] NSWCATCD183

Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9

Texts Cited:

None

Category:

Principal judgment

Parties:

Wendy Evans, applicant
Thayanee Jayandan, first respondent
Jeyarajah Jayandan, second respondent

Representation:

Wendy Evans – self represented
Thayanee Jayandan – self represented
Jeyarajah Jayandan – self represented

File Number(s):

RT 23/19033

Publication restriction:

None

REASONS FOR DECISION

Introduction

1. This is an application brought by Ms Evans, a tenant under a residential tenancy agreement, against Ms Jayandan and Mr Jayandan, the landlords under that residential tenancy agreement. The residential premises that are the subject of the residential tenancy agreement between the parties comprise a house in Marsfield, New South Wales (the Premises).

2. The hearing was held on 14 September 2023. At the hearing Ms Evan appeared and represented herself and Ms Jayandan and Mr Jayandan appeared and represented themselves. In this decision I will refer to Ms Evans as the applicant and Ms Jayandan and Mr Jayandan as the respondents.

Evidence

3. During the hearing the applicant relied on the following evidence:

1. Bundle of documents filed with the Tribunal by the applicant on 14 July 2023 which was marked exhibit 1; and

2. Bundle of documents filed with the Tribunal by the applicant on 15 August 2023 which was marked exhibit 2.

4. The respondents relied on the following evidence:

1. Bundle of documents filed with the Tribunal by the respondents on 31 July 2023 which was marked exhibit A;

2. Bundle of documents filed with the Tribunal by the respondents on 29 August 2023 which was marked exhibit b.

Procedural history

5. The application with which these reasons deal is RT 23/19033. Proceedings RT 21/19033 were filed on 25 April 2023.

6. However, prior to the filing of RT 23/19033 there were other proceedings between the parties (the Prior Proceedings).

7. The Tribunal first made orders in the Prior Proceedings on 8 December 2022. Procedural orders were made to ready the matter for hearing. However, on 8 December 2022 the Tribunal also made work orders. The first work order made was that the respondents assess the awning at the Premises “for the purpose of seeking quotes to repair it”. On 8 December 2022 the Tribunal also made the following work orders:

A. Repaint ceiling of kitchen, bedrooms and living room.

B. Mould remediation to ceilings, kitchen, bedrooms and living room.

C. Replace lock on back door.

8. The Prior Proceedings were heard on 13 March 2023. On 16 March 2023 the Tribunal made the following orders:

1. The Tribunal orders that the respondents THAYANEE JAYANDAN & JEYARAJAH JAYANDAN C/- Ray White Epping (Xavier Chen) Ground Floor 51 Rawson Street EPPING NSW 2121 Australia are to cause the undertaking of the following work in a proper and workmanlike manner on or before 30-Mar-2023.

Details of Work order:

Work to be carried out in the lounge room, dining room, kitchen and both bedrooms:

Fully remediate the property for mould.

Prepare and paint the rooms.

2. It is ordered that the rent shall not exceed the sum of $220.00 per week as from 1-Apr-2022 to 30-Mar-2023.

3. The landlords, THAYANEE JAYANDAN and JEYARAJAH JAYANDAN, C/- Ray White Epping (Xavier Chen) Ground Floor 51 Rawson Street EPPING NSW 2121 Australia, are to pay the tenant, WENDY EVANS, 3 Beverley Crescent MARSFIELD NSW 2122 Australia, the sum of $5,104.96 on or before 30-Mar-2023.

• Compensation for breach of quite (sic) enjoyment $5,000.00

• Money payable for loss of a rug $104.96

4. The claim by the tenant for the cost of 2 x humidifiers is dismissed as the tenant has withdrawn the application.

5. All other claims by the tenant are dismissed.

9. On 30 March 2023 the respondents served a notice of termination. That notice of termination was a ‘no grounds’ notice of termination relying on s 85 of the RTA and is discussed in further detail below.

10. The respondents herein lodged an appeal in respect of the Tribunal’s orders dated 16 March 2023. The appeal was heard on 30 May 2023 and the Appeal Panel’s decision was delivered on 30 August 2023 (see Jeyarajah v Evans [2023] NSWCATAP 247). In its decision, the Appeal Panel dismissed the appeal and upheld the orders made on 16 March 2023.

11. In April 2023 the respondents also applied for a stay of execution of the Tribunal’s orders dated 16 March 2023. That application was dismissed on 19 April 2023.

12. These reasons for decision assume knowledge of, and should be read in conjunction with, the Tribunal’s reasons for decision and orders dated 16 March 2023 and the Appeal Panel’s reasons for decision and orders dated 30 August 2023.

Facts

13. The applicant and respondents are parties to a residential tenancy agreement entered on 13 July 2020 for a fixed term of 6 months for premises in Marsfield, New South Wales. After the expiration of the 6 months term the residential tenancy agreement continued on a periodic basis. Although the residential tenancy agreement was entered on 13 July 2020 the applicant has lived as a tenant at the Premises for more than 10 years.

14. The agreed rent as at the date of hearing was $440.00 per week.

15. Prior to about 26 November 2022 there had been a history of water penetration into the Premises. This resulted in mould and damage to the internal paint and meant that the applicant could not fully enjoy residing at the Premises. Repairs were undertaken on about 26 November 2022 which addressed the water penetration. However, as is evident from some of the Tribunal’s orders made on 8 December 2022 and 16 March 2023, there were other repairs, particularly the internal painting and mould cleaning, that remained unaddressed after 26 November 2022.

16. As at the date of the hearing on 14 September 2023 the painting required by the Tribunal’s orders dated 8 December 2022 and 16 March 2023 had still not occurred.

17. The respondents contended that they tried to undertake the painting and point to having engaged a painter and having sought quotes. However, they say that the applicant did not give timely access to the painter to undertake the work.

18. There is no doubt that the respondents have engaged someone to undertake the painting work because there are communications between the applicant and the proposed painter.

19. However, I do not accept that the applicant has not provided timely access for the painting to occur. The communications between the applicant, potential painters, as well as other tradespersons show, at least, two things. First, they show that in relation to painting proposed to be undertaken in November 2022, the applicant was not given very much notice on a weekend and could not accommodate that timing (see Ex 1, p. 112). Secondly, the communications between the applicant and potential tradespersons, as well as the respondents’ property agent, show that the applicant is co-operative in the sense that if access is required to the Premises she provides a range of suitable options (eg see Ex 2, pp. 285-288; Ex 1, p. 112).

20. One of the consequences of the failure to paint the interior of the Premises is that the second bedroom has not been adequately repaired. The applicant contended, and I accept, that staining in the second bedroom remains and that some mould is returning. The applicant contends this detrimentally impacts her ability to secure a sub-tenant or co-tenant. I accept that it is likely that a sub-tenant or co-tenant is likely to find the second bedroom less attractive due to the state of the second bedroom in terms of the paint work required (including to address the staining) and that this would, at the very least, impact to some extent on the rent a potential sub-tenant or co-tenant would be willing to pay for that bedroom.

21. The applicant also complains that mould is returning to at least some areas of the Premises. I am satisfied that the evidence establishes that some mould is returning to some areas of the Premises (see Ex 2, pp. 287, 289 and 296).

22. On 6 April 2023 mould cleaning was performed on the Premises. However, a mould inhibiting treatment has not yet been applied.

23. The applicant accepted, fairly in my view, that the mould situation is not as significant as was previously the case. This is consistent with an email dated 11 August 2023 from one of the respondents’ property agents which records that, upon inspection, “it was very hard to see any visual signs of mould” (Ex B, p. 19). That email is consistent with the presence of at least some visual signs of mould but that the extent of the mould is not significant.

24. On the basis of the evidence before the Tribunal on 14 September 2023 I find that in some areas mould has returned to the Premises but that the mould is not currently significant.

25. The applicant has an allergy to mould (Ex 1, pp. 247-248).

26. The applicant also complains about the adequacy of repairs undertaken to the awning over the porch (see Ex 1, pp. 113-116, 118-120). One of the applicant’s complaints in this respect is that some of the timber is rotted and needs to be replaced.

27. The photographs of the timber from which the porch awning is constructed appear to show timber in poor condition. The timber visible in the photographs appears to show rotting and the applicant’s evidence is to effect that the timber is rotting. I am satisfied, on the balance of probabilities, that the timber from which the porch is constructed is, at least to some extent, rotting.

28. However, I do not have sufficient evidence to be able to conclude that the timber requires replacement, whether wholly or in part. It may be that the rot is confined to areas near the exposed surface.

29. Another complaint concerning the repairs to the awning over the porch is that a plywood panel was attached to the rotting wood and the cladding was glued back on to rotting wood.

30. In relation to the porch awning, the evidence also includes a picture of a hole in a metal surface that forms a part of the roof section of the awning (Ex 1, p. 114). The hole appears to have been repaired by application of some form of material using adhesive tape (Ex 1, p. 115). My observation of this material form the photographs is that it is not metal or a hard material but similar to sarking or a type of material similar to that from which tarpaulin material is made.

31. The applicant’s evidence also recorded that “Water is running behind the cladding indicating the leak is still occurring” (Ex 1, p. 113).

32. The respondents’ evidence in relation to the awning repairs states that the cost was $450.00 plus GST (Ex A, p. 5).

33. There was no builders report or similar evidence which identified that the work carried out on the awning of the porch was deficient or not undertaken in proper and workmanlike manner.

34. There is no evidence which makes clear to me what repair work should have been done to the awning over the porch and how it should have been done.

35. However, considering the applicant’s evidence as to water running behind the cladding and the relatively modest cost of the repairs effected to date, although the matter is finely balanced, I am satisfied on the balance of probabilities that the repair work required for the awning over the porch is either incomplete or has not been undertaken in a proper and workmanlike manner.

36. Although I am satisfied that the repair work required for the awning over the porch is either incomplete or has not been undertaken in a proper and workmanlike manner, the evidence does not establish precisely what form of work order is appropriate. It seems to me that the water running behind the cladding needs to be assessed to identify whether it is a source of water penetration and to identify what the nature and scope of appropriate repairs is required. Similar observations apply to the state of the timber which appears to be rotting. I am also satisfied that the work undertaken in terms of the repair of the hole in the metal sheeting needs to be assessed and the timber rot needs to be assessed.

37. The applicant also seeks an order requiring the respondents to install an externally ventilating exhaust fan in the bathroom. A report by Mould Cleaning Australia recommended installation of such an item (Ex 1, pp.280-281). The bathroom does not currently have such an exhaust fan.

38. During the hearing the applicant also raised concerns about the possible presence of asbestos. There were no reports confirming the presence of asbestos and I am not satisfied, on the balance of probabilities, that the applicant has established that there was an asbestos issue at the Premises.

Termination notice and 2023 correspondence between the parties

39. It is now necessary to set out in some detail the communications between the parties, or between the respondents and their property agent, after the Tribunal’s 16 March 2023 orders.

40. On 21 March 2023 the respondents’ property agent wrote to the respondents advising of the Tribunal’s 16 March 2023 orders (Ex 1, p. 282). Their email noted the remediation and compensation orders made by the Tribunal and stated in relation those orders “We don’t agree but the member made the decision” and then stated:

We could also try to appeal the decision against the compensation of $5104.96 and the amount of the rental reduction. The cost for the application of internal appeals is $451. Please advise if you are willing to lodge the application for the appeals.

We also suggest terminating this tenant, conducting the repairing of the whole property when it is vacated and looking for a better tenant.

41. On 30 March 2023 the respondents emailed their property agent instructing the property agent to “provide notice to the tenant for termination of the tenancy agreement so that we can undertake the necessary works which require vacant possession to action the NCAT orders” (Ex A, p. 26).

42. On 30 March 2023 the respondents served a notice of termination of a periodic agreement pursuant to s 85 of the RT Act (ie a ‘No Grounds’ notice) requiring vacant possession on 28 June 2023 (the Termination Notice).

43. In relation to the reason for serving the Termination Notice a statutory declaration by the first respondent records the following (Ex A, pp. 6-7; pages 4-5 of the statutory declaration):

Having undertaken ad hoc and expensive repairs, the termination notice was given to obtain unfettered access to the property to comprehensively address root causes of the problems. This work needs to be done in a wholistic cost effective manner. For this vacant possession is necessary.

The [respondents] were not motivated wholly or partly to give notice to terminate on a retaliatory basis.

44. The words “Having undertaken ad hoc and expensive repairs” quoted in the preceding paragraph refer to repairs carried out on the Premises in the period prior to the Tribunal’s 16 March 2023 orders. Those repairs were indeed substantial, costing more than $10,000 (see Ex A, p. 6).

45. On 19 April 2023 the applicant sent an email to the respondents’ property agent (Ex 1, pp. 237-238). In that email the applicant:

1. noted that the stay application was unsuccessful and asked how the respondents wished that the applicant utilise the benefit of the Tribunal’s 16 March 2023 monetary orders;

2. requested that the Termination Notice be withdrawn and contended that it was a clear breach of s 115 of the RT Act;

3. sought “permission to seek a new flatmate”;

4. requested an externally venting exhaust fan for the bathroom; and

5. provided her bank account details and indicated that she was open to a genuine payment plan, which would mean that the respondents could pay the amounts they were required to pay the applicant.

46. On 20 April 2023 the respondents’ property agent responded to the applicant making an offer which included the following terms (Ex 1, pp. 239-240):

1. In lieu of the Tribunal’s orders dated 16 March 2023 the respondents pay the applicant $7,040.00 to be applied by way of credit to rent for the period 1 April 2023 to 31 July 2023 with adjustments if the applicant left earlier 31 July 2023;

2. Access to be provided during the applicant’s occupancy to carry out paint work and install an exhaust fan in the bathroom;

3. The request for a flatmate “can be sought” after the works in (2) are completed;

4. After 31 July 2023 “and on completion of the works” in (2) above, the applicant could enter a new 6 month lease at the prevailing market rent and a co-tenant or flatmate can be requested at that time; and

5. If the applicant does not accept the respondents’ offer by 24 April 2023 then the NCAT appeal proceedings would continue, rent will continue to be payable at $440 per week from 1 April 2023 and fresh termination notice will be issued.

47. It is unclear why the respondents’ property agent would threaten to issue a further termination notice if the respondents’ offer was not accepted by 24 April 2023 in circumstances where the Termination Notice was not due to expire until 28 June 2023.

48. On 20 April 2023 the applicant replied to the offer contained in the respondents’ property agent’s email of the same date (Ex 1, p. 241). The applicant indicated she required more time to consider the offer and sought clarification as to various aspects of the respondents’ offer.

49. On 21 April 2023 the respondents’ property agent sent an email to the applicant clarifying some aspects of the respondents’ 20 April 2023 offer (Ex 1, pp. 242-243). Amongst other things, the property agent advised that if the 20 April 2023 offer was accepted by the applicant then the respondents “are open to offering you a new lease beginning 27 April 2023 and ending 31 January 2024”.

50. A final matter to note is that the respondents did not pay the amount ordered by the Tribunal until a few days before the 14 September 2023 hearing notwithstanding that their application for a stay had been dismissed. The applicant’s evidence was to the effect that the funds were received the day of the hearing. The respondents’ evidence was that the instructions for payment to be made had occurred shortly after the Appeal Panel’s decision (30 August 2023) and that the subsequent delay after that was not their fault. The difficulty with the respondents’ position is that the funds should have been paid a number of months before the Appeal Panel’s decision.

Consideration

Jurisdiction

51. I am satisfied that the application relates to a dispute between a tenant and a landlord to which the Residential Tenancy Act 2010 NSW (RTA) applies and that as a consequence the Tribunal has jurisdiction to hear and determine the application.

Retaliatory notice

52. Section 115 of the RTA provides as follows:

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, or

(b) refuse to make a termination order,

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.

53. The applicant claims that the Termination Notice was a retaliatory notice.

54. For a notice of termination to be characterised as retaliatory the Tribunal must be satisfied that the landlord was motivated in giving the notice, either wholly or partly, by any of the following reasons:

1. the tenant had applied or proposed to apply to the Tribunal for an order,

2. 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,

3. an order of the Tribunal was in force in relation to the landlord and tenant.

55. I turn to consider the respondents’ reasoning for issuing the Termination Notice. The emails between the respondents and the property agent record that vacant possession was required to undertake the “work” to the Premises. The respondents’ 30 March 2023 email refers to the repairs being those ordered by the Tribunal.

56. I am not satisfied on the balance of probabilities that vacant possession was required to effect the repairs ordered by the Tribunal. The evidence did not show why the repairs could not be undertaken or effected whilst the residential tenancy agreement between the parties continued.

57. During the hearing the respondents contended that vacant possession was required to be able to identify the work that needed to be done and to then carry it out. I do not accept this contention. The respondents did not require vacant possession so as to be able to identify the repairs that were required to the Premises. The respondents could have obtained access to the Premises and retained relevant professionals to provide advice as to the repairs that were required to the Premises and how those repairs should be effected. If well founded advice, or other appropriate evidence, showed that the repairs required to the Premises necessitated or made it appropriate that the Premises be vacant then the respondents’ contentions may well have been more persuasive.

58. The respondent’s property agent’s email dated 21 March 2023 suggested “terminating this tenant, conducting the repairing of the whole property when it is vacated and looking for a better tenant” (Ex 1, p. 282). The property agent did not state that vacant possession was needed for the repairs. The respondents’ email dated 30 March 2023 in response to their property agent then appears to characterise the property agent’s suggestion in the 21 March 2023 email as a need for vacant possession to undertake repairs (Ex A, p. 26).

59. The April 2023 correspondence set out above also demonstrates that the respondents were agreeable to the applicant’s occupation of the Premises continuing whilst the repairs were undertaken (Ex 1, pp. 239-240).

60. In the absence of cogent evidence as to why the repairs required that the Premises not be occupied, and for how long the Premises not be occupied, I am not satisfied that there was a need for vacant possession. It may have been the respondents’ preference to obtain vacant possession to carry out repairs, but I am not persuaded that there was a need for vacant possession.

61. I also note that there is a difference between vacant possession of the Premises and the need for the Premises to not be occupied for a period of time. However, I am not satisfied that the necessity for vacant possession of the Premises or the need for the Premises to not be occupied for a period of time has been established.

62. It does not necessarily follow from my findings above that the respondents’ reasons for issuing the Termination Notice were motivated, wholly or in part, but one of the proscribed grounds set out s 115(2). I now turn to consider that issue.

63. The correspondence between the parties in April 2023 shows that the respondents sought to persuade the applicant to accept a lesser sum by way of rent reduction and/or compensation than the amount ordered by the Tribunal on 16 March 2023. If the parties had agreed for the payment to the applicant of a lesser sum than the amount ordered by the Tribunal then the respondents were agreeable to the applicant’s occupation continuing and the entry into a new residential tenancy agreement after the repairs had been concluded. Such a settlement or resolution would also have superseded the requirement for vacant possession sought by the Termination Notice.

64. I find that there was a causal connection between the Tribunal’s orders dated 16 March 2023 and the issuing of the Termination Notice. I am satisfied that in issuing the Termination Notice the respondents were motivated, at least in part, by the monetary orders made by the Tribunal on 16 March 2023 and the desire to reduce the financial burden of those orders by pressuring the applicant to accept a lessor sum than ordered in exchange for not requiring the applicant to provide vacant possession. In arriving at this conclusion I also take into account that I was not persuaded by the respondents’ explanation as to why they sought vacant possession.

65. I am therefore satisfied that the Termination Notice was motivated in part by “an order of the Tribunal was in force in relation to the landlord and tenant” (s. 115(2)(c)) and that as a consequence the Termination Notice was retaliatory within the meaning of s. 115(1).

66. The next question is whether the Tribunal should declare that the Termination Notice had no effect. I have concluded that I should do so. My reasons are as follows:

1. The April 2023 correspondence shows that the relationship between the parties has not broken down and indeed the respondents were willing to enter into a new residential tenancy agreement in the event the parties could come to an agreement as to other matters;

2. In circumstances where I have found that the Termination Notice was retaliatory within the meaning of s. 115 I consider that I should accord appropriate weight to the importance of the applicant enjoying benefits of the legislative protection afforded by the RT Act in respect of retaliatory notices of termination, as defined by s. 115 of the RT Act;

3. I do not see any relevant hardship to the respondents in not declaring that the Termination Notice has no effect in circumstances where I have concluded was a retaliatory notice of termination as defined by s. 115 of the RT Act.

Rent abatement or adjustment

67. Sections 43 - 45 of the RTA provide as follows:

43 Rent reductions

(1) Reduction in goods, services or facilities The tenant may make a written request to the landlord at any time for a reduction in rent if the landlord reduces or withdraws any goods, services or facilities provided with the residential premises, even if those goods, services or facilities are provided under a separate or a previous contract, agreement or arrangement.

(2) Premises unusable The rent payable under a residential tenancy agreement abates if residential premises under a residential tenancy agreement are—

(a) otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable, or

(b) cease to be lawfully usable as a residence, or

(c) appropriated or acquired by any authority by compulsory process.

(3) Access to purchasers The landlord and tenant may agree to reduce the rent payable for premises during periods when access to the residential premises is required to be given to prospective purchasers of the premises.

(4) Effect of section This section does not limit the rights of landlords and tenants to agree to reduce the rent payable under a residential tenancy agreement.

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

44 Tenant’s remedies for excessive rent

(1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders—

(a) an order that a rent increase under an existing or proposed residential tenancy agreement is excessive and that, from a specified day, the rent for residential premises must not exceed a specified amount,

(b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount.

(2) Time limit for excessive rent increase applications An application for an order that a rent increase is excessive must be made within the period prescribed by the regulations after notice of the increase is given.

(3) Applications on withdrawal of goods or services A tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement.

(4) Determination of excessive rent For the purposes of making an order under this section, the Tribunal may declare that amounts payable under a contract, agreement or arrangement under which goods, services or facilities are provided to the tenant are rent.

(5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive—

(a) the general market level of rents for comparable premises in the locality or a similar locality,

(b) the landlord’s outgoings under the residential tenancy agreement or proposed agreement,

(c) any fittings, appliances or other goods, services or facilities provided with the residential premises,

(d) the state of repair of the residential premises,

(e) the accommodation and amenities provided in the residential premises,

(f) any work done to the residential premises by or on behalf of the tenant,

(g) when the last increase occurred,

(h) any other matter it considers relevant (other than the income of the tenant or the tenant’s ability to afford the rent increase or rent).

(6) Effect of excessive rent order An order by the Tribunal specifying a maximum amount of rent—

(a) has effect for the period (of not more than 12 months) specified by the Tribunal, and

(b) binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable.

Note—

A tenant under a social housing tenancy agreement may also apply for an order that rent is excessive if a rent rebate is cancelled (see section 141(1)).

45 Remedies for reduction of rent on frustration of residential tenancy agreement

(1) The Tribunal may, on application by the landlord or tenant, make an order determining the amount of rent payable if the rent is abated under section 43(2).

(2) The Tribunal may order that—

(a) from a specified day, the rent for the residential premises must not exceed a specified amount, and

(b) the landlord must repay to the tenant any rent paid by the tenant since the specified day that is in excess of the specified amount.

68. Sections 52 and 63 of the RTA are also relevant.

69. Section 52 relevantly provides:

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.

(1A) Without limiting the circumstances in which residential premises are not fit for habitation, residential premises are not fit for habitation unless the residential premises—

(a) are structurally sound, and

(b) – (g) …

(1B) For the purposes of subsection (1A)(a), residential premises are structurally sound only if the floors, ceilings, walls, supporting structures (including foundations), doors, windows, roof, stairs, balconies, balustrades and railings—

(a) are in a reasonable state of repair, and

(b) with respect to the floors, ceilings, walls and supporting structures—are not subject to significant dampness, and

(c) with respect to the roof, ceilings and windows—do not allow water penetration into the premises, and

(d) are not liable to collapse because they are rotted or otherwise defective.

(1C) ...

(2) ...

(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.

70. Section 63 provides:

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.

71. There is significant overlap between sections 52 and 63 of the RT Act: Pan v Malveholm [2021] NSWCATAP 101 at [26].

72. The first issue under s 44 of the RTA is whether there has been any “reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises” within the meaning of that section. This issue in turn has two elements. The first element is whether there has been a “reduction or withdrawal … of goods, services or facilities provided with the residential premises”. The second element is whether any such “reduction or withdrawal” was “by the landlord”.

73. I find that the failure to paint the Premises as ordered by the Tribunal on 16 March 2023 constituted a “reduction or withdrawal … of …services or facilities provided with the residential premises”. In my view there was sufficient opportunity for the painting to be undertaken and I have not accepted that the applicant impeded access so as to prevent the painting from occurring. The painting would also address the staining issues.

74. I also find that one of the reasons for the re-appearance of mould, albeit not significant, is that a mould inhibiting treatment has yet to be applied.

75. I do not find that the failure to install an externally venting exhaust fan in the bathroom was a required repair. The bathroom at the Premises has never had an exhaust fan. The installation of such an exhaust fan was a recommendation and would likely provide benefits. However, the evidence did not establish that installation of an externally venting exhaust fan in the bathroom was required to maintain the Premises in a reasonable state of repair.

76. I have found that the awning over the porch needs to be assessed and any necessary repairs to be undertaken.

77. I therefore find that there has been a “reduction or withdrawal” of services or facilities by reason of the failure to effect the required painting, the return of the mould and the incomplete or inadequate repair of the awning of the porch.

78. The next element is whether the “reduction or withdrawal” was “by the landlord”.

79. A failure or omission by a landlord to carry out necessary repairs and maintain the premises, of which the landlord is aware or ought reasonably be aware, can amount to a reduction or withdrawal of goods, services or facilities: see Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [113] – [115]. In those circumstances, the reduction or withdrawal of goods, services or facilities is properly attributable to the landlord’s failure or omission and consequently properly characterised as “by the landlord”.

80. The respondents in these proceedings have not taken the steps necessary to paint the Premises, adequately address the occurrence of mould and repair the awning. Due to the length of time that these issues have been outstanding I find that there has been a “reduction or withdrawal” of services or facilities “by the landlord”.

81. The applicant seeks that the rent be reduced by 25% - 50%. During the hearing the applicant submitted that 25% would be fair.

82. The Premises are a two bedroom house. The evidence did not establish that any part of the Premises was uninhabitable. However, the evidence did establish that the staining and the failure to paint the interior as required affected the attractiveness of the second bedroom.

83. I note that the mould has substantially dropped since the roof repairs were undertaken in 2022.

84. The state of the Premises in September 2023 are substantially more liveable than their state in March 2023.

85. In all the circumstances, I consider that a rent reduction is appropriate and I consider that the appropriate amount should be 15%. The weekly rent is $440, so 15% equates to $66. That means that the rent should note exceed $374.00 per week (ie $440 – $66).

86. The period of time for which I consider the rent reduction to be appropriate is 31 March 2023 to 30 October 2023. My reason for limiting the rent reduction to 30 October 2023 is that the orders contained in this decision require the respondents to undertake repairs and going forward there should not be a reduction “by the landlord” of service or amenities provided with the Premises because the respondents are required to comply with work orders within a set time frame.

Sub-letting

87. The applicant also complains that the respondents have unreasonably withheld their consent to permitting the applicant to permit someone to live with her.

88. Sections 74 and 75 of the RT Act provide as follows:

74 Transfer of tenancy or sub-letting by tenant

(1) A tenant may transfer the tenancy under a residential tenancy agreement to another person or sub-let the premises to another person, if the landlord gives written consent to the transfer or sub-letting.

(2) The landlord must not charge for giving consent to a transfer or sub-letting, other than for the reasonable expenses of giving consent.

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

75 Consent to transfer of tenancy or sub-letting

(1) No requirement for reasonable refusal for whole transfer or sub-letting The landlord may withhold consent to a transfer or sub-letting relating to the whole tenancy or residential premises whether or not it is reasonable to do so.

(2) Consent must not be unreasonably withheld for partial transfer or sub-letting The landlord must not unreasonably withhold consent to a transfer of a tenancy or sub-letting of premises if the transfer results only in one or more tenants in addition to an original tenant under the residential tenancy agreement or the partial sub-letting of the residential premises occupied by the tenant.

(3) Without limiting subsection (2), the landlord is entitled to withhold consent if—

(a) the number of proposed occupants is more than the number permitted by the residential tenancy agreement or any applicable consent or approval under the Environmental Planning and Assessment Act 1979, or

(b) the proposed tenant or sub-tenant is listed on a residential tenancy database in accordance with this Act, or

(c) the landlord is reasonably of the opinion that the transfer or sub-letting would result in the residential premises being overcrowded.

(4) Subsections (1)–(3) are terms of every residential tenancy agreement. Subsections (2) and (3) do not apply if the landlord is a social housing provider.

(5) Remedy if landlord refuses consent The Tribunal may, on application by a tenant, order that the tenant may transfer a tenancy or sub-let residential premises as referred to in subsection (2) if the Tribunal is of the opinion that the landlord’s failure to consent is unreasonable.

89. Section 74 does not apply to the dispute in these proceedings because the applicant does not seek to transfer or sub-let the whole tenancy and seeks to continue to reside at the Premises under a residential tenancy agreement.

90. Section 75(2) of the RTA does apply to the dispute in these proceedings to the extent that the applicant sought approval to add a tenant, in addition to herself, or to partially sub-let the Premises.

91. In these proceedings the residential tenancy agreement permits two persons to reside at the Premises and in 2023 only the applicant resided at the Premises.

92. By email dated 19 April 2023 the applicant sought from the respondents’ property agent “permission to seek a new flatmate” (Ex 1 1, pp. 237-238). The respondents did not, in terms, consent to the permission sought.

93. The question for determination is whether the respondents unreasonably withheld consent to a transfer of a tenancy by which an additional tenant would be added to the residential tenancy agreement or the sub-letting of the Premises.

94. I have concluded that the respondents did not unreasonably withheld consent to a transfer of a tenancy or sub-letting of the Premises because the identity of the proposed “flatmate” was not disclosed to the respondent. This meant that the respondents were not in a position to determine “whether the proposed tenant or sub-tenant is listed on a residential tenancy database in accordance with” the RT Act.

95. Although I have not based the conclusion I reached in the preceding paragraph on this matter, I also note that the applicant’s request for permission for a flatmate did not advise the landlord whether the flatmate is intended to be a tenant added to the residential tenancy agreement or a sub-tenant (or, indeed, whether the tenant is content for either to occur).

Tenant’s right to quiet enjoyment

96. The applicant also claimed compensation for loss of quiet enjoyment.

97. Section 50 of the RTA provides:

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.

98. In Parker v Lowe [2022] NSWCATCD183 the Tribunal said at [33]:

An order under s 44(1)(b) is referrable to the rent paid by the tenant. It therefore involves a form of economic loss suffered by the tenant, being the loss of consideration of possession of the premises relative to the rent paid. Distress and disappointment are distinct heads of non-economic loss that are not duplicative of the remedy provided by s 44(1)(b): Makowska v St George Community Housing Ltd [2021] NSWSC 287 at [46].

99. This statement was recently cited with approval by the Appeal Panel in Jeyarajah v Evans [2023] NSWCATAP 247 at [50].

100. One of the causes for the loss of quiet enjoyment in these proceedings was said to be the serving of the Termination Notice. Related to this issue, the applicant also complained of the pressure placed on her to accept a lesser sum than ordered by the Tribunal.

101. I have found that the Termination Notice was retaliatory and should be set aside. I also find the Termination Notice was sought to used at least to some extent to pressure the applicant into accepting a lesser sum by way of monetary compensation than ordered by the Tribunal on 16 March 2023.

102. In circumstances where I consider that it appropriate to declare that the Termination Notice has no effect, the stress to the applicant resulting from being told to depart the Premises and the uncertainty and stress of proceedings to vindicate her rights in respect of her tenancy, were a loss of the quiet enjoyment of the Premises to which the applicant was entitled.

103. The applicant contended another cause for the loss of quiet enjoyment was the failure to effect the required repairs. I accept that there was loss of quiet enjoyment due to the failure to effect the required repairs. That is particularly so in circumstances where the Tribunal had ordered the painting to be undertaken.

104. There is evidence that the applicant is allergic to mould although after the roof was repaired in November 2022 mould problems decreased over time so that the situation now is significantly better than March 2023.

105. I also note that significant repairs have been undertaken, and in particular that after the repairs to the roof the mould problem improved.

106. I consider that it is appropriate that the applicant be compensated for the loss of quiet enjoyment. However, I do not consider that the extent of the loss of quiet enjoyment was as severe as prior to 16 March 2023, even including the effects of the Termination Notice. In the circumstances of these proceedings, I consider an appropriate award to be $1,000.00.

Orders

107. The Tribunal makes the following orders:

1. Declare pursuant to section 115 of the Residential Tenancies Act 2010 that the notice of termination dated 30 March 2023 served on the applicant by or on behalf of the respondents was a retaliatory notice and that it is of no effect.

2. Order pursuant to section 44(1)(b) of the Residential Tenancies Act 2010 that the rent for the period from 1 April 2023 until 30 October 2023 not exceed $374.00 per week.

3. Order that the respondents pay the applicant within 7 days the sum of $1,000.00 in respect of the contravention of section 50 of the Residential Tenancies Act, 2010.

4. Order that within 28 days the respondents engage suitably qualified builders, tradesperson or such other persons as may be required to assess the awning over the porch of the Premises and carry out any necessary repairs within 42 days thereafter.

5. Order that the respondents within 42 days undertake the painting of the Premises as ordered by the Tribunal on 16 March 2023.

6. Order that the respondents within 42 days complete the mould treatment including the application of mould inhibiting product onto affected surfaces in the Premises.

7. Otherwise dismiss the application.

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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: 02 November 2023