Haber v Tadrous

[2025] NSWCATCD 32

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Haber v Tadrous [2025] NSWCATCD 32

Hearing dates:

9 April 2025

Date of orders:

26 May 2025

Decision date:

26 May 2025

Jurisdiction:

Consumer and Commercial Division

Before:

G A Kinsey General Member

Decision:

(1)   The application is dismissed.

Catchwords:

LEASES AND TENANCIES- Tenants claim for compensation for breach of tenancy agreement-time limits applicable to applications for compensation-principles applicable to extension of time -claims for economic and non-economic loss

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Residential Tenancies Act 2010 (NSW)

Residential Tenancies Regulation 2019(NSW)

Cases Cited:

Annette Shailer v Camille Serisier [2016] NSWCATAP 131

Baltic Shipping Co v Dillon [1993] HCA 4

Hyndes v Maddak Pty Ltd [2021] NSWCATAP 302

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Makowska v St George Community Housing Ltd [2021] NSWSC 287

Pongrass v Small [2021] NSWCATAP 31

Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9

Texts Cited:

None

Category:

Principal judgment

Parties:

Chrisovalanda Haber and Anthony Haber (Applicants)
Yousiff Tadrous and Mary Tadrous (Respondents)

Representation:

Applicants in person
Respondents represented by their agent and Mary Tadrous in person

File Number(s):

2025/00034679

Publication restriction:

Unrestricted

REASONS FOR DECISION

Parties

1. The Applicants (hereinafter referred to as “the Tenants”) are the former tenants of residential premises situated at xxxx Chipping Norton (hereinafter referred to as “the Premises”).

2. The Respondents (hereinafter referred to as “the Landlords”) are the owners and Landlords of the Premises.

Application

3. In an application filed in the Tribunal on 28 January 2025 and amended on 3 March 2025, the Tenants sought orders for the payment of compensation for economic and non-economic loss. The Tenants alleged numerous breaches of the residential tenancy agreement during the period of the tenancy.

4. Although the application did not particularise the compensation claimed from the Landlords, the Tenants included as part of their documentation a schedule setting out the various items for which compensation was sought.

Jurisdiction

5. The parties did not dispute the jurisdiction of the Tribunal to hear and determine the application. The dispute concerns a residential tenancy agreement between the parties entered on 6 December 2018.

6. The premises are “residential premises” within the meaning of section 3 of the Residential Tenancies Act 2010 (“the RTA”). The agreement is a “residential tenancy agreement” as defined in section 13(1) of the RTA. Matters arising under the RTA are allocated to the Consumer and Commercial Division of the Tribunal under Schedule 4 of the Civil and Administrative Tribunal Act 2013.

7. I find that the Tribunal has jurisdiction to hear and determine the application

Tenants’ Claims

8. The Tenants’ claims are set out in their written submission and may be summarised as follows:

(i)	Reimbursement of cost to install double screen security doors	$1900.00
(ii)	Reimbursement of cost to repair damaged back fence	$155.00
(iii)	Reimbursement of cost of metal side gate	$350.00
(iv)	Reimbursement of cost to repair colorbond fence	$450.00
(v)	Reimbursement of cost of glue to repair ensuite tiles	$20.00
(vi)	Reimbursement of cost for paint to repair timber trim in kitchen	$40.00
(vii)	Reimbursement of cost of electrical repairs to lighting in the ensuite	$650.00
(viii)	Reimbursement of cost to replace the heater in the ensuite	$60.00
(ix)	Reimbursement of cost to replace the shower head in main bathroom	$99.00
(x)	Reimbursement of cost to replace 2 showerheads in ensuite	$90.00
(xi)	Reimbursement of cost to replace laundry faucet	$35.00
(xii)	Replacement cost of outdoor glass table damaged during a storm	$350.00
(xiii)	Cost to replace outdoor furniture damaged due to flooding of backyard	$2500.00
(xiv)	Cost to replace water and mould damaged indoor lounges	$1478.99
(xv)	Cost to replace 2 damaged cabinets	$303.00

9. In addition to the above claims, the Tenants sought rent reductions for a leaking roof ($30.00 per week); flooding at the rear of the Premises ($20.00 per week); leaks in the ensuite shower ($30.00 per week); nonfunctioning air conditioning ($15.00 per week) and insecure fencing ($15.00 per week)

10. The Tenants claimed compensation of $15.00 per week due to the Landlords failure to give insufficient notice to vacate the Premises.

11. The Tenants claimed $6500.00 for non-economic loss for stress, anxiety and inconvenience.

12. The total compensation claimed was $18423.99. The Tenants agreed to limit their claim for compensation to the Tribunal’s jurisdictional limit of $15,000.00.

Landlords’ Response to the Tenants’ Claims

13. The Landlords denied liability and disputed the Tenants’ claims for compensation. The Landlords asserted that whenever the Tenants requested repairs, they were done promptly. They also contended the Tenants claims for compensation were out of time and should be dismissed.

The Tenancy

14. The Tribunal makes the following factual findings in respect of the residential tenancy:

1. The parties entered into a residential tenancy agreement on 6 December 2018 for the Premises (“the Tenancy Agreement”).

2. The term of the agreement was 12 months commencing on 7 December 2018 and ending on 6 December 2019.

3. At the commencement of the tenancy, the weekly rent was $680.00

4. The Tenants paid a bond of $2720.00 which was lodged with Rental Bond Services.

5. On 6 December 2018 the agent’s representative Tayla Hunter carried out an inspection of the Premises and completed an ingoing inspection report.

6. A copy of the report was given to the Tenants on or about 6 December 2018.

7. The Tenants took occupation of the Premises on 7 December 2018.

8. The Tenants returned the ingoing inspection report on 11 December 2018.

9. During the tenancy the weekly rent increased from $680.00 to $800.00.

10. At the end of the fixed term, the tenancy converted to a periodic tenancy.

11. The Landlords served a “no grounds” notice of termination pursuant to section 85 of the RTA on the Tenants on 17 October 2024. The date for vacant possession was 22 January 2025.

12. When the Tenants vacated the Premises, the rent was $800.00 per week.

13. The Tenants vacated the Premises on 23 December 2024.

14. The tenancy agreement terminated on 23 December 2024 when the Tenants gave up possession of the residential premises with the Landlords’ consent.

Consideration

Tenants Claims for Breach of the Tenancy Agreement

15. The Tenants claimed the Landlords breached their obligations to provide and maintain the premises in a reasonable state of repair, having regard to the age of, rent payable and prospective life of the premises (section 63(1) of the RTA) which amounted to a breach of their quiet enjoyment.

16. The Landlord’s general obligation to maintain the premises in a reasonable state of repair is set out in section 63 of the RTA which provides:

63LANDLORD’S GENERAL OBLIGATION

(1) Alandlordmust provide and maintain theresidential premisesin a reasonable state of repair, having regard to the age of,rentpayable for and prospective life of thepremises.

(2) Alandlord’s obligation to provide and maintain theresidential premisesin a reasonable state of repair applies even though thetenanthad notice of the state of disrepair before entering into occupation of theresidential premises.

(3) Alandlordis not in breach of the obligation to provide and maintain theresidential premisesin a reasonable state of repair if the state of disrepair is caused by thetenant’s breach of this Part.

(4) This section is a term of everyresidential tenancy agreement.

17. A breach of the obligation to provide and maintain the residential premises in a reasonable state of repair may constitute a breach of the residential tenancy agreement which gives rise to a claim for compensation.

18. In Hyndes v Maddak Pty Ltd [2021] NSWCATAP 302 the Appeal Panel stated at [52]-[53] claims for breach of the covenant of quiet enjoyment and failure to repair are claims for breach of the residential tenancy agreement to which section 190(1) of the RTA apply.

19. Any claims for breaches of the residential tenancy agreement (including breaches of quiet enjoyment and failure to repair) must be commenced within the period specified in the Residential Tenancies Regulation 2019 (NSW). The period prescribed by Regulation 39(9) is 3 months after the applicant becomes aware of the breach.

20. The authorities make it clear any finding on whether there has been a breach of the covenant of quiet enjoyment will need to be decided on the facts of the case and the authorities as to what is a breach of that covenant (see Hyndes v Maddak Pty Ltd [2021] NSWCATAP 302 at [40])

21. The Tenants alleged the Landlords breached their obligations under the Tenancy Agreement on numerous occasions. Many of the alleged breaches are historical and occurred years ago. They are be out of time.

22. The Tribunal has the power to extend the time where a claim is filed out of time.

Extension of Times Principles

23. The threshold question is whether the Tribunal should exercise its discretion and extend time?

24. Section 41 of the Civil and Administrative Tribunal Act 2013 (“the NCAT Act”) allows the Tribunal to extend time for the filing of an application.

25. The principles applicable to the exercise of the discretion to extend time were set out in Jackson v NSW Land and Housing Corporation[2014] NSWCATAP 22 at [22]:

(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant — Gallo v Dawson[1990] HCA 30 at 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];

(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a “vested right” to retain the benefit of that decision — Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success — Jackamarra at [7];

(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:

(a) The length of the delay;

(b) The reason for the delay;

(c) The appellant’s prospects of success, that is usually whether the applicant has a fairly arguable case; and

(d) The extent of any prejudice suffered by the respondent (to the appeal),

— Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and

(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable — Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58]–[59].

26. The Tribunal will consider each of the Tenants’ claims for compensation including whether it is appropriate to extend time to bring the claim.

Reimbursement of cost to install double screen security doors   

27. In 2018 and early 2019, the Tenants reported the front door kept opening. The agent sent a handyman who reported the front door required replacement The Tenants submit the Landlords did not carry out the repair. They purchased and arranged for the installation of double security doors at a cost of $1900.00.

28. There is no evidence the Landlords gave consent or approval for the installation of the security doors installed in September/ October 2019. The Tenants did tender a receipt or invoice for the purchase and installation of the security doors.

29. The Tenants were aware of the alleged breach in 2019. Applying the principles in Jackson, the claim is made out of time. The delay is considerable and prejudices the Landlords.

30. Additionally, there is no evidence the Landlords gave their consent or approval for the installation as required by section 66(1) of the RTA.

31. Section 66(1) of the RTA provides that a tenant must not, without the Landlord’s written consent or unless the residential tenancy agreement otherwise permits, install or cause to be installed a fixture or make or cause to be made any alteration or addition to the residential premises.

32. The Tribunal refuses to exercise its discretion to extend time under section 41 of the NCAT Act.

33. The claim is dismissed.

Reimbursement of cost to repair damaged back fence   

34. The Tenants claimed $155.00 for repairing the damaged timber paling fence in the backyard. The Tenants allege they notified the agent in 2021 and requested repairs to the fence.

35. The Tenants submitted the Landlords did not repair the fence and did the work themselves. Their claim is for materials and labour. There are no invoices or receipts to support the claim.

36. The failure to repair is a breach of the obligation to repair in section 63 of the RTA and subject to the limitation in section 190 of the RTA.

37. The Tribunal refuses to exercise its discretion to extend time under section 41 of the NCAT Act.

38. The claim is considerably out of time and the Landlords will suffer significant prejudice if the Tribunal extends time.

39. The claim is dismissed.

Reimbursement of cost of metal side gate

40. The Tenants claimed $350.00 for the cost of a metal side gate installed by them in 2019. They provided a photo of the gate in their evidence (Photo A 31)

41. They asserted they contacted the agent about installing the gate but received no response from the Landlords. They purchased the gate from Bunnings but do not have a receipt.

42. They did not obtain the consent or approval of the Landlords as required by section 66(1) of the RTA.

43. The claim is considerably out of time as any claim for alleged breach of the Tenancy Agreement should have been filed in 2019. The Tribunal refuses to exercise its discretion to extend time under section 41 of the NCAT Act.

44. The claim is dismissed for the above reasons.

Reimbursement of cost to repair colorbond fence

45. The Tenants claimed $450.00 for repairs to the colorbond fence undertaken in 2021. The Tenants contended they asked the agent to repair the damaged fence but received no response. They carried out the repairs themselves and seek reimbursement of the cost.

46. There is minimal evidence to support the claim. The case for reimbursement of the costs is not strong.

47. The alleged breach occurred in 2021.Any claim for breach of section 63 of the RTA should have been made within 3 months of the date of the breach pursuant to section 190 of the RTA.

48. The Tribunal refuses to exercise its discretion to extend time under section 41 of the NCAT Act.

49. The claim is dismissed for the above reasons.

Reimbursement of cost of glue to repair ensuite tiles

50. The Tenants claim $20.00 for cost of glue to fix bathroom tiles which had fallen off the wall. There are no receipts to support the expenditure.

51. The Tenants had reported the issue to the agent on several occasions throughout late 2024 but received no response from the Landlords.

52. The Tenants tendered emails dated 18 January 2024 to the agent (A69) and a photo (A70) regarding the issue.

53. The claim for compensation is considerably out of time. The Tenants have not provided any reasons of the delay in filing the application.

54. Applying the principles in Jackson, the Tribunal refuses to exercise its discretion to extend the time pursuant to section 41 of the NCAT Act.

55. The claim is dismissed.

Reimbursement of cost for paint to repair timber trim in kitchen

56. The amount claimed was $40.00. In support of the claim, the Tenants tendered photos of the affected area (A79 to A84).

57. The work was undertaken by the Tenants in late 2023. The Tribunal accepts the Tenants carried out the work but any claim for reimbursement for materials is out of time.

58. The Tribunal refuses to exercise its discretion to extend time under section 41 of the NCAT Act due to the length of the delay and the prejudice to the Landlords.

59. Further there is no evidence that the Landlords agreed to reimburse the Tenants for the cost of materials.

60. For the above reasons, the claim is dismissed.

Reimbursement of cost of electrical repairs to lighting in ensuite   

61. The Tenants claimed $650.00 for the cost of electrical repairs to the ensuite lighting.

62. The Tenants’ evidence was that in 2018, water leaked into the roof and affected the electrical circuits. The lights in the ensuite did not work.

63. The Tenants arranged for an electrician to undertake repairs. They do not have a receipt or invoice from the electrician to show the work done or the cost.

64. The Tenants requested further repairs to the electrical circuits in June 2024. The Tenants tendered an email to the agent dated 14 June 2024 (A67) regarding the smoke detectors and problems with the sensor light.

65. The claim concerns a breach of the Landlords’ obligation to carry out repairs. The claim is subject to the 3 months’ time limitation in section 190 of the RTA. The Tenants did not provide a reason for the delay in filing the application for reimbursement.

66. Given the length of the delay, the prejudice to the Landlords and the evidence filed in support of the application, the Tribunal is not satisfied this is an appropriate case to exercise its discretion to extend time pursuant to section 41 of the NCAT Act.

67. The claim is dismissed.

Reimbursement of cost for heater in ensuite

68. The Tenants claimed $60.00 for the cost to replace the heater in the ensuite in 2019. There is no invoice for the purchase.

69. The claim for compensation is considerably out of time. The Tenants have not provided any reasons of the delay in filing the application and the evidence in support of the claim is weak.

70. Applying the principles in Jackson, the Tribunal refuses to exercise its discretion to extend the time pursuant to section 41 of the NCAT Act.

71. The claim is dismissed.

Reimbursement of cost of shower head in main bathroom

72. The Tenants seek reimbursement of $99.00 for replacement of the leaking showerhead in the main bathroom in 2020.

73. There is no evidence the Tenants requested the Landlords to carry out a repair or replace the showerhead in 2020 as required by section 65A of the RTA. That section provides the Tribunal must not determine that a landlord has breached the obligation to repair unless it is satisfied the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair.

74. The Tenants did not provide a receipt or invoice for the purchase of the showerhead.

75. The claim is substantially out of time. The Tenants have not provided reasons of the delay in filing the application and the evidence in support of the claim is weak.

76. For the above reasons, the Tribunal refuses to exercise its discretion to extend the time pursuant to section 41 of the NCAT Act.

77. The claim is dismissed.

Reimbursement of cost for Replacing 2 showerheads in ensuite    

78. The Tenants alleged the showerheads in the ensuite were replaced in 2021 and 2023. They claimed $90.00 for the replacement cost.

79. The Tenants did not provide evidence of a request to the Landlords to carry out a repair or replace the showerheads in accordance with section 65A of the RTA. In those circumstances the Tribunal is not satisfied the Landlords have breached their obligations to repair.

78. The claim is considerably out of time and the evidence in support of the claim is weak.

79. The claim is dismissed.

Reimbursement of cost to replace laundry faucet

82. The Tenants claim $35.00 for the replacement cost of the laundry faucet in 2022. The Tenants did not provide an invoice or receipt for the purchase.

83. There is no evidence of a request to the Landlords or their agent to carry out a repair or replace the showerheads in accordance with section 65A of the RTA. In those circumstances the Tribunal is not satisfied the Landlords have breached their obligations to repair.

84. Additionally, the claim is well out of time. There is no explanation for the delay in making the claim. There is significant prejudice to the Landlords if time is extended to bring the claim.

85. For the above reasons, the Tribunal refuses to exercise its discretion to extend the time pursuant to section 41 of the NCAT Act and the claim is dismissed.

Replacement cost of outdoor glass table

86. The Tenants claim $350.00 for the cost of replacing an outdoor glass table which was damaged during a storm in 2023. They assert the glass on the table shattered in 2023 due to the Landlords’ failure to repair storm damage from 2019.

87. In support of their case, the Tenants tendered photos and email correspondence regarding the state of the roof and flooding in the backyard.

88. In an email to the agent dated 26 April 2021, the Tenants referred to the poor condition of the roof and water damaged furniture. They requested a rent reduction of $100.00 per week.

89. The difficulty for the Tenants is that the alleged breaches occurred in the period between 2021 and 2023. Any claim for compensation should have been filed at best in 2023.

90. Applying the principles in Jackson, the length of the delay is considerable, there is no proper reason given for the delay in filing the application, the prospects of success are poor, and there is prejudice to the Landlords.

91. The Tenants submit the glass shattered when the fence collapsed onto the outdoor table during a storm. The Tenants must prove the causal link between the damage to the table and the Landlords’ breach of an obligation under the RTA.

92. For the above reasons, the Tribunal refuses to exercise its discretion to extend the time pursuant to section 41 of the NCAT Act and the claim is dismissed.

Cost to replace outdoor furniture damaged due to flooding of backyard

93. The Tenants   claimed $2500.00 for the replacement cost of outdoor furniture purchased from A Mart in 2018. They do not have receipts or invoices for the purchase.

94. The outdoor furniture was a wicker set which was damaged when the outdoor entertainment area flooded. The setting was disposed of by the Tenants.

95. The Tenants state the area was inspected by the Landlords’ plumber who recommended the installation of a drainage system. The pergola does not have gutters and the water runs off the roof into the yard.

96. The Tenants tendered photos taken in 2022/2023 of the flooded area.

97. The Tenants were aware of the Landlords’ alleged breach of the Tenancy Agreement in 2022/2023. As discussed earlier, any claim for compensation based on breach of the tenancy agreement should have been filed within 3 months of the alleged breach.

98. There is no doubt from the photographs tendered by the Tenants the entertainment area floods during periods of heavy rain. There is no evidence of steps taken by the Landlords to address the problem. Nonetheless, the alleged loss occurred in 2022/2023 and is out of time.

99. In determining not to exercise its discretion to extend time pursuant to section 41 of the NCAT Act, the Tribunal finds the length of the delay in filing the application is considerable, there is no proper reason given by the Tenants for the delay in filing it, the prospects of success are poor, and there is significant prejudice to the Landlords if time was extended.

100. For the foregoing reasons, the claim is dismissed.

Replacement cost of water and mould damaged Indoor Lounges and Display Cabinets

101. The Tenants claim $1478.99 for the replacement cost of an indoor lounge and $238.00 for a kitchen display cabinet.

102. The indoor lounge was purchased from Ikea on 3 August 2021 and disposed of in December 2024.

103. The display cabinet was purchased for $238.00. The Tenants have no photographs or other evidence to establish the condition of the cabinets or invoices or receipts to show the purchase price.

104. The Tenants submit the damage was caused by the repeated failure of the Landlords to properly repair the roof over the period of the tenancy.    They asserted that inspections were undertaken and quotes obtained by the agent, but repairs never completed.   

105. The Landlords disputed the Tenants’ claims and submitted the roof repairs were arranged by the agent, completed and paid for by them. The Landlords provided copies of quotes for repairs but no evidence of payment or the repairs were done.

106. Upon an objective evaluation of the evidence, I am not satisfied the Tenants have proved their case on the balance of probabilities that the Landlords are responsible for their loss. The evidence doesn’t persuade me there is the causal connection between the Tenants’ loss and the Landlords’ alleged breach of the tenancy agreement.

107. For the above reasons, the claim is dismissed.

Claims for Rent Reduction

108. The Tenants made various claims for rent reduction during the tenancy which are particularised in paragraph 9 above.

109. The RTA contains several provisions which entitle a tenant under a residential tenancy to make a claim against a landlord. The claim does not necessarily have to involve a breach of agreement and could be made on some other ground.

110. In these proceedings, the Tenant’s claim must be considered by reference to both sections 63 and 44 of the RTA. There are different time limit considerations in bringing claims under section 63 and section 44.

111.  As was said in Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [88], in a passage cited with approval by Basten J in Makowska v St George Community Housing Ltd [2021] NSWSC 287 at [46]:

“That is not to suggest that a claim for damages for loss of quiet enjoyment and an order for the reduction of rent are mutually exclusive forms of relief. Depending on the claims made, there may be facts common to both types of claim which would need to be taken into account in order to avoid double compensation. For example if the premises (or part thereof) cannot be used in the manner intended or its use is in some way impaired by reason of a landlord’s breach, it may be inappropriate to both reduce the rent and make an award of damages for loss of use.”

112. In relation to a claim for rent reduction, section 44(3) of the RTA provides:

Applications on withdrawal of goods or services

Atenantmay, before the end of atenancy, make an application that therentis excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with theresidential premises, even if those goods, services or facilities were under a separate or a previous contract, agreement or arrangement.

113. Any application for a reduction in the rent must be made before the end of the tenancy. The tenancy ended on the 23 December 2024. The application was lodged on 28 January 2025 and amended on 3 March 2025. As the application was made after tenancy ended, it was out of time in respect of a claim for rent reduction under section 44(3) of the RTA.

114. The application will be considered as a claim under section 187(c) and (d) of the RTA for compensation and payment of money rather than a rent reduction claim.

115. In Annette Shailer v Camille Serisier [2016] NSWCATAP 131, the Appeal Panel considered whether the Tribunal could determine a claim under more than one provision of the RTA where the legislation created an entitlement to bring a claim and the time limits which would apply. The Appeal Panel stated at [29] to [31]:

29   In circumstances where legislation creates an entitlement to bring an application before the Tribunal under more than one provision, it is sufficient for an applicant to establish an entitlement to relief under the terms of any one of those provisions, and for the Tribunal to grant such relief provided that such entitlement is established and is not otherwise unavailable by reason of any other provision of the legislation or for any other cause. Accordingly, it was appropriate for the Tribunal to consider this aspect of the claim under the provisions ofsection 44.

30 For the purpose of these proceedings, it is necessary to focus on the provisions of subsection (3). In general terms, it may be assumed that the factual circumstances as they pertain to these proceedings would constitute a reduction in the facilities provided within the residential premises, because of the inability to make full use of the bedroom area through the inconsiderable inconvenience caused by frequent leaking of rainwater, as described. Whilst the circumstances pertaining to a reduction in the facilities might also constitute a breach of the provisions of the lease, for reasons which we have given, it is not necessary to establish a breach when determining entitlement to bring a claim undersection 44(3).In the circumstances, the time limit for making such a claim is that which is set out in the subsection itself, namely that the application to the Tribunal must be made before the end of the tenancy.

31 In circumstances where the claim was made by the appellant undersection 44of the Act, and was made within the time prescribed, it follows that the appellant is entitled to consideration of her claim by reference to the totality of the period during which there has been a reduction in the facilities provided, and that the Member was in error in determining otherwise.

116. As noted earlier, claims for breach of the tenancy agreement are subject to the time limits imposed in section 190 of the RTA.

117. The claims regarding ducted airconditioning were first raised in or about January 2019. The Tenants argued the premises were advertised as being airconditioned.

118. The agent disputed the Tenants claim and denied the request for a rent reduction of $100.00 per week on 1 February 2019. The Tenants did not take the matter further. The claim is now substantially out of time.

119. The Tenants’ other applications for rent reduction under section 44(3) of the RTA based on the roof water leaks, flooding in the backyard, ensuite and tile leaks, and insecure back fence were made after the end of the tenancy and out of time.

120. The applications for rent reduction are dismissed.

Claim for Insufficient Notice to Vacate the Premises

121. On 17 October 2024, the Landlords served a Notice of Termination on the Tenants. The Notice relied on section 85 of the RTA and required the Tenants to give vacant possession of the Premises on or before 22 January 2025.

122. I find the Notice was a valid notice of termination and the Landlords were entitled to serve it as the tenancy agreement was a periodic agreement. The termination date was not earlier than 90 days after the date on which the notice was served.

123. The claim for compensation is dismissed.

Claim for Non-Economic Loss

124. The Tenants claimed $6500.00 for non-economic loss.

125. The Tenants contended they suffered mental anguish because the Landlords interfered with their quiet use and enjoyment of the premises.

126. The Tribunal accepts that the type of loss claimed by the Tenants for stress, frustration, disappointment and inconvenience is recoverable as a separate head of loss given the residential tenancy agreement is a contract for enjoyment pleasure and relaxation and therefore falls under the exception to the general rule that damages for distress and disappointment are not recoverable: Baltic Shipping Co v Dillon [1993]HCA 4

127. The Tenants have a right to quiet enjoyment of the Premises. The Tenants contended this right has been contravened because of the Landlords failure to repair, invasions of privacy when tradesmen attended for inspections, and generally, their failure to properly address issues with the property.

128. The Tenants alleged the Landlords attended the premises unannounced and conducted drive by inspections.

129. The Tenants feel aggrieved the Landlords served them with a notice of termination which required vacant possession on 22 January 2025. The Tenants argue the notice did not give them sufficient time to find alternative accommodation.

130. The Tenants various claims for compensation have been dismissed. There is no medical or other evidence to support the claim for non-economic loss.

131. The Tribunal is not satisfied on the evidence the Tenants have proved their claim. There is no evidence from which the Tribunal can make a finding the Tenants are entitled to damages for non- economic loss.

132. The claim for non-economic loss is dismissed

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 27 June 2025