Jang v Vlotis - [2021] NSWCATCD 89

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Jang v Vlotis [2021] NSWCATCD 89
Hearing dates: 21 June 2021
Date of orders: 03 August 2021
Decision date: 03 August 2021
Jurisdiction: Consumer and Commercial Division
Before: G Kinsey , General Member
Decision:
The Respondents Nick Vlotis and Ann Vlotis are to pay the Applicant Eun Joo Jang the sum of $3443.89 on or before 16 August 2021. The payment is to be way of a rent credit on the Tenant’s Rental Ledger.

Catchwords:
LEASES AND TENANCIES — Repairs-failure of landlord to effect repairs — Excessive rent due to reduction or withdrawal of goods, services or facilities under section 44(1)(b) of the Residential Tenancies Act 2010 — Assessment of rent

Legislation Cited:
Residential Tenancies Act 2010 (NSW)
Residential Tenancies Regulation 2019 (NSW)

Cases Cited:
Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9

Texts Cited:
Nil

Category: Principal judgment
Parties: Eun Joo Jang (Applicant)
Nick Vlotis (First Respondent)
Ann Vlotis (Second Respondent)
Representation: Applicant (Self-represented)
Prestige Realty Group (Respondent)

File Number(s): RT21/10726
Publication restriction: Nil

REASONS FOR DECISION

Parties

The Applicant is the tenant of residential premises at XXX Regatta Road Canada Bay (“the rented premises”). For the sake of convenience the Applicant shall hereinafter be referred to as “the Tenant”. The Tenant represented herself at the hearing with the assistance of a support person Zoe Paleologos.
The Respondents are the landlords of the rented premises. For the sake of convenience the Respondents shall hereinafter be referred to as “the Landlords”. The Landlords were represented by their agent Denise Owen of Prestige Realty Group.

Application

In an application filed in the Tribunal on 8 March 2021 the Tenant requested orders for the Landlords to carry out repairs, compensation for breach of agreement and a rent reduction. Further the Tenant claimed that a notice of termination based on rent arrears issued during the moratorium period was retaliatory.
The Landlords’ application for an order for termination and possession (File no RT21/18418) was dismissed. Accordingly the Tribunal is not required to determine if the Notice of Termination is retaliatory.
The Tenant’s claim for repairs to the rented premises was resolved by mutual agreement. The Tribunal made orders by consent to give effect to that agreement.
The remaining issues concern the Tenant’s claim for rent reduction and compensation. The Tribunal will turn to a consideration of those claims.

Background

The evidence establishes that Landlords and Tenant entered into a residential tenancy agreement in the usual form on 5 March 2018 (“the tenancy agreement”). The term of the agreement was for 52 weeks commencing on 5 March 2018 and ending on 4 March 2019. The weekly rent was $550.00. The premises consist of a house.
At the commencement of the tenancy, the agent and tenant conducted an ingoing inspection. An ingoing inspection report dated 2 March 2018 and photographs of the premises are in evidence. A copy of the ingoing inspection report was given to the tenant for comment. Both the Landlords’ agent and…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] NSWCATCD 89
Decision Date: 03 August 2021

CaseChat Overview and Summary

The applicant, Eun Joo Jang, brought proceedings against the respondents, Nick Vlotis and Ann Vlotis, who were her landlords, in the Victorian Civil and Administrative Tribunal. The applicant alleged that the landlords failed to effect certain repairs, leading to an excessive rent charge under section 44(1)(b) of the Residential Tenancies Act 2010. The applicant sought an assessment of the rent and a refund of the excessive rent paid.

The central legal issue for the tribunal was whether the landlords' failure to carry out repairs constituted a reduction or withdrawal of goods, services, or facilities under the Act, thereby justifying a reduction in rent. The tribunal considered whether the landlords' failure to act constituted a breach of their obligations under the Act and whether this breach had resulted in an excessive rent charge. The tribunal also had to determine the appropriate amount of the refund, if any.

The tribunal found that the landlords had failed to effect the necessary repairs, and this constituted a reduction or withdrawal of goods, services, or facilities. The tribunal held that the applicant was entitled to a reduction in rent as a result of this failure. The tribunal assessed the amount of the refund based on the evidence presented and determined that the applicant was entitled to a refund of $3443.89. The tribunal ordered the respondents to pay the applicant this sum as a credit on the tenant’s rental ledger by a specified date.

In conclusion, the tribunal found in favour of the applicant and ordered the respondents to pay her a refund of $3443.89. The tribunal held that the respondents' failure to effect necessary repairs constituted a reduction or withdrawal of goods, services, or facilities, and justified a reduction in rent. The tribunal assessed the amount of the refund based on the evidence presented and ordered the respondents to pay the applicant the sum of $3443.89 by a specified date.

Orders

Orders of the court

The Respondents Nick Vlotis and Ann Vlotis are to pay the Applicant Eun Joo Jang the sum of $3443.89 on or before 16 August 2021. The payment is to be way of a rent credit on the Tenant’s Rental Ledger.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Jang v Vlotis [2021] NSWCATCD 89
Hearing dates:	21 June 2021
Date of orders:	03 August 2021
Decision date:	03 August 2021
Jurisdiction:	Consumer and Commercial Division
Before:	G Kinsey , General Member
Decision:	The Respondents Nick Vlotis and Ann Vlotis are to pay the Applicant Eun Joo Jang the sum of $3443.89 on or before 16 August 2021. The payment is to be way of a rent credit on the Tenant’s Rental Ledger.
Catchwords:	LEASES AND TENANCIES — Repairs-failure of landlord to effect repairs — Excessive rent due to reduction or withdrawal of goods, services or facilities under section 44(1)(b) of the Residential Tenancies Act 2010 — Assessment of rent
Legislation Cited:	Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW)
Cases Cited:	Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Eun Joo Jang (Applicant) Nick Vlotis (First Respondent) Ann Vlotis (Second Respondent)
Representation:	Applicant (Self-represented) Prestige Realty Group (Respondent)
File Number(s):	RT21/10726
Publication restriction:	Nil