Kwok v Natarajan

[2025] NSWCATCD 80

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Kwok v Natarajan [2025] NSWCATCD 80

Hearing dates:

20 June 2025

Date of orders:

8 July 2025

Decision date:

08 July 2025

Jurisdiction:

Consumer and Commercial Division

Before:

JA Rose, Senior Member

Decision:

(1)   The Tribunal determines that the rent increase from $700 per week to $900 per week is excessive.

(2)   The Tribunal orders that the rent shall not exceed the sum of $775 per week from 11 January 2025 to 12 April 2025.

(3)   The Tribunal orders the landlord to repay to the tenant the amount by which the rent paid by the tenant to the landlord for the period specified in order (2) above has exceeded the amount determined in that order.

(4)   The parties have liberty to relist the proceeding to determine the amount (if any) owing by the landlord to the tenant under order (3) above, within 30 days from the date of these orders.

(5)   The remainder of the claim in the proceeding is dismissed because the Tribunal is not satisfied to the civil standard (being the balance of probabilities) on the material before it that there are grounds for the Tribunal to make the other orders sought by the applicant tenant.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — NSW Civil and Administrative Tribunal — Jurisdiction and power — Limitations on claims for compensation in respect of a breach of a residential tenancy agreement

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent — Excessive rent

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord’s duty — Repairs to common property not forming part of the residential premises

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent — Rent increases — Excessive rent increase

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Residential Tenancies Act 1995 (NSW)

Residential Tenancies Act 2010 (NSW)

Strata Schemes Management Act 2015 (NSW)

Residential Tenancies Regulation 2019 (NSW)

Cases Cited:

Bhandari v Laming [2015] NSWCATAP 224

De Chazol v Scala [2010] NSWCTTT 135

Dimunova v Vega [2017] NSWCATAP 5

Dupont and Rowe v Lawrence [1997] NSWRT 213.

George v Davies [2000] ACTRTT 2.

Hanney v McCabe Toshack [2014] NSWCATCD 239

Hendy v Parsons [2024] NSWCATCD 25

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

Kolodziej v Ali & Anor (Appeal) [2021] ACAT 123

Kwok v Tahiri [2015] NSWCATAP 244

Lee v Fuzessery (Tenancy) [2010] NSWCTTT 205

McCartney v Wood [2023] NSWCATAP 131

Nicholson v Webber [2023] NSWCATCD 65

Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

Pan v Malveholm [2021] NSWCATAP 101

Pursell v Eversham Close Pty Ltd [2020] NSWDC 372

Reiss & Anor v Helson & 2 Ors [2001] NSWSC 486

Sewell v Zvirblis [2022] NSWCATAP 337

Shrestha v Crandell Pty Ltd [2010] NSWCTTT 240

Warner v Hung (No 2) (2011) 297 ALR 56; [2011] FCA 1123

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Aaron Kwok (Applicant)
Karthik Natarajan (Respondent)

Representation:

a Kwok, in person (Applicant)
C Chen, property manager (Respondent)

File Number(s):

2024/459775

Publication restriction:

Nil

REASONS FOR DECISION

Introduction and procedural history

1. The applicant (as the “tenant”) and the respondent (as the “landlord”) were parties to a residential tenancy agreement dated 16 February 2024 (the “tenancy agreement”), in respect of a strata-titled residential apartment at Avon Road, Pymble NSW (the “premises”). The original fixed term of the tenancy agreement was six months starting on 26 February 2024 and ending on 26 August 2024, however the tenant has remained in the premises under a periodic tenancy since that fixed term expired.

2. On 12 November 2024, the landlord gave the tenant notice of an increase in the rent for the premises, from the original rent of $700 per week to $900 per week with effect from 11 January 2025. On 11 December 2024, the tenant lodged his application in this proceeding (originally naming the agent as the respondent, but this has since been corrected to the landlord), in which he sought orders to:

1. Reduce the rent to match the market value of the rent in the area.

2. Reduce the rent for the 19 weeks that the main ingress/egress left was under scheduled overhaul, along with other minor services around the house that were not fixed after being notified at the beginning and throughout my tenancy.

pursuant to s 44 of the Residential Tenancies Act 2010 (NSW) (the “RT Act”). In his application form, the tenant described the basis of his claim as follows:

1. My landlord’s agent is trying to force me out by increasing the rent to unjustifiable amounts. When asked about reasoning behind such a drastic 30% increase, stated it was “rental market assessments” but when asked to elaborate just stated it was because it “is the owner’s decision of the rent increase if no fixed term contract signed”. I have paid routinely every week and not missed a payment, I’ve been accommodating and understanding to their requests throughout my 1.5 year stay for any servicing. I’ve tried reasoning with them the past 4 months but have been met with scare tactics and unconscionable conduct. I am now seeking assistance since they reduced contact and their recent emails to suggest they are beyond willing to reason with me. 2. Upon beginning tenancy in this apartment, a big appeal to the apartment was the lift that takes me and my father (+70yr male) down 4 levels into the car park to access his car to do his daily activities. However, due to the lift servicing, 2 flights of stairs (+100 stairs) and a 50 m walkway have to be travelled everyday to access the car instead. I’ve seen my neighbour needing to take multiple rests on the stairs sometimes when I returned from work. This service having been down is highly inconveniencing and I want some compensation on the rent …

3. The matter came before the Tribunal for conciliation and an initial (group list) hearing on 6 February 2025. Conciliation was not successful, so the Tribunal adjourned the proceeding for hearing as a special fixture. In doing so, the Tribunal directed both parties to give each other, and lodge with the Tribunal, the documents they rely on, by certain dates in advance of the hearing. The parties have since served documents in accordance with those directions.

4. The matter was then heard by me on 20 June 2025. In the meantime, the tenant had moved out of the premises on 12 April 2025, bringing his tenancy to an end.

5. For the reasons that I set out below, I have decided that the rent increase from 11 January 2025 was excessive and that the rent should not exceed $775 per week from that date until the end of the tenancy, on 12 April 2025. The tenant’s other claims should be dismissed.

The hearing

6. The tenant appeared in person at the hearing, assisted by his father. The landlord was represented at the hearing by Ms Chen, a property manager with RE-MAX real estate, her managing agents (the “managing agents”).

7. The hearing proceeded in the usual manner. Both parties were given reasonable opportunities to make brief opening statements and to present the evidence that they relied on in respect of the application. They were also given the opportunity to question the other party’s witnesses on their evidence, which neither party took up. Both parties were also given reasonable opportunities to present their arguments to the Tribunal and to respond to the arguments that were made by the other party. I am therefore satisfied that both parties received adequate procedural fairness in the conduct of the hearing.

8. In opening his case, the tenant stated that he sought three orders: (1) an order capping the rent at $750 per week for the period between 11 January 2025 and 12 April 2025 (13 weeks and one day); (2) an order that the excess rent paid over that amount be refunded to him; and (3) compensation or a rent reduction at the rate of $50 per week for the lift in the building being out of order, for 19 weeks from 24 June 2024 to 4 November 2024. The landlord stated that it opposed all of those requests, including because the rent was at or below prevailing market rates at all material times.

The evidence

9. The tenant relied on the bundle of documents which he had lodged and served on about 13 February 2025 (exhibit T1). The landlord relied on two bundles of documents: the bundle which she had lodged and served on about 5 March 2025 (exhibit L1) and a further bundle concerning market rents, which the tenant did not object to her using (exhibit L2).

10. Both the tenant and Ms Chen gave oral testimony in which they affirmed the truth of the written statements made by them in their respective bundles. As noted above, neither party sought to question the other at the hearing.

Jurisdiction

11. I am satisfied on the evidence that there is a residential tenancy agreement between the parties and that the Tribunal has jurisdiction to hear and determine this application under the RT Act. I am also satisfied that the amounts claimed by the tenant are within the Tribunal’s monetary jurisdiction under that Act.

The applicable law

12. Section 41 of the RT Act empowers a landlord to increase the rent payable under a residential tenancy agreement in certain circumstances. Relevantly:

41 Rent increases

(1)    The rent payable under a residential tenancy agreement may be increased only if—

(a)    the tenant is given a written notice by the landlord or the landlord’s agent specifying the increased rent and the day from which it is payable, and

(b)    the notice is given at least 60 days before the increased rent is payable.

(1A) The rent payable under a residential tenancy agreement—

(a)    may not be increased within 12 months after the start of the tenancy, and

(b)    may not be increased more than once in any period of 12 months.

(1B)-(2) …

(3)    A rent increase is not payable by a tenant unless the rent is increased in accordance with this section or the rent is increased by the Tribunal.

(4)    The residential tenancy agreement is varied to specify the increased rent from the date the rent is increased in accordance with this section.

(5)    Notice of a rent increase must be given by a landlord or landlord’s agent in accordance with this section even if details of the rent increase are set out in the residential tenancy agreement.

(6)-(7)    …

(8) Subsections (1)–(7) are terms of every residential tenancy agreement.

(9)    …

(10) The Tribunal must not make an order that a rent increase is not payable because this section has not been complied with unless the application for the order is made not later than 12 months after the rent is increased. If an application has not been made within that 12-month period, the rent increase is taken to comply with this section.

13. Section 44 empowers a tenant to seek orders from the Tribunal declaring a rent increase to be excessive. That section provides:

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.

14. The period prescribed for the purposes of section 44(2) of the Act is “within 30 days after the notice of the increase is given”: Residential Tenancies Regulation 2019 (NSW) (the “RT Regulation”), clause 39(1).

15. Separately, s 50 of the RT Act gives the tenant a limited right of quiet enjoyment against the landlord and against others who claim by, through or under the landlord or have a superior title to the landlord, providing (relevantly):

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.

16. Section 63 sets out the landlord’s general repair obligations in respect of rented premises. That section provides (relevantly):

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.

17. “Residential premises” is defined in s 3 to mean “any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence”. By s 62, that definition is expanded the purposes of s 63 to include “everything provided with the premises (whether under the residential tenancy agreement or not) for use by the tenant”.

18. Section 187 gives the Tribunal power to make orders for the payment of money or compensation, including compensation for a breach of a residential tenancy agreement, up to a maximum amount of $15,000 (excluding bond applications). By s 190 and clause 39(9) of the RT Regulation, the time for bringing a claim for compensation for breach of a residential tenancy agreement is limited to 3 months after the innocent party first became aware of the breach.

The background facts

19. Having weighed and considered the evidence produced by both parties (much of which was not the subject of any serious controversy), I am satisfied on the balance of probabilities that the background facts of the matter are as follows:

1. The tenant began occupying the premises on or about 19 August 2023, pursuant to an earlier residential tenancy agreement for six months, at a rental of $700 per week that would start from 26 August 2023. The managing agents completed an ingoing condition report at that time (the “ICR”), which the tenant received on 18 August, before making various dissenting comments on the report and returning it to the managing agents on 6 September. The tenant’s comments included some issues for the landlord to repair, including: an electric socket; a window handle; balcony lights; drawers in a bedroom and in the kitchen; mould on curtains; the building intercom and a microwave oven.

2. Between 16 and 19 February 2024, the parties entered into the subject tenancy agreement as a further residential tenancy agreement between them on the terms contained in exhibit L1, which included the standard form residential tenancy agreement prescribed under the RT Regulation, together with some additional terms. Those terms included:

1. The initial fixed term of the new agreement was six months from 26 February 2024 to 26 August 2024, after which the tenant could continue occupying the premises under a periodic tenancy on substantially the same terms. The rent continued to be payable at $700 per week, in advance starting on 26 February 2024.

2. Consistently with s 41 set out above:

1. the rent could not be increased after the end of the fixed term of the agreement unless the landlord gave not less than 60 days written notice of the increase to the tenant, specifying the increased rent and the day from which it was payable: clause 5.

2. The increased rent was payable from the day specified in the notice: clause 7.1, and was not payable unless the rent was increased in accordance with the agreement and by the RT Act or by the Tribunal: clause 7.3.

3. The landlord was required to keep the premises in a reasonable state of repair, consistently with s 63 set out above: clause 19.3.

3. On 9 May 2024 the strata manager for the complex that included the building gave notice to the managing agents that lift replacement works would be conducted in the complex between 10 June 2024 and 12 December 2025, including the replacement of the lift servicing the premises from 17 June 2024 to 20 September 2024. The notice stated that occupants would not have access to the relevant lifts during those periods, although lifts not undergoing works and the fire stairs were available. The notice added:

The restrictions on access will therefore also impact any residents moving in or out of the buildings during the respective periods set out above. Please avoid moving in or out of a building during its respective lift replacement. However, if you do need to move in or out of a building, please contact the Building Manager in advance of moving in or out of the buildings to confirm the best accesses available at that time.

The managing agents gave that notice to the tenant on the same day.

4. The scheduled periods nominated by the strata manager were delayed at various times over the subsequent months, with the lift servicing the premises being out of service from 24 June 2024 until 4 November 2024. This presented a disruption to the tenant and his father, who were not able to take the lift directly from the premises to the car park. Instead, they were required to walk down the fire stairs for several flights, walk along paths outside the building and then walk down further stairs to reach the car park.

4. In the meantime, the fixed term of the tenancy agreement expired on 26 August 2024. The tenant continued to occupy the premises under a periodic tenancy after that date.

5. In late August or early September, the tenant informed the managing agents that he wanted to move out of the premises. On 9 September, the tenant informed the managing agents that he was unable to move out because of the lift replacement works and that he planned to end his tenancy on 5 October 2024 if there were no more delays to those works. Over the next month, he delayed his proposed departure several times because of ongoing delays in the lift replacement works. Then, on 16 October he informed the managing agents that he no longer had a place to go to because of the lift delays, and that he planned to stay in the premises until he had secured his next place.

6. On 29 October, the tenant informed the managing agents that his move out date may have to be in late January or early February 2025. The parties exchanged correspondence about that for several days – in which the managing agents pressed the tenant for an early vacating date because they had now secured a new tenant to rent the premises after the tenant moved out – before the managing agents wrote to the tenant on 7 November, stating:

We have discussed with the owner and the new tenant [for the premises] about the issue. At this stage if you cannot move out from the property, we will need to sign a fixed term agreement with you until the end of Feb 2025 to avoid any further change during this period. We will also need to reimburse the advertisement fee of $150+GST from you for the owner.

Pls kindly confirm ASAP.

The tenant rejected that proposal, stating that he would like to continue paying week to week, giving the managing agents four weeks’ notice when he was ready to move. The managing agents rejected that suggestion on 11 November, pressing the tenant to enter into a fresh fixed term agreement, adding “We will discuss with the owner on further action if we do not hear from you by tomorrow”.

8. On 12 November, the managing agents sent an email to the tenant attaching a notice of rent increase that specified that the rent for the premises would increase to $900 per week from 11 January 2025 (which was exactly 60 days after the date of the notice). The covering email stated:

Due to the nature of the rental market, and as a primary aspect of service to our investors, we conduct regular rental market assessments of all properties under our management.

As a result of a recent rental assessment, it has been decided that an increase in your rent will take place on [sic] with the new rental amount being $900 pw from 11^th January.

Pls do not hesitate to contact us if you have any questions.

9. The tenant responded the next day, questioning how the landlord and/or the managing agents had reached that new rent figure. The managing agents replied that evening (12 November), writing:

This is the owner’s decision of the rent increase if no fixed term contracts signed. He has lost the higher rent tenants after you decided to stay further and risks of you moving out at any time before Feb since you do not want to sign a fixed term.

The new rent rate will be effective from the date on the notice.

10. After questioning how much those higher rent tenants were willing to pay (which the landlord did not answer), the tenant made an offer on 4 December, to compromise the rent increase at $800 per week, writing:

I’ve noticed you’ve advertised the place for $800 a week for others. Is the landlord willing to change the rent increase to $800 a week instead?

The managing agents rejected that offer the same day, asserting that the $800 per week price was no longer valid, adding “We forgot to update the ad after you inform us not to move out until next year”.

11. As noted above, the tenant lodged his application in this proceeding on 11 December, which was within the 30-day period specified in clause 39(1) of the RT Regulation, mentioned above. Over the following months, the parties sought to negotiate a compromise on the dispute, with the managing agents making an offer on 9 January to settle at $800 per week from the original rent increase date, asserting “This price is a very fair market price for current situation”, and that the landlord had accepted new tenants at that rate in October after the tenant had informed them of his intention to move out. The tenant accepted that proposal on 13 January, writing:

That’s fair, I can accept that reasoning much better than Carrie’s $900/wk rent offer’s reasoning. I’ll accept the $800pw rate as the new increased rate.

As for the second order of the NCAT, there have been some utilities I’ve notified Carrie since moving in and throughout but have never been looked at.

I’d like compensation for these missing utilities in addition to the lift services that have been out of service over 19 weeks of my stay.
I propose $50pw reduced rent for the 19 weeks.
Let me know your thoughts.

12. On 16 January, the managing agents wrote back to the tenant, writing (relevantly):

We cannot accept your request of compensation for the lift repair period, as it is not the owner’s fault. We compromised and offered $800pw for your rent increase date just to try to settle the matter with you before NCAT so that it saves both of our hassle to go to court. If you insist on the compensation, we will still proceed with NCAT and ask for $900pw from the rent increase date as it is the current market price for the rental market.

In short, we will accept $800pw for your new rent increase date to settle the matter and not go to NCAT, or we proceed to NCAT for the $900pw rental increase.

The tenant subsequently responded, pressing the claim for compensation. Consequently, no agreement has been reached between the parties.

20. I have determined the tenant’s various claims based on these findings of fact.

The burden of proof

21. As the party seeking relief, the tenant carries the burden of satisfying the Tribunal of the facts that, in the absence of other facts being proved, would justify the grant of that relief on the civil standard. Discussing that burden, Emmett J wrote in Warner v Hung (No 2) (2011) 297 ALR 56; [2011] FCA 1123 at [48] (my underlining):

When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences.

I have applied those principles in determining the tenant’s claims.

The tenant’s claim for compensation for failure to repair

22. The tenant asserts that he is entitled to compensation for:

1. the various items in the premises that he put the landlord on notice, in August 2023 required repair, which he says have not been repaired; and

2. the 19 week period that the lift servicing the premises was out of repair.

23. The tenant’s claim under s 187, for compensation for breach of the repair obligation in s 63, is out of time under s 190 to the extent that it claims compensation for breaches and damage that occurred before 11 September 2024 (the date three months before the application was filed). Consequently, it is necessary for the tenant to obtain an order under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) in order to press a claim for compensation for that earlier period.

24. Clause 8 of the Civil and Administrative Tribunal Rules 2014 (NSW) requires an application for an extension of time to be in writing (which the tenant has not done) unless the Tribunal dispenses with that requirement (which the Tribunal has not done). Leaving that issue aside, an extension of time should be an exception, and not the rule. Thirdly, in deciding whether to grant an extension of time, the Tribunal normally considers the factors discussed in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (“Jackson”), namely: (a) the length of the delay in bringing the application; (b) whether there are any valid reason for the delay; (c) the merits of the substantive claim; (d) whether there is any prejudice to the respondent; (d) the conduct of the parties, including whether either party contributed to the delay or acted unreasonably; and (e) any relevant public interest factors.

25. Looking at the evidence before the Tribunal, it has not been shown that enforcing the time limit will cause an injustice to the tenant. While there is no evidence of any prejudice to the landlord in extending time:

1. The delay in respect of the items first reported to the managing agent in August 2023 is significant - at more than 12 months since the limitation period calculated from that date expired (in November 2023), whereas the delay in respect of the lift issue is less significant, at about 3 months.

2. The delay in bringing the claims in respect of those periods has not been explained at all.

3. In the absence of an explanation, it appears that the tenant has brought up some old issues that were not agitated at the time, ostensibly because he is upset about the size of the rent increase and wishes to minimise it as far as he might be able to do.

4. For the reasons that I will go into next, the claim has insufficient merit to warrant extending the time in which it should have been brought.

26. For those reasons, I do not consider it to be in the interests of justice to allow the tenant an extension of time to agitate his claim for compensation in respect of any damage that he may have incurred or become aware of before 11 September 2023. That limits the tenant’s claim to damage accruing on or after that date.

27. Turning to the substantial merits of the application, as I have referred to above s 63 provides that a landlord must both provide and maintain the “residential premises” (as defined in ss 3 and 62) in a reasonable state of repair, having regard to the age of, rent payable for, and prospective life of the premises. Under that standard, the property does not have to be in perfect condition, but it should be maintained to a standard that is reasonable given those factors. That obligation is ongoing. It requires the landlords to address issues before the start of the tenancy and as they arise during the tenancy: Bhandari v Laming [2015] NSWCATAP 224 at [38]. See also Kwok v Tahiri [2015] NSWCATAP 244 at [27].

28. The phrase “reasonable state of repair” addresses the twin issues of safety and functionality, however the concept also addresses 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 maintain the premises in a reasonable state of repair may result in a liability to pay compensation to the tenants even though the premises are not inherently unsafe or failing to function because of the defect concerned: Dupont and Rowe v Lawrence [1997] NSWRT 213. A landlord’s failure to carry out the works with reasonable expedition 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 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]. 

29. As Gummow J stated in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, at 370-371, two criteria must be met for there to be a breach of an express covenant by a landlord to keep premises in repair:

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 repair issues asserted by the tenant on the ICR

30. The evidence produced by both parties shows that the tenant raised several repair issues for the landlord to investigate and/or deal with, when he returned the ICR to the managing agents in September 2023. However, that is where the evidence stops. There is no evidence beyond the tenant’s comments on the ICR (which I do not consider to be objective evidence) to enable the Tribunal to assess whether those repairs were necessary to comply with the landlord’s obligation in s 63; nor is there any evidence beyond the tenant’s mere say-so to demonstrate that the matters raised by the tenant have not been addressed. Consequently, the Tribunal cannot be satisfied on the balance of probabilities that the landlord has failed to comply with its repair obligations, and is thereby breached s 63. Lastly, there is no evidence to establish that the tenant has suffered any loss or damage from any such failure to repair those issues. For these reasons, the tenant’s claim in respect of those repair items must fail.

The lift replacement works

31. There is no dispute that the lift in the building that serviced the premises was vested in the owners corporation as part of the common property for the strata scheme. Section 106 of the Strata Schemes Management Act 2015 (NSW) imposes on the owners corporation a statutory duty to maintain and repair the common property, which extends to and includes that lift.

32. There is also no dispute that the lift was out of service for a total of 133 days (19 weeks) from 24 June 2024 to 4 November 2024, including because of time overruns in completing the project, during which time it was fully replaced by contractors engaged by the owners corporation. During that time, the occupants of the premises were required to navigate the fire stairs and the pathways described above, while the lift was not in service. The agent and (through the agent) the tenant were given regular updates on the lift replacement works by the owners corporation.

33. The evidence establishes that those works were a big project, encompassing eight or nine lifts across five buildings in the complex, with an initial estimate of about 18 months for the project to be completed. The “FAQ” page circulated by the owners corporation described the project as “a highly technical, complex and time-consuming process”. It is not surprising that time delays occurred while such a large project was undertaken.

34. Overlaying those works was the inescapable contractual promise made by the landlord in clause 19.3 of the contract, as imposed by s 63 of the RT Act, that the landlord would “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”. As noted above, that promise extended beyond the premises itself, to include “everything provided with the premises (whether under the residential tenancy agreement or not) for use by the tenant”.

35. Various cases that have been decided over the years have recognised that a landlord has a duty to repair common property that is part of residential premises, or to personally pursue the owners corporation to protect the tenant’s peace, comfort or privacy. Those cases have included Reiss & Anor v Helson & 2 Ors [2001] NSWSC 486 (“Reiss”); Lee v Fuzessery (Tenancy) [2010] NSWCTTT 205; Dimunova v Vega [2017] NSWCATAP 5 (“Dimunova”); Pursell v Eversham Close Pty Ltd [2020] NSWDC 372 (“Pursell”); Kolodziej v Ali & Anor (Appeal) [2021] ACAT 123; Sewell v Zvirblis [2022] NSWCATAP 337 (“Sewell”) and McCartney v Wood [2023] NSWCATAP 131 (“McCartney”).

36. The scope of the preceding authorities referred to in the previous paragraph was summarised at length by the Appeal Panel in McCartney, at [70]-[76], however that case concerned the common property roof over a garage that was provided as part of the rented premises. At [78], the Appeal Panel noted that there were differences in the decisions made in Dimunova, Pursell and Sewell as to the existence of the duty in relation to common property which is not provided as part of the residential premises – such as a common property lift.

37. In Reiss, Master Harrison considered the breach of ss 22 and 25 of the repealed Residential Tenancies Act 1995 (NSW) (which are the predecessors of ss 50 and 63 of the RT Act) in circumstances where the defect was in the common property of a strata scheme and said at [17] and [34]-[40] (relevantly, my underlining):

[17] There is an obvious tension between the lot owner’s/landlord’s obligations to provide quiet enjoyment of the unit to the tenant and to on the one hand maintain the residential premises in a reasonable state of repair and on the other the owners corporation’s obligation to maintain the common property. ...

…

[34] The tribunal member, at 10.27, stated “it is common to the evidence that that the flooring is common property. However the duty of a landlord to repair is not avoided by a defence based on the owners corporation doing nothing”. The tribunal member noted that his decision was in accordance with Blackmore, Jewell and Scazmi, in that there was failure by the landlord to take reasonable steps to ensure that the owners corporation remedy the defect and that this failure to act disentitles the landlord to state the breach of s 22 is caused by defective common property.

[35] The Residential Tenancy Act at s 22 provides that the tenant has a right to quiet enjoyment of the premises without interference by the landlord and that the landlord, by act or omission, shall not interfere or cause or permit any inference with the reasonable peace, comfort or privacy of the tenant (s 22(1)(b)). The Tribunal held that the plaintiffs had permitted the noise and vibration caused by inadequate floor joists to interfere with the tenants (sic) peace, comfort and privacy. Hence the landlords were in breach of s 22. The Tribunal made a finding in accordance with the natural meaning of the wording of s 22(1)(b). It is my view that the Tribunal member did not err in law in deciding that the plaintiffs were in breach of s 22(1)(b) of the Residential Tenancies Act.

[36] At para 10.29 the Tribunal made his decision in relation to s 25. He stated that:

“Clearly, there is the factual link. It is common evidence that the floor joists are inadequate. It is common to the evidence that such vibrations and noise would be caused. The landlords knew about this in 1997 and wrote to the owners corporation. No further action was taken. It was clearly within the contemplation of the landlord that a tenant can experience noise and vibration from residing in that strata unit. The loss of enjoyment of that unit and the complaints made by the tenants flow from inadequate flooring. The casual connection is very clear. There is no question of remoteness of damage; the landlords knew about the problem. It is clearly within the contemplation that the person who suffers from the floor being inadequate will also suffer a reduced use of the premises. The tenants would not have suffered but for the flooring being inadequate. The landlords sought no orders against the owners corporation between 1997 and 2000 to get repair. The landlords, as such, failed to provide the premises in a reasonable state of repair contrary to section 25(1)(b) of the Act.”

[37] By finding that there was a factual link, the Tribunal member is saying that the noise suffered by the tenants was caused by the inadequate floor joists and inadequate flooring.

[38] The Tribunal member at paragraphs 9.1 to 9.10 gave his reasons in relation to s 25. He referred to Day v Hartland & Wolff Ltd (1953) 2 All ER 387 at 388 where Pearson LJ referred to the obligation of a landlord to carry out repair work in anticipation of likely defects rather than waiting for them to occur. No particular kind of repair is excluded - see London Transport Executive v Betts [1959] AC 213 at 232-233. The Tribunal member pointed out that the obligation to repair does not involve an obligation to renew or improve the premises although replacement of the structure from time to time may be necessary depending on the facts of the case and it appears to be a question of degree whether the amount of work required can properly be described as repair - see Graham v Market Hotel Ltd [1943] HCA 8; (1936) 67 CLR 567 at 579. The Tribunal member adopted the reasoning in Jewell that the landlords are responsible for the maintenance and repair of defective common property if they fail to take reasonable steps to ensure the owners corporation rectify the problem.

[39] In view of the foregoing authorities, does carrying out work such as installing steel or timber beams into the floor structure at mid span fall within the landlords duty to provide and maintain the premises in a reasonable state of repair? It appears that the Tribunal member did not make a finding in this regard. The Tribunal member held that the landlords had breached s 25(1(b) of the Act as they had failed to maintain the premises in a reasonable state of repair. His reasons relied in part on the fact that the landlords sought no orders against the owners corporation between 1997 and 2000 to get repairs. The Tribunal member cited a passage from Gummow J (referred to earlier in this judgment) and held that the landlord failed to carry out the necessary works with reasonable expedition.

[40] However, as the landlords were in breach of s 22, it is unnecessary for me to finally determine whether the Tribunal member’s decision the landlords were in breach of s 25 was correct. I have some doubts that the foreshadowed work falls within the definition of “maintaining the premises within a reasonable state of repair”.”

38. In Dimunova, the Appeal Panel allowed an appeal where there had been water inundation to the residential premises in a strata scheme and the Tribunal had found that the water pipe which burst causing inundation was not attributable to any act or omission of the respondent landlord. The Appeal Panel determined, at [31]-[33] (my underlining):

[31] … In our view [the analysis of the Tribunal at first instance] discloses an error of law. In our view, the obligation set out in s 63 is mandatory (subject to s 65(3)), and is not conditional upon the landlord having it within the landlord’s own power the ability to take steps to provide and maintain the residential premises. The fact that another unit owner or the strata committee of the body corporate must take steps to fix the burst pipe does not excuse the landlord of his or her obligations under s 63. The only qualification to these statements is that the duty set out in s 63 is, in our view, modified by s 65(3) which provides that the Tribunal must not determine that a landlord has breached the obligation (that is the obligation which, by virtue of s 65(2), refers back to s 63(1)), unless the Tribunal is satisfied of two matters. The first matter is that the landlord had notice of the need for repair or ought reasonably to have known of the need for repair. The second matter is that the landlord failed to act with reasonable diligence to have the repair carried out (s 63(3)(b)).

[32] In the context of residential premises in a strata scheme, what constitutes a failure to act with reasonable diligence will involve a consideration of what steps the landlord is able to take to encourage or force the strata committee to take appropriate practical steps having regard to the fact that the common property is not property owned by the landlord and generally the other lot properties will not be owned by the landlord. This view is supported by the fact that the landlord’s obligation to reimburse the tenant for urgent repairs excludes, by the way “urgent repairs” is defined, work needed to repair premises that are owned by a person other than the landlord (see s 62).

[33] In our view, the Tribunal has asked itself the wrong question or taken into account an irrelevant question in coming to the conclusion it came to by finding that because the water inundation was not attributable to any act or omission of the respondent there was no breach. Rather, the Tribunal should have considered whether the landlord had breached his obligations under s 63. Accordingly, the Tribunal has, in our view, erred in law (see Holley v Evatt [2014] NSWCATAP 72).”

39. In Pursell, Hatzistergos DCJ considered the question of whether the landlord of the residential premises in a strata scheme had a duty under cl 18.3 of the residential tenancy agreement (being the term corresponding to s 63(1) of the RT Act) to repair common property that was part of the premises. The judge referred to Reiss at [36]-[40] (set out above), and found at [180]-[181] (my underlining):

“[180] Although her Honour expressed some doubt as to whether s 25(1)(b) and clause 18.3 were breached this was on the basis of whether the foreshadowed repairs fell within the terms of “maintaining the premises within a reasonable state of repair.” It is implicit that her Honour otherwise accepted that the terms of these provisions extended to oblige the landlord to be responsible for the maintenance and repair of defective common property

[181] Whilst there may be room to doubt that common property is included in the obligation under clause 18.3, I am inclined to accept that it does, following the decision in Reiss v Helson. To hold otherwise would provide a narrow interpretation of residential premises that would enable the landlord to hide behind the Strata in circumstances where the landlord has to ensure that the residential premises meet the requirements of clause 18.1.” (footnote omitted)

40. In Sewell, the Appeal Panel considered the question of whether a security gate on common property fell within the definition of “residential premises” in s 62 of the RT Act, and found at [31]-[32] and [34]-[50] (my underlining):

[31] However, we do not agree that Dimunova is applicable. In Dimunova the premises themselves, or rather part thereof, required repair because of a burst water pipe on common property. The point in that case was whether the landlord’s obligation to repair the rented premises was removed or diminished or altered by reason of the fact that the cause of the damage was on common property. In other words, there was no dispute that what needed repair included the rented premises. The water pipe also required repair to prevent future damage, but the question in the case was not whether the water pipe was part of the residential premises, but whether the obligation to repair the premises extended to taking or encouraging or forcing the strata committee to take appropriate steps to repair the water pipe, it being the cause of the damage.

[32] In the present case the item requiring repair was itself on, and formed part of, the common property. This is quite different from Dimunova in that it was not part of the issues arising for decision in Dimunova whether common property (or part thereof) was provided with the premises for use by the tenant within the meaning of “residential premises” in s 62 of the RTA.

…

[34] In our view s 62, on its proper construction, does not extend to the security gate in question in this case.

[35] The principles we are to apply in determining what s 62 RTA means, and whether its meaning extends to include items such as the security gate, were summarised by the High Court in Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355. …

…

[41] … the focus of the RTA 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.

41. The Appeal Panel in McCartney did not need to consider the differences in Dimunova, Pursell and Sewell, as regards whether a landlord’s duty to maintain the residential premises extends to common property that is not provided as part of the residential premises. That case specifically concerned a water leak in the common property roof of a garage that was part of the rented premises, which caused damage to the tenant’s car inside the garage. Consequently, the last word with respect to common property that is not provided as part of the residential premises rests with Sewell.

42. In Hendy v Parsons [2024] NSWCATCD 25, which concerned a common property swimming pool, I considered myself bound to apply the principles set out in Sewell when claims of compensation have arisen in respect of parts of common property that do not form part of the rented premises. I continue to be of that view.

43. Applying the principles set out in Sewell to this case, the common property lift in the building was not provided by the landlord “with” the premises. Consequently, the landlord’s duty to repair the residential premises did not extend to the repair and maintenance of the lift. In those circumstances, the landlord did not breach s 63 or the relevant clause in the tenancy agreement because of the time taken for the owners corporation’s tradesmen to replace the lift, including their delays in undertaking that work. Consequently, the landlord is not obliged to pay compensation to the tenant for the lift being out of repair over the period of the claim.

44. The claim for compensation therefore fails entirely.

The tenant’s claim for a rent reduction because of the withdrawal of the elevator from service

45. Under this claim, which is based on s 44(1)(b) of the RT Act (set out above), the tenant asserts that the rent payable by him in the period while the lift was withdrawn from service and was undergoing replacement was excessive, and that it should be reduced. The claim has been brought within the time limitation contained in s 44(3), as it was lodged at a time when the tenant was occupying the premises.

46. In considering this provision, the Appeal Panel wrote in Pan v Malveholm [2021] NSWCATAP 101 at [3] (my underlining):

… under s 44 it is only reductions or withdrawals of goods, services or facilities by the landlord which allow for an order that rent payable under a tenancy agreement is excessive. In this case part or all of the relevant reductions or withdrawals of services or facilities were, as we read the Tribunal’s reasons, caused not by the landlord but by the body corporate or the two tenants or all three.

47. This provision was also considered by the Appeal Panel in Sewell, in respect of the common property security gate that was at issue in those proceedings. After setting out the relevant parts of s 44, the Appeal Panel then wrote at [66]-[70]:

[66] In short, in our opinion none of the alleged reduction or withdrawal of goods, services or facilities in this case was “by the landlord” and so the tenant’s case for a reduction of rent under s 44 cannot succeed.

[67] What “by the landlord” means in s 44 is that it must be the landlord, and not a third party, whose act or omission results in the reduction or withdrawal of goods, services or facilities.

[68] In Eliezer v Residential Tribunal (2001) 53 NSWLR 657; [2001] NSWSC 1092 McLellan J said the following about s 47 of the Residential Tenancies Act 1987 (NSW) (a similar provision to s 44 of the RTA):

“With respect to s 47, I agree with the construction of the Residential Tribunal of the words goods, services or facilities provided. In my opinion, s 47(1) is confined to the physical and other facilities, goods or services, provided within, or as part of, the tenanted property, and only if the landlord reduces or withdraws those facilities does an obligation arise. In circumstances where there has been a reduction in the quality of the amenity to be enjoyed in the tenanted premises by the actions of a third party, a complete stranger to the tenanted property, no breach of s 47(1) can occur.”

…

[69] In Pan v Malveholm [2021] NSWCATAP 101 the Appeal Panel said at [35] that it could see no reason why s 44(1)(b) of the RTA should be interpreted any differently.

[70] There is no dispute that the landlord himself, in this case, did not, by his actions, reduce or withdraw any goods, services or facilities. That is, the landlord did not, by his actions, cause the security gate to be in disrepair, or damage the air conditioning so that it did not heat or cause the leak into the garage.

That decision was applied by the Tribunal in Nicholson v Webber [2023] NSWCATCD 65 at [60].

48. The tenant accepted at the hearing that it was the owners corporation, and not the landlord, who had withdrawn the lift from service for the lift replacement work to be undertaken. Noting that agreement by the tenant and applying the principles in Sewell, just quoted, this part of the tenant’s application must also fail.

The tenant’s claim that the rent increase was excessive

49. Consistent with what I have stated above, the tenant bears the burden of proof in seeking an order that a rent increase is excessive. He must establish that the increase is excessive on the balance of probabilities, in the circumstances of the case.

50. The Tribunal has a broad evaluative discretion in determining whether a rent increase is excessive. It may consider (but is not required to consider) the factors set out in s 44(5). As noted in the last subparagraph of that subsection, those factors are non-exclusive, and the Tribunal may consider other factors (apart from those that are expressly excluded). This gives the Tribunal significant latitude to weigh competing considerations and reach a decision that is fair and context-sensitive. That discretion is structured and not unfettered: the Tribunal must consider relevant factors and disregard irrelevant ones, and its decision must be rational and evidence-based.

51. The increase sought by the landlord equates to a rise of 28.57% over the 73-week (16.8 month) period between mid-August 2023 and mid-January 2025.

52. As noted above, both parties produced copies of the ICR containing the tenant’s comments on the condition of the premises at the start of the tenancy agreement. Both parties also produced bundles of internet advertisements for various apartments in or around the building containing the premises. In addition, the tenant produced a rental appraisal report for the premises in question, from Vicki Lear, a property manager with Vault Property Management Pty Ltd, who has worked in the real estate industry for about 29 years. Ms Lear did not give any oral evidence in support of her report, and she was not required for cross-examination by the landlord.

53. The evidence discloses the following matters that relate to the factors set out in s 44(5):

1. The general market level of rents for comparable premises in the locality or a similar locality – This is a substantial issue in the case, which I will address below.

2. The accommodation and amenities provided in the residential premises – The premises is a two-bedroom apartment on an upstairs floor in the building, two floors up from the main entrance. According to the ICR, the premises has an entrance/hallway, a combined lounge/dining room, a kitchen, the two bedrooms, a main bathroom and an ensuite bathroom, a study nook, a laundry and a balcony, as well as one car space in the underground carpark. According to the floor plan for the premises, the master bedroom opens onto the balcony, which faces southwest. There is a storage cage for the premises in the car park, next to the parking space. The total area of the premises is 87 square metres. According to the landlord’s uncontradicted submission, the complex was constructed in 2010, making it about 15 years old.

3. The state of repair of the residential premises – No evidence was provided of the current state of repair of the premises, save for the tenant’s generalised assertion (mentioned above) that the landlord had not addressed the issues he had raised on the ICR in 2023. I therefore assume that the premises was in an average state of repair for its age. As regards the common property, the evidence discloses that the lift replacement works are continuing in other buildings, although the repair of the lift servicing the premises is now complete.

1. The landlord’s outgoings under the residential tenancy agreement or proposed agreement – No evidence was provided in relation to this item, however I assume that the landlord bears the normal outgoings for an investment strata property, including Council rates, water rates, strata levies and contents insurance. There is no evidence about whether the landlord is paying any special levies for the lift repair works.

2. Fittings, appliances or other goods, services or facilities provided with the residential premises – No evidence was led to demonstrate that the premises had any particular goods, services or facilities of note that should be taken into account under this item. One of the photographs produced in Ms Lear’s report suggested that the occupant of the premises may have the use of common property gym facilities, located in the complex.

3. Any work done to the residential premises by or on behalf of the tenant – No evidence was led to demonstrate that the tenant had undertaken or arranged for any particular work to be done at the premises.

4. When the last increase occurred – The rent had not previously been increased since the start of the tenant’s tenancy. Ms Lear identified that the premises was previously let by the landlord for $580 per week, in July 2012, a year before the tenancy began. There is no earlier rental history before the Tribunal.

54. Other matters that I consider relevant in assessing this part of the claim include:

1. The locality of the premises – The apartment complex containing the premises is built on the intersection of Avon Road and Pymble Avenue, across the road from Pymble railway station, on Sydney’s leafy north shore. Consequently, it is only a short distance to the station, which is on a direct line to the city, and within walking distance to Pymble Ladies College – a much sought-after girls school. According to Ms Lear’s report, people in Pymble generally work in professional occupations and are likely to be paying over $4000 per month on mortgage repayments. 82.5% of the homes in Pymble are owner-occupied.

2. The length of the tenancy agreement – The tenancy agreement is currently on a periodic basis. Landlords can only raise rents once every twelve months during a periodic tenancy, and the tenant can depart the premises with minimal notice – often as little as 21 days. This may, as a general proposition, make landlords hesitant to raise rents aggressively under a periodic tenancy, fearing tenant departure on short notice. Fixed term tenancies often allow landlords to negotiate higher rents upfront and provide more certainty to both parties. Periodic tenancies often suit tenants seeking flexibility, which can reduce the rental below market rate expectations. Consequently, rentals for properties under periodic agreements can lag behind market rates that are offered for 6- or 12-month tenancies until there is a demand for properties, when the landlord may issue a large rental increase.

3. The landlord’s approach to repairs – Beyond the tenant’s generalised assertion that issues raised at the start of the tenancy had not been fixed, no evidence was adduced on this point. I have therefore given this point no weight in coming to my decision.

See George v Davies [2000] ACTRTT 2.

55. I have not taken into account either the income of the tenant or the tenant’s ability to afford the rent increase, or the rent more generally. Those matters were not the subject of any evidence before the Tribunal.

56. Turning to the market level of rent, the wording of s 44(5)(a) requires attention to matters such as:

1. the “general” market level of rent – which looks to some average values;

2. the “market level” – which presupposes arms’ length commercial tenancies;

3. “comparable premises” – which calls attention to the size and facilities of the premises; and

4. the “locality” of the premises – which is often the most significant single factor in determining rents.

57. The proposed tenancy of the premises to another tenant for $800 is of limited use in determining the market rent for the premises as that letting ultimately did not occur. Further, no other person appears to have taken a lease of the premises at that rate since the tenant vacated the premises.

58. The table in the Schedule to these reasons sets out a listing of the properties that the parties and Ms Lear identified as comparable for the purpose of calculating the market rent, arranged in the order of their asking rents. Both the landlord and the tenant have produced advertisements for those properties without providing any analysis as to how those properties compare to these premises. Due to their short form, some of those advertisements do not allow the reader to compare the features of those other apartments against these premises, making direct comparisons more difficult. By contrast, Ms Lear has provided commentary on the comparative age, size and (in some cases) features of each of the properties she has compared these premises against, compared to the qualities of the premises, which has assisted in the overall analysis of the rent increase sought by the landlord.

59. The landlord has not produced any information to establish the general market level of rent in the Pymble area, or how that market level has changed over the 16-17 months of the tenancy, since August 2023. By contrast, the tenant has produced some general statistical information that he has obtained from an unidentified internet site suggested that:

1. the median level of rent for flats and units in the Ku-ring-Gai local government area was $798 in the June 2024 quarter; and

2. the median level of rent for all dwellings in the same local government area in the September 2024 quarter was $775.

Regrettably, that information is of limited use because it does not account for the change in rents over time, since the tenant first paid rent at the rate of $700 per week. I prefer the information and the analysis undertaken by Ms Lear in the appraisal report produced by the tenant.

60. In the absence of evidence to the contrary, I accept that Ms Lear has the qualifications set out in her report that was prepared on 22 January 2025, and that those qualifications are appropriate for calculating and expressing an opinion on the market rent payable for the premises in January 2025, when the landlord’s rental increase notice was due to take effect.

61. The statistical analysis produced in Ms Lear’s report shows that the median asking rent in Pymble was $700 per week in November-December 2023 (which is the same as the rent that the tenant was originally paying under the tenancy agreement in August 2023), rising to $750 in October 2024 – a 7.15% increase in about a year, with a significant shift upwards having taken place between February and June 2024. Gross rental yields rose more slowly in the same period, increasing by 5.55% from 3.6% to 3.8%. Over the longer term, asking rents increased from $550 per week in 2020 to $750 in 2024 – an increase of 36.4% over 5 years, after falling slightly in the 5 years before that. That included a significant 16.7% increase between 2022 and 2023.

62. Ms Lear concluded in her report (my underlining):

Thank you for the opportunity to look at comparable rental properties on your behalf.

Careful consideration has been taken to provide you with an appraisal for your property in today’s market conditions.

To establish a market value, we have carefully considered the premises, size, location, along with current market conditions and similar properties recently rented or currently on the market.

Given the comparable properties listed and current demand versus supply we believe an achievable rental on the home would be between $750 to $775 per week.

We note that your current unit is currently listed on line for rent at $900/week in the area for Pymble with the next listing being offered at $860 and then the list goes down. This is found by the following search – …

63. Taking into account the factors that I have set out above and, in particular, relying on the market analysis undertaken by Ms Lear in her report, I have concluded that the rent originally paid by the tenant for the premises in August 2023 was approximately equal to the average (median) asking rent for residential apartments in the Pymble area at that time. On the information before the Tribunal, that average asking rent has increased only by about 7.15% in the period between then and October 2024, shortly before the rent increase notice was served.

64. On the evidence, any ongoing increase in the market rent since October 2024 was negligible: the market analysis undertaken by Ms Lear showed that there had been no effective increase in the median asking rent since June 2024. On that basis, and consistently with the rental valuation provided by Ms Lear, I have concluded that the appropriate increase in the rent that would become payable by the tenant as at 11 January 2025 should not have exceeded 7.14%, or $75 per week.

65. On that basis, I conclude that the rent increase notified by the landlord in November 2024, with effect from January 2025, was excessive and that the Tribunal should make an order specifying the maximum amount of rent payable from 11 January 2025, when the rent increase notice was due to take effect, at $775 per week.

Conclusion and orders

66. For these reasons, the tenant has been successful in his claim under s 44(1)(a) of the RT Act, limiting the increase in the rent from 11 January 2025 to $775 per week, but not any other part of his claim.

67. The Tribunal therefore makes the following orders:

1. The Tribunal determines that the rent increase from $700 per week to $900 per week is excessive.

2. The Tribunal orders that the rent shall not exceed the sum of $775 per week from 11 January 2025 to 12 April 2025.

3. The Tribunal orders the landlord to repay to the tenant the amount by which the rent paid by the tenant to the landlord for the period specified in order (2) above has exceeded the amount determined in that order.

4. The parties have liberty to relist the proceeding to determine the amount (if any) owing by the landlord to the tenant under order (3) above, within 30 days from the date of these orders.

5. The remainder of the claim in the proceeding is dismissed because the Tribunal is not satisfied to the civil standard (being the balance of probabilities) on the material before it that there are grounds for the Tribunal to make the other orders sought by the applicant tenant.

**********

Schedule

Property	Produced by	Date Advertised/Rented	Rent (pw)	No of bedrooms	No of bathrooms	No of car spaces	Area (sq. m)
G03/1A Orinoco Street, Pymble	Landlord	01 Feb 25	$950	2	2	1	Unknown
6.06/1 Avon Road, Pymble	Landlord	01 Feb 25	$920	2	2	1	Unknown
7B/5-7 Telegraph Road, Pymble	Vicki Lear	Jan 25	$830	2	2	1	109
826/4 Avon Road, Pymble	Landlord	23 Nov 23	$800	2	2	2	83
926/4 Avon Road, Pymble	Tenant	Nov 24	$800	2	2	1	Unknown
401/12 Avon Road, Pymble	Vicki Lear	Sep 24	$800	2	2	1	81
215/3 Pymble Ave, Pymble	Tenant	Unknown	$800	2	2	1	Unknown
19/1-1A Pymble Ave, Pymble	Vicki Lear	Nov 24	$775	2	2	1	78
101/8C Pymble Ave, Pymble	Tenant	Jan 25	$750 (reported)	2	2	1	74
	Vicki Lear	09 Jan 25	$750	2	2	0	Total: 104 Internal: 74
416/3 Pymble Ave, Pymble	Vicki Lear	21 Jan 25	$750	2	2	0	90
201/12 Avon Road Pymble	Vicki Lear	Sep 24	$740	2	2	1	111
B720/2-12 Avon Road, Pymble	Tenant	Jan 25	$500 reduced for 3-4 mths, $700 thereafter	2	1	1	Unknown
508/5 Pymble Ave, Pymble	Vicki Lear	Jun 24	$700	2	2	1	83

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: 22 September 2025