Mazengarb v Sethi - [2021] NSWCATCD 51

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Mazengarb v Sethi [2021] NSWCATCD 51
Hearing dates: 8 June 2021
Date of orders: 28 June 2021
Decision date: 28 June 2021
Jurisdiction: Consumer and Commercial Division
Before:
P French, General Member
The decision issued on 28 June 2021 is amended pursuant to section 63 of the Civil and Administrative Tribunal Act 2013 and should read as follows: (amendments are shown in bold type)
Decision:
(1) The rent payable for the premises was excessive by $100.00 per week from 15 August 2020 to 7 December 2020 and must not exceed $450.00 per week during this period.
(2) The rent payable for the premises was excessive by $75.00 per week from 8 December 2020 to 19 February 2021 and must not exceed $475.00 per week during this period.
(3) The rent payable for the premises was excessive by $50.00 per week from 20 February 2021 to 26 March 2021 and must not exceed $500.00 per week during this period.
(4) The landlord, Sameer and Vineeta Sethi, are to pay the tenants, Melinda Mazengarb and Peter McLeod, the sum of $2,685.70 immediately.
(5) The application is otherwise dismissed.

Catchwords:
LEASES AND TENANCIES: Residential Tenancies Act 2010 (NSW) – tenants’ claim that rent was excessive due – tenants’ claims for compensation for alleged breach by the landlords of the obligation to pass possession of the premises reasonably clean and in a state fit for habitation – compensation claims out of time

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Residential Tenancies Act 2010 (NSW)
Residential Tenancies Regulation 2019 (NSW)

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

Texts Cited:
Nil

Category: Principal judgment
Parties: Melinda Mazengarb (First Applicant)
Peter McLeod (Second Applicant)
Sameer Sethi (First Respondent)
Vineeta Sethi (Second Respondent)
Representation:
File Number(s): RT 21/07107
Publication restriction: Nil

REASONS FOR DECISIOn

Introduction

This is an application by former tenants of rented premises for orders pursuant to section 44(1)(b) of the Residential Tenancies Act 2010 (RT Act) that would reduce the rent payable for the premises during three overlapping periods in the course of the tenancy due to the landlords’ alleged withdrawal keys, failure to secure the back yard, and failure to provide an off-street parking area with the premises. The tenants seek to recover from the landlords a total of $4,580.00 in excessive rent they contend they have paid in respect of these periods. The tenants also apply for orders for compensation for damage and loss they contend they incurred in the course of the tenancy due to the landlords’ breach of the residential tenancy agreement in allegedly failing to pass possession of the premises to them at that time reasonably clean and in a state fit for habitation. The total damage and loss the tenants contend they suffered as a result of these breaches and for which they seek to be compensated is $2,136.00. This application was made to the Tribunal on 16 February 2021 (the…

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 51
Decision Date: 28 June 2021

CaseChat Overview and Summary

In the case of Mazengarb v Sethi, the tenants, Melinda Mazengarb and Peter McLeod, brought claims against their landlords, Sameer and Vineeta Sethi, asserting that the rent charged for the premises was excessive and that the landlords had breached their obligation to deliver the premises in a reasonably clean and habitable condition. The dispute was heard in the Local Court of New South Wales. The tenants sought compensation for the alleged breaches and argued that the amount of rent charged was not only excessive but also constituted a penalty under the Residential Tenancies Act 2010 (NSW).

The court had to determine whether the rent charged was indeed excessive, as claimed by the tenants, and if so, what the appropriate weekly rent should be for different periods. The court also had to decide whether the landlords had breached their duty to provide the premises in a reasonably clean and habitable state and if the tenants' claims for compensation were time-barred. The tenants argued that they had not been aware of the alleged breaches until they vacated the premises, and therefore, their claims should not be dismissed as being out of time.

The court found that the rent charged by the landlords was excessive for different periods as claimed by the tenants, and it set the maximum permissible weekly rent for each period. The court held that the landlords had failed to provide the premises in a reasonably clean and habitable condition, resulting in a liability for damages. However, the court dismissed the tenants' claims for compensation as being out of time. The court ordered the landlords to pay the tenants $2,685.70 in damages immediately and dismissed the rest of the application.

The final orders of the court specified the maximum permissible weekly rent for different periods and required the landlords to pay the tenants $2,685.70 in damages immediately. The application for compensation was dismissed as being out of time.

Orders

Orders of the court

(1) The rent payable for the premises was excessive by $100.00 per week from 15 August 2020 to 7 December 2020 and must not exceed $450.00 per week during this period.

(2) The rent payable for the premises was excessive by $75.00 per week from 8 December 2020 to 19 February 2021 and must not exceed $475.00 per week during this period.

(3) The rent payable for the premises was excessive by $50.00 per week from 20 February 2021 to 26 March 2021 and must not exceed $500.00 per week during this period.

(4) The landlord, Sameer and Vineeta Sethi, are to pay the tenants, Melinda Mazengarb and Peter McLeod, the sum of $2,685.70 immediately.

(5) The application is otherwise dismissed.

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:	Mazengarb v Sethi [2021] NSWCATCD 51
Hearing dates:	8 June 2021
Date of orders:	28 June 2021
Decision date:	28 June 2021
Jurisdiction:	Consumer and Commercial Division
Before:	P French, General Member The decision issued on 28 June 2021 is amended pursuant to section 63 of the Civil and Administrative Tribunal Act 2013 and should read as follows: (amendments are shown in bold type)
Decision:	(1) The rent payable for the premises was excessive by $100.00 per week from 15 August 2020 to 7 December 2020 and must not exceed $450.00 per week during this period. (2) The rent payable for the premises was excessive by $75.00 per week from 8 December 2020 to 19 February 2021 and must not exceed $475.00 per week during this period. (3) The rent payable for the premises was excessive by $50.00 per week from 20 February 2021 to 26 March 2021 and must not exceed $500.00 per week during this period. (4) The landlord, Sameer and Vineeta Sethi, are to pay the tenants, Melinda Mazengarb and Peter McLeod, the sum of $2,685.70 immediately. (5) The application is otherwise dismissed.
Catchwords:	LEASES AND TENANCIES: Residential Tenancies Act 2010 (NSW) – tenants’ claim that rent was excessive due – tenants’ claims for compensation for alleged breach by the landlords of the obligation to pass possession of the premises reasonably clean and in a state fit for habitation – compensation claims out of time
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW)
Cases Cited:	Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Melinda Mazengarb (First Applicant) Peter McLeod (Second Applicant) Sameer Sethi (First Respondent) Vineeta Sethi (Second Respondent)
Representation:
File Number(s):	RT 21/07107
Publication restriction:	Nil