McKerlie v Leeser; Leeser v McKerlie

[2023] NSWCATCD 6

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

McKerlie v Leeser; Leeser v McKerlie [2023] NSWCATCD 6

Hearing dates:

30 January 2023

Date of orders:

10 February 2023

Decision date:

10 February 2023

Jurisdiction:

Consumer and Commercial Division

Before:

G Sarginson, Senior Member

Decision:

1. The Residential Tenancy Agreement is terminated in accordance with s 87 of the Residential Tenancies Act 2010 (NSW) as the tenant has breached the agreement by failure to pay rent in accordance with the agreement.

2. The Tribunal is satisfied in accordance with s 89 (5) of the Residential Tenancies Act 2010 (NSW) the tenant has frequently failed to pay rent owing for the premises.

3. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination.

4. The order for possession is suspended to 20 February 2023.

5. The tenant shall pay the landlord a daily occupation fee at the rate of $60 per day from the date of termination, namely 10 February 2023, until the date vacant possession is given to the landlord.

6. Within 60 days of the date of possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing.

7. The landlord’s agent is to advise the tenant in writing by the delivery of a letter to the premises by 6.00 pm on 10 February 2023 of the orders made today.

8. The tenant, Colin McKerlie, is to pay the landlord, Sylvia Leeser, the sum of $6,680 immediately in respect of:

(a) Rent from 15 September 2022 to 30 January 2023 - $8,280

(b) Less $1,600 for compensation to the tenant in Matter RT 22/43591

Net Total: $6,680

Catchwords:

LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---Repair of premises---Compensation payable to tenant---Failure to pay rent by tenant---Termination for non-payment of rent---Whether notice to terminate retaliatory

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Property and Stock Agents Act 2002 (NSW)

Residential Tenancies Act 2010 (NSW)

Residential Tenancies Regulation 2019 (NSW)

Cases Cited:

Armee v Brearley [2017] NSWCATAP 141

Bannister v Chueng [2014] NSWCATCD 105

Bhandari v Laming [2015] NSWCATAP 224

British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283

Charisteas v Charisteas [2021] HCA 29 (2021) 393 ALR 389

Colombini v De Berigny [2021] NSWSC 374

Cowling v Tran; Tran v Cowling [2021] NSWCATCD 128

David v Langham [2021] NSWCATAP 360

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Karacominiakis v Big Country Developments Pty Ltd [2000] NSWCA 313

Koompahtoo Local Aboriginal Land Council & Anor v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115.

McKerlie v Leeser [2023] NSWCATAP 11

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427

Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361

Re: Force Corp Pty Ltd (in liq) [2018] NSWSC 896

Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Seymour v Wu [2021] NSWCATAP 289

Torpey v Stewart [2021] NSWCATAP 248

Touma v Colantuono [2021] NSWCATAP 152

Tuckwell v Ientile [2022] NSWCATCD 124

Universal Press Pty Limited v Provest Limited [1989] FCA 402

Category:

Principal judgment

Parties:

Matter RT 22/43591 and RT 22/53016:

Colin McKerlie (Applicant)

Sylvia Leeser (Respondent)

Matter RT 22/44479 and RT 22/52977:

Sylvia Leeser (Applicant)

Colin McKerlie (Respondent)

Representation:

B. Small and G. Holt, agents (Landlord)

C. McKerlie, self-represented (Tenant)

File Number(s):

RT 22/43591;RT 22/53016; RT 22/44479 and RT 22/52977

Publication restriction:

Nil

REASONS FOR DECISION

1. Matters RT 22/43591; RT 22/53016; RT 22/44479 and RT 22/52977 were listed together for a special fixture hearing at the Tribunal on 30 January 2023.

2. The residential tenancy agreement between the tenant and the landlord commenced on 11 July 2020 by way of a written residential tenancy agreement. The premises are a unit in strata building. Neither party provided any evidence regarding the age of the building (or an estimate of its age).

3. In this decision, the Residential Tenancies Act 2010 (NSW) is referred to as “the RT Act”.

4. Mr McKerlie (‘the tenant’) appeared in person. Ms Leeser (‘the landlord’) was represented by Mr Small and Ms Holt (agents of the landlord, being employees of Bresic Whitney the managing agent of the landlord). At the hearing, Mr Small spoke for the landlord and Ms Holt did not speak.

5. Matters RT 22/43591 and RT 22/53016 are the tenant’s applications against the landlord. Matters RT 22/44479 and RT 22/52977 are the landlord’s applications against the tenant.

6. Matter RT 22/43591 was filed in the Tribunal on 29 September 2022. The tenant seeks various orders the majority of which involve compensation and/or a rent reduction under s 187 and s 44 (1) (b) of the RT Act. The tenant also seeks an order that a Notice to Terminate issue by the landlord was retaliatory under s 115 of the RT Act. In the application filed on 29 September 2022, the tenant identifies “three heads of complaint” being (a) failure to provide adequate ventilation in the kitchen leading to black mould, which started to appear “in April this year”; (b) failure to provide an adequate hot water system to allow the tenant to use the bath; and (c) the “vindictive decision” of the landlord to terminate the tenancy in response to the tenant’s complaint about the kitchen.

7. Matter RT 22/53016 was filed with the Tribunal on 30 November 2022. The tenant sought orders under s 65 (1) of the RT Act that the landlord conduct repairs (identifying the ventilation system and the hot water system) and under s 65 (5) of the RT Act that rent be paid to the Tribunal until repairs are performed.

8. Matters RT 22/44479 and RT 22/52977 are the landlord’s applications against the tenant. Matter RT 22/44479 was filed with the Tribunal on 6 October 2022. In Matter RT 22/44479 the landlord sought a termination order for non-payment of rent under ss 87 and 89 (5) of the RT Act, but also referred to a “90 day notice for vacant possession” that had been issued on 17 October 2022. The landlord also sought payment of money.

9. Matter RT 22/52977 was filed with the Tribunal on 29 November 2022. The landlord sought a termination order for non-payment of rent under ss 87 and 89 (5) of the RT Act; a money order (for unpaid rent, which is identified in the application as over $5,200); payment of the bond and an occupation fee. The termination date identified in the application (being the date identified in the relevant Notice to Terminate) is 15 December 2022).

10. The matters have a convoluted procedural history in the Tribunal. Matters RT 22/44479 and RT 22/43591 were listed before the Tribunal for a Conciliation and Group List (Hearing) on 2 November 2022, where they were set down for a final hearing with procedural directions regarding the filing and serving of documentary evidence. On 28 November 2022 those matters were adjourned by Member Ash, with written reasons provided.

11. The tenant lodged an appeal to the Appeal Panel in Matters RT 22/43591 and RT 22/44479 against the decision of the Member on 2 November 2022. The basis of the appeal was that the Tribunal did not consider the tenant’s application to refuse the landlord’s agent leave to represent the landlord by reason of the tenant’s allegation that the agent had engaged in misconduct and misled the Tribunal under s 71 of the Civil and Administrative Tribunal Act 2013 (NSW) (‘the NCAT Act’). The tenant also sought that the Appeal Panel refer the matter to the Supreme Court on a question of law under s 54 of the NCAT Act, and appoint an agent under s 206 of the RT Act.

12. On 3 January 2023, Matter RT 22/52977 was listed before the Tribunal for a Conciliation and Hearing (Group List). The tenant made applications that (a) the landlord be refused leave to be represented by the managing agent by reason of the agent’s alleged misleading and false representation to the Tribunal in bringing the application (raising s 71 of the NCAT Act) and that the landlord’s application for termination be summarily dismissed under s 55 (1) of the NCAT Act on the basis the application is vexatious.

13. The Tribunal Member on 3 January 2023 granted leave for the agent to represent the landlord. The Member also refused to dismiss the application summarily on the grounds it was vexatious. The Member gave written reasons and made procedural directions regarding Matter RT 22/52977 listed for hearing with the other applications involving the parties. The Member gave written reasons, including referring to authorities of the Appeal Panel regarding the obligation to pay rent by a tenant being a separate obligation to the landlord’s obligation regarding the habitability and state of repair of the residential premises (David v Langham [2021] NSWCATAP 360; Seymour v Wu [2021] NSWCATAP 289). The Member also referred to the fact that the landlord has issued a Notice to Terminate for non-payment of rent on 15 December 2022, which by reason of s 118 of the RT Act revoked any earlier Notice to Terminate on the same grounds.

14. On 19 December 2022, the tenant applied to the Tribunal for a Summons to Produce Documents on the landlord. The tenant sought the following documents in the schedule:

All documents of any type in any format which are now or have ever been in the possession of any servant or agent in regard to the premises at…and the tenancy thereof since 1 January 2015 which relate to any complaint by a tenant in regard to the premises, including but not limited to the inadequacy of the ventilation in the kitchen/laundry and the size of the hot water tank servicing the premises particularly in regard to its adequacy to allow the bath to be used.

The documents should include any document which includes the most recent address and other contact details of any tenant who has occupied the premises since 1 January 2015.

15. On 20 December 2022 a Deputy Divisional Registrar refused to issue the Summons to produce documents sought by the tenant. The reasons were: (1) Summons calls for the creation of a document (a list of previous tenants and their contact details) and (2) Summons is not clearly relevant to an issue in dispute.

16. The Member listed the matters on 9 January 2023, but that date was subsequently vacated without a hearing, and further procedural directions made on 5 January 2023.

17. On 23 January 2023 the Appeal Panel of the Tribunal in McKerlie v Leeser [2023] NSWCATAP 11 dismissed the tenant’s appeal, with written reasons. In summary, the Appeal Panel refused leave to appeal; refused the tenant’s application for proceedings to be referred to the Supreme Court on a question of law; and refused the other orders sought by the tenant in the appeal. The Appeal Panel granted the landlord leave to be represented by the landlord’s agent in the appeal proceedings, but stated at paragraphs [9] and [29] that the issue of representation in the Tribunal proceedings between the parties was a separate issue. The Appeal Panel also noted (at paragraphs [25]-[26]) that the tenant asserted that he had legal qualifications and had practiced in various jurisdictions in Australia. The Appeal Panel noted that the tenant has made personal attacks and allegations against individual Members of the Tribunal which were “unfounded and should not have been made”.

18. At the hearing on 30 January 2023 the tenant stated that he had not received a copy of the Appeal Panel decision and was unaware it had been made. The Tribunal pointed out that decisions of the Tribunal are published on the Caselaw NSW website and that there had been no finding that the tenant could not make a fresh application before the Tribunal that the landlord’s agent not represent the landlord in the Tribunal proceedings.

19. At the commencement of the hearing, the tenant made two applications. The first was that the Tribunal should refuse the agent leave to represent the landlord under s 45 of the NCAT Act. The second was that the proceedings should be adjourned with the tenant being granted leave to issue the Summons to produce documents that leave had previously been refused.

Application to Refuse the Landlord’s Agent Leave to Represent the Landlord

20. The application was based on the agent’s purported breach of s 71 of the NCAT Act when the landlord had filed Matter RT 22/44479 on 6 October 2022 and Matter RT 22/52977 on 29 November 2022.

21. The tenant stated that because the section of the application where “NCAT Related Filed Numbers” was left blank, the landlord’s agent was filing an application that was false and misleading. The tenant argued that the landlord did not disclose to the Tribunal that the tenant had filed proceedings against the landlord.

22. The tenant submitted that this was a breach of s 71 of the NCAT Act and should be the basis of the Tribunal refusing the landlord leave to be represented by the agent under s 45 of the NCAT Act for the following reasons:

1. Not referring to the tenant’s related proceedings (or any other proceedings of the landlord) “created the risk” that the Tribunal would hear a termination application against the tenant in the tenant’s absence and without being aware of the tenant’s proceedings against the landlord in NCAT.

2. There was a “public interest” in compelling landlord’s agents to act in good faith and in accordance with their statutory obligations.

3. The landlord’s agent had committed an offence under s 71 of the NCAT Act.

23. Section 71 of the NCAT Act states:

71   False or misleading statements

A person must not, in any proceedings or application to the Tribunal, provide any information, or make any statement, to the Tribunal knowing that the information or statement is false or misleading in a material respect.

Maximum penalty—50 penalty units or imprisonment for 12 months, or both.

24. The Tribunal pointed out to the tenant that s 71 of the NCAT was an offence provision (using the words “maximum penalty” rather than “civil penalty provision”) which, by reason of the operation of s 77 (1) and 75 of the NCAT Act, there is limited standing to commence proceedings. Section 75 of the NCAT Act states as follows:

75   Commencement of proceedings

Proceedings for an offence against a provision of this Act or on an application under section 77 may be commenced only by any of the following persons (an authorised official)—

(a)  the Minister,

(b)  a person with the written consent of either the Minister or another person or body authorised by the Minister for that purpose.

25. The tenant responded by acknowledging that he had no standing to commence proceedings in respect of an alleged offence under s 71 of the NCAT Act.

26. The Tribunal also raised with the tenant that a purported breach of s 71 of the NCAT Act involved serious conduct with penalty consequences, and that it would be a serious step to find, even on a prima facie basis, that the agent had misled the Tribunal without having heard any evidence. The Tribunal raised that the tenant was asking the Tribunal to make such a finding on a summary basis in circumstances where if the Tribunal refused the landlord leave to be represented by her agent there could be significant prejudice to the landlord because the landlord would have to attend the Tribunal and present her case.

27. The tenant submitted that the fact he could not commence proceedings, or that an offence could not be proven at the outset of these proceedings was irrelevant. The tenant submitted that he was prepared to “swear an oath” and the landlord’s applications filed with the Tribunal “speak for themselves”. The tenant also submitted that any prejudice to the landlord by reason of refusing the agent leave to represent the landlord was solely attributable to the conduct of the agent.

28. The landlord’s agent submitted that there was no intention to mislead or deceive the Tribunal when the landlord’s applications were filed and that it opposed the application to refuse the landlord leave to be represented by the agent at the hearing.

29. Section 45 of the NCAT Act states:

45   Representation of parties

(1)  A party to proceedings in the Tribunal—

(a)  has the carriage of the party’s own case and is not entitled to be represented by any person, and

(b)  may be represented by another person only if the Tribunal grants leave—

(i)  for that person to represent the party, or

(ii)  in the case of representation by an Australian legal practitioner—for a particular or any Australian legal practitioner to represent the party.

(2)  However, a party to an internal appeal (or in an application for leave to make an internal appeal) may be represented by a person without requiring the leave of an Appeal Panel if the party was entitled to be represented by such a person without the leave of Tribunal in the proceedings in which the decision under appeal was made.

Note—

A Division Schedule for a Division of the Tribunal may, in some cases, allow certain kinds of persons to represent parties in proceedings allocated to that Division without requiring the leave of the Tribunal.

(3)  The Tribunal may at its discretion—

(a)  grant or refuse leave under subsection (1)(b), and

(b)  revoke any leave that it has granted.

…

30. Relevant to the exercise of discretion to allow a party to be represented is the NCAT Consumer and Commercial Division procedural Guideline “Representation” (published on the NCAT website, and the relevant Guideline having been raised by the Tribunal with the tenant at the hearing to give the tenant the opportunity to make submissions about the Guideline). The Guideline relevantly states:

…

3. Generally, a party in proceedings in the Consumer and Commercial Division of the Tribunal is responsible for presenting the party’s own case.

4. However, parties may have representatives to present their cases if the Tribunal gives permission, or “grants leave”, for this to occur. In granting leave, the Tribunal can impose such conditions as it thinks fit.

5. If the Tribunal has given leave for a party to be represented, it can also revoke that leave.

…

10. The Tribunal will usually grant leave to a person to represent a party in the following circumstances:

…

j) if the party is a landlord of residential premises which is the subject of the proceedings and the proposed representative is the managing agent of the property;

…

31. The Tribunal was satisfied that it was appropriate to grant the landlord’s agent leave to represent the landlord at the hearing on 30 January 2023 for the following reasons:

1. The mere omission of reference to related proceedings in the applications filed by the landlord is not conduct that is sufficiently serious to refuse the landlord leave to be represented by the agent. That omission, which may have been a mere oversight rather than a deliberate attempt to mislead the Tribunal, does not satisfy the Tribunal that the agent would not act at the hearing in a manner inconsistent with the duty of parties (and representatives) to assist the Tribunal to achieve the just, quick and efficient resolution of the real issues in dispute under s 36 (3) of the NCAT Act.

2. There was no evidence of any actual prejudice or unfairness to the tenant by reason of the omission. All the tenant could point to was a previous “risk” of unfairness because the Tribunal may have heard the landlord’s application for termination ex parte and without knowing that the tenant had earlier proceedings in the Tribunal asserting the landlord was in breach of the RT Act (and the terms of the residential tenancy agreement) due to the condition of the premises and that the tenant sought to oppose the landlord’s termination application on grounds it was retaliatory. If there was ever such a risk, it has now long passed, with both parties appearing in the Tribunal (and the Appeal Panel) on a number of occasions; and the parties respective applications against each other being listed for hearing together on 30 January 2023. The Tribunal was clearly aware, and had been so for a long period of time, that the parties had related proceedings against each other.

1. There was no other unfairness to the tenant to allow the landlord to be represented by the agent. There was no dispute that the agent who appeared at the hearing on 30 January 2023 had a valid operative managing agency agreement with the landlord. The tenant was an articulate person who, by his own submission, had been a practicing lawyer for approximately 18 years, and was clearly able to respond to the landlord’s arguments and put forward his own arguments to the Tribunal.

2. The tenant’s claims that the landlord’s agent had not “acted in good faith” were matters that should be the subject of evidence and submissions in the substantive dispute and would be considered to the extent that they were relevant to the issues in dispute in the substantive proceedings.

3. Any claims (if any) that the agent had breached any provision of the Property and Stock Agents Act 2002 (NSW) by the tenant were not matters that were clearly relevant to determination of the real issues in dispute between the parties under the RT Act.

4. If the Tribunal refused the agent leave to appear, there may be prejudice or unfairness to the landlord in circumstances where the agent had previously appeared in the Tribunal and the Appeal Panel on behalf of the landlord on a number of occasions; the landlord was not present in person at the hearing; and the refusal of leave may lead to an adjournment of the hearing causing more delay and potential expense (and noting that the landlord asserted the tenant was over $8,200 in rent arrears).

Adjournment Application by the Tenant

32. After the Tribunal granted the agent leave to represent the landlord at the hearing, the tenant made an adjournment application.

33. The basis for the adjournment application was that the Tribunal had refused to grant leave for the tenant to issue the Summons to produce documents identified previously.

34. The tenant sought an order that the Summons be filed, and the proceedings be adjourned so that the documents could be produced. The tenant submitted that the grounds upon which the Deputy Divisional Registry refused leave to file the Summons were flawed. The tenant submitted that the documents sought did not seek that the landlord create a new list; and that the information sought was relevant to the proceedings to determine the condition of the premises prior to the commencement of the tenancy (particularly in respect of the hot water system and ventilation system) and the manner in which the landlord (and agent) dealt with complaints by previous tenants.

35. The tenant further submitted that the Tribunal could, if it thought the Summons too broad, direct that it be issued in a more narrowly defined manner.

36. The landlord opposed the issue of the Summons to produce documents and any adjournment of the hearing on 30 January 2023.

37. Under s 45 (1) of the NCAT a Registrar of the Tribunal has the discretion to issue a Summons to produce documents; and may be directed to do so by the Tribunal. A party does not have the right that a Summons to produce documents be issued; and the Tribunal has the power to determine whether leave to issue a Summons should be refused; or if the Summons is issued to set it aside in whole or part.

38. On the issue of relevance, the NSW Court of Appeal stated in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65]; [69]-[70]; and [89] (‘Blacktown City Council’) as follows:

39. Per Bell P (at [65] and [69]-[70]):

It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are “apparently relevant” or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent.

…

If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside. To that extent, the statement in Chidgey at [59] that mere relevance is “not sufficient”, and a similar statement in Carroll at 182 that “mere relevance is not enough” may, with respect, be apt to mislead or confuse. In the latter case, Mahoney AP said at 182 that a party issuing the subpoena:

“must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: ‘I wish to see the document to see if it may assist my case.’ That, in my opinion, is not sufficient.”

There is a very subtle distinction at play in this passage which, in my view, is undesirable, is inconsistent with many of the authorities referred to above, and has the potential to lead to the unwarranted setting aside of subpoenas or refusals to inspect documents. Where apparent relevance of the documents subpoenaed to the issues in the case or to the cross-examination of a witness or witnesses is established, this should not generally lead to the setting aside of a subpoena. As King CJ put it in Carter at 453, where a document or documents sought by subpoena by their nature have a “bearing on the issues in the case and may well have evidentiary value”, a subpoena seeking such a document or documents will not amount to fishing.

Of course it will remain the case that, if it can be demonstrated that the party issuing the subpoena has done so for some improper, illegitimate or ulterior purpose foreign to the litigation, the Court in the exercise of its discretion may set aside the subpoena as an abuse of process or refuse access to the subpoenaed documents in spite of their apparent relevance. Provided, however, that the documents sought are apparently relevant to the issues that have or are likely to arise in the proceedings or have some evidential value (which may extend to value for the purposes of cross-examination, including testing the credit of witnesses including expert witnesses), to the extent it may be necessary to establish a legitimate forensic purpose, such a purpose may be presumed.

40. Per Brereton JA (at [89]):

I agree with Bell P, for the reasons given by his Honour, that an issuing party is not required to show that it is “likely” (or “on the cards”) that the documents sought will materially assist its case, as distinct from that it is “likely” (or “on the cards”) that they will add, in some way or another, to the relevant evidence in the case, and that the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of the subpoena. In my view, at least in civil proceedings and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. ^[11]  This reflects the notions that the documents relate to, throw light on, or are sufficiently relevant to the dispute; ^[12] that they “appear relevant in the sense that they relate to the subject matter of the proceedings”; ^[13]  or that they could possibly throw light on the issues in the case. ^[14] Moreover, documents will add “in some way” to the relevant evidence in the case if they are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence. ^[15]

41. The inability to demonstrate that the documents sought to be produced are likely to assist its case will, depending on the circumstances of the case, make it more difficult to establish a legitimate forensic purpose for the Summons (Blacktown City Council at [64]).

42. The failure to establish that the documents sought would have apparent relevance makes more likely the Summons lacks legitimate forensic purpose and is a “fishing expedition”. In Colombini v De Berigny [2021] NSWSC 374 Ward CJ in Eq stated at [129]-[130]:

Where there is no legitimate forensic purpose, in that sense, for the issue of a subpoena or notice to produce, then it may readily be seen to be a fishing expedition. As to what is meant by a “fishing expedition”, see Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 where, at 254, it was said that:

A “fishing expedition”, in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere “fishing expedition”.

Whether a party has cause to believe that particular documents exist is a relevant factor (in conjunction with the potential relevance of the documents sought and the breadth of the subpoena) in determining whether the subpoena constitutes a “fishing expedition”.

43. A Summons to produce documents will also lack legitimate forensic purpose if it is oppressively wide (Re: Force Corp Pty Ltd (in liq) [2018] NSWSC 896 at [43]-[45]); is vague or uncertain; calls for the creation of documents (rather than production of existing documents); or imposes upon a third party the task of forming a judgment as to whether a document relates to issues between the litigants (Universal Press Pty Limited v Provest Limited [1989] FCA 402 at [9]-[10]).

44. The Tribunal refused the application by the tenant for the proposed Summons to produce documents to be filed.

45. The documents sought pertain to complaints by any former tenant about any aspect of the condition of the premises (including but not limited to the hot water system and the ventilation system) for a period of 5.5 years prior to the commencement of the tenancy between the landlord and the tenant.

46. As will be discussed later in this decision, the landlord’s obligation to provide premises fit for habitation at the commencement of the tenancy (s 52 of the RT Act) and keep premises in a reasonable state of repair (ss 63 and 65 of the RT Act) involve an analysis of the condition of the premises and any complaints about the need for repairs during the course of the tenancy between the parties. Whether the premises was fit for habitation for a previous tenant; and whether a previous tenant had made complaints regarding the need for repairs would not materially assist the tenant on any identified issue; nor add in some way or another to the relevant evidence; nor assist the tenant in cross examination of witnesses or go to the issue of credit of any party or witness.

47. The issues in dispute between the parties involve the condition of the premises during the tenancy between the parties and whether the premises were kept in a reasonable state of repair by the landlord. Those issues do not invite an enquiry as to the relationship between the landlord and previous tenants. Even if previous tenants had made complaints about the condition of the residential property, that has no bearing or potential bearing upon whether (a) the premises were in a reasonably habitable condition at the commencement of this tenancy; and/or (b) whether the landlord had kept the premises in a reasonable state of repair during the period of this tenancy and/or (c) whether the landlord had issued a retaliatory Notice to Terminate the tenancy.

48. Further, the documents sought do not have any bearing on “credit” of any witness in these proceedings. The “credit” of a witness is not an open ended enquiry into character or morality. “Credit” may be relevant to determination of facts in dispute in the proceedings between the parties in circumstances where there are competing versions of factual events and the Tribunal must determine which version of events to accept. Whether the landlord (or its agent) had a good or bad relationship with previous tenants; or whether previous tenants had made complaints about the condition of the premises has no material bearing on the determination of the credit of any witness in these proceedings (relevantly being the agent of the landlord and the tenant, in circumstances where the landlord had provided a witness statement and did not attend the Tribunal hearing to give evidence).

49. The proposed Summons lacks a legitimate forensic purpose because the documents sought have no apparent relevance to the issues in dispute in the proceedings.

50. Further, the Summons is oppressively wide, seeking documents for a period over 5 years prior to the commencement of the tenancy. The tenant submitted that the Tribunal could narrow the temporal scope of the Summons, but there is no basis for doing so when it lacks legitimate forensic purpose in any event. The Summons is also vague and uncertain, seeking documents involving “any complaint… in regard to the premises”. That requires the party the subject to the Summons to determine what is meant by a “complaint…in regard to the premises” which involves a subjective judgement as to the meaning of that phrase. The Summons also seeks documents that were previously in the possession of the landlord, but are no longer in the landlord’s possession in addition to documents that are currently in its possession.

51. The component of the Summons involving the tenant seeking any document that has contact details of previous tenants also lacks a legitimate forensic purpose. As discussed previously, calling evidence from previous tenants about the condition of the property during their tenancy; and their relationship with the landlord (or the landlord’s agent) does not affect, directly or indirectly, the assessment of the probability of a fact in issue in these proceedings.

52. Principles applicable to the adjournment of Tribunal proceedings have been discussed in the Appeal Panel of the Tribunal on many occasions (e.g. Armee v Brearley [2017] NSWCATAP 141 at [121]-[134]; Touma v Colantuono [2021] NSWCATAP 152 at [56]-[58]).

53. In essence, the granting of an adjournment is a discretionary decision. Matters are expected to proceed on the allocated hearing date, and an adjournment is exceptional rather than the ordinary course. The Tribunal must be satisfied there are adequate reasons and evidence to support the adjournment application, and take into account factors such as the guiding principle of the Tribunal for the just, quick and cheap resolution of disputes under s 36 (1) of the NCAT Act; whether the party seeking an adjournment has complied with Tribunal directions; prejudice (including increased costs) to the other party if the adjournment is granted; and whether denying the adjournment causes procedural unfairness to the party seeking the adjournment.

54. The only ground advanced by the tenant for an adjournment involved the tenant seeking to issue the Summons to produce documents. The parties were otherwise ready to proceed, with each having filed and served the documentary evidence relied upon. As the Tribunal refused the tenant’s application to file the Summons for reasons previously discussed, there was no basis to adjourn the hearing.

Conduct of the Hearing

55. The documentary evidence of the parties that had been filed and served in the proceedings was admitted into evidence, subject to submissions on weight and relevance. The tenant also tendered an email to the landlord’s agent dated 8 January 2023 containing an open offer of settlement (which had not been filed and served in accordance with Tribunal directions).

56. The tenant’s documentary evidence was contained in a folder of documents filed on 16 November 2022. That folder of documents was marked Exhibit A. The email to the landlord (via the landlord’s agent) was marked Exhibit B.

57. The landlord’s documentary evidence was contained in a bundle of documents (67 pages) filed on 24 January 2023. That folder was marked Exhibit 1. The landlord also tendered (without objection) a current rent ledger (Exhibit 2) and Hearing Notes summarising information relevant to the landlord’s application for termination of the tenancy (Exhibit 3).

58. The tenant gave oral evidence. The tenant was given the opportunity to elaborate on the factual events that he had referred to in his bundle of documents. The tenant asserted that the information contained in his documents (including a document in the form of witness statement, but which also made legal submissions) was true, correct and accurate.

59. The tenant was given the opportunity by the Tribunal to elaborate upon what affect the alleged failure to provide premises fit for habitation and in a reasonable state of repair had upon the tenant in respect of his amenity of the premises; and any distress or inconvenience. The written statement of the tenant referred specifically to (a) the hot water system not being adequate for the tenant to have a bath; and (b) the ventilation system of the premises not being sufficient, leading to black mould in areas of the premises.

60. The tenant did not orally elaborate in any detail in evidence in chief on the information set out in his documents.

61. The Tribunal also raised with the tenant during his evidence in chief that if the landlord was successful in the application to terminate the tenancy for non-payment of rent and was not satisfied that the applicable Notice of Termination should be set aside under s 115 of the RT Act on grounds that it was retaliatory, the Tribunal had a discretion to suspend the date of vacant possession. The Tribunal enquired whether the tenant had any medical issues or personal hardship issues that would affect determination of the date of vacant possession (if the landlord was successful in its termination application).

62. The tenant stated that there were no hardship issues or medical issues that affected his ability to obtain alternative rental accommodation, other than the current shortage of rental properties and his belief that he would not be given a positive reference by the landlord’s agent because of taking action in NCAT.

63. The tenant stated that he had the financial capacity to pay rent, and for a long period of the tenancy had been praised by the landlord as a “good tenant”. The tenant stated that he had made a conscious decision to withhold rent from the landlord because he believe the landlord was in breach of the landlord’s obligations under the RT Act and the residential tenancy agreement between the parties. In the view of the tenant, the landlord had “repudiated” the residential tenancy agreement and he was entitled to withhold rent, particularly in circumstances where he had previously made an offer to pay rent into the Tribunal and was seeking such an order in his proceedings.

64. The landlord’s agent also gave brief oral evidence. Both parties were given the opportunity to question the other party. Both parties then made oral submissions to conclude the hearing.

65. The Tribunal notes that in the tenant’s bundle of documents there were submissions that included:

1. There was actual or apprehended bias against the tenant.

2. NCAT was “institutionally biased” against tenants and “corrupt”.

3. The Tribunal should refer the landlord and the landlord’s agent to NSW Police.

66. In respect of the reference to actual or apprehended bias, the tenant made no application at the hearing for the presiding Senior Member to disqualify himself on grounds of actual or apprehended bias. As no application was made, the Tribunal had no application to rule upon (relevant principles being set out in authorities such as  Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427; Charisteas v Charisteas [2021] HCA 29 (2021) 393 ALR 389; and British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283).

67. The tenant’s claim that NCAT is “institutionally biased” and “corrupt” is incorrect and should not have been made.

68. As for the Tribunal referring conduct, no power under the NCAT Act was referred to. It is entirely a matter for the tenant if he seeks to make any complaint to any authority.

TENANT’S CLAIM FOR COMPENSATION/RENT REDUCTION AND REPAIRS AGAINST THE LANDLORD

69. The rent payable for the premises at the commencement of the tenancy was $1,739 per month pursuant to the written residential tenancy agreement commencing on 11 July 2020 (for a fixed term of 12 months). The tenancy remained on foot after 10 July 2021, and the residential tenancy agreement between the parties became a periodic tenancy under the RT Act. During the course of the tenancy the rent increased to the current amount of $1,825 per month.

70. The written lease commencing on 11 July 2020 contained the following special condition:

Ventilation

The tenant agrees to ventilate the premises regularly, in particular, the bathroom and laundry, to prevent mould and mildew. If mould and/or mildew appear the tenant agrees that they are responsible at their own cost to have the mould and/or mildew removed.

71. The current agent of the landlord took over management of the property from the previous agent on 1 July 2021.

72. Applicable legal principles were summarised by the Tribunal in Tuckwell v Ientile [2022] NSWCATCD 124 (‘Tuckwell v Ientile’) as follows at paras [63]-[71]:

Under s 44 (1) (b) of the RT Act, the Tribunal can award compensation by way of a rent reduction if it is satisfied that the rent is excessive having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises. An application under s 44 (1) (b) must be brought during the tenancy rather than after the tenancy has ended. Any rent reduction cannot be for a total period of more than 12 months.

A “reduction” or “withdrawal” of “goods, services or facilities” includes a failure by a landlord to conduct repairs during the course of the tenancy in breach of ss 63 and 65 of the RT Act (Roberts v Aboriginal Housing Office [2017] NSWCATAP 9).

However, the “reduction” or “withdrawal” must involve items that fell into disrepair and were not repaired during the course of the tenancy, not items that remained in the same condition (or not provided) at the beginning of the tenancy (Pan v Malveholm [2021] NSWCATAP 101).

If goods, services, or facilities were not present at the commencement of the tenancy, then the potential applicable causes of action arise under ss 52; 63; 65, 187 and 190 of the RT Act. Section 52 involves whether the premises are reasonably fit for habitation at the commencement of the tenancy. Sections 63 and 65 involve whether the landlord has kept the premises in a reasonable state of repair. Sections 187 and 190 are remedial provisions that allow orders for damages and compensation (among other remedies).

However, the limitation period for Tribunal proceedings under ss 187 and 190 of the RT Act is different to s 44 (1) (b) of the RT Act. By reasons of Regulation 39 (9) of the RT Regulation the limitation period is 3 months from becoming aware of the breach. The Tribunal can extend the limitation period under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW), applying the principles in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] as follows:

(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];

…

(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) 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) 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].

The landlord has an obligation under s 63 (1) of the RT Act to provide and maintain premises in a reasonable state of repair having regard to the age of, rent payable for, and prospective life of the premises. The obligation applies even if a tenant had notice of the state of disrepair before entering into occupation of the premises (s 63 (2) of the RT Act).

By reason of s 65 (3) (a) and (b) of the RT Act, the landlord has not breached its obligation under s 63 (1) of the RT Act unless the landlord is aware, or should reasonably have been aware, of the need to repair and has failed to act with reasonable diligence to have the repair performed.

The principles applicable to whether or not there has been a breach of s 63 (1) have been considered by the Appeal Panel on many occasions, including Murarer v Andresson [2016] NSWCATAP 15 at [11]-[16] and Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [115]-[121]). The test is objective and once the landlord knew or should reasonably have known of the need to repair the repair must be carried out within a reasonable time and is not excused by conduct or delay caused by tradespersons or suppliers.

In respect of s 52 of the RT Act, under s 51 (2) premises must be in a reasonable state of cleanliness and fit for habitation at the commencement of the tenancy. Fit for habitation involves consideration of issues including the safety; structural integrity; and amenity of the premises; and the matters set out in s 52 (1A) of the RT Act (Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361 at [144]-[147]).

73. The documentary evidence of both parties contain relevant email correspondence between the parties regarding the condition of the premises during the course of the tenancy. The tenant set out a chronology of relevant events, as did the landlord.

Complaints by the Tenant About the Condition of the Property

74. The tenant made a complaint to the landlord about the hot water system by email to the landlord’s agent on 14 July 2020, a matter of days after commencement of the tenancy.

75. The tenant complained that when he ran a bath, the hot water “ran out before the bath was full”. The bathroom also contained a shower. The tenant sought that the issue be repaired urgently as he needed to “run a bath full of hot, clean water and still have hot water left to top it up when I get in”.

76. The landlord’s agent emailed on 14 July 2020 stating that the landlord has arranged for the hot water system to be replaced.

77. It was not in dispute that the hot water system in the premises was a 50 litre hot water system; and that system was replaced in July 2020 with a new 50 litre hot water system.

78. The tenant made no further complaints to the landlord’s agent that the hot water system was inadequate until an email on 6 September 2021, more than 1 year after the new hot water system was installed.

79. In an email of 6 September 2021, in response to an email from the landlord’s new agent as to whether the tenant wished to enter into a new fixed term lease, the tenant stated that “he was pretty happy with the flat overall” and would “like to stay indefinitely” but there were “two specific problems” the tenant wanted addressed before entering a new lease. The email states as follows:

…

The first problem is mostly about the clothes dryer in the kitchen. The hot air pumped out by the dryer causes condensation in the kitchen which then mixes with any cooking residue on the ceiling and walls and then runs down the walls leaving unsightly dried droplets of dirt. I’m hoping the landlord will agreed to install an exhaust fan in the kitchen.

The second problem is the hot water tank. The landlord replaced the hot water tank just after I moved in because the old tank was full of brown algae. It was great they installed a new tank, but it is only a 50 litre tank which makes it impossible for me to have a bath. The bath was one reason I chose the flat in the first place so it is very frustrating not to be able to use it.

So the second request is that the tank be replaced with a 100 litre tank.

…

80. The landlord’s agent responded with an email on 6 September 2021 that relevantly stated as follows:

Thank you for your email. I will need to pass this onto the owner and revert to you with their response.

Regarding your request for a new hot water unit, most apartments in Sydney especially a 1 bedroom that is not run through gas will have the standard 50L electric water tank. It is very unlikely (sic) to find a larger electric water tank in an apartment. The main concern will be where to fit the larger water tank if agreed to.

81. On 10 November 2021 the tenant “followed up” by email with the landlord’s agent the issue of the hot water system and exhaust fan in the context of negotiating to sign a new lease.

82. On 10 November 2021 the landlord’s agent sent an email stating the landlord was not going to install a hot water system of increased volume and requested further information from the tenant. The email relevantly stated:

…

Unfortunately, the landlord is in no position to install a 100L HWU. All units within the building have the 50L tank and the one in your apartment was recently installed.

Regarding the exhaust fan, when you get the chance, can you please send me through a photo of where exactly you are talking about? Are you not able to open the kitchen windows for ventilation?

As discussed, the owner is happy with you as a tenant and would like you to remain at the property. I look forward to hearing from you.

83. The tenant did not further raise the issues of an exhaust fan or the hot water system for a considerable period of time.

84. In respect of the issue of mould, the tenant states at paragraph [39] of his written statement that mould first started to appear in April 2022 in the kitchen and entrance hall of the premises. The tenant stated he did not take action to inform the landlord’s agent or any other action regarding the mould as he was “dealing with a very trying situation” in his business and “I realised that I needed to do something about the mould but it was not a priority for me at the time”.

85. On 1 June 2022 the landlord’s new agent conducted a periodic inspection of the property. A copy of the periodic inspection was contained in the landlord’s documentary evidence.

86. The period inspection report states that the premises were reasonably clean and tidy. However, the report also states:

Kitchen

Heavy mould throughout walls and ceiling area

87. The periodic inspection report also contained photographs.

88. On 8 June 2022 the landlord’s new agent emailed the tenant stating that she had just taken over management of the property and sought information about whether the tenant had experienced mould prior to April 2022; whether mould had been reported in the past; whether the tenant had experienced water ingress into the kitchen/entry area; and whether there were any conditions in the lease referring to the tenant’s “obligation regarding black mould”.

89. On 7 June 2022 the tenant emailed the landlord’s agent as follows:

…

I was hoping to have seen your inspection report by this time.

I taking it you will have seen the black mould in the kitchen and entrance hall. The mould first appeared towards the end of April but I left it there when you notified me originally of an inspection.

I’d like to assume that this demonstrates conclusively that there is inadequate ventilation in the kitchen and that the extraction fan needs to be installed.

It is no longer just a matter of the unsightly spots all over the ceiling and the appalling and unsightly unrepaired water damage in the ceiling corner. This now constitutes an obvious health risk.

I am aware that there is some term in the lease about the tenant’s obligation to avoid the development of black mould-which indicates to me that this problem has been known for some time.

Please let me know by return what the owners propose to do about this problem. If the installation of an exhaust fan and repair of the existing damage to the ceiling is not undertaken promptly I will have no option but to take this matter to the Tribunal before the expiration of the current lease.

I’m not going to leave this serious problem for the next tenant to have to experience.

I look forward to your timely response.

90. On 8 June 2022 the tenant emailed the landlord’s agent, stating that the tenant had not experienced “black mould” prior to April 2022 and the tenant had not reported mould previously because “it hadn’t been there”. The tenant stated that there was an incident when the kitchen had been flooded due to a burst water pipe, but does not set out when that occurred and when it was repaired. The email does not indicate that this incident was recent, or that repairs had not been performed.

91. On 18 July 2022 the landlord sent an email to the tenant serving a 90 day “no grounds” termination notice under s 85 of the RT Act. The covering email relevantly states (after reference to the tenant having made a part payment of rent, in circumstances where the tenant had stated in a previous email rent would be up to date “by Friday”):

…

After reporting the issue to the owner and having investigated it’s become apparent that extensive works need to be undertaken and as a result, we will require vacant possession of the property.

Please see attached the 90-day termination notice.

Should you have any queries please do let me know a suitable time to phone through.

92. The tenant responded to this email with an email on 19 July 2022 stating he was “astonished” to receive the Notice to Terminate; that “all is required is an exhaust fan in the kitchen. It’s a job that would take a few hours” and that water ingress from the roof of the building had not occurred “since the first time and any repairs are necessary to the roof, nowhere near my flat”. The tenant complained it was inconvenient and expense for him to move. The tenant also queried what “extensive works” were necessary.

93. On 19 July 2022 the landlord’s agent responded with an email stating “the owner will be conducting works beyond the kitchen”; attaching the tenant’s ledger to “assist with securing a new property” and stating the agent would be “happy to advise you of upcoming properties that may suit”.

94. On 20 July 2022 the tenant emailed the agent stating that he sought, due to is work commitments, to stay in the property until the end of November 2022.

95. On 25 July 2022 the landlord’s agent responded to that email stating that the agent was waiting to hear back from the landlord regarding an extension and that she would “be in touch” when she had received instructions.

96. On 29 August 2022 the landlord’s agent emailed the tenant stating that the landlord “cannot extend the termination date beyond 17 October 2022”.

97. Up to that point in time, email correspondence between the tenant and the landlord’s agent had been cordial.

98. However, on 4 September 2022 the tenant sent the landlord’s agent an email stating that he intended to “make a complaint to NCAT”. The email stated there were “three heads of compliant” and set out:

1. Failure to provide adequate ventilation in the kitchen, for which a 7.5% retrospective rent reduction was warranted (approximately $3,600).

2. Failure to provide an adequate hot water system, which “also warranted” a 7.5% rent reduction of $3,600.

3. The landlord had “vindictively” sought to terminate the tenancy after the tenant complained about the kitchen, which was “contrary to the implied term of the tenancy contract that the parties will act in good faith”.

4. The email stated that the tenant was making a “demand” prior to litigating in NCAT and that the landlord should install a hot water system of 100L; install a “adequate ventilation system” and provide the tenant with a further 12 month lease.

5. The email also stated the landlord was responsible for the tenant’s “cost of moving” which he estimated to be $3,000.

99. Importantly, the email makes clear that the tenant has made a conscious decision not to pay rent, stating that until there was a satisfactory response by the landlord:

I will not be making any further rent payments.

100. On 14 September 2022 the landlord’s agent emailed the tenant stating that the agent had “assigned trades to investigate the HWS and the kitchen ventilation” and requesting the tenant forward any previous correspondence regarding complaints about these issues by the tenant. The email also refers to the fact that there had been a telephone discussion between the tenant and the agent; and that “Please note that rent is payable, non-payment of rent is considered a breach of your tenancy agreement”.

101. In late September 2022, there was email correspondence between the tenant and the landlord’s agent about the tenant applying to rent a neighbouring unit in the building. The tenant emailed the landlord’s agent stating that his neighbour had moved out and he would “like to rent” the neighbouring unit. The tenant stated he was prepared to pay rent arrears and “pay some rent in advance” in respect of the neighbouring unit. The landlord’s agent responded with an email stating that if the tenant wished he could apply to rent the neighbouring unit. It is unclear whether or not the tenant made a formal application to rent the neighbouring unit, but no lease was entered into.

Consideration

Did the Landlord Breach s 52 of the RT Act?

102. A finding that premises are not fit for habitation is not lightly made (Bannister v Chueng [2014] NSWCATCD 105 at [20]; Bhandari v Laming [2015] NSWCATAP 224 at [36]).

103. As discussed previously, the obligation to “provide” premises that are reasonably fit for habitation arises at the commencement of the tenancy and involves assessment of the premises at the commencement of the premises (Bhandari v Laming [2015] NSWCATAP 224 at [36]-[37]).

104. The Tribunal is not satisfied that the tenant has established any breach of s 52 of the RT Act in respect of the premises being wholly or partially uninhabitable.

105. As discussed previously, the correspondence between the parties and the evidence of the tenant at the hearing only refer to two issues in the property, being (a) inadequate hot water system; and (b) inadequate ventilation system that has caused the growth of mould.

106. The hot water system not filling the bath with hot water to the satisfaction of the tenant is not sufficient to establish that the premises were wholly or partially uninhabitable at the commencement of the tenancy. The evidence of the landlord was that the premises had a 50 litre hot water system; which was replaced soon after the tenancy commenced with a 50 litre hot water system.

102. Although delay in the bath filling with hot water; or the level of the water in the bath being lower than what the tenant wanted may have been an inconvenience to the tenant, it is not sufficient to establish uninhabitability in whole or part.

103. The tenant referred in submissions vaguely to being told that residential premises must have a 100L hot water system, and that there were legal authorities to that affect. No such legal authorities were cited; nor any statutory provisions to establish that the residential premises the subject of the lease must have a 100L hot water system.

104. In respect of the ventilation system, the Tribunal accepts that the tenant complained at various points during the life of the tenancy about the lack of a kitchen exhaust fan. However, the contemporaneous emails of the tenant state the tenant only started to experience black mould in April 2022. Prior to that, the only issue in the kitchen area was droplets of condensed water. The ventilation was “adequate” within s 52 (1A) (c) of the RT Act.

105. The fact that mould occurs during the tenancy (particularly if it is for an extended time) may indicate that the premises is wholly or partially unfit for habitation in breach of s 52 of the RT Act by reason of there being inadequate ventilation or some other structural defect in existence at the commencement of the tenancy (Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [118]; Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361 at [146]-[148]). However, the fact that mould did not occur in the premises until approximately 9 months after commencement of the tenancy is evidence that the premises were provided with adequate ventilation at the commencement of the tenancy.

106. The Tribunal does not accept that the failure of the premises to have a kitchen exhaust fan at the commencement of the tenancy constitutes a breach of s 52 of the RT Act.

Did the Landlord Breach ss 63 and 65 of the RT Act?

112. The obligation under s 63 of the RT Act is to keep and maintain residential premises in a reasonable state of repair having regard to the age of the premises; life expectancy of the premises; and rent payable.

113. There is no breach of the obligation under s 63 of the RT Act in respect of the hot water system. The landlord replaced the system with a new system early in the tenancy, and that system functioned to its appropriate capacity after replacement.

114. The next issue is the existence of mould, and whether the failure of the landlord to install an exhaust fan constituted a breach of ss 63 and 65 of the RT Act.

115. The Tribunal accepts that the tenant made a request to the landlord to install a kitchen exhaust fan in September 2021, and followed it up in late 2021. However, the landlord is not in breach of the obligation under s 63 of the RT Act unless the landlord fails to conduct repairs within a reasonable period of time after being aware (or should reasonably have been aware) of the need to repair (s 65 of the RT Act). The tenant did not respond within a reasonable period of time to the landlord’s request for more information in the email of 10 November 2021 about the complaint regarding condensation of water.

116. The tenant had rented the premises without an exhaust fan, and the tenant was requesting the landlord take an additional measure to improve ventilation. The tenant was not requesting repair of an existing fitting or fixture or structure of the premises. The Tribunal is not satisfied that the landlord’s failure to install an exhaust fan constitutes a breach of s 63 of the RT Act, until mould became a problem from April 2022.

117. However, although the tenant stated that mould commenced to grow in April 2022, the tenant made no complaint about this issue to the landlord, or sought repairs, for a period of time.

118. It was only when the period inspection was conducted on 1 June 2022 that the landlord became aware of mould. However, the existence of mould does not, of itself, constitute a breach of ss 63 and 65 of the RT Act.

119. It is when the tenant made a request for an exhaust fan to be installed to assist the ventilation of the premises due to the existence of mould that is critical. That occurred on 7 June 2022.

120. The Tribunal is satisfied that the failure to install a kitchen exhaust fan to assist in ventilation to the premises to assist in the prevention of further mould growing constitutes a failure to keep the premises in a reasonable state of repair. However, the breach only occurs if the landlord failed to perform repairs in a reasonable period of time. The Tribunal is satisfied that 2 week from 7 June 2022 was a reasonable period for the landlord to install an exhaust fan.

121. Accordingly, the Tribunal is satisfied that the landlord was in breach of its obligations under ss 63 and 65 of the RT Act on 21 June 2022 by reason of failing to install an exhaust fan in the kitchen.

122. No other breach of the landlord’s obligation under ss 63 and 65 of the RT Act is established.

Rent Reduction Under s 44 (1) (b) of the RT Act

123. The tenant is not entitled to any rent reduction under s 44 (1) (b) of the RT Act because there was no reduction or withdrawal of services or facilities that were present at the commencement of the tenancy.

Compensation Under s 187 of the RT Act for Breach of Sections 63 and 65 of the RT Act.

124. Even if a tenant is not entitled to a rent reduction under s 44 (1) (b) of the RT Act, the Tribunal can still award compensation under s 187 of the RT Act for breach of the obligation under ss 63 and 65 of the RT Act to keep premises in a reasonable state of repair, by reason of the loss of use and amenity of the premises caused by the breach.

125. In assessing an appropriate amount of compensation, the Tribunal can consider the rent payable for the premises as a consideration in formulating appropriate compensation for loss of use and amenity caused by the breach (see, for example, Tuckwell v Ientile at [78]-[82]; Cowling v Tran; Tran v Cowling [2021] NSWCATCD 128 at [156]-[174]).

126. The rent payable for the premises is $1,825 per month, which equates to $456.25 per week.

127. The Tribunal is satisfied that the existence of mould has caused some loss of amenity of the premises as well as inconvenience to the tenant. However, the tenant’s evidence does not establish significant loss of amenity or inconvenience. Further, the tenant’s evidence did not set out how often he had cleaned, or attempted to clean the mould. The tenant has an obligation under s 51 (2) (a) of the RT Act to keep premises reasonably clean during the duration of the tenancy, and cannot be awarded compensation to the extent that his breach has caused the loss of use and amenity (which is a separate issue to whether the landlord has established any failure to mitigate loss).

128. The Tribunal is satisfied that the appropriate amount for compensation under s 187 of the RT Act is $1,600 calculated on the basis of $50 per week in the period from 21 June 2022 to 30 January 2023 (being 223 days, and equating to 32 weeks).

129. As the breach by the landlord occurred on 21 June 2022 the tenant’s proceedings in Matter RT 22/43591 seeking orders including compensation have been commenced within the relevant time period under ss 187 and 190 of the RT Act; and Regulation 39 of the Residential Tenancies Regulation 2019 (NSW) (‘the RT Regulation’) in circumstances where the breach of the duty to repair is ongoing. In any event, if the tenant’s application was construed as being out of time, the Tribunal would extend time under s 41 of the NCAT Act.

130. No basis is established to reduce the amount of $1,600 for failure to mitigate by the tenant (Karacominiakis v Big Country Developments Pty Ltd [2000] NSWCA 313 at [187].

131. The landlord did not argue at the hearing that the special condition in the lease pertaining to ventilation precluded the tenant from obtaining an order for compensation due to the condition of the premises. In any event, by reason of s 219 of the RT Act, parties cannot contract out of the provisions of the RT Act.

132. The Tribunal has a discretion in addition to awarding damages for loss of amenity to award separately damages for distress and inconvenience (Torpey v Stewart [2021] NSWCATAP 248 at [22]-[31]). However, the Tribunal must be cautious not to overcompensate the tenant for the breach, with the guiding principle for assessing damages for breach of contract to put the party in the position it should have been had the contract been performed; and where loss of use and amenity often overlaps with distress and inconvenience.

133. The Tribunal is not satisfied that any separate general damages for distress and inconvenience should be awarded in the circumstance of this matter. Much of the tenant’s asserted distress and inconvenience arises from his assertions about the conduct of the landlord’s agent and the proceedings in NCAT, rather than the existence of mould in the premises. The evidence is not sufficient to persuade the Tribunal to award general damages in addition to the amount assessed for loss of use and amenity caused by the landlord’s breach of ss 63 and 65 of the RT Act.

The Tenant’s Claim for Repairs

134. The tenant seeks a repair order under s 65 (1) (a) of the RT Act. The Tribunal has found the landlord in breach of its obligation to keep premises in a reasonable state of repair by reason of a failure to install a kitchen exhaust fan. However, the Tribunal’s power under s 65 (1) (a) of the RT Act is discretionary (the Tribunal “may” make an order for repairs, not “must” make an order).

135. However, for reasons that will be expressed later in the decision, the Tribunal is satisfied the tenancy should be terminated for non-payment of rent. In circumstances where the tenancy is terminated immediately and the date of vacant possession is suspended for a short period of time, there is no utility in ordering the landlord to conduct repairs by installing a kitchen exhaust fan.

136. The claim for an order for repairs is dismissed.

Tenant’s Claim That The Tribunal Order Rent Be Paid Into the Tribunal Until Repairs Are Completed (Section 65 (5) of the RT Act)

137. As the Tribunal is not making an order for repairs; and has terminated the tenancy, no basis is established to make the order sought.

Other Orders Sought By the Tenant

138. In the application filed in Matter RT 22/43591 the tenant seeks a plethora of additional orders. The vast majority of those orders overlap with the finding and orders previously dealt with. In respect of the order seeking a termination under s 103 of the RT Act, the tenant stated at the commencement of the hearing he was not seeking such an order. In respect of s 217 of the RT Act, there has been no evidence provided by the tenant to establish that the landlord has, or proposes, that the tenant be listed in a residential data base.

139. For reasons that will be discussed, the tenant’s claim under s 115 of the RT Act fails.

140. Other than the order awarding compensation to the tenant of $1,600 all other claims by the tenant in Matters RT 22/43591 and RT 22/53016 are dismissed.

LANDLORD’S CLAIM FOR TERMINATION OF THE TENANCY AND THE TENANT’S CLAIM REGARDING A RETALIATORY NOTICE

141. The landlord issued 3 Notices to Terminate on the tenant.

142. The first was dated 18 July 2022 and was a ‘no grounds’ Notice of Termination under s 85 of the RT Act. The landlord submitted at the hearing that it did not seek a termination order under s 85 of the RT Act and was not pressing for any termination order under that provision. As discussed previously, the orders sought in Matters RT 22/44479 and RT 22/52977 did not clearly identify that the landlord was seeking a termination order under s 85 of the RT Act.

143. The second was dated 29 September 2022, and was a Notice of Termination for breach of s 87 of the RT Act for non-payment of rent.

144. The third was dated 29 November 2022 and was a Notice of Termination for breach of s 87 of the RT Act for non-payment of rent. The date of vacant possession identified in that notice was 15 December 2022.

145. In Matter RT 22/52977 the landlord clearly seeks orders under ss 87 and 89 (5) of the RT Act for termination of the tenancy for non-payment of rent based on the Notice of Termination dated 29 November 2022.

146. By reason of s 118 of the RT Act, the landlord’s issue the Notice to Terminate dated 29 November 2022 revokes Notice to Terminate dated 29 September 2022 as they are both on the same grounds. Accordingly, it is unnecessary in the context of the landlord’s termination application to further consider the Notice to Terminate dated 29 September 2022.

147. No issue was raised at the hearing that the Notice to Terminate dated 29 November 2022 had not been validly served on the tenant pursuant to the provisions of s 223 of the RT Act.

148. The tenancy ledger tendered by the landlord at the hearing evidenced that the tenant was 76 days in rent arrears when the Notice to Terminate dated 29 November 2022 was served, and the tenant was, as of 30 January 2023, 138 days in rent arrears. The total amount of rent arrears as of 30 January 2023 was $8,280.

149. As discussed previously, the tenant’s evidence and submissions make it abundantly clear that he has made a conscious and deliberate decision to refuse to pay rent.

150. The tenant’s obligation to pay rent under the terms of the residential tenancy agreement and s 33(1) (which states a tenant “must” pay the rent under a residential tenancy agreement on or before the day set out in the agreement) remains an obligation upon the tenant even if the landlord is in breach of the agreement. The withholding of rent because the landlord is in breach of obligation under the lease is not legally justifiable, because the obligation to pay rent is generally independent of the landlord’s obligations under a residential tenancy agreement (Seymour v Wu [2021] NSWCATAP 289 at [44]-[46]; David v Langham [2021] NSWCATAP 360 at [35]-[37]).

151. In the circumstances of this matter, there is no legal justification for the tenant’s refusal to pay rent. The Tribunal is satisfied that the tenancy should be terminated.

152. The Tribunal finds that :

1. There is a written residential tenancy agreement between the parties commencing 11 July 2020

2. The notice to terminate for non-payment of rent dated 29 November 2022 complies with Part 5 of the RT Act (in particular, Sections 82 and 88 of the Act) having viewed the Notice and the tenancy ledger provided to the Tribunal by the landlord; and the Notice has been duly served.

3. The proceedings have been commenced within the limitation period in Regulation 39 (2) of the RT Regulation (NSW) and Section 88(4) of the RT Act.

4. The tenant was more than 14 days in rent arrears at the date the Notice was issued and at the date the Notice was served.

5. The tenant has breached the agreement by failing to pay rent on time and in accordance with the agreement.

6. The breach is sufficiently serious in all the circumstances of the matter to justify termination of the tenancy. The tenant is now over $8.000 in rent arrears and has not paid rent since 10 August 2022.

7. The tenant has not given any adequate explanation for the breach or what will be done to rectify the breach.

8. The tenant has frequently failed to pay rent under s 89 (5) (a) of the RT Act.

Retaliatory Notice

153. The tenant argues that all of the Notices to Terminate issued by the landlord are retaliatory.

154. Section 115 of the RT Act states:

115   Retaliatory evictions

(1)  The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice—

(a)  declare that a termination notice has no effect, or

(b)  refuse to make a termination order,

if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application.

(2)  The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons—

(a)  the tenant had applied or proposed to apply to the Tribunal for an order,

(b)  the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law,

(c)  an order of the Tribunal was in force in relation to the landlord and tenant.

(3)  A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant.

155. The landlord’s ground for termination is not the ‘no grounds’ s 85 of the RT Act Notice dated 18 July 2022.

156. Had the tenant paid rent in accordance with his obligations under the residential tenancy agreement and s 33 of the RT Act, he would have had an arguable case that the Notice issued on 18 July 2022 was retaliatory, in circumstances where on 7 June 2022 he had emailed the landlord’s agent and referred to “going to the Tribunal” regarding if an exhaust fan was not installed and the kitchen ceiling not repaired.

157. However, the landlord does not proceed on that Notice and the grounds upon which termination is sought is non-payment of rent. The Notice to Terminate dated 29 November 2022 is not retaliatory, because the tenant has (in the circumstances of this matter, consciously and deliberately) breach his obligation to pay rent. In those circumstances, the landlord is not partially motivated to issue the Notice because the tenant intends to, or has, commenced Tribunal proceedings.

158. Rather, the motivation of the landlord to issue the Notice to Terminate and seek a termination order is wholly on the basis that the tenant has failed to pay rent, and has failed to do so for a significant period of time.

159. Even if it was satisfied the landlord was partially motivated to issue the Notice to Terminate for non-payment of rent dated 29 November 2022 because the tenant had taken action in the Tribunal to enforce his rights under the residential tenancy agreement, it would not exercise its discretion to declare the Notice to Terminate had no effect; or refuse to make the termination order.

160. The amount of rent arrears is very significant, and the tenant has only achieved limited success in his application against the landlord. The tenant could have continued to pay rent under the residential tenancy agreement whilst pursuing his action against the landlord in the Tribunal for a rent reduction; compensation; and repairs. The tenant could also have opposed any application by the landlord to the Tribunal for a termination order under s 85 of the RT Act on the basis of his argument the ‘no grounds’ Notice was retaliatory.

161. If he had done, so the landlord would not have been able to issue a Notice to Terminate for non-payment of rent.

162. The tenant submitted at the hearing that a Member of the Tribunal had, at one of the interlocutory hearings, told him that if the first Notice to Terminate was retaliatory, any future Notice was retaliatory. No transcript of any hearing before the Tribunal was provided to verify that this had been said, in distinction to the tenant’s subjective belief that it had been said.

163. In any event, the Tribunal does not accept the argument of the tenant that because the ‘no grounds’ Notice to Terminate was arguably retaliatory, subsequent Notices to Terminate on different grounds must be retaliatory. As discussed previously, the landlord was not seeking termination under s 85 of the RT Act but for the tenant’s breach under ss 87 and 89 (5) of the RT Act for failure to pay rent. The Tribunal has considered whether that Notice was retaliatory, and found it was not. The Tribunal has also considered all relevant matters under s 115 of the RT Act in making that finding. No legal authorities were referred to by the tenant to support his submission that because he believed the ‘no grounds’ Notice to Terminate was retaliatory that all subsequent Notices to Terminate on different grounds must be retaliatory.

155. The tenant also submitted that the landlord had “repudiated” the lease due to the condition of the premises, and this justified the tenant refusing to pay rent.

156. Repudiation is a common law method by which a contract is terminated. Repudiation of a contract occurs when a party breaches a fundamental or essential term of the contract; or there was a sufficiently serious breach of a non-essential term of the contract; or a party demonstrates an unwillingness or inability to render substantial performance of the contract and the innocent party elects to accept the repudiation and treat the contract as having ended: Koompahtoo Local Aboriginal Land Council & Anor v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115.

157. However, a contract is not automatically terminated due to repudiatory conduct. The ‘innocent’ (i.e. non repudiating) party must elect to accept the repudiation and terminated the contract. If there is no acceptance of the repudiation, the contract is affirmed and remains on foot.

158. Further, common law contractual principles regarding the termination of a contract are modified by the provisions of s 81 of the RT Act. Section 81 of the RT Act states:

81   Circumstances of termination of residential tenancies

(1) Termination only as set out in Act A residential tenancy agreement terminates only in the circumstances set out in this Act.

(2) Termination by notice and vacant possession A residential tenancy agreement terminates if a landlord or tenant gives a termination notice in accordance with this Act and the tenant gives vacant possession of the residential premises.

(3) Termination by order of Tribunal A residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act.

(4) Other legal reasons for termination A residential tenancy agreement terminates if any of the following occurs—

(a)  a person having superior title (such as a head landlord) to that of the landlord becomes entitled to possession of the residential premises,

(b)  a mortgagee of the residential premises becomes entitled to possession of the premises to the exclusion of the tenant,

(c)  a person who succeeds to the title of the landlord becomes entitled to possession of the residential premises to the exclusion of the tenant,

(d)  the tenant abandons the residential premises,

(e)  the tenant gives up possession of the residential premises with the landlord’s consent, whether or not that consent is subsequently withdrawn,

(f)  the interests of the landlord and tenant become vested in the one person (merger),

(g)  disclaimer occurs (such as when the tenant’s repudiation of the tenancy is accepted by the landlord).

168. The tenant clearly did not terminate the residential tenancy agreement. He could have issued a Notice of Termination on the landlord under s 98 of the RT Act; or sought a termination by the Tribunal under s 103 of the RT Act.

169. The tenant remained in the property and failed to pay rent from the date of his last payment to the landlord on 10 August 2022. The residential tenancy agreement has not ended until the termination order of the Tribunal in Matter RT 22/52977 and the common law principles of repudiation do not assist the tenant. The tenant remains liable to pay rent until the date of termination; and an occupation fee for the period after the date of termination until vacant possession is given.

Suspension of the Date of Possession

170. The Tribunal has the power under the RT Act to suspend the date of possession for a period of time (s 81 (3) of the RT Act).

171. The tenant identified no specific hardship issues, medical issues, financial issues or anything to indicate that it would be appropriate to suspend the date of vacant possession for an extended period of time.

172. The only issue the tenant pointed to was the lack of rental properties available in the current market. The Tribunal has taken this into account, but noting the tenant did not give any explanation as to any personal circumstances that meant he was limited to rental properties in a particular area of Sydney.

173. There is clearly financial hardship to the landlord by reason of the tenant’s significant rent arrears. The landlord’s agent submitted that the landlord sought possession of the property as soon as possible.

174. The Tribunal is satisfied that, exercising its discretion and balancing the interest of the landlord and the tenant in all the circumstances of the matter that it is appropriate to:

1. Make an order terminating the tenancy immediately; and

2. Suspending the date of vacant possession until 20 February 2023.

CONCLUSION

175. Considering the amount awarded for compensation to the tenant is far less than the amount of rent arrears owed, the Tribunal regards it as appropriate to credit or set off the amount of compensation awarded to the tenant to the amount of rent arrears awarded to the landlord, so that there is a single money order rather than separate money orders in favour of the respective parties.

176. Any claim by the landlord for unpaid rent in the period between 30 January 2023 and the date of these orders can be made to the Tribunal by way of a separate application, in circumstances where the Tribunal only has evidence of rent arrears to the date of the hearing on 30 January 2023.

ORDERS

1. The Residential Tenancy Agreement is terminated in accordance with s 87 of the Residential Tenancies Act 2010 (NSW) as the tenant has breached the agreement by failure to pay rent in accordance with the agreement.

2. The Tribunal is satisfied in accordance with s 89 (5) of the Residential Tenancies Act 2010 (NSW) the tenant has frequently failed to pay rent owing for the premises.

3. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination.

4. The order for possession is suspended to 20 February 2023.

5. The tenant shall pay the landlord a daily occupation fee at the rate of $60 per day from the date of termination, namely 10 February 2023, until the date vacant possession is given to the landlord.

6. Within 60 days of the date of possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing.

7. The landlord’s agent is to advise the tenant in writing by the delivery of a letter to the premises by 6.00 pm on 10 February 2023 of the orders made today.

8. The tenant, Colin McKerlie, is to pay the landlord, Sylvia Lesser, the sum of $6,680 immediately in respect of:

1. Rent from 15 September 2022 to 30 January 2023 - $8,280

2. Less $1,600 for compensation to the tenant in Matter RT 22/43591

Net Total: $6,680

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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

Amendments

23 August 2023 - Formatting amendments.

Decision last updated: 23 August 2023