Moroko v Cojay Holdings Pty Ltd

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Moroko v Cojay Holdings Pty Ltd [2022] NSWCATCD 79

Hearing dates:

4 March 2022; final submissions 18 March 2022

Date of orders:

12 May 2022

Decision date:

12 May 2022

Jurisdiction:

Consumer and Commercial Division

Before:

P French, Senior Member

Decision:

(1) Clauses 2.1(d) and (e) of the variation to the residential tenancy agreement dated 23 June 2021 are void and of no effect.

(2) The rent payable for the premises was excessive for the period 6 April 2021 to 1 March 2022 and must not exceed $770.00 during this period.

(3) Cojay Holdings Pty Ltd must pay Daniel Moroko and Joseph Pamment $14,143.00 immediately.

Catchwords:

LEASES AND TENANCIES: Residential Tenancies Act 2010 (NSW) – tenant’s claim that rent was excessive having regard to the reduction or withdrawal, by the landlord of goods, services and facilities provided with the residential premises.

LEASES AND TENANCIES: Residential Tenancies Act 2010 (NSW) - prohibited terms – prohibition on contracting out

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Residential Tenancies Regulation 2019 (NSW)

Cases Cited:

Eliezer v Residential Tribunal and Ors [2001] NSWSC 1092

Roberts v Aboriginal Housing Office [2017] NSWCATAP 9

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Daniel Moroko (First Applicant
Joseph Pamment (Second Applicant)
Cojay Holdings Pty Ltd (Respondent)

Representation:

Daniel Moroko (Self-represented)
Ray White Double Bay (Respondent)

File Number(s):

RT 21/52576

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This is an application by tenants for an order pursuant to s 44(1)(b) of the Residential Tenancies Act 2010 (RT Act) that would declare that the rent payable for the premises was excessive by 50% of the rent payable (which was $1,100.00 per week) in respect of the period 6 April 2021 up to 1 March 2022 due to the reduction or withdrawal, by the landlord, of goods, services and facilities provided with the residential premises. The tenants had originally also sought other orders for repairs and declaring a termination notice retaliatory, but by the time of the hearing they had returned possession, which resulted in these claims falling away. This application was made to the Tribunal on 30 December 2021 (the application).

2. For the reasons set out following, the Tribunal is satisfied that the landlord withdrew from the tenant’s use a large roof deck provided with the residential premises during the whole period of the tenancy, and an additional cabana/pergola area from approximately June 2021. It is also satisfied that the tenants’ use of the premises was reduced by the landlord in other respects to a level far below the standard required to be provided by a landlord under a residential tenancy agreement. The landlord has already compensated the tenant for the loss of the roof deck in respect of a one-month period by providing two weeks rent free from 4 April 2021. The Tribunal has therefore made an excessive rent order reducing rent payable for the premises from 4 May 2021 up to the end of the tenancy. Having regard…