O'Brien v Carlo-Stella - [2022] NSWCATCD 12

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: O’Brien v Carlo-Stella [2022] NSWCATCD 12
Hearing dates: 8 December 2021
Date of orders: 24 January 2022
Decision date: 24 January 2022
Jurisdiction: Consumer and Commercial Division
Before: A Lynch, General Member
Decision:
1. Pursuant to Section 44(1)(b) the rent was excessive from 26 June 2020 to 15 November 2020 and is to be reduced by the sum of $100 per week and during the period from 12 July 2021 to 22 October 2021 in the sum of $250 per week.
2. The landlord is to pay the tenants the sum of $5,614.44 on or before 21 February 2021.

Catchwords:
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Excessive rent — Section 44(1)(b) — Duty of landlord to repair — Rent reduction

Legislation Cited:
Residential Tenancies Act 2010 (NSW)

Cases Cited:
Fuller v NSW Land and Housing Corporation [2013] NSWCTTT648
Bannister v Cheung [2014] NSWCATCD

Texts Cited:
Nil

Category: Principal judgment
Parties: Ricky O’Brien (First Applicant)
Galia Ayala (Second Applicant)
Ernesto Carlo-Stella (Respondent)
Representation: First Applicant (Self-represented)
Second Applicant (Self-represented)
Respondent (Self-represented)

File Number(s): RT 21/42007
Publication restriction: Nil

REASONS FOR DECISION

decision

The proceedings arise out of a residential tenancy agreement between Ricky O’Brien and Galia Ayala (“the tenants”) and Ernesto Carlo-Stella (“the landlord”).
The tenancy commenced on 5 April 2017 for twelve months and the tenancy continued on a periodic agreement until the tenants vacated on 22 October 2021.
The application was lodged on 8 October 2021 for a rent reduction pursuant to Section 44(1)(b) of the Residential Tenancies Act 2010 (NSW) (“the Act”) and an order reducing the rent on the basis the property was uninhabitable pursuant to Section 52. The tenants have applied for a rent reduction of $400 per week for twelve months. The rent was $790 per week. The tenants confirmed they accepted the jurisdictional limit of the Tribunal of $15,000.
The matter was heard in a virtual hearing room on 8 December 2021.
Both tenants appeared at the hearing. Mr O’Brien gave sworn oral evidence on behalf of the tenants. The tenants provided documents dated 27 October and 12 November 2021. The landlord had received those documents. They included the following:-

Chronology

Floor plan showing where the tenants had identified mould in the property

Emails between the landlord and the tenants in September 2017

Photographs including photographs of the linen closet, gutters, personal items with mould growth, mould on walls including the bedrooms

Emails from 18 March 2021 to 22 September 2021

Additional photographs of shower and structural issues

The landlord was represented by Mr Basil Carlo-Stella who has Power of Attorney and Mr Julian Carlo-Stella who gave sworn oral evidence as he primarily managed the property on behalf of the landlord. The landlord provided documents dated 25 November 2021. The tenants confirmed they had received those documents. They included the following:-

Overview of tenancy by landlord

Landlord’s response to the tenants’ evidence

Chronology

Rapid Building Inspections report dated 29 September…

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.

Continue reading O'Brien v Carlo-Stella

Details

AGLC: O'Brien v Carlo-Stella [2022] NSWCATCD 12
Case: [2022] NSWCATCD 12
Decision Date: 24 January 2022

CaseChat Overview and Summary

In the matter of O'Brien v Carlo-Stella, the tenants brought proceedings against their landlord for excessive rent and failure to perform their duty to repair. The dispute was heard by the NSW Civil and Administrative Tribunal (NCAT). The tenants argued that the rent was excessive under Section 44(1)(b) of the Residential Tenancies Act 2010 (NSW) and that the landlord had failed to perform their duty to repair under Section 43 of the Act. They sought a reduction in rent and reimbursement of expenses incurred in carrying out repairs.

The legal issues before the Tribunal were whether the rent charged was excessive and whether the landlord had failed to perform their duty to repair. In determining whether the rent was excessive, the Tribunal considered the market value of the property, the terms of the lease, and any relevant evidence provided by the parties. The Tribunal also considered whether the landlord had failed to perform their duty to repair, taking into account any evidence of the landlord's knowledge of the need for repairs and their response to the tenants' requests for repairs.

The Tribunal found that the rent charged was excessive from 26 June 2020 to 15 November 2020 and from 12 July 2021 to 22 October 2021, and ordered that the landlord reduce the rent by $100 per week and $250 per week respectively during those periods. The Tribunal also found that the landlord had failed to perform their duty to repair and ordered the landlord to pay the tenants $5,614.44 on or before 21 February 2021. The Tribunal made these orders under Section 44(1)(b) and Section 43 of the Act respectively.

Orders

Orders of the court

1. Pursuant to Section 44(1)(b) the rent was excessive from 26 June 2020 to 15 November 2020 and is to be reduced by the sum of $100 per week and during the period from 12 July 2021 to 22 October 2021 in the sum of $250 per week.

2. The landlord is to pay the tenants the sum of $5,614.44 on or before 21 February 2021.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	O’Brien v Carlo-Stella [2022] NSWCATCD 12
Hearing dates:	8 December 2021
Date of orders:	24 January 2022
Decision date:	24 January 2022
Jurisdiction:	Consumer and Commercial Division
Before:	A Lynch, General Member
Decision:	1. Pursuant to Section 44(1)(b) the rent was excessive from 26 June 2020 to 15 November 2020 and is to be reduced by the sum of $100 per week and during the period from 12 July 2021 to 22 October 2021 in the sum of $250 per week. 2. The landlord is to pay the tenants the sum of $5,614.44 on or before 21 February 2021.
Catchwords:	LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Excessive rent — Section 44(1)(b) — Duty of landlord to repair — Rent reduction
Legislation Cited:	Residential Tenancies Act 2010 (NSW)
Cases Cited:	Fuller v NSW Land and Housing Corporation [2013] NSWCTTT648 Bannister v Cheung [2014] NSWCATCD
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Ricky O’Brien (First Applicant) Galia Ayala (Second Applicant) Ernesto Carlo-Stella (Respondent)
Representation:	First Applicant (Self-represented) Second Applicant (Self-represented) Respondent (Self-represented)
File Number(s):	RT 21/42007
Publication restriction:	Nil