Parker v Lowe - [2022] NSWCATCD 183

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Parker v Lowe [2022] NSWCATCD 183
Hearing dates: 28 June 2022 and 20 July 2022
Date of orders: 23 September 2022
Decision date: 23 September 2022
Jurisdiction: Consumer and Commercial Division
Before: P French, Senior Member
Decision:
(1) The rent payable for the residential premises was excessive and shall not exceed $440.00 per week on and from 12 February 2021 to 25 April 2021.
(2) The rent payable for the residential premises was excessive and shall not exceed $384.00 per week on and from 26 April 2021 to 11 February 2022.
(3) Orders (1) and (2) are liquidated.
(4) The landlords, Robyne and David Lowe, are to pay the tenant, Kieran Parker, $7,651.71 immediately, being:
(i) Liquidation of orders (1) and (2): $5,151.71, and
(ii) Compensation for distress and disappointment: $2,500.00.
(5) The landlords must at their own expense cause the following work to be carried out in a proper and trade-person-like manner before 31 October 2022:
(i) Replace the vinyl floor coverings in the rented premises with at least equivalent new floor coverings.
(ii) Replace the bedroom wardrobe with an at least equivalent new wardrobe.
(6) The application is otherwise dismissed.

Catchwords:
LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – rights and obligations of tenants and landlords – whether rent is excessive due the reduction or withdrawal of goods, services, and facilities by the landlord

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW) – s 41
Residential Tenancies Act 2010 (NSW) – ss 44, 63, 65, 187, 190
Residential Tenancies Regulation 2019 (NSW) – r 40

Cases Cited:
Eliezer v Residential Tribunal and Ors [2001] NSWSC 1092
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
Makowska v St George Community Housing Ltd [2021] NSWSC 287
Roberts v Aboriginal Housing Office [2017] NSWCATAP 9

Texts Cited:
Nil

Category: Principal judgment
Parties: Kieran Parker (Applicant)
Robyne Lowe (First respondent)
David Low (Second respondent)
Representation: Kieran Parker (Self-represented)
Inton Chandra, Property Manager (First and Second respondents)

File Number(s): RT 22/14801
Publication restriction: Nil

REASONS FOR DECISION

Introduction

This is an application by Kieran Parker (the tenant) for various orders under the Residential Tenancies Act 2010 (NSW) (the Act; the RT Act) against Robyne and David Lowe (the landlords). The application was made on 4 April 2022 (the application).
For reasons given orally at the start of the first Special Fixture Hearing several of those claims were not maintainable because they had been made years outside the time for the making of such claims, or they exceeded the scope of the Tribunal’s order making power. Additionally, most of the repair orders sought by the tenant had fallen away by the time of the first Special Fixture because the landlords had completed those repairs. A dispute about a rent increase notice had also fallen away because it had been withdrawn by the landlords. The application therefore proceeded to hearing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWCATCD 183
Decision Date: 23 September 2022

CaseChat Overview and Summary

The case of Parker v Lowe involved a dispute between the tenant, Kieran Parker, and the landlords, Robyne and David Lowe, concerning the excessiveness of the rent payable for residential premises in New South Wales. The primary issue was whether the reduction or withdrawal of certain goods, services, and facilities by the landlords constituted a basis for the rent to be considered excessive under the Residential Tenancies Act 2010 (NSW). The tenant argued that the landlords had reduced the quality of the property by removing or failing to provide certain amenities, such as the vinyl floor coverings and a bedroom wardrobe, which in turn made the rent excessive. The landlords contended that the reduction in the provision of these items did not justify a decrease in the rent.

The court was required to determine whether the landlords' actions constituted a reduction in the provision of goods, services, and facilities that justified a decrease in the rent. The court considered the statutory provisions and case law concerning the rights and obligations of tenants and landlords under the Residential Tenancies Act 2010 (NSW). The court examined the evidence presented by both parties and assessed the impact of the landlords' actions on the value of the rental property. The court found that the landlords had indeed reduced the provision of certain goods, services, and facilities, which warranted a decrease in the rent. The court concluded that the rent was excessive and set new weekly rent amounts, effective from different dates, to reflect the reduced value of the property.

In light of the court's findings, the landlords were ordered to pay the tenant compensation for the overpaid rent and for distress and disappointment. The court also mandated the landlords to replace the vinyl floor coverings and the bedroom wardrobe at their own expense. The court further clarified that the orders were liquidated damages, meaning that the amounts were predetermined and not subject to negotiation. The application was dismissed in all other respects. The landlords were required to comply with the court's orders promptly, ensuring that the necessary improvements were made to the premises by the specified deadline.

Orders

Orders of the court

(1) The rent payable for the residential premises was excessive and shall not exceed $440.00 per week on and from 12 February 2021 to 25 April 2021.

(2) The rent payable for the residential premises was excessive and shall not exceed $384.00 per week on and from 26 April 2021 to 11 February 2022.

(3) Orders (1) and (2) are liquidated.

(4) The landlords, Robyne and David Lowe, are to pay the tenant, Kieran Parker, $7,651.71 immediately, being:

(i) Liquidation of orders (1) and (2): $5,151.71, and

(ii) Compensation for distress and disappointment: $2,500.00.

(5) The landlords must at their own expense cause the following work to be carried out in a proper and trade-person-like manner before 31 October 2022:

(i) Replace the vinyl floor coverings in the rented premises with at least equivalent new floor coverings.

(ii) Replace the bedroom wardrobe with an at least equivalent new wardrobe.

(6) The application is otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Parker v Lowe [2022] NSWCATCD 183
Hearing dates:	28 June 2022 and 20 July 2022
Date of orders:	23 September 2022
Decision date:	23 September 2022
Jurisdiction:	Consumer and Commercial Division
Before:	P French, Senior Member
Decision:	(1) The rent payable for the residential premises was excessive and shall not exceed $440.00 per week on and from 12 February 2021 to 25 April 2021. (2) The rent payable for the residential premises was excessive and shall not exceed $384.00 per week on and from 26 April 2021 to 11 February 2022. (3) Orders (1) and (2) are liquidated. (4) The landlords, Robyne and David Lowe, are to pay the tenant, Kieran Parker, $7,651.71 immediately, being: (i) Liquidation of orders (1) and (2): $5,151.71, and (ii) Compensation for distress and disappointment: $2,500.00. (5) The landlords must at their own expense cause the following work to be carried out in a proper and trade-person-like manner before 31 October 2022: (i) Replace the vinyl floor coverings in the rented premises with at least equivalent new floor coverings. (ii) Replace the bedroom wardrobe with an at least equivalent new wardrobe. (6) The application is otherwise dismissed.
Catchwords:	LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – rights and obligations of tenants and landlords – whether rent is excessive due the reduction or withdrawal of goods, services, and facilities by the landlord
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) – s 41 Residential Tenancies Act 2010 (NSW) – ss 44, 63, 65, 187, 190 Residential Tenancies Regulation 2019 (NSW) – r 40
Cases Cited:	Eliezer v Residential Tribunal and Ors [2001] NSWSC 1092 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Makowska v St George Community Housing Ltd [2021] NSWSC 287 Roberts v Aboriginal Housing Office [2017] NSWCATAP 9
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Kieran Parker (Applicant) Robyne Lowe (First respondent) David Low (Second respondent)
Representation:	Kieran Parker (Self-represented) Inton Chandra, Property Manager (First and Second respondents)
File Number(s):	RT 22/14801
Publication restriction:	Nil