Petty Lirantzis v Justin Hunter and Shannon Hunter; Justin Hunter and Shannon Hunter v Petty Lirantzis

[2023] NSWCATCD 175

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Petty Lirantzis v Justin Hunter and Shannon Hunter; Justin Hunter and Shannon Hunter v Petty Lirantzis [2023] NSWCATCD 175

Hearing dates:

14 February 2023, 24 March 2023 and 3 July 2023

Date of orders:

18 October 2023

Decision date:

18 October 2023

Jurisdiction:

Consumer and Commercial Division

Before:

N Kennedy, General Member

Decision:

1. The application for disqualification for bias is rejected.

2. An adjournment of matter RT 22/36717 and RT 22/ 42569 on 3 July 2023 is refused.

3. The application to dispense with a hearing pursuant to section 50(2) of the NCAT Act is refused.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rental bonds LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Condition reports — Fair wear and tear

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Quiet enjoyment

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord’s duty

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Residential Tenancies Regulation 2019 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Cases Cited:

Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 8

Johnson v Johnson [2000] HCA 48

Charisteas v Charisteas [2021] HCA 29

Ebner v Official Trustee in Bankruptcy [2000] HCA 63

Saeedi v Fisher & Paykel Appliances Pty Ltd [2016] NSWCATAP 235

Watkins v Woolworths Limited [2017] NSWCATAP 125

AHB v NSW Trustee and Guardian [2014] NSWCA 40

O’Neil v T and I Engines Pty Ltd [2015] NSWCATAP 77

Squires v Rogers (1979) 27 ALR 330; 39 FLR 106

Roberts v NSW Aboriginal Housing Office [2917] NSWCATAP 9

Haggerty v Dooley [2021] NSWCATAP 363

Regis Property Co Ltd v Dudley [1959] AC 370

Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd & Anor [2006] NSWCA 224

Pancio v Crompton & Jennings [2015] NSWCATAP 110

Adoncello v Sazdanoff [2006] NSWCTTT 577 Fitzpatrick v Wu (RTT 01/16425).

Texts Cited:

Anforth & Ors Residential Tenancies, Law and Practice, NSW, 7th ed, The Federation Press

Category:

Principal judgment

Parties:

Matter RT 22/36717

Petty Lirantzis (Applicant)
Justin Hunter and Shannon Hunter (Respondents)

Matter RT 22/42569

Justin Hunter and Shannon Hunter (Applicants)
Petty Lirantzis (Respondent)

Representation:

Petty Lirantzis (Self Represented Landlord)

Justin Hunter and Shannon Hunter (Self Represented Tenants)

File Number(s):

RT 22/36717 & RT 22/42569

Publication restriction:

None

REASONS FOR DECISION

Introduction

1. The application in matter RT 22/36717, is an application by Petty Lirantzis (the landlord) for an order for the payment of an amount of money pursuant to section 187(1)(c) Residential Tenancies Act 2010 (RT Act) for end of tenancy charges in excess of the bond.

2. The landlord claimed $26585 in their application of 15 August 2023. This landlord’s claim increased, in the evidence bundle provided by the landlord at the hearing of 5 September 2022, to $41585.79. The landlord’s claim further increased, in the bundle of evidence served to the Tribunal on 17 October 2022, to $98227.79. The landlord did not seek leave to amend the claim. The landlord submitted to the Jurisdictional limit of $15000 at the hearing of 14 February 2023.

3. The application in matter RT 22/42569, is an application by Justin Hunter and Shannon Hunter (the tenants) for the return of the tenants bond pursuant to section 175 of the RT Act, an order that the rent abate due to the premises being wholly or partially uninhabitable pursuant to section 45 of the RT Act and an order for compensation pursuant to section 187(1)(d) for non-economic losses due to the landlord’s failure to maintain the premises.

4. The tenants claim for compensation is for $42364. The tenants submitted to the jurisdictional limit of $15000 at the hearing of 14 February 2023. The tenant’s identified at the hearing of 3 July 2023 that they were only pursuing the compensation and bond claims and all other claims have been withdrawn.

5. The bond and interest of $3400.96 was paid to the landlord in full on 5 September 2022.

Procedural History

6. The landlord’s application in matter RT 22/36717 was made on 15 August 2022.

7. The landlord’s application in matter RT 22/36717 was listed for a Conciliation and Hearing on 5 September 2022. The tenants and the landlord attended that hearing. The parties were unsuccessful in reaching a conciliated agreement.

8. The tenants identified they sought to make a related claim on the bond, rental abatement and compensation. A direction for the lodgement of an application by the tenants was made and the matters were directed to heard together. The parties were put on notice by the member of the issue of the Tribunals jurisdictional limit, evidenced in the notation on the orders of 5 September 2022.

9. The tenant’s application was made on 22 September 2022 in compliance with the order 2 of the orders of 5 September 2022 in matter RT 22/36717.

10. Both matters (RT 22/36717 & RT 22/42569) were set down for a Special Fixture hearing on 15 November 2022, in which both parties attended.

11. The matters were adjourned on 15 November 2022, to allow the landlord to serve their evidence to the tenants and to give the tenants an opportunity to respond to the landlord’s evidence. The matters were set down for a further Special Fixture hearing.

12. The matters were set down for a 90 minute hearing together on 14 February 2023, in which both parties attended. The matters were adjourned part heard as there was insufficient time allocated for the claim and cross claim. The matters were then set down for a full day hearing.

13. The matters were set down together on 24 March 2023, in which both parties attended. The landlord made an application related to bias at this hearing, seeking the recusal of the member. The landlord then identified they were experiencing a medical episode at the hearing and sought an adjournment. The adjournment was consented to by the tenant and the matter was set down for a further full day hearing.

14. The final hearing was set down on 3 July 2023 for both matters to be heard together. The landlord did not attend this hearing. The tenants attended the hearing in person. The landlord made a written application to be heard at the hearing for the matter to be determined on the papers and provided a medical certificate with the written application. The Tribunal also considered whether an adjournment was appropriate.

Evidence and Hearing

15. The landlord served an evidence bundle to the Tribunal at the hearing on 5 September 2023. This bundle was served to the tenant prior to the hearing of 14 February 2023. The landlord served a second bundle of evidence to the Tribunal and the tenant on 17 October 2022. The tenant acknowledged they had been served a copy of the landlord’s evidence bundles. The landlord’s bundle served to the Tribunal on 5 September 2022 was admitted into evidence and marked Exhibit A1 and the bundle served to the Tribunal on 17 October 2022 was admitted into evidence and marked Exhibit A2.

16. The tenants served two evidence bundles to the Tribunal on 6 September 2023. These bundles were served to the landlord. The landlord acknowledged they had been served a copy of the tenants evidence bundles. The tenant bundle page numbered 1 to 58 was admitted into evidence and marked Exhibit R1 and the bundle page numbered 1 to 21 was admitted into evidence and marked Exhibit R2.

17. Both parties attended in person on 14 February 2023 and 24 March 2023. The tenants attended the hearing of 3 July 2023 in person. The landlord did not attend the hearing of 3 July 2023.

18. Each party was given an opportunity to present their case in accordance with the rules of procedural fairness.

Application for recusal of the member

19. The landlord sought to make an application that I recuse myself at the hearing of 24 March 2023 on the basis that I was biased against the landlord. Specifically, the landlord’s alleged:

1. The member is related to the respondent. The landlord sighted finding a facebook page for an individual that had a hyphenated last name of the members last name and the tenants last name; and

2. The stated that the member is indigenous, as is the tenant, and therefore the member is biased against the landlord, who is not indigenous; and

3. The landlord asserted the member had been hostile to the landlord in the previous hearing (14 February 2023) and then the member tampered with the recording, removing the members hostile voice from the recording; and

4. The landlord believed the member misinterpreted the landlord’s photographic evidence; and

5. The landlord received only one notice of order from the hearing of 14 February 2023 with both file numbers listed on the notice. However, the landlord was listed as the respondent on the notice, which the landlord asserted showed the members bias towards the tenant; and

6. Lastly, the landlord asserted that the members appointment was invalid as the landlord did not believe the member was appropriately qualified when appointed.

20. The tenant’s respondent to the landlord’s bias claims as follows:

1. The tenants stated they had never met the member prior to the commencement of the hearing of 14 February 2023 and was not related to the member; and

2. Mr Hunter confirmed he identified proudly as an indigenous man but was unaware of whether the member identified as indigenous and believed the members, and parties, cultural backgrounds were irrelevant; and

3. The tenants believed the member appeared to be fair to both parties; and

4. The tenant does not believe the member has misinterpreted the landlord’s photographic evidence.

5. The tenant stated they were not in a position to make any comment on the members appointment or NCAT procedures.

21. The landlord has asserted that the member has demonstrated both actual bias in items (3), (4) and (5) of the landlord’s claims above and apprehended bias in items (1) and (2) of the landlord’s claims above. It is unclear whether item (6) of the landlord’s claims above whether the landlord’s claim is actual or apprehended bias and on what basis actual or apprehended bias is demonstrated.

Apprehended Bias

22. The Tribunal considered test for apprehended bias in Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 8 at [22] – [24], where the Tribunal stated:

22. The High Court of Australia has given guidance on how to determine whether apprehended bias is established in various decisions. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at [6] the Court said:

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that a tribunal be independent and impartial.

23. The Court went on, at [19] as follows:

Judges have a duty to exercise the judicial functions when the jurisdiction is regularly invoked and they are assigned to cases in accordance with practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose the judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then the objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

24. In R v The Commonwealth Conciliation and Arbitration Commission and Ors; ex parte the Angliss Group (1969) 122 CLR 546 the High Court considered an application for a writ of prohibition against the Commission on the grounds of apprehended bias and a breach of the principles of natural justice. The Court said, at pages 553-554:

[The] requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.

23. The test for apprehended bias is an objective test, being “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Johnson v Johnson [2000] HCA 48 at [11], which was affirmed in Charisteas v Charisteas [2021] HCA 29.

24. The test is applied in a two step process outlined in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [8]: firstly, “it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits”; secondly, there must be an articulated “logical connection” between that matter and the feared departure from the judge deciding the case on its merits.

25. The landlord has claimed that the member is related to the tenant, Mr Hunter. The basis for the claim is a facebook page, which has not been provided to the Tribunal. The member stated in the hearing, in response to the landlord’s claim, that, to the best of the members knowledge, the member is not related in any way to Mr Hunter, nor has the member previously met or had any relationship with the tenants prior to the hearing of 14 February 2023. Further to that, as far as the member is aware, the member is not related to any person with the last name of Hunter.

26. The landlord has also claimed that the member is of indigenous heritage. The landlord then directly asked the member if they were of indigenous heritage. The member stated in the hearing, in response to the landlord’s claim, that, to the best of the members knowledge, the member is not of indigenous heritage and has never claimed that the member is of indigenous heritage. The member also stated that the member was not aware the tenant, Mr Hunter, identified as indigenous until he responded to the landlord’s claims.

27. It does not appear that any fair-minded lay observer would consider that a Tribunal member who has identified never meeting and holding no personal or cultural connection with a party, would not bring an impartial mind to the issues which had to be decided.

28. It is difficult to see how there is a logical connection between the matters upon which the applicant based their allegation of apprehended bias and any fear that the application would not be determined on its merits.

Actual Bias

29. The Tribunal considered actual bias in Saeedi v Fisher & Paykel Appliances Pty Ltd [2016] NSWCATAP 235 at [45]-[46], where the Triibunal stated:

45. Mr Saeedi alleges actual bias. The onus of demonstrating actual bias lies with Mr Saeedi as the party asserting bias and is a heavy onus to discharge (per French J in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106, 107, cited with approval by Gleeson CJ and Gummow J in Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 520). An allegation of actual bias must be distinctly made and clearly proved; cogent evidence is required to support a finding of actual bias; that finding should not be made lightly: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97].

46. In Minister for Immigration and Multicultural Affairs v Jia Legeng, Hayne J wrote at [183]:

"Bias" is used to indicate some preponderating disposition or tendency, a "propensity; predisposition towards; predilection; prejudice". It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is "any thing which turns a man to a particular course, or gives the direction to his measures" [citations omitted].

30. The test for actual bias was addressed in Watkins v Woolworths Limited [2017] NSWCATAP 125 at [40]:

40. In the case of actual bias, a subjective test is involved. As the authors of Judicial Review of Administrative Action and Government Liability (6th ed 2017, Thomson Reuters) state at [9.40]:

“A claim of actual bias requires cogent evidence that the decision-maker was in fact biased. Actual bias will not be made out by suspicions, possibilities or other equivocal evidence. In the absence of an admission of guilt from the decision-maker, or, more likely, a clear and public statement of bias, this requirement is difficult to satisfy.”

31. The landlord has claimed that the member was hostile towards the landlord in the hearing of 14 February 2023. However, the landlord has then submitted that the recording the landlord obtained from the Tribunal did not demonstrate the members hostility towards the landlord. The landlord claimed this was due to the member allegedly accessing and altering the sound recording.

32. Members do not have access to the sound recording equipment or files of the Tribunal. Members may be provided with a copy of a sound recording on request, as can a party request a copy of the recording. The landlord has not provided supporting evidence of the alleged hostility but rather indicated the sound recording does not support the claim.

33. The landlord further asserts that the listing of both file numbers on the one notice of orders on the 14 February 2023, is a demonstration of bias. This is based on the tenants being listed as applicants and the landlord as a respondent.

34. This matter contains a claim and cross claim heard together. Both parties are applicants and respondents. The Tribunal order making system provides members with the ability to make orders in multiple matters at the same time. This process is employed on a regular basis by all members. Utilising this function of the order making system does not demonstrate bias.

35. In so far as any prejudgement of the matters, the landlord has indicated that the landlord believes the member is misinterpreting the landlord’s photographic documentary evidence. The landlord was given the opportunity to present submissions, including taking the member to any supporting evidence, such as photographs. The landlord has not provided any evidence that the member has demonstrated bias in relation to the landlord’s photographs.

36. For the reasons discussed above, there is insufficient evidence to find actual or apprehended bias by the member and the Tribunal refuses the application for recusal.

Should the Tribunal adjourn the matter on 24 March 2023?

37. The landlord suffered a medical episode at the hearing on 24 March 2023. The ambulance was called to attend the landlord and the landlord sought an adjournment, as she was unwell.

38. The tenants consented to the adjournment. The ambulance attended and assessed the landlord and the landlord left the hearing.

39. Authorities in relation to adjournment applications establish that matters should ordinarily proceed to be heard on the dates they are allocated, and adjournments are granted in exceptional circumstances. O’Neil v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22]. The granting of an adjournment is a discretionary question to be determined according to the overall requirements of justice in the specific circumstances to the matter. Squires v Rogers (1979) 27 ALR 330; 39 FLR 106.

37. In determining whether the adjournment should be granted, the Tribunal may take into account the guiding principle to facilitate the just quick and cheap resolution of the real issues in contention. (NCAT Act section 36(1)).

38. In the full circumstances of the matter, including considering the length of time the application has been on foot in relation to the guiding principles of the Tribunal in Section 36(1) of the NCAT Act, the Tribunal finds there was sufficient evidence to support adjournment. The adjournment was granted.

Should the Tribunal adjourn the hearing of 3 July 2023?

42. The landlord did not attend the hearing on 3 July 2023. The landlord contacted the Tribunal on Friday, 30 June 2023, indicating that the landlord was unwell and could not attend the hearing on Monday, 3 July 2023. The landlord provided a medical certificate that stated that the landlord will be unfit to continue her usual occupation from 30 June 2023 to 3 July 2023 inclusive.

43. The landlord stated they did not seek an adjournment but rather sought an order that the matter would be determined on the papers pending submissions.

Application to determine the matter on the papers

44. The landlord has made an application to determine the matter on the papers, pending written submissions.

45. The Tribunal can only make orders dispensing with a hearing if the Tribunal is satisfied pursuant to section 50(2) that:

… the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

46. The landlord submissions on the matter indicted that the landlord was not well enough to attend the hearing, as evidenced by the medical certificate, and the landlord did not want an adjournment.

47. The tenant’s were given the opportunity at the hearing of 3 July 2023 to make any submissions in relation to the application to have the matter heard on the papers.

48. The tenants opposed the application. The tenants stated that they:

1. had each taken a day off work and away from their regular day, making appropriate arrangements to attend the hearing;

2. were ready and prepared to run their case at the hearing before the member in person;

3. the matter had already commenced with two previous part heard hearing dates and would be too complex to further adjourn;

4. would be disadvantaged by the requirement for written submissions, as the landlord is trained in the law and the tenant, Mr Hunter is regularly deployed away from home with the Navy;

5. the matter could not be adequately determined on the papers as the evidence could not be reasonably tested by the parties.

49. Considering the arguments of both parties, the Tribunal refuses the application to determine the matter on the papers, as the Tribunal is not satisfied the issues can be adequately determined in the absence of the parties by considering any submissions or any other documents or materials lodged or provided to the Tribunal.

Should the Tribunal adjourn the hearing of the 3 July 2023?

50. The landlord is not seeking an adjournment, however, the Tribunal will consider if an adjournment is appropriate in the circumstances, given the refusal to hear the matter on the papers and the absence of the landlord at the hearing of 3 July 2023.

51. The tenant has indicated the landlord in unwell and provided a medical certificate that stated that the landlord will be unfit to continue her usual occupation from 30 June 2023 to 3 July 2023 inclusive.

52. The tenants opposed the adjournment, indicating that the matter has been on foot for a substantial period of time and they were in person and ready to proceed.

53. Medical certificates should indicate both the illness and the reason(s) for the applicant’s inability to attend court: AHB v NSW Trustee and Guardian [2014] NSWCA 40.

54. The medical certificate provided by the landlord does not indicate either the illness or the reason for the landlord’s inability to attend the hearing.

55. Authorities in relation to adjournment applications establish that matters should ordinarily proceed to be heard on the dates they are allocated, and adjournments are granted in exceptional circumstances. O’Neil v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22]. The granting of an adjournment is a discretionary question to be determined according to the overall requirements of justice in the specific circumstances to the matter. Squires v Rogers (1979) 27 ALR 330; 39 FLR 106.

56. In determining whether the adjournment should be granted, the Tribunal may take into account the guiding principle to facilitate the just quick and cheap resolution of the real issues in contention. (NCAT Act section 36(1)).

57. In the full circumstances of the matter, including considering the length of time the application has been on foot in relation to the guiding principles of the Tribunal in Section 36(1) of the NCAT Act, the Tribunal finds there is insufficient evidence to support adjournment. The adjournment is refused.

Ex-parte hearing on 3 July 2023

58. There is no appearance by the landlord at the hearing of 3 July 2023. The landlord was served with a notice of the hearing in accordance with the usual practice of the Registry which has not been returned undelivered. The landlord had a reasonable opportunity to attend and has offered no reasonable explanation for failure to attend. The tenant is entitled to have the application determined in default of an appearance by the landlord, and I am satisfied that it is in the interests of justice to do so: Civil and Administrative Tribunal Rules 2014 r 35(2).

Background

59. The dispute arises from a standard form residential tenancy agreement made on 1 November 2013 in respect of a residential premises. The agreement was for 52 weeks commencing on the 1 November 2013, with the fixed term ending on 30 October 2014. The rent payable under the agreement was $1700 per fortnight, with the first payment payable on the 1 November 2013. The rental bond was lodged with the Rental Bond Services in the amount of $3400. The rental bond and interest, in the amount of $3400.96, was paid to the landlord on 5 September 2022.

60. The landlord has included in their documents an ingoing report that was completed by the landlord’s agent at the time, and the tenants, dated 1 November 2013, and photographs accompany the ingoing condition report. The landlord has provided and outgoing condition report dated 8 August 2022, photographs that are undated are supplied with that exit condition report in their evidence bundle. The landlord has supplied statements from the landlord and others, quotes to rectify the damages claimed and correspondence between the parties, including the notice of vacate from the tenant dated 8 March 2022 that indicates the tenant had vacated the premises. The landlord has provided a copy of the residential tenancy agreement.

61. The parties agree that vacant possession occurred on 3 August 2022.

62. The tenant did not attend the exit condition inspection on 8 August 2022.

63. The tenant has provided documents including statements, photographs, invoices and correspondence between the parties and with others in their evidence bundle.

64. The tenant lived in the premises for approximately 9 years.

Contentions of the Parties

65. The landlord contends that the tenant failed to return the property in a reasonably clean condition and as nearly as possible in the same condition as they received the property, fair wear and tear excepted.

66. The landlord has served in their documents two lists of items they are claiming against the bond and additional compensation, for end of tenancy charges. Exhibit A1 lists 18 claims at a total of $41585.79. Exhibit A2 lists 26 claims at a total of $98227.79.

67. The tenant contends that the landlord has breach section 63 of the RT Act by not maintaining the premises in a reasonable state of repair, by not addressing the repairs issues reported of water ingress and mould report by the tenant on 8 March 2023. The tenant’s claim the source of the damage consisted of a leak in the bathroom waterproofing, exacerbated by the extreme weather events. The issues were not rectified by 13 July 2022.

68. The tenant contends these breaches have led to the tenant’s disappointment, distress and frustration. The tenants contend the appropriate amount of compensation is $15000.

69. In the alternative, should there be no breach by the landlord, the tenants contend that the rent should be abated due to the tenants unable to access the garage and the deck for a period of 5 months, as these areas were wholly or partially uninhabitable. The tenant contends the appropriate amount of rental abatement is $1600.

Jurisdiction

70. In order for the Tribunal to exercise its powers contained in the RT Act, the Tribunal must be satisfied there is a residential tenancy agreement between the parties in compliance with section 13 of the Act, pursuant to section 6 of the RT Act.

71. The landlord has provided a copy of a Residential Tenancy Agreement, this agreement is uncontested.

72. An application for a claim against the rental bond for breach of a RT agreement must be made within 6 months after the payment of the rental bond, pursuant to section 175(3) of the RT Act and regulation 39(8) of the RT Regulations. The tenants application was made within 3 months of the payment of the rental bond to the landlord.

73. The RT Act, section 187(4)(a) and regulation 40(b) prescribe the jurisdictional monetary limit of the tribunal for matters other than the bond to be $15,000. The claims before the Tribunal in this matter both exceed the jurisdictional limit, however, both parties have consent to the jurisdictional limit in their respective claims.

74. An application for breach of a RT agreement must be made within 3 months of the applicant becoming aware of the breach, pursuant to section 190(1) of the RT Act and regulation 39(9) of the RT Regulations.

75. The application by the landlord for compensation for end of tenancy charges was made within 3 months of vacant possession and is within time.

76. The issue of a continuous breach in relation to section 63 was addressed by the Appeal Panel in Roberts v NSW Aboriginal Housing Office [2917] NSWCATAP 9 at [91]:

It can be accepted that an obligation to maintain can give rise to an ongoing obligation rather than a single obligation that is breached once and for all. As Dixon J (as he then was) said in Larking v Great Western (Nepean) Gravel Ltd (in Liq) [1940] HCA 37; (1940) 64 CLR 221 at 236:

If a covenantor undertakes that he will do a definite act and omits to do it within the time allowed for that purpose, he has broken his covenant finally and his continued failure to do the act is nothing but a failure to remedy is passed breach and not the commission of any further breach of his covenant. His duty is not considered as persisting and, so to speak, being for ever renewed until he actually does that which he promised. On the other hand, if his covenant is to maintain a state or condition of affairs, as, for instance, maintaining a building in repair, keeping the insurance of a life on foot, or

affording a particular kind of lateral or vertical support to a tenement, then a further breach arises in every successive moment of time during which the state or condition is not as promised, during which, to pursue the examples, the building is out of repair, the life an insured, or the particular support an provided.

77. The tenant’s application was lodged within 3 months of 13 July 2022, when repairs had not been completed.

78. I find the Tribunal has jurisdiction to hear the matters.

Consideration

End of tenancy charges, Bond and landlord’s compensation claim

79. Section 51(3) of the RT Act, which is a term of every residential tenancy agreement (section 51(5) RT Act) states:

(3) On giving vacant possession of the residential premises, the tenant must do the following—

(a) remove all the tenant’s goods from the residential premises,

(b) leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and, if there is a condition report, as set out in the condition report applicable to the premises when the agreement was entered into,

(c) leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy,

(d) remove or arrange for the removal from the residential premises of all rubbish, having regard to the condition of the premises at the commencement of the tenancy,

(e) return to the landlord all keys, and other opening devices or similar devices, provided by the landlord to the tenant.

80. Section 166 of the RT Act states:

166 Matters that may be subject of rental bond claim

(1) A landlord is entitled to claim from the rental bond for the residential tenancy agreement any of the following--

(a) the reasonable cost of repairs to, or the restoration of, the residential premises or goods leased with the premises, as a result of damage (other than fair wear and tear) caused by the tenant, an occupant or an invitee of the tenant,

(b) any rent or other charges owing and payable under the residential tenancy agreement or this Act,

(c) the reasonable cost of cleaning any part of the premises not left reasonably clean by the tenant, having regard to the condition of the premises at the commencement of the tenancy,

(d) the reasonable cost of replacing locks or other security devices altered, removed or added by the tenant without the consent of the landlord,

(e) any other amounts prescribed by the regulations.

(2) This section does not limit the matters for which the landlord may claim from the rental bond for a residential tenancy agreement.

81. The Tribunal must determine if the tenants breached the residential tenancy agreement by breaching their obligations under section 51(3) of the RT Act. This obligation requires the tenants to leave the premises as nearly as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy. If any want of repair is alleged and proved in fact, it lies on the tenant to show that it comes within the exception. Fair wear and tear is the reasonable use of the house by the tenant and the ordinary operation of natural forces: Regis Property Co Ltd vDudley [1959] AC 370 (referred to with approval by the NSW Court of Appeal in Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd & Anor [2006] NSWCA 224).

82. Further, when determining a claim against the tenant’s bond by the landlord, the Tribunal must determine if the claim falls within section 166 of the RT Act. When assessing claims again the tenant’s bond, the issue should not be approached from the standpoint of the fastidious and obsessive landlord: Pancio v Crompton & Jennings [2015] NSWCATAP 110; Adoncello v Sazdanoff [2006] NSWCTTT 577; Fitzpatrick v Wu (RTT 01/16425).

Bond items addressed at the hearing on 24 March 2023

Cleaning

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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

Decision last updated: 09 August 2024