Przibilla v Ting; Ting v Przibilla

[2022] NSWCATCD 42

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Przibilla v Ting; Ting v Przibilla [2022] NSWCATCD 42

Hearing dates:

25 October 2021 and 20 December 2021

Date of orders:

2 March 2022 [amended 10 March 2022]

Decision date:

02 March 2022

Jurisdiction:

Consumer and Commercial Division

Before:

C Campbell, General Member

Decision:

The Notice of Order issued on 2 March 2022 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows:

1. In accordance with s 44(1)(b) of the ResidentialTenancies Act 2010 the Tribunal orders the rent is not to exceed $470 per week for a twelve month period from 26 October 2020 to 25 October 2021.

2. The landlords Alex Ting and Gay Ting are to pay the tenant Caroline Przibilla the sum of $2,600 immediately which represents the rent reduction for the twelve month period.

3. The tenant is to pay the landlords the sum of $5,828.28 immediately for the following:

(a) $8,245.71 for rent arrears of $520 per week owed from 18 July 2021 to 25 October 2021 and occupation fees of $74.28 per day from 26 October 2021 to 05 November 2021;and

(b) $182.57 for water usage arrears owed for the period from 09 May 2021 to 05 November 2021; and

(c) LESS the credit of $2,600 to be paid by the landlords to the tenant for the rent reduction

4. Rental Bond Services is directed to pay the landlords Alex Ting and Gay Ting the whole of the rental bond number P299678-8, and any amount received is to be credited against the money order.

5. The application is otherwise dismissed

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent arrears — Rent abatement — Rent reduction

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Caroline Przibilla (Applicant and Cross Respondent)
Alex Ting and Gay Ting (Respondents and Cross Applicants)

Representation:

Applicant/Cross Respondent (Self-represented)
Respondents/Cross Applicants (Self-represented)

File Number(s):

RT 21/17765, RT 21/42521, RT 21/36253

Publication restriction:

N/A

REASONS FOR DECISION

1. The following matters relating to a residential tenancy were listed together for hearing on the 25.10.21 and 20.12.21:

1. RT 21/36253 – Application by the landlords seeking an order for termination and possession pursuant to s.85 of the Residential Tenancies Act 2010 (RTA)

2. RT 21/42521 – Application by the landlords seeking an order for termination and possession pursuant to s 87 of the RTA on the grounds of rent arrears and water usage and an order for the rental bond pursuant to s 175 of the RTA.

3. RT 21/17765 – Application by the tenant seeking the following orders;

1. Rent abatement pursuant to s 45 of the RTA; and

2. Rent reduction pursuant to s 44(1)(b) of the RTA;

3. Orders for repairs and pest extermination, pursuant to s 65 of the RTA. These orders were not pursued, as the tenant had vacated by the time the part-heard application came back before the Tribunal.

2. Both parties appeared in person. Ms Ting presented the evidence on behalf of both landlords.

3. By way of background the parties entered into a six month residential tenancy agreement on the 15.10.16. At the expiration of the fixed term, the tenant remained at the property on a periodic tenancy. The rent was $520 and was never increased at any time during the currency of the tenancy. A rental bond of $2,080 is currently held with Rental Bond Services.

4. On the 25.10.21 orders for termination and possession were made pursuant to s 85 of the RTA in matter number RT 21/36253 for immediate termination of the tenancy and an order for immediate possession to be given to the landlord. The order for possession was suspended until the 01.11.21. An order was made for the tenant to pay a daily occupation fee of $74.28 from 26.10.21 until the date passion was given to the landlord.

5. The part-heard matters came back before the Tribunal on the 20.12.21. On that day it was agreed the tenant vacated on the 05.11.21. The following was also agreed:

Rent arrears and occupation fees owed from 18.07.21 to 05.11.21:    $8,245.71

Water usage arrears from 09.05.21 05.11.21:           $ 182.57

TOTAL  $8,428.28

6. The landlords seek an order for the tenant to pay the arrears and an order for the bond. The tenant conceded that she had paid no rent since 18.07.21, however denies liability for the amount claimed by the landlords as she seeks an order for rent abatement and rent reduction pursuant to sections 45 and 44(1)(b) respectively, which she claims exceed the rent arrears.

7. Both parties filed numerous bundles of documents in these proceedings. The matters were first listed before me on the 25.10.21. The applicant’s evidence in chief occupied most of the three hour hearing time on that day. She had written submissions which she relied on and she also read a prepared statement onto the record as well as taking the tribunal through her evidence.

APPLICANT’S EVIDENCE

RENT ABATEMENT PURSUANT TO s 45

8. The applicant seeks a rent abatement pursuant to s 45 of the RTA on the grounds the premises were uninhabitable. She raised numerous items in relation to the state of the premises:

1. Roof leaks;

2. Cracked and peeling paint;

3. A non-compliant safety switch;

4. Possums in the roof;

5. Inadequate rear boundary fence;

6. An inability to sub-let the premises

9. The applicant alleges the premises were uninhabitable from the 22.01.19. She said she did not vacate as she was advised not to move out whilst the proceedings were on foot. Although, I note these proceedings have not been on foot since January 2019. The tenant’s application was filed in 2021. The tenant said she failed to pay rent from the 18.07.21 onwards, as she was not working.

10. The applicant has put before the tribunal a detailed chronology. Most of the above issues were raised by the tenant between 2017 and 2019. There was an issue with the roof which she said leaked when it rained, from early in the tenancy.

11. She alleged that as a result of the leaky roof, she was unable to sub-let the back room. She had a sub-tenant Katherine Miller living there from January 2017 until July 2017. There is a statutory declaration from Ms Miller, confirming she was there for the six months. Ms Miller confirms that the roof did leak in her room when it rained. She also states that she observed the tenant patching the leaks with silicone.

12. The applicant conceded that there were attempts by the landlord to have the roof repaired, but in October 2017, the landlord informed the tenant that the only option was to replace the entire roof, and that work could not be done whist anyone was living in the property.

13. The landlord served a notice of rent increase on the tenant after the end of the fixed term. The tenant wrote to the landlord on the 20.10.17 stating that she was “…happy to put up with the roof if the landlords don’t increase the rent…I will simply keep siliconing (sic) the roof from the inside to combat more leaking.”

14. The tenant said that by 02.01.19 she wrote to the agent requesting a rent reduction to compensate her for an inability to rent out the spare room, or alternatively undertake repairs.

15. The tenant complained of problems with the electrical wiring in January 2018 and 2019. These complaints were in addition to the complaints about the possums which she raised in 2019.

16. The tenant said that the hole over the back door got so large, that in August 2019 she saw a possum’s bottom through the hole. That hole was repaired in October 2019, although the applicant says it was not adequately repaired.

17. On the 29.09.19 the tenant sent a letter to Fair Trading setting out her complaints in relation to the leaking roof, electrical wiring and the possums. A copy of that letter is before the Tribunal. She has not included any response from Fair Trading.

18. The tenant claimed the back fence was in a state of disrepair and did not afford her privacy. The back fence is five metres from the tenant’s back door. The adjoining rear owner had in fact erected a fence, but it was wire fence and in the tenant’s opinion was only a temporary fence.

19. Although the tenant alleges the premises were uninhabitable from 22.01.19. She has not served any notice of termination on the landlords.

20. In relation to her evidence in its totality, the applicant submitted the landlords were in breach of their obligation under the Act to undertake repairs.

RENT REDUCTION PURSUANT to s 44(1)(b)

21. The tenant submitted the rent was excessive having regard to the reduction or withdrawal by the landlord of services and facilities provided with the residential premises.

22. The tenant says that she had reduced use of the premises as a result of the leaking roof, she claimed the premises were not watertight and this reduced her ability to use all the premises when it rained. The fact that the roof leaked when it rained meant that she was unable to sub-let the third bedroom.

23. The tenant has put before the Tribunal two quotations for repair of the roof:

1. A & A Dynamic Roofing dated 21.05.21; and

2. Paramount Roof restoration Pty Ltd dated 19.07.21.

Both contractors state that the roof can be repaired without the need for the tenant to vacate the property.

24. The tenant has provided three comparable rentals in the same area as the subject premises. She has also put photographs of the landlords’ premises. I am satisfied there are obvious cracks in the wall and the paint is clearly peeling. There is also obvious mould on the ceiling. She said the comparable which is closest in style and amenity to her premises is the property at 12 Thomas Street, Strathfield, which is advertised for rent for $535. However, the comparable does not appear to have cracked walls and peeling paint and mould on the ceiling. She also said that it does not state that it is likely to leak during rain periods.

25. The tenant seeks a rent reduction on the grounds the premises deteriorated during the tenancy and the landlord failed to keep undertake proper repairs.

26. Apart from the leaking roof, she also claimed a reduced use of the backyard due to the lack of privacy and the intermittent presence of possums in the roof.

27. Although these issues were raised by the tenant a number of years prior to the filing of the application, they prevailed up to the end of the tenancy.

LANDLORDS’ EVIDENCE

28. The landlords submitted that in accordance with s 43(2) of the RTA the rent payable under a residential tenancy agreement abates if the residential premises become partly or wholly uninhabitable, otherwise than as a result of a breach by the landlord.

29. In this case the tenant asserts the landlords are in breach of their obligations under s 52 of the RTA to keep the premises in a in a reasonable state of cleanliness and fit for habitation. The landlords deny any breach, but say that in any event, the claim for rent abatement must fail, as the tenant clearly articulated that she was relying on alleged breaches of the Act by the landlords.

30. In relation to the claim for rent reduction, the landlords say firstly, the tenant paid no rent at all from 18.07.21 until she vacated on the 05.11.21.

31. When the landlords notified the tenant of a proposed rent increase at the end of the fixed term, the tenant made a request the landlord not to increase the rent and in return she would not seek any roof repairs.

32. The premises were initially advertised for $560 but after negotiation it was agreed the rent would be reduced to $520 per week. Furthermore the landlord did not increase the rent throughout the five year tenancy.

33. The landlord said they had undertaken many repairs at the property, all of which had been arranged through the managing agent.

34. The tenant first reported the leak on 17.02.17. The landlord arranged for Inner West Roofing to attend on 07.03.17. Another roofing contractor attended in April 2017. The consensus of opinion was that the roof needed to be replaced.

35. The landlord had made numerous attempts to repair the roof. By October 2017 the landlords informed the tenant that the roof needed to be replaced and she would need to provide vacant possession for that work to be undertaken. It was in response to that information that the parties reached the agreement the tenant would not pay the proposed rent increase, and she would attend to any leaks when they occurred by the application of silicone.

36. The next report of leaking roof was made 02.01.19 and the landlords arranged for Inner West Roofing to attend on the 09.01.19. Another roofing company attended in April 2019 and the landlords were told once again the roof needed to be replaced. Inner West roofing provided a quotation for the replacement of the roof.

37. The landlords say that the next notification of leaking roof was made on 22.01.21, the day after they served a notice of termination for non-payment of rent on the tenant.

38. Apart from the roofers, the landlord has put before the Tribunal fourteen other tax invoices for repairs at the premises, for electrical repairs, plumbing repairs, hot water repair and replacement of the hot water system, locksmith attendances and evidence of the electrical switch board being replace in March 2021, with a certificate of compliance from the electrical contractor, dated 09.03.21.

39. I relation to the applicant’s claim, the landlords submit the tenant has failed to mitigate. She is seeking rent reduction for withdrawal of facilities, in particular as it pertains to the leaking roof, but she has been on notice since 2019 that the landlord’s professional roofer has said the roof needs to be replaced and the work can only safely be done if the premises are unoccupied. The tenant declined to vacate. However, the landlords continued to send roofers to undertake repairs when requested. They also arranged for debris and leaves to be cleaned off the roof. The landlords are aware that they will need to raise the pitch of the flat roof.

40. The landlords have put before the Tribunal a copy of a report from Paul Schneiders from Inner West roofing dated 04.08.21. Mr Schneiders states the rear and right side roof areas need to be removed and will be open to the weather for some time. The original sarking under the tiles needs to be removed as the product which is currently in situ contains asbestos, which may break up upon removal. For these reasons he recommends the property be vacant.

41. The landlords also rely on an undated report from Joey Farhat from Essential Plumbing Solutions. He states the roof has extensive damage and due to the severity of the damage, there may be structural damage that must be assessed. He says there is a risk the roof structure which is holding up the roof tiles and the ceiling, may all be water damaged and the roof structure could collapse. He states that no work could commence until the tenants vacate to ensure their safety and health and wellbeing.

42. In relation to the possums in the roof, the landlords say the property is located in a leafy parkland area and possums are part of the natural fauna of the area. The landlords arranged for a hole to be closed on 03.08.19, after which there was no further notification made by the tenant of possums in the roof. The next time the landlords were made aware of any ongoing complaints of possums was when they were served with these proceedings.

43. The landlords say the tenant has exaggerated the distances between the back fence and the rear of the house. The property sits on a 900 square metre block of land. It shares boundaries with eight neighbouring properties. The fence complained of by the tenant is situated on the left rear neighbour’s backyard and is mostly blocked by a large tree. The landlords rely on Google maps, a search from the LTO and a sewerage diagram. The metal fence is approximately 25 metres from the rear boundary of the landlords’ premises. And the boundary of neighbour’s dwelling on the rear property is a further 15 metres approximately from the boundary fence.

44. The landlords deny there is a privacy issue at the premises.

45. The landlords put before the Tribunal four comparable properties, with rents ranging from $750 to $900 per week. The landlords rely on an opinion from their agent Ms Chen who assesses current rent for a property comparable to the tenant’s property is $750 per week.

46. This assessment was disputed by the tenant who said the properties are not truly comparable and Ms Chen is not an independent expert. The tenant’s property is on the border of North Strathfield. The landlords’ comparable properties are all near the water and this means they are in more desirable locations. Number 29 Salt Street is located one street back from the water and is that is the one being offered for rent for $750 per week. What the landlords’ evidence omits to address is the poor state of repair of the landlords’ premises.

LEGISLATION

47. The tenant seeks an order for rent abatement in accordance with s 45 of the RTA. The Tribunal’s power to determine the amount of rent payable is to be accordance with s 43(2). Both sections are set out below:

45   Remedies for reduction of rent on frustration of residential tenancy agreement

(1)  The Tribunal may, on application by the landlord or tenant, make an order determining the amount of rent payable if the rent is abated under section 43(2).

(2)  …

The residential tenancy agreement may also be terminated in these circumstances (see section 109).

43   Rent reductions

(1)…

(2) Premises unusable The rent payable under a residential tenancy agreement abates if residential premises under a residential tenancy agreement are—

(a)  otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable, or

(b)  …

(c)  …

48. In the alternative the tenant claims a rent reduction in accordance with s.44(1)(b) of the Act, which is also set out below:

44   Tenant’s remedies for excessive rent

(1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders—

(a)  …

(b)  an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount.

(2) …

(3) Applications on withdrawal of goods or services A tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement.

(4) …

(5)  The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive—

(a)  the general market level of rents for comparable premises in the locality or a similar locality,

(b)  the landlord’s outgoings under the residential tenancy agreement or proposed agreement,

(c)  any fittings, appliances or other goods, services or facilities provided with the residential premises,

(d)  the state of repair of the residential premises,

(e)  the accommodation and amenities provided in the residential premises,

(f)  any work done to the residential premises by or on behalf of the tenant,

(g)  when the last increase occurred,

(h)  any other matter it considers relevant (other than the income of the tenant or the tenant’s ability to afford the rent increase or rent).

(6) Effect of excessive rent order An order by the Tribunal specifying a maximum amount of rent—

(a)  has effect for the period (of not more than 12 months) specified by the Tribunal, and

(b)  …

DECISION

49. I accept the landlords’ submissions in relation to the tenant’s claim for rent abatement, pursuant to s 45 of the Act. The tenant’s evidence was that the premises were uninhabitable, but she submitted the uninhabitability arose out of the landlords’ breach of their obligations under the Act.

49. As is clear from the Act an order for rent abatement can only be made in circumstances where the uninhabitability arose otherwise than by breach by the landlord.

50. For these reasons the tenant’s claim for rent abatement pursuant to s 45 of the act is dismissed.

51. The tenant seeks a rent reduction on the basis there was a withdrawal by the landlord of services or facilities provided with the residential premises.

52. The tenant claims a rent reduction on the grounds the property continued to leak as a result of the poor state of the roof. I am satisfied the parties reached an agreement in October 2017, that the landlord would not increase the rent, and the tenant would not seek to have the roof repaired. She agreed to continue to silicone the leaks.

53. Such an agreement does not in my view release the landlord from all obligations to undertake repairs for all time up to the end of the to the end of the tenancy. The landlord has an obligation under the Act to keep the premises in a reasonable state of repair.

54. I accept the landlord did undertake many repairs at the property during the five year tenancy. The one repair which was not undertaken was the effective repair/replacement of the roof.

55. On the one hand the landlords were armed with an expert opinion as early as 2017 that said the roof needed to be replaced. However, the landlords did not serve a notice of termination on the tenant on the grounds the premises were uninhabitable, or partially uninhabitable, in accordance with s 109 of the RTA at that time.  

56. I accept the tenant’s evidence that over the next three years there was a deterioration in the integrity of the roof and the leaks continued when it rained. I accept these leaks did result in a withdrawal of facilities within the property.

57. The tenant said that she suffered economic loss as a result of an inability to rent out the third bedroom to a sub-tenant due to the leaks. There is no evidence of the applicant ever advertising for a sub-tenant after Ms Miller vacated in July 2017. I also note that when the tenant struck the deal with the landlords in October 2017 that she would not require the roof to be repaired if the landlord did not increase the rent, Ms Miller had vacated some three months earlier.

58. I am satisfied the landlord’s failure to repair the roof leaks did represent a withdrawal of services at the premises, as the ingress of water interfered with the tenant’s use of the premises.

59. I find the cracks in the walls, the peeling paint and mould on the ceiling shown in the tenant’s photographs were partly caused by the failure to repair the roof. This was conceded by the respondent. The ingoing report states the paint was old and peeling at the commencement of the tenancy, but I find it was made worse by the water ingress.

60. I am not satisfied there was any withdrawal of services as a result of the rear fence. I accept the landlords’ evidence that the tenant’s estimation of the distance from the rear of the house to the boundary was not supported by the evidence. The distance between the houses was some 40 metres. The fence was only across a relatively small area of the rear boundary and it appears to have vegetation around it which reduced the visibility from the neighbouring property. There was no evidence that this situation changed in any way during the tenancy.

61. In relation to the claim for the presence of possums in the ceiling cavity, I am satisfied the tenant reported the issue was in April 2019 and a possum pest controller attended within a few days. The tenant sent a further request for pest extermination on 30.08.19 and the tradesman attended and closed the hole on the 13.11.19. I accept the landlords evidence that there was no further report of the possums after that date.

62. I accept the landlords have not increased the rent during the five year tenancy. I accept the tenant’s evidence that the landlords’ comparable properties, were not truly comparable to her premises. I accept her submission that as a general proposition any house which is closer the water is likely to attract a higher rent in the Sydney property market. I am satisfied that the properties the landlord said were comparable were not in the same state of repair as the tenant’s property.

63. The comparable properties do not show peeling paint, cracked walls and evidence of leaking roof, or of a need for the roof to be re-modelled and replaced.

64. For all of these reasons I find that as the roof deteriorated there was a withdrawal of facility when it rained. I acknowledge that it did not rain every day and have I have taken that into account in deciding that as a result of the withdrawal of facilities the rent is not to exceed $470 per week for a period of twelve months from 21.12.20 to the 20.12.20.

ORDERS

66. For all of the above reasons I make the following orders:

1. In accordance with s 44(1)(b) of the Residential Tenancies Act 2010 the Tribunal orders rent is not to exceed $470 per week for a twelve month period from 26.10.20 to 25.10.21.

2. The landlords Alex Ting and Gay Ting are to pay the tenant Caroline Przibilla the sum of $2,600 immediately by way of a rent reduction for the twelve month period.

3. The tenant is to pay the landlord the sum of $5,828.28 immediately for the following:

1. $8,245.71 for rent arrears of $520 per week from 18.07.21 to 25.10.21 and occupation fees of $74.28 per day from the 26.10.21 to 05.11.21; and

2. $182.57 for water usage arrears owed for the period from 09.05.21 to the 05.11.21

3. LESS the credit of $2,600 to be paid by landlords to the tenant for the rent reduction.

4. Rental Bond Services is directed to pay the landlord Alex and Gay Ting the whole of the Rental Bond number P299678-8 and any amount received is to be credited against the money order.

5. The application is otherwise dismissed.

**********

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: 17 May 2022