Renda v Ling

[2022] NSWCATCD 33

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Renda v Ling [2022] NSWCATCD 33

Hearing dates:

11 March 2022

Date of orders:

18 March 2022

Decision date:

18 March 2022

Jurisdiction:

Consumer and Commercial Division

Before:

P French, Senior Member

Decision:

(1) The applicants’ application for an adjournment of the hearing and an extension of time within which to file further evidence is refused.

(2) The rent payable for the residential premises was excessive and is not to exceed 376.00 per week for the period 6 January 2021 to 14 March 2021.

(3) The rent payable for the residential premises was excessive and is not to exceed $400.00 per week for the period 15 March 2021 to 29 June 2021.

(4) Orders 1 and 2 are liquidated. He Ling must pay Frances Renda, Michela Juva and Mohammad Shami Safi $4,863.44 by 23 March 2021. This amount is to be applied as a credit to the tenants’ rent account.

(5) The application is otherwise dismissed.

Catchwords:

LAND LAW: Residential Tenancies Act 2010; claim for reimbursement of cost of urgent repairs; claim that rent increase is not payable because of failure to comply with s 41; claim that rent is excessive due to withdrawal or reduction of goods, services and facilities due to state of disrepair; claim for compensation for landlord’s interference with quiet enjoyment

PRACTICE & PROCEDURE: application for adjournment and an extension of time in which to file evidence made at final hearing

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Residential Tenancies Act 2010 (NSW)

Residential Tenancies Regulation 2019 (NSW)

Cases Cited:

Mesiha v Murrell [2017] NSWCATAP 1

Texts Cited:

Coronavirus (COVID 19) Temporary Changes to NCAT Operations procedure (18 March 2020 and as subsequently updated)

Category:

Principal judgment

Parties:

Frances Renda, Michela Juv & Mohammad Shammi Shafi (Applicants)
He Ling (Respondent)

Representation:

Applicants (Self-represented)
STG Property (Property Manager) (Respondent)

File Number(s):

RT 21/46970

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This dispute arises from a residential tenancy agreement (the agreement) made between the parties on 21 December 2020. The agreement was a fixed term agreement of 12 months duration which was expressed to commence on 21 December 2020 and end on 19 December 2021. The agreement is terminated with effect from 25 March 2022 on the basis of a consent order made on 1 February 2022 in related proceedings.

2. This application was made to Tribunal on 11 November 2021. It first came before the Tribunal, differently constituted, for Conciliation and Hearing on 7 December 2021. Conciliation of the application was unsuccessful. That resulted in the application being adjourned to a Special Fixture hearing.

3. The application was subsequently listed for a Special Fixture hearing with a related application filed by the landlord on 1 February 2022. The related application was determined at that fixture but the present application was not. It was further adjourned not reached. However, at that listing, the application was amended, apparently on the Tribunal’s own motion after notice to the parties, so as to state that the tenants sought the following orders:

1. An order pursuant to s 44(1)(b) of the Residential Tenancies Act 2010 (RT Act) that rent be reduced from 6 January 2021 for a period of 24 weeks at 20% of the rent payable;

2. An order pursuant to s 50, 187(1)(d) and 190 of the RT Act that would require the landlord to pay the tenants $1,000.00 in compensation for damage and loss they contend they suffered as a result of an interference by the landlord with their quiet enjoyment of the premises;

3. An order pursuant to s 65(4) of the RT Act that would require the landlord to reimburse the tenants $1,349.00 which they contend they paid for urgent repairs;

4. An order pursuant to ss 41, 42 and 187(1)(h) of the RT Act that would, in effect, invalidate a rent increase that purportedly took effect from 15 March 2021.

Evidence before the Tribunal

4. Prior to the first listing of the application, on 6 December 2021, the tenants filed and served bundle of documents in support of their application in response to a direction given by the Registrar. This was marked Exhibit A1. At the first Special Fixture Hearing of the application on 1 February 2022 the tenants were granted leave to file an additional bundle of documents they had attempted to file electronically just prior to that listing. However they have not done so.

5. Also prior to the first listing of the application, on 2 December 2021, the landlord filed and served a bundle of documents in response to the application. This was marked Exhibit R1. At the first Special Fixture hearing on 1 February 2022 the landlord was granted leave to file any additional evidence in response to the tenants’ application by 18 February 2022, and did so. This bundle was marked Exhibit R2.

6. The final hearing was conducted in a Virtual Meeting Room (VMR) in accordance with NCATs COVID-19 Revised Hearing Procedure. Ms Frances Renda attended the hearing on behalf of the tenants and gave oral evidence under affirmation. Ms Monique Wijesekera, who is a Property Manager in the employ of the landlord’s agent, attended the hearing on behalf of the landlord. She also gave oral evidence under affirmation. The parties had the opportunity to present their respective cases, to ask each other questions, and to make final submissions to the Tribunal.

Application for adjournment and extension of time in which to file evidence

7. At the start of the hearing, Ms Renda, on behalf of the tenants, sought an adjournment of the hearing and an extension of time in which to file evidence. That application was opposed by Ms Wijesekera.

8. Ms Renda submitted that the adjournment and extension of time should be granted because she had been inhibited from filing all of the tenants’ evidence by the adverse weather event affecting Sydney over the previous week. She also claimed that further relevant evidence had become available that it was important for the Tribunal to consider.

9. The procedural directions given by the Tribunal on 1 February 2022 required the tenants to file and serve any additional evidence by 4 February 2022 (the Tribunal having apparently been told that an attempt had been made to file it electronically just prior to the hearing). There was no adverse weather event affecting the tenants’ ability to file evidence on or before 4 February 2022.

10. The tenants had not sought an extension of time in which to file evidence, or an adjournment of the hearing, before the Special Fixture Hearing. Ms Renda was not able to provide any satisfactory explanation for why this was the case. The landlord was present at the hearing by his Managing Agent and in person and was ready to proceed. His costs of representation would be thrown away if the hearing did not proceed.

11. The Tribunal has an obligation to take such measures as are reasonably practicable to ensure that parties to proceedings have a reasonable opportunity to be heard and to have their submissions considered: s 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). However, in all aspects of its practice and procedure the Tribunal must apply its guiding principle, which is the just, quick and cheap resolution of the real issues in dispute: s 36(1) of the NCAT Act. Among other things, this requires it to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings: s 36(5) of the NCAT Act.

12. In this case I was satisfied that the tenants had been given a reasonable opportunity to file and serve the documentary evidence that they intended to rely on at the final hearing by the procedural directions given before the first listing of the application, and on 1 February 2022. Ms Renda was not able to provide any satisfactory explanation for the tenants’ failure to comply with the procedural direction given on 1 February 2022. A party’s right to place evidence before the Tribunal is not unlimited: Mesiha v Murrell [2017] NSWCATAP 1 at [45].

13. Additionally, these are, with respect, unremarkable residential tenancy proceedings of relatively narrow compass which ought to be finalised promptly consistent with the Tribunal’s guiding principle.

14. For these reasons I determined to refuse the tenants’ application for an adjournment of the hearing and an extension of time in which to file further evidence.

Excessive rent claim

15. As noted above, the tenants claim rent was excessive by 20% of the rent payable from 6 January 2021 for a period of 24 weeks, which ends on or about the end of June 2021. The 6 January start date is premised on the date the tenants contend that they returned the Start-of-Tenancy Condition Report to the landlord’s agent. The landlord’s evidence establishes that it was actually emailed on 10 January 2021. The end date for the rent reduction period appears to relate to the date on or about when the sewer pipes were cleared by a plumber and a new hot water service was installed, which was 29 June 2021.

16. In the documents the tenants have filed there are complaints about the condition of the premises after 30 June 2021. Additionally, in her oral presentation to the Tribunal, Ms Prenda agitated various complaints about the condition of the premises up to the present claiming that rent was and is excessive having regard to those matters. Ms Wijeskera objected to this course of argument on the basis that the amended claim sought a rent reduction for 24 weeks from 6 January 2021, which is the claim the landlord had responded to.

17. That objection must be accepted. The tenants had not sought leave to further amend their claim prior to the hearing to pursue a rent reduction in relation to any further period. It would not have been procedurally fair for them to be permitted to do so at the hearing. The landlord was entitled to know the case he had to meet prior to the hearing. I therefore have only considered the excessive rent claim as it was set down for hearing in the orders made by the Tribunal on 1 February 2021.

18. In order to succeed in this element of their claim is necessary for the tenants to prove that rent was excessive due to the reduction or withdrawal by the landlord of a good, service or facility provided with the residential premises. A good, service or facility may be reduced or withdrawn because it is in a state of disrepair, but a general state of dilapidation of premises which is the condition in which the premises was leased cannot constitute such a reduction or withdrawal (nothing is diminished or taken away if it stays the same).

19. In the document the tenants submitted to the landlords agent on 10 January 2021 they complain about the absence of an NBN connection, staining to concrete and stairs, paint blemishes and wall dilapidation, uncleanliness, the paint staining on the laundry floor, wear to polished floors, stains on the carpet, fixtures, and the size of the red waste bin among other things of this nature. The existence of these things cannot amount to a reduction or withdrawal of these items because this is the condition in which the premises was provided. The residential premises is a property of some age and dilapidation.

20. There are however other items listed which are capable of constituting a reduction or withdrawal of a service or facility, namely:

1. The stove and oven were not working;

2. The electricity supply to some power outlets is disconnected;

3. A leaking laundry sink and waste pipe;

4. Bedroom 1 and 2 windows cannot be opened

5. Bedroom 2 and bathroom window locks are broken;

6. Bedroom 1 air-conditioning not working;

7. Bathroom fan not working; and

8. Shower head not releasing hot water.

That is because these services and facilities were incorporated into the residential premises on the objective basis that they were functioning properly. If they were not functioning properly it diminished the value of the tenants’ possession of the premises relative to the rent they paid.

21. In the covering email to the document the tenants submitted on 10 January 2021 Ms Renda states the following:

…

Please note that we need your office to send out an expert electrician to reconnect the MAIN SWITCH in the electrical box, as the Stove and the Oven have not been working all this time. However, you need to give us prior notice before sending them out.

We had notified Michael from your office soon after we had moved in about this problem and had left a message on his mobile, but to date we have not heard back from him.

22. The landlord’s agent was closed until 8 January 2021 which meant that the tenants’ condition report document was not read until 11 January 2021. On 13 January 2021 the landlord’s agent contacted the tenants to obtain their approval for the landlord to attend the premises to carry out repairs on 14 January 2021. Ms Renda replied to this email later that day, stating, relevantly:

…

Repairs

Please advise the owner that there is No need for him to call out tomorrow at 9:00am to address those issues of repairs that we previously raised in ‘Our response to your Condition Report;’ because we have already attended to them ourselves soon after we moved into the premises.

The Main Switch Box

Please note that the ‘Main Switch Box’ that has the ‘Red Sticker’ on it and a Plastic Card with Warnings from Ausgrid and Police Case No. 523971 which states that only a qualified electrician is permitted to reconnect it; that this is a separate box from that of the Metre Box which our server has taken the Meter Number from to reconnect us to electricity, and as evidenced by us having light in the house and power points that are working.

However, it is the Oven and Stove that are still Not working and we are therefore still having to continue using our own portable hotplate to get by until this problem gets solved.

Therefore, please advise the owner that both Ausgrid and our server have advised that this is Not their responsibility to solve, but that of the owner to send out an electrician to do so.

23. I note that the tenants provided the landlord’s agent with photographic evidence of the documents they refer to in relation to the switch box on 10 January 2021 and with this email on 13 January 2021. Later on 13 January 2021 the landlord’s agent responded to the switch box issue in an email which advised the tenants that they simply needed to arrange to open an account with an electricity provider which would result in the reconnection of the service and also to ‘turn on’ the electricity supply from the meter.

24. It appears that the landlord attended the premises on or about 19 January 2021 and replaced the cooktop. It appears that he also attempted to reconnect the disconnected electricity service. A plumber attended the premises on or about the same date to repair the leaking laundry sink and waste pipe. The tenants contend that the replacement cooktop was defective and could not be used. They contend that the landlord’s attempt to reconnect the electricity service was only partially successful, and that as a result their refrigerator continued to defrost, and their portable fans did not work efficiently. They contend that the repair to the laundry sink and waste pipe also failed.

25. On the state of the evidence it is difficult to know precisely what the extent of loss of function of the electricity service was or why this was. The tenants contend alternatively that part of the electricity supply to the premises was disconnected or diminished by the previous tenant’s electricity retailer because they had failed to pay their bills. In her evidence Ms Wijesekera stated that the electricity supply was never disconnected, although she appeared to accept that it was diminished for some period. It is also not clear in the evidence when this issue was resolved. However, there does not appear to be any complaint by the tenants after they contacted the previous tenant’s retailer on or about 25 January 2021.

26. On 8 February 2021 the tenants emailed the landlord’s agent to complain about “unsuccessful repairs” that had been carried out by the landlord and the plumber. In that email the tenants made further complaints about disrepair as follows:

1. Oven not working and cooktop only partly working

2. Kitchen sink, outdoor drain, and toilet blocked

3. Shower not running hot water

Complaints were also made about ants and a structural wall crack, but these are not relevant to the excessive rent claim for the reasons stated above.

27. On 10 February 2021 the tenants reiterated these complaints again by email to the landlord’s agent. In apparent response to this email the landlord’s agent notified the tenant that the landlord was experiencing financial difficulties and wanted to move into the premises himself and that he was prepared to release the tenants from the fixed term agreement without penalty. The tenants declined this offer/request.

28. On 25 February 2021 the landlord’s agent notified the tenants that the landlord would attend the premises the following day to carry out repairs. However, when he arrived, the tenants refused to allow him access on the basis that insufficient notice had been provided. The tenants later offered to provide the landlord with access on 6 March 2021, however, he was unable to attend on that day. No further attempts were made by either the landlord or the tenants to reschedule the landlord’s attendance at the premises.

29. On 16 April 2021 the landlord’s agent contacted the tenants by email to reiterate the landlord’s offer/request for them to vacate the premises without penalty, and to convey a further offer by the landlord to assist with their costs of removal. The tenants did not respond to these offers.

30. On 12 May 2021 the tenants emailed the landlord’s agent to notify it that a hot water pipe was leaking in the roof cavity and water was dripping from the hallway ceiling, requesting an urgent repair. On 14 May 2021 the tenants contacted the agent again by email to reiterate the request for repairs dated 8 February 2021. In that email, the tenants refer, relevantly, to two blocked outdoor drains, the shower head having no hot water, and the kitchen sink being blocked. They also state the following:

…

Note:

Hotplate and Oven

Due to us needing the use of the Hotplate and Cooktop to be able to cook with, and needing them to be urgently repaired for us; that we had to get an expert electrician out to repair them at our own cost; due to the owner having failed to return and arrange for an expert electrician to address them on his behalf.

31. On or about 18 May 2021 the landlord attended the premises to carry out an inspection of the leaking hot water service and other issues. The tenants contend that he told them the repairs would take six weeks to complete and that they would have to move out to enable this to occur. The tenants refused to do so.

32. On 7 June 2021 the tenants contacted the emergency plumber listed on the residential tenancy agreement to request the repair of the hot water service and the clearance of blocked drains. However, the plumber declined to attend the premises without a work order and it appears that the landlord’s agent refused to issue one. On 8 June the landlord’s agent contacted the tenant to complain that they had contacted the emergency plumber and to advise that the landlord wanted to attend the premises to attend to these repairs. On 10 June 2021 the tenants responded to this email requesting that the repairs be carried out by a tradesperson. On 17 June 2021 the landlord’s agent attempted to arrange with the tenants for a plumber to attend the premises the following day. The tenants did not respond to these messages until 25 June 2021, advising that they would provide access to the plumber on 29 June 2021.

31. The plumber replaced the hot water system and cleared the blocked drains on 29 June 2021. It appears that the replacement of the hot water system instated a hot water service to the shower head, which had not functioned prior to that due to insufficient pressure.

32. Based on the narrative set out above I make the following findings:

1. The cook top and oven were withdrawn from the tenants use by the landlord between 21 December 2020 and 12 May 2021 due to his failure to carry out any or an effective repair;

2. The electricity supply to the tenants was reduced by the landlord between 21 December 2020 and 25 January 2021. That is because the landlord had an obligation to ensure that the tenants could arrange for unobstructed access to electricity via a retail provider via the connection of the premises to the grid. Although the reasons the tenants could not do so are not entirely clear, it is clear that they could not.

3. The hot water service to the shower head was withdrawn from the tenant’s use by the landlord between 21 December 2020 and 29 June 2021 due to the inadequacy of the hot water system (insufficient pressure);

4. The bathroom exhaust fan and the air-conditioner in bedroom 1 were both withdrawn from the tenant’s use by the landlord between 21 December 2020 and 30 June 2021 due to their state of disrepair;

5. The tenant’s use of the windows of bedrooms 1 and 2 and the bathroom was reduced between 21 December 2020 and 30 June 2021 as they could not be opened and/or had broken locks;

6. The hot water service to the premises was reduced by the landlord between 12 May 2021 and 29 June 2021 due to his failure to repair pipe leaks. There was an associated reduction in the amenity of the interior of the premises due to water leaking from the hot water pipes through the ceilings;

7. The tenants use of the sewerage system was not withdrawn or reduced by the landlord as the evidence establishes that the blockages were caused by the tenants’ misuse of this system (as to which see following).

35. In connection with these findings I am satisfied that there was no conduct by the tenants that contributed in any significant way to a delay in repairs being performed. In the email of 13 January 2021 the tenants advise that they have attended to the repairs required other than in relation to the oven, cook top and electricity. However, it is clear for reasons not precisely in evidence that the landlord continued to be on notice as to the need for repairs from that date. Otherwise he would not have attended the premises with a plumber on about 19 January 2021. In any event, the tenants reinstated their requests for various repairs from 8 February 2021. In June 2021 the tenants did not respond promptly to a request for access for the landlord to inspect the hot water system. However, that lack of response was in part driven by the landlord’s apparent insistence on carrying out repairs himself, when clearly a licensed tradesperson was required. The tenants’ insistence on that was not unreasonable.

36. I am satisfied that the reduction and withdrawal of the services and facilities set out above both individually and considered together had a serious negative impact on the tenants’ peace, comfort and amenity. Although there was some variation in the availability of some of these services and facilities over the period for which the excessive rent order is sought I am satisfied that at all material times the value of possession the tenants lost relative to the rent they paid was at least equivalent to 20% of the rent that was payable (which is the order sought). In this respect I am satisfied that the rent payable by the tenants under the residential premises was a market rent (the landlord did not contend otherwise) and that the loss of value the tenants suffered was a factor of that rent rather than of any under market value amount. The tenants have thus established the grounds for the excessive rent order sought between 6 January 2021 and 30 June 2021.

37. There are two rent rates payable during the period of the excessive rent order: $470.00 per week between 6 January 2021 and 14 March 2021, and $500.00 per week between 15 March 2021 and 29 June 2021 (as to which see following). Rent will therefore be reduced to $376.00 and $400.00 per week for these periods respectively. As at the date of the hearing the tenants are reported by the landlord’s agent to be in arrears of rent. I will therefore liquidate the excessive rent orders and require the amount not payable by the tenants to be applied as a rent credit. If that results in rent being overpaid, the tenants may request repayment by the landlord of any overpaid amount in accordance with s 47 of the RT Act.

Alleged breach of quiet enjoyment

38. The tenants claim to have suffered both economic and non-economic loss as a result of the landlord’s interference with their quiet enjoyment of the premises.

39. The economic loss claims are constituted by removalist costs of $150.00 per hour in an unspecified total amount, and an end-of-tenancy “complete bond clean” and “steam cleaning 3 bedrooms” of $550.00, both of which are supported by contractor quotations. These claims appear to arise from a termination notice issued to the tenants on 3 September 2021 which required them to return possession on 19 December 2021, and an application to the Tribunal by the landlord for a termination order based on that Notice made on 20 December 2021 when they failed to do so. The form of Notice was a 90 day no grounds notice. I note that at the time the Notice was given the agreement that subsisted between the parties was a fixed term agreement with a term ending on 19 December 2021. Despite any defect in the Notice, as set out above, termination of the tenancy was settled between the parties on the basis of a consent order made by the Tribunal on 1 February 2022.

40. In these circumstances it is difficult to grasp the basis upon which the tenants contend there has been a breach of their quiet enjoyment by the landlord that would entitle them to costs of removal from the premises. The residential tenancy agreement has been terminated according to law. The tenants might have resisted the termination application on the basis of the defective Notice but they did not. They consented to a termination order. The tenants signed a 12 month fixed term agreement without any option for a further period. They could not reasonably have had certainty of any further period of tenancy beyond the fixed term. They could not therefore suffer any loss of tenancy constituting a breach of the quiet enjoyment by the landlord that would entitle them to compensation for the costs of their removal from the premises. For these reasons, these elements of the compensation claim must be dismissed.

41. The tenants’ non-economic loss claims relate to alleged interference with their quiet enjoyment arising from sewer blockages, disruption to the hot water service, and defective electrical work.

42. The claim insofar as it concerns the blocked sewer has been brought outside the time period permitted by section 190(1) of the RT Act and Regulation 39(9) of the Residential Tenancies Regulation 2019, which is within 3 months of an applicant becoming aware of the breach alleged. In this respect it is not in issue that the repairs to the sewer were completed on 29 June 2021. On 2 July 2021 the landlord made a demand for payment of his plumbers invoice by the tenants. Any claim alleging breach of quiet enjoyment in relation to these matters had to be made by on or about 2 October 2021. This application was in fact filed on 11 November 2021. That represents a substantial delay of 39 days. While the Tribunal has discretion pursuant to s 41 of the NCAT Act to extend the time in which an application can be made I decline to exercise that discretion in this case because of the length of the delay and because the claim lacks merit.

43. In this latter respect the landlord has submitted into evidence a signed statement by his plumber dated 29 June 2021 in which the plumber attributes the cause of the sewer blockage to be the depositing of sanitary pads into the sewer by the tenants. Whilst that is disputed by the tenants it is supported by the photographic evidence the landlord has also submitted. If the tenants comfort was disrupted by the sewer blockages the cause of that disruption was therefore their own conduct, not that of the landlord.

44. The hot water service was also repaired on 29 June 2021. Any claim alleging breach of quiet enjoyment in relation to the disruption to that service had to be made by 29 September 2021. There was therefore a delay of 42 days in making this claim. I decline to extend the time in which this application may be made because it has in substance the same factual substrate as the tenants’ excessive rent claim which does not require any extension of time. While these alternative causes of action are available to the tenants, they cannot be compensated for the same wrong twice. There is therefore no utility in extending time.

45. The claim insofar as it relates to defective electrical work concerns a defects notice issued to Mr Shafi by the tenants’ electricity supplier Augrid on 20 July 2021. It does not appear to be in issue that the work that was the subject of the defects notice had been carried out by the landlord or his contractor when they attempted to repair the hot water service. The notice required the defects to be remedied within 21 days or there would be a risk of disconnection of the electricity service. The tenants forwarded the defects notice to the landlord’s agent on 28 July 2021 demanding that the necessary rectification work be carried out. This rectification work was completed by electricians engaged by or on behalf of the landlord on 13 August 2021. While the work was carried out the electricity supply to the premises may have been disconnected for some short period of time (the evidence is not clear on this point).

46. In this case the claim has been made within three months of the alleged breach occurring. However, in order to establish a breach of the type contended for by the tenants it is necessary that they show that the interference with their quiet enjoyment was substantial rather than a mere inconvenience. This is a difficulty for the tenants. There was no extended period of disruption to their electricity service arising from the defects notice, if there was any disruption at all. Nowhere in their evidence and submissions do the tenants contend that this impacted on their use of the premises during the period in question. It may be accepted that the receipt of such a notice was disconcerting, and it did require the tenants to alert the landlord’s agent to the notice. But in my view this does not rise above relatively minor inconvenience. It is not capable of constituting a breach of quiet enjoyment.

47. The tenants also make a number of wild allegations about the landlord which amount to claims that he interfered with their quiet enjoyment. In this respect they allege that:

1. sometime in June 2021 the landlord gained access to the roof cavity while the tenants were asleep and vandalised the hot water system;

2. on the evening of 7 October 2021 the landlord attended the property in the late evening and removed soiled sanitary products from their garbage bin and strew these over their driveway and council footpath;

3. on 8 October 2021 the landlord vandalised a concrete parking area on the premises with the intention of causing the tenants injury;

4. on 8 October 2021 the landlord somehow caused a colony of ants to infest an area of the driveway; and

5. on some unspecified date the landlord gained access to the premises and flushed sanitary pads into the sewer with the intention of causing a blockage and blaming the tenants for this blockage.

48. There is no satisfactory evidence to support any of these allegations and they ought not to have been made.

49. For the foregoing reasons these element of the claim is dismissed.

Urgent repair reimbursement claim

50. The tenants claim a total of $1,349.00 from the landlord in reimbursement of urgent repairs they contend that they have carried out at the premises. These “repairs’’ are itemised as follows:

1. “locksmith” which is evidenced by two invoices for $375.00 and $175.00 which are dated 29 December 2020 and 2 June 2021 respectively;

2. “Electrolux” which is evidenced by a manufacturer repair invoice dated 7 June 2021 for a motor fan repair.

3. An electrical repair of unspecified date for which $300.00 in cash was paid.

It will be noted that the amounts claimed actually add to $1096.30

51. The applicable law in relation to this element of the claim is found in ss 62 and 65(4) of the RT Act. Section 62 includes a definition of “urgent repairs” which is set out following:

"urgent repairs" means any work needed to repair any one or more of the following--

(a)    a burst water service,

(b)    an appliance, fitting or fixture that uses water or is used to supply water that is broken or not functioning properly, so that a substantial amount of water is being wasted,

(c)    a blocked or broken lavatory system,

(d)    a serious roof leak,

(e)    a gas leak,

(f)    a dangerous electrical fault,

(g)    flooding or serious flood damage,

(h)    serious storm or fire damage,

(i)    a failure or breakdown of the gas, electricity or water supply to the residential premises,

(j)    a failure or breakdown of any essential service on the residential premises for hot water, cooking, heating, cooling or laundering,

(k)    any fault or damage that causes the residential premises to be unsafe or insecure,

(l)    any other damage prescribed by the regulations,

but does not include work needed to repair premises that are owned by a person other than the landlord or a person having superior title (such as a head landlord) to the landlord.

52. Section 64 of the RT Act imposes an obligation on a landlord to reimburse a tenant for any reasonable costs the tenant has incurred in relation to urgent repairs. It provides:

64 URGENT REPAIRS TO RESIDENTIAL PREMISES

(1)    A landlord must, not later than 14 days after being given a written notice from the tenant, reimburse the tenant for the reasonable costs of making urgent repairs to the residential premises.

(2)    A landlord is required to reimburse the costs only if--

(a)    the state of disrepair did not result from a breach of the residential tenancy agreement by the tenant, and

(b)    the tenant gave the landlord or the landlord's agent notice of the state of disrepair or made a reasonable attempt to do so, and

(c)    the tenant gave the landlord or landlord's agent a reasonable opportunity to make the repairs, if notice was given, and

(d)    the tenant has made a reasonable attempt to arrange for a licensed or otherwise properly qualified person nominated in the residential tenancy agreement to carry out the repairs, if such a person is so nominated, and

(e)    the repairs were carried out, if appropriate, by licensed or otherwise properly qualified persons, and

(f)    as soon as practicable after the repairs were carried out, the tenant gave the landlord or landlord's agent, or made a reasonable attempt to give the landlord or landlord's agent, a written notice setting out details of the repairs and the costs of the repairs, together with the receipts or copies of receipts for costs paid by the tenant.

(3)    The maximum amount that a tenant is entitled to be reimbursed under this section is $1,000 or such other amount as may be prescribed by the regulations.

(4)    Nothing in this section prevents a tenant, with the consent of the landlord, from making repairs to the residential premises and being reimbursed for the costs of those repairs.

(5)    This section is a term of every residential tenancy agreement.

53. There are several difficulties for the tenants in relation to this element of the claim.

54. The “locksmith” claims are obscure. The earlier locksmith invoice does not itemise the work performed other than to note “misc”, and the latter itemises “hinges to main door”. There is no record of complaint about the condition of any door lock or hinge in the Start-of-Tenancy Condition Report the tenants returned to the landlord’s agent on or about 6 January 2021. This is striking because the Condition Report they returned records extensive other complaints, including a complaint about the lock on the bathroom window. Nor is there any written record of any complaint or notification to the landlord’s agent about a defective lock from the date the tenants took possession of the premises up to the date they filed this application, other than in relation to the window lock. In her oral evidence the Ms Prenda stated that the tenants had the door locks changed on 29 December 2021 because they were concerned about the security of the premises. Ms Prenda did not give evidence that the locks were defective in any way. There is nothing in the tenants’ evidence that explains why door hinges had to be replaced.

55. There is nothing in the evidence that establishes that the tenants attempted to reach the landlord, or the landlord’s agent, or the tradespersons recorded on the residential tenancy agreement before the locks and hinges were replaced. With respect to the landlord’s nominated tradespersons, Ms Prenda contended that the contact information on the residential tenancy agreement could not be read. It is true that this information is in very small print which is difficult to read. Nevertheless it is legible. In her evidence, Ms Wijeskera stated that the tenants did not ask for any reimbursement of locksmith costs at any time before they filed this application to the Tribunal.

56. For the foregoing reasons, I cannot be satisfied that there was any state of disrepair of a lock or hinge that gave rise to urgency, that the tenants first made reasonable attempts to contact the landlord, landlord’s agent and nominated tradespersons in relation to that state of disrepair, or that as soon as practicable after this work was carried out they made a reasonable attempt to notify the landlord of the work carried out and its costs. The preconditions for an order under s 65(4) are thus not satisfied.

57. The tenants claim for reimbursement of $300.00 they claim to have paid to an electrician is similarly obscure. Their evidence does not contain the date of this service, what service specifically was provided, who provided the service, or any corroborative evidence of its cost. In her oral evidence Ms Prenda said the person who carried out the work was a ‘pensioner’ or ‘retired’ and wanted to be paid in cash, and therefore did not issue an invoice or receipt. It does not appear to be in dispute that the tenants made no claim on the landlord for reimbursement of this cost prior to instituting this proceeding.

58. I thus, again, cannot be satisfied that there was any specific state of disrepair of electricity service to the premises that gave rise to urgency, that the tenants first made reasonable attempts to contact the landlord, landlord’s agent and nominated tradespersons in relation to that state of disrepair, that the work was carried by a licensed tradesperson qualified to do so, or that as soon as practicable after this work was carried out they made a reasonable attempt to notify the landlord of the work carried out and its costs. The preconditions for an order under s 65(4) are thus not satisfied.

59. The “Electrolux” claim relates to the repair of an item of equipment the tenants contend was damaged due to a defective electrical supply to the premises. This item of equipment did not belong to the landlord and the landlord therefore had no obligation to repair it. If the tenant has a remedy in relation to this complaint it is not found in s 65(4) of the RT Act.

60. For the foregoing reasons this element of the claim must be dismissed.

Claim that rent increase is void

61. The tenants contend that a rent increase from $470.00 to $500.00 per week that purportedly became payable on 15 March 2022 is void because is it not permitted by ss 41 and 42 of the RT Act. In the alternative, the tenants argue that the ‘variation’ that effected the increase should be set aside on the basis that the they were induced to sign this variation by misleading and deceptive conduct by the landlord’s agent.

61. The material facts in relation to this element of the claim may be stated in short form as follows. The advertisement for lease to which the tenants responded stated that the rent payable was $470.00 per week. When the residential tenancy agreement was provided to the tenants for signature it included a special condition in the following terms:

Additional term – Rent Increase

64.   The tenant agrees that the rent shall increase to $500 per week as of 15.03.2021 as per previous notification.

63. The tenants contend that when the agreement was presented to them for signature they objected to this Special Condition and crossed it through before returning it to the landlord’s agent for signature. They contend, however, that the landlord’s agent refused to accept and sign the agreement with the Special Condition deleted and insisted that they sign a new copy of the agreement with the Special Condition included, which they did.

64. Ms Wijeskera denies the tenants’ account of this. Her evidence was to the effect that her agency explained to the tenants when they expressed interest in the property that it was being offered at a rent $470.00 a week as an incentive to lease in the immediate pre-Christmas period and that the rent would rise to a market rent of $500.00 on 15 March 2022. She contends that the tenants applied for the property and signed the agreement with that knowledge.

65. On 21 December 2021 (the date the tenants signed the residential tenancy agreement) the landlord’s agent issued them with a rent increase notice by email which stated:

Re: Rent Review 2 [address]

We advise you that from:

15/03.2021 your rent shall be $500.00 per week

Should you wish to discuss this matter, please contact our office immediately. If you accept the review we would ask that you simply make your new payments from the date above.

66. The applicable law in relation to this element of the claim is found in ss 41 and 42 of the RT Act which provide as follows:

1. Rent Increases

2. The rent payable under a residential tenancy agreement may be increased only if –

(a)    the tenant is given written notice by the landlord or the landlord’s agent specifying the increased rent and the day from which it is payable, and

(b)    the notice is given at least 60 days before the increased rent is payable

(1A)   Subsection (1) does not apply to a fixed term agreement for a fixed term of less than 2 years that specifies the date on which, and the amount by which, the rent payable under that agreement will be increased. …

…

1. A landlord or landlord’s agent must not contravene this section.

2. The Tribunal must not make an order that a rent increase is not payable because this section has not been complied with unless the application for the order is made not later than 12 months after the rent is increased. If an application has not been made within that 12-month period, the rent increase is taken to comply with this section.

3. Rent increases under fixed term agreements

4. The rent payable under a fixed term agreement for a fixed term of less than 2 years must not be increased during the fixed term unless the agreement specifies the increased rent or the method of calculating the increase

…

1. A landlord or landlord’s agent must not increase the rent payable under a fixed term agreement in contravention of this section.

   67. The tenants’ cause of action in relation to the alleged misleading and deceptive conduct of the landlord’s agent arises under section 18 of the Australian Consumer Law by operation of s 74(3) of the Fair Trading Act 1987.

   68. Dealing with the tenants’ misleading and deceptive conduct claim first, I am not satisfied that the tenants were induced to sign the lease by any false or misleading representation made by the landlord or his agent. The property was advertised for lease at $470.00 per week, but whether or not the tenants were also told during their initial inquires about it that there would be a rent increase to $500.00 in March 2022, that was a term of the lease they were provided to sign. That term was clearly drawn, or came, to their attention before they signed the agreement. They signed the agreement knowing that this term was included in it. On the tenants’ account of events, it may have been inconvenient and disappointing to learn of the rent increase just prior to signing the agreement, but I do not accept that they were bound to proceed with the lease if they had a serious objection to that term. They could have rejected the agreement at that time and found something that suited them better.

   69. The landlord was entitled to rely upon ss 41(1A) and 42(1) of the RT Act by including a term which specified the rent increase in the residential tenancy agreement, but he nevertheless issued the tenants with a rent increase notice in accordance with s 41(1) on the date that they signed the residential tenancy agreement. The increase was permissible in accordance with those sections.

   70. In oral argument Ms Prenda complained that the rent increase notified by clause 64 included the words “as per previous notice”, which she contended had not been given. It may be accepted that there is some dissonance in those words. The agreement was the first between these parties, and the rent increase notice was given simultaneously with the lease, not before it. It appears that the standard form agreement used by the agent was one generally used for the renewal of a fixed term agreement, where those words would have a sensible meaning having regard to s 41(2) of the RT Act. However, despite the dissonance of those words clause 64 retains a plain meaning and is legally effective.

   71. I thus conclude that the rent increase is not invalid due to any failure by the landlord’s agent to comply with the requirements of ss 41 and 42 of the RT Act.

   72. The tenants would still have been able to attack the rent increase on the basis that it was excessive under s 44(1)(a) of the RT Act. However, a time limit applies to applications made pursuant to that section. An application must be made within 30 days after the rent increase notice is given: s 44(2) and Regulation 39(1) of the Residential Tenancies Regulation 2019. In this case, the rent increase notice was given on 21 December 2020, so any application pursuant to s 44(1)(a) had to be made before 20 January 2021. No such application was made within this period. The present application was made on 11 November 2021, almost 10 months after an application could have been validly made under s 44(1)(a).

   73. For the foregoing reasons, the tenants’ claims in relation to the rent increase that came into effect on 15 March 2022 must be dismissed.

Orders

74. For the foregoing reasons:

1. The applicants’ application for an adjournment of the hearing and an extension of time within which to file further evidence is refused.

2. The rent payable for the residential premises was excessive and is not to exceed 376.00 per week for the period 6 January 2021 to 14 March 2021.

3. The rent payable for the residential premises was excessive and is not to exceed $400.00 per week for the period 15 March 2021 to 29 June 2021.

4. Orders 1 and 2 are liquidated. He Ling must pay Frances Renda, Michela Juva and Mohammad Shami Safi $4,863.44 by 23 March 2021. This amount is to be applied as a credit to the tenants’ rent account.

5. The application is otherwise dismissed.

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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: 26 April 2022