Romero v Zhang; Zhang v Romero

[2025] NSWCATCD 45

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Romero v Zhang; Zhang v Romero [2025] NSWCATCD 45

Hearing dates:

14 May 2025

Date of orders:

11 June 2025

Decision date:

11 June 2025

Jurisdiction:

Consumer and Commercial Division

Before:

K Cheng, General Member

Decision:

(1) Order pursuant to s 187(1)(d) of the Residential Tenancies Act 2010 (NSW) that Bob Zhang is to pay Vanessa Romero the sum of $1647.32 within 7 days.

Catchwords:

LEASES AND TENANCIES — Rights and obligations of landlords and tenants — Repairs, maintenance and alterations — Obligation to repair and maintain — Quiet enjoyment — Condition reports — Damage to premises — Utility charges — Break clauses

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Residential Tenancies Regulation 2019 (NSW)

Cases Cited:

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Hadley v Baxendale (1854) 9 Exch 341

Briginshaw v Briginshaw [1938] HCA 34

Aceti v Burhan Pty Ltd t/as Garlicks Heating and Cooling [2015] NSWCATAP 55

Worrall v Commissioner for Housing of ACT (2002) FCAFC 127

Baltic Shipping Co v Dillon [1993] HCA 4

Moore v Scenic Tours Pty Ltd [2002] HCA 17

Darren and Julie Patterson v David Dawson [2015] NSWCATAP 31

Texts Cited:

Nil

Category:

Principal judgment

Parties:

2024/00475849

Applicant – Vanessa Romero

Respondent – Bob Zhang

2025/00023742

Applicant – Bob Zhang

Respondent – Vanessa Romero

Representation:

2024/00475849

Applicant – V Romero

Respondent – M Chen, Seven Real Estate

2025/00023742

Applicant – M Chen, Seven Real Estate

Respondent – V Romero

File Number(s):

2024/00475849

2025/00023742

Publication restriction:

Nil

REASONS FOR DECISION

1. Two related matters were listed before the Tribunal for hearing on 14 May 2024.

2. In matter 2024/00475849 (the tenant’s application), the tenant, Ms Vanessa Romero, sought an order for compensation under the Residential Tenancies Act 2010(NSW) (RT Act), alleging that the landlord, Mr Bob Zhang, had breached the residential tenancy agreement by failing to undertake repairs during the course of the tenancy. The application was lodged with the Tribunal on 21 December 2024.

3. The application in the related proceedings in matter 2025/00023742 (the landlord’s application) was lodged with the Tribunal on 20 January 2025. In that application, the landlord sought a money order on the basis that the tenant had terminated the tenancy early and did not pay a break fee, had failed to paid invoices for water and electricity, end of lease cleaning and damage to the property.

Background

4. The tenant had entered into a residential tenancy agreement with the landlord to lease a five bedroom house in Lidcombe NSW, commencing on 23 June 2023 and ending on 19 June 2025 (the tenancy agreement). The rent payable under the agreement is $1200.00 per week.

5. Shortly after they had received the property, the tenant identified that the dishwasher was not functioning. On 25 June 2023, the landlord had arranged for an electrician to attend the property and examine the dishwasher. The electrician could not ascertain the cause of the problem with the dishwasher, but recommended that it be replaced, as it was causing the electricity to trip the circuit in the house. The landlord did not take any further action in relation to the dishwasher.

6. On 4 July 2023, the tenant notified the agent that the following issues required repair or maintenance:

1. the dishwasher was not working

2. two of the smoke alarms had been replaced, but required hardwiring

3. the kitchen tap was loose and moved every time it is used

4. one side of the kitchen’s dual sinks with the garbage disposal unit was clogged and did not drain properly

5. an electrical socket in the kitchen was loose

6. the lock to the front door was loose and kept falling out

7. there was an infestation of cockroaches in the kitchen

8. the back door did not lock due to a broken key that was stuck inside the lock

9. the blind in the downstairs bedroom was broken and required replacing

10. the NBN box continuously beeps

11. there was rubbish and other items that had been left on the property by the previous occupant which needed removal, including a desk, lamp, and side table

12. the rail for the staircase was broken and left on the floor

13. the cameras in the house appeared to be on and could not be turned off – the tenant expressed that they would like it removed or covered up.

7. The landlord subsequently arranged for the smoke alarms to be properly installed and for the lock to the back door to be repaired. The tenant also decided to fix the broken rail to the staircase at their own cost. However, no further work was undertaken or arranged by the landlord to address the remaining concerns raised by the tenant for the duration of the tenancy.

8. On 1 August 2023, the tenant advised the agent that two of the bathroom taps were leaking and the toilet was not flushing. The landlord arranged for a plumber to examine the toilet and the taps, but no further work was undertaken as the landlord did not provide their approval for the work to commence. The tenant also notified the agent that there was a box of electrical cords and other items left of the property, and that this box could not be unplugged.

9. On 11 November 2023, the tenant also reported to the agent that the exhaust fan in the bathroom was not working. No action was taken by the landlord in relation to the exhaust fan.

10. On 21 January 2024, the tenant notified the agent that the air conditioning unit was not cooling the house down. The tenant also advised the agent that the rangehood was not working. No action was taken in relation to the air conditioning unit or the rangehood.

11. It is apparent that the tenant raised their concerns regarding the reported issues with the landlord via their agent on numerous occasions throughout the tenancy.

12. On 29 July 2024, the tenant notified the agent that they did not intend on paying the invoices for water usage given the property did not have a functioning dishwasher and the landlord refused to arrange for repairs to the leaking taps.

13. On 7 August 2024, the agent advised the tenant that the landlord had approved for the taps to be repaired. However, the agent advised that the landlord did not have any plans or the budget to replace the dishwasher and offered to arrange for a handyman to remove the dishwasher if the tenant wished to install their own dishwasher.

14. On 30 September 2024, the tenant notified the agent that the garage door would automatically re-open even when after they had closed it using the remote. The tenant requested that this issue be fixed together with a list of outstanding issues as set out above, which they had previously notified to the landlord. The tenant also requested that the landlord reimburse them $400.00 per week from when they moved into the property as compensation for all of the issues that they had faced with the property.

15. On 5 November 2024, the tenant notified the landlord that they had decided to terminate the lease and that they would vacate the property by 19 November 2024 due to the unresolved repair issues concerning the property.

16. The tenant provided the landlord with vacant possession of the property on 19 November 2024.

17. From 21 November 2024 until 2 December 2024, the parties entered into negotiations regarding the end of lease cleaning, the break fee, electricity usage, water usage and the return of the tenant’s bond.

18. On 2 December 2024, the parties entered into an agreement for the tenant to pay the landlord an amount equal to 50% of the water usage charges (which totalled $1759.54), for the rental bond to be refunded to the tenant in full, and for waiver of the remaining charges with respect to the cleaning, break fee, and the electricity usage.

19. On the same day, the tenant paid the landlord $879.77 in accordance with the agreement.

20. On 21 December 2024, the tenant commenced proceedings before the Tribunal.

21. On 20 January 2025, the landlord considered that the tenant had reneged on their agreement and also made an application to the Tribunal.

The tenant’s claim

22. The tenant is seeking compensation amounting to $400.00 per week from 23 June 2023 to 21 November 2024 due to the landlord’s alleged breach of the tenancy agreement. This equates to a total of $29542.86 over a period of 73 weeks and six days. During the hearing, the tenant agreed to limit their claim to the Tribunal’s jurisdictional limit of $15000.00.

The landlord’s claim

23. In the landlord’s application, they have indicated that they are seeking a money order for $4927.09, which comprised of the following:

1. break fee: $2400.00

2. electricity usage charges: $592.32

3. end of lease cleaning: $505.00

4. damage to carpets: $550.00

5. outstanding water usage charges: $879.77.

Procedural history

24. The tenant’s application was listed before the Tribunal for conciliation and hearing in a group list on 28 January 2025. The Tribunal attempted to assist the parties to resolve the dispute through conciliation, however, the parties were unable to reach an agreement.

25. The tenant’s application was subsequently adjourned to a Special Fixture hearing and directions were made for the landlord’s application to be heard concurrently with the tenant’s application at the Special Fixture hearing. Directions were also given to the parties for the filing and exchange of documentary evidence.

Evidence and hearing

26. During the hearing, the tenant gave sworn oral evidence and submissions. Sworn oral evidence and submissions were also received from Ms Chen on behalf of the landlord as the managing agent.

27. The tenant filed a bundle of documents totalling 122 pages, which I have marked Exhibit 1. The bundle of documents comprised:

1. screenshots of the advertisement for the property

2. screenshots of the maintenance issues logged on the PropertyMe platform

3. text message correspondence between the tenant and the agent in relation to repair issues prior to the tenant entering into the tenancy and during the tenancy

4. email correspondence between the tenant and the agent, including in relation to repair issues, confirmation of job requests, water usage, and

5. photographs of the property and the repair issues.

28. The landlord had also filed two bundles of documents. The bundle of documents filed in response to the tenant’s application totals 36 pages, which I have marked as Exhibit 2. This bundle of documents comprised:

1. the landlord’s written submissions

2. email correspondence between the agent and the tenants, including advice that the landlord has rejected the tenant’s request for repairs and compensation, and discussions between the agent and the tenant in relation to the end of tenancy.

29. The landlord also filed a second bundle of documents in support of their own application totalling 196 pages, which I have marked as Exhibit 3. This bundle of documents comprised:

1. the landlord’s written submissions

2. hearing notes

3. the ingoing condition report

4. the outgoing condition report

5. tax invoice issued by the agent for a break fee of $2400.00 dated 6 November 2024

6. four bills issued by Sydney Water Corporation (ABN 49 775 225 038) in the amount of $473.68 dated 2 January 2024, $663.25 dated 8 April 2024, $590.18 dated 2 July 2024, and $611.54 dated 3 October 2024

7. bill issued by AGL Energy Limited (ABN 74 115 061 375) in the amount of $530.05 dated 1 August 2023, and an updated bill for $594.15 dated 7 August 2023.

8. tax invoice from iKlean Services Australia Pty Ltd (ACN 661 494 702) for $505.00 dated 5 December 2024

9. quotation from JMS Floors (ABN 58 613 678 792) for $500.00 dated 9 January 2025

10. tax invoice from SPS Plumbing Specialists (ABN 73 909 712 660) for $484.00 dated 24 July 2023, and

11. photographs of the property following vacant possession.

30. During the hearing, the landlord also provided the Tribunal with a copy of the residential tenancy agreement (the tenancy agreement), which I have marked as Exhibit 4.

31. In making this decision, I have had regard to all of the material and evidence provided by the parties to the Tribunal during these proceedings.

Jurisdiction

32. The dispute between the parties arises from their relationship as tenant and landlord under a residential tenancy agreement that is regulated by the RT Act. The respective amounts claimed by the tenant and landlord are within the Tribunal’s monetary jurisdiction. Accordingly, I am satisfied that the Tribunal has jurisdiction to hear and determine this matter.

Limitation period

33. Regulation 39(9) of the Residential Tenancies Regulation 2019 (NSW), sets out the prescribed period for a landlord or tenant to apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement. Regulation 39(9) stipulates the prescribed period is within three months after the applicant becomes aware of the breach.

34. The landlord submits that the tenant did not submit their application to the Tribunal within the prescribed timeframe of three months of becoming aware of the alleged breaches. The landlord contends that the tenant’s application for compensation ought to be dismissed on this basis.

35. During the hearing, the tenant sought an extension of time.

36. Section 41 of the Civil and Administrative Tribunal Act 2013(NSW) provides:

41 Extensions of time

(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired.

37. The principles for consideration when deciding whether the Tribunal should exercise its discretion under s 41 of the Civil and Administrative Tribunal Act 2013 to extend a limitation period are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. The factors for consideration are:

1. the length of the delay

2. the reason(s) for the delay

3. whether there is a fairly arguable case

4. the extent of prejudice to the other party by reason of the delay

5. if the explanation for the delay is less than satisfactory, or there is substantial prejudice to the respondent by reason of the delay, the merits of the case.

38. Having regard to the evidence by the parties, it is apparent that some of the repair issues raised by the tenant were present at or shortly after the tenancy commenced on 22 June 2023. The tenant’s application was made on 21 December 2024.

39. Although it is apparent that there was quite a delay on the tenant’s part in applying to the Tribunal with respect to these repair issues, I consider that the tenant provided adequate reasons to justify the delay. Relevantly, the tenant referred to the correspondence between the parties which suggest that the agent had referred the repair issues to the landlord and that those issues were actively being considered by the landlord. The tenant explained that this was evidenced by the fact that many of the jobs for repairs remained opened and were never closed. The tenant submits that they were under the belief that the issues would eventually be fixed and they did not want to unnecessarily escalate the matter. The tenant also submits that they were concerned that if they applied to the Tribunal for orders as to repairs, the landlord may decide to evict them from the property.

40. The agent on behalf of the landlord did not identify any prejudice by reason of the tenant’s delay.

41. Further, the issues raised in the tenant’s applicant includes:

1. whether the landlord had notice of the need to conduct repairs and/or maintenance with respect to the property

2. whether the landlord failed to act with reasonable diligence in conducting the repairs and/or maintenance, and

3. if the tenant has established the breach, whether the tenant is entitled to the remedies sought in the proceedings.

42. Based on my consideration of the information provided by the parties and having regard to the issues, I am satisfied that the tenant has a fairly arguable case.

43. Accordingly, the Tribunal is satisfied that the criteria to extend the limitation period pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 have been met.

44. Under s 41 of the Civil and Administrative Tribunal Act 2013, the time for filing the tenant’s application is extended to 21 December 2024, being the date the application was filed.

45. There is no dispute that the landlord’s application was filed within the prescribed timeframe.

The law

Relevant provisions with respect to the tenant’s claim

Orders as to compensation

46. The Tribunal’s power to make an order requiring a party to a residential tenancy agreement to pay the other party compensation is set out in s 187(1)(d) of the RT Act.

47. The Tribunal’s power to order compensation under s 187(1)(d) is only enlivened where a party to a residential tenancy agreement suffers loss or damage as a result of a breach of the residential tenancy agreement by the other party. Accordingly, it is necessary for the tenants to first establish that the landlords had breached the residential tenancy agreement. If so, it must then be established that the loss or damage suffered was a reasonably foreseeable consequence of that breach (Hadley v Baxendale (1854) 9 Exch 341).

48. As it is the tenant who has applied for an order under s 187(1)(d), the tenants bear the onus of providing the elements of their claim on the balance of probabilities (Briginshaw v Briginshaw [1938] HCA 34). That is, the tenant must establish:

… that the landlord had breached the residential tenancy agreement, and that the loss or damage that the tenants claim to have suffered was a reasonably foreseeable consequence of the landlord’s breach to which they are entitled to be compensated.

49. The tenant is not a lawyer and was not legally represented at the hearing. Relevantly, in the decision of Aceti v Burhan Pty Ltd t/as Garlicks Heating and Cooling [2015] NSWCATAP 55, the Appeal Panel explained at [30]:

… The Tribunal has a similar obligation to look at the complaints of an unrepresented applicant generally and endeavour to determine whether any legal basis, within the Tribunal’s jurisdiction, for the application, has been raised. The extent of that obligation in any particular case will depend on the circumstances.

Landlord’s obligation to provide and maintain premises in a reasonable state of repair

50. The landlord’s obligation in respect of repairs to the premises is set out in s 63 of the RT Act as follows:

(1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.

(2) A landlord’s obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises.

(3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant’s breach of this Part.

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

51. The landlord’s obligation to keep residential premises in a reasonable state of repair is subject to the provision in s 65(3) of the RT Act, which provides:

(3) The Tribunal must not determine that a landlord has breached the obligation unless it is satisfied that:

(a) the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair, and

(b) the landlord failed to act with reasonable diligence to have the repair carried out.

Tenant’s right to quiet enjoyment

52. Section 50(2) of the RT Act relevantly provides:

(2) A landlord or landlord’s agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises.

53. Having regard to the word ‘must’, the obligation by the landlord not to interfere with a tenant’s right to quiet enjoyment is strict. However, this obligation is subject to reasonableness rather than any absolute standard. Accordingly, for a breach to be found under s 50 of the RT Act, there must be a substantial interference as opposed to mere inconvenience. Further, a breach of quiet enjoyment may occur even where the landlord is engaged in a proper purpose, such as the undertaking of repairs in a reasonable manner (Worrall v Commissioner for Housing of ACT (2002) FCAFC 127).

Relevant provisions with respect to the landlord’s claim

Use of the premises by the tenant

54. Section 51(1)(d) of the RT Act states:

(1) A tenant must not do any of the following—

…

(d) intentionally or negligently cause or permit any damage to the residential premises …

55. Further, s 51(3) of the RT Act sets out the obligations of tenants when giving the property back to the landlord at the end of the lease. Section 51(3) provides:

(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.

Tenant’s obligation to pay charges for electricity and water usage

56. Section 38(1)(a) of the RT Act provides that a tenant must pay all charges for the supply of electricity, gas (except bottled gas) or oil to the tenant at the residential premises if the premises are separately metered.

57. Similarly, s 39(1) of the RT Act provides:

(1) A tenant must pay the water usage charges for the residential premises, but only if—

(a) the premises are separately metered or the premises are not connected to a water supply service and water is delivered to the premises by vehicle, and

(b) the premises contain water efficiency measures prescribed by the regulations for the purposes of this section, and

(c) the charges do not exceed the amount payable by the landlord for water used by the tenant.

The landlord’s remedies on abandonment

58. Section 107(1) of the RT Act provides that the Tribunal may order compensation to be paid to the landlord in the form of a ‘break fee’ if the tenant abandons the premises. Further, s 107(4) prescribes the maximum break fee that may be ordered in circumstances where the tenant has abandoned the premises. In particular, s 107(4)(c) of the RT Act provides:

(4) The “break fee” for a fixed term agreement for a fixed term of not more than 3 years is:

…

(c) if 50% or more but less than 75% of the fixed term had expired when the premises were abandoned—an amount equal to 2 weeks rent …

Consideration

The landlord’s obligation to provide and maintain the premises in a reasonable state of repair

59. A relevant factor in considering whether a landlord had failed to maintain the premises in a reasonable state of repair is the duration of time between the tenant’s notification to the landlord of the need for repairs and the date on which the repairs were actually undertaken. A breach of s 63 of the RT Act occurs if the landlord fails to undertake the necessary repairs within a reasonable period of time from when they were notified of the need for repairs.

60. The tenant’s evidence demonstrates that they had notified the agent of the need for repairs to a myriad of issues affecting the property on numerous occasions, including on 4 July 2023, 1 August 2023, 11 November 2023, 21 January 2024 and 30 September 2024. I have set out these issues above at [5] to [14].

61. Although the landlord arranged for repairs to the smoke alarms and the lock to the back door reasonably promptly, the remaining issues raised by the tenant were not addressed by the landlord within a reasonable period of time or at all.

62. With respect to the water leaks, it is apparent that the tenant had notified the landlord via the agent on 1 August 2023 that the taps in the bathrooms were leaking. However, no further action was taken until a year later on 7 August 2024 when the landlord approved for the taps to be repaired. Although the landlord contends that the plumber they engaged had difficulties obtaining a response from the tenant in order to schedule the repairs, when viewed in larger context, the impact from the delays caused by the tenant’s failure to respond to the plumber is minimal.

63. During the hearing, the agent advised that the landlord accepted that the issues raised by the tenant were present at the property and that work orders had been made to address those issues. However, the agent explained that the landlord did not respond to or approve the work orders, which meant that the agent did not have authority to arrange for the repairs to be undertaken.

64. When queried about why the landlord did not approve the work orders, the agent was unable to provide a sufficient reason. Notwithstanding this, based on my consideration of the landlord’s documents, it had been noted in various emails from the agent to the tenant that the landlord did not have the funds to undertake the repairs requested by the tenant.

65. However, the fact that the landlord does not have sufficient funds to pay for repairs is not a defence to the landlord’s failure to comply with their obligations as a landlord under the RT Act.

66. Having regard to the evidence provided by the parties, I find that when the landlord was notified through their agent of the repair issues affecting the property, they had failed to take reasonable steps to undertake repairs and properly address those issues.

67. Accordingly, I am satisfied that the landlord had breached their obligations under s 63 of the RT Act by failing to maintain the premises in a reasonable state of repair.

The tenant’s right to quiet enjoyment

68. Having found that the landlord breached their obligations under s 63 of the RT Act, I will now consider whether the landlord had also breached their obligations with respect to the tenant’s right to quiet enjoyment.

69. The tenant essentially contends that the landlord had breached their obligations with respect to the tenant’s right to quiet enjoyment of the premises due to the landlord’s refusal to undertake the relevant repairs to the property.

70. I have considered the evidence provided by the parties and I am satisfied that the tenant’s enjoyment and use of the property was adversely affected by the landlord’s failure to undertake repairs to the property. For instance, despite the property being advertise as including a dishwasher, it is apparent that the tenant and her family were unable to use the dishwasher for the entirety of the tenancy. Similarly, the tenant’s evidence indicates that one of the toilets was unable to flush, and the air conditioning unit had also stopped working during the summer months.

71. It is also apparent that a number of large items had been left in the property prior to the tenant moving in and no attempts were made by the landlord to remove those items, resulting in the tenant and her family being required to live among those unwanted belongings. Further, I also consider that the lack of response and action on the landlord’s part following the tenant’s notification of the repair issues likely caused ongoing frustration for the tenant.

72. Having regard to the evidence before the Tribunal, I accept that the failure by the landlord to undertake the relevant repairs and remove items left on the property constituted a breach of their obligations under s 50 of the RT Act with respect to the tenant’s right to quiet enjoyment.

73. For these reasons, I find that the landlord had breached the tenants’ right to quiet enjoyment pursuant to s 50 of the RT Act.

Compensable loss and orders sought by the tenant

74. Given my finding that the landlord had breached ss 50 and 63 of the RT Act, I will now consider the compensable loss that may be awarded.

75. The tenant bears the onus of establishing their loss.

76. The tenant claims that she and her family had suffered distress, disappointment, inconvenience and disruption as a result of the landlord’s failure to undertake repairs to the various issues affecting the property. It is apparent that the loss claimed by the tenant pertains to non-economic loss.

77. I am satisfied that this loss is recoverable as the residential tenancy agreement is a contract for enjoyment, pleasure and relaxation, and falls within the exception to the general rule that damages for distress and disappointment are not recoverable (Baltic Shipping Co v Dillon [1993] HCA 4).

78. I also accept that distress and disappointment do not constitute a personal injury for the purposes of the Civil Liability Act 2002 (NSW) (CL Act), and s 16 of the CL Act does not apply (Moore v Scenic Tours Pty Ltd [2002] HCA 17).

79. Although some of the issues raised by the tenant do not constitute urgent repairs, having regard to the sheer number of issues affecting the property, the duration between the tenant’s notification of these issues to the landlord and vacant possession, and the landlord’s inaction more generally, I accept that these issues likely compounded over the duration of the tenancy and resulted in significant inconvenience, distress and disappointment to the tenant and their family while they resided in the property.

80. On this basis and having regard to proportionality, I will allow the tenant $3000.00 for this head of loss.

Cleaning of the property following vacant possession

81. The landlord contends that the tenant had failed to leave the property in a reasonable state of cleanliness. In support of their contention, the landlord relied on the ingoing condition report and photographs taken by the agent during the outgoing inspection.

82. The tenant disputes the landlord’s claim and states that the property was not provided to them in a reasonable state of cleanliness, and that they had in fact left the premises in a better state than when they received it.

83. The ingoing condition report was signed by the tenant 22 June 2023. Relevantly, s 30 of the RT Act provides:

(1) A condition report that is signed by both the landlord and the tenant is presumed to be a correct statement, in the absence of evidence to the contrary, of the state of repair or general condition of the residential premises on the days specified in the report.

(2) This section does not apply –

(a) to any matter that could not have reasonably been discovered on a reasonable inspection of the premises, or

(b) to any statement in the report about which the tenant makes a written dissenting comment on the copy of the report completed by the tenant and retained by the landlord.

84. Based on my consideration of the ingoing condition report, it does not appear that the tenant had made any notation or comments to indicate that the property was not provided to them by the landlord in a reasonable state of cleanliness. Relevantly, the premises was noted as clean at the commencement of the lease and there is no other evidence which contradicts the information contained in the ingoing condition report.

85. Accordingly, on the evidence before the Tribunal, I am satisfied that the landlord had provided the property to the tenant in a reasonable state of cleanliness.

86. I have also considered the photographs taken by the agent at the outgoing inspect and it is apparent that various parts of the property were left unclean. For instance, there were stains and markings on the walls, carpets, mirrors and windows. Further, the photographs show that dust and debris were not cleaned from the exhaust fan in one of the bathrooms and inside the kitchen drawers.

87. I have considered the condition of the property at the commencement of the tenancy as stated in the ingoing condition report together with the photographs taken by the agent at the outgoing inspection and I am satisfied that the tenant did not return the property to the landlord in a reasonably clean state.

88. The landlord relies on a tax invoice from iKlean Services Australia Pty Ltd dated 5 December 2024 in the amount of $505.00 (incl GST). Having regard to the cleanliness of the property following vacant possession, I am satisfied that the cost of $505.00 incurred by the landlord to clean the property is reasonable.

89. Accordingly, I will allow the landlord $505.00 for the costs associated with cleaning the property.

Repairs to the carpets

90. The landlord contends that the tenant had caused damage to the carpets in one of the bedrooms during the course of the tenancy. In support of their claim, the landlord relied on the ingoing condition report as well as a number of photographs of the carpets taken by the agent during the outgoing inspection.

91. Based on my examination of the photographs included in the ingoing condition report, the original colour of the carpets appears to be of a shade of brown. During the hearing, the agent referred to a number of photographs taken at the outgoing inspection which showed large patches of beige through the carpet in one of the bedrooms. The beige patches appear to be caused by contact with a bleaching agent of some kind.

92. In response to the landlord’s claim, the tenant submits that the original colour of the carpets were actually of a beige colour, and became brown due to dirt and debris collecting in the carpets over the years. The tenant claims that the beige colour only showed up after they had attempted to clean the carpets using their cleaning agents.

93. I have considered the evidence provided by the parties and I am not persuaded that the original colour of the carpets is beige as opposed to brown. Other than a general assertion, the tenant has not provided any evidence in support of their contention. Relevantly, if the carpets were originally beige, it is unlikely that their colour would appear as uniformly consistent as shown in the photographs included in the ingoing condition report. In fact, none of the photographs of the carpets in the ingoing condition report show any beige colour.

94. Accordingly, based on the evidence before me, I accept that the discolouration of the carpets was likely caused by the tenant during the tenancy and goes beyond fair wear and tear.

95. The landlord relies on a tax invoice from JMS Floors dated 9 January 2025 in the amount of $500.00 plus GST. The invoice provided the following description of the repairs:

‘Apply the carpet from the wardrobe to repair the damaged area, try to make finish looks [sic] nice].

Apply Redbook Skyway color [sic] Mushroom to repair the wardrobe carpet’

96. The damage and loss claimed by the landlord is the cost of repairing the carpet. Having regard to the nature of the damage to the carpets, and extent of work required to remedy the damage, I am satisfied that the amount sought by the landlord is a proportionate remedy and I allow the landlord compensation in the amount referred to in JMS Floors’ tax invoice of $500.00 plus GST.

97. I have therefore allowed the landlord a total sum of $550.00 for the damage to the carpets.

Whether the tenant is liable for the electricity usage

98. The landlord contended that when the tenant first moved into the property there were some delays in transferring the electricity accounts to the tenant’s name. The landlord explained that the electricity account was eventually transferred to the tenant’s name on or around 3 August 2023. The delay in transferring of the electricity account resulted in the landlord incurring $592.32 for electricity usage whilst the tenant was living in the property from 29 June 2023 to 2 August 2023.

99. In support of their claim, the landlord relied on two electricity bills. The first is dated 1 August 2023 for an amount of $530.05, which accounts for the period between 29 June 2023 and 28 July 2023. The second is dated 7 August 2023 for a total amount of $594.15 which includes the initial amount of $530.05 which was brought forward from the 1 August 2023 bill, as well as an amount of $64.10 for the period between 29 July 2023 to 2 August 2023 (inclusive of additional charges).

100. As I have noted above, s 38 of the RT Act specifies that a tenant must pay for their electricity usage if the property is ‘separately metered’, meaning there is a dedicated meter for the premises. There is no evidence before the Tribunal which would indicate that the property was not separately metered, or that it was reading other properties. The property is a freestanding house. It is not a dual occupancy or duplex. The property appears to have a National Meter Identifier (NMI xxx) and had bills issued to the premises care of the landlord prior to the account being changed to the tenant’s name.

101. On this basis, I find that the tenant was required under s 38 of the RT Act to pay the electricity usage charges for the property between the period of 29 June 2023 to 2 August 2023.

102. The tenant challenged their liability for the electricity bills and claims that the landlord’s surveillance camera system and a ‘box of electrical cords’ resulted in excessive electricity usage for which they should not be liable for.

103. In response to the tenant’s contention, the agent explained that the camera system and the ‘box of electrical cords’ came with the property when it was built and both items could not be turned off or removed. Notwithstanding this, the agent submitted during the hearing that the electricity usage for these items would unlikely be particularly high.

104. As it is the tenant who is claiming that they should not be liable to pay the full bill for the electricity usage, the onus is on the tenant to establish that the landlord’s camera system and ‘box of electrical cords’ resulted in excess electricity usage and that they should not be liable for payment.

105. Neither party was able to provide any clarity as to how much electricity the landlord’s camera system and the ‘box of electrical cords’ used. Further, the tenant confirmed to the Tribunal that they were unaware as to how much electricity these items were using, and were unable to provide a figure as to how much the electricity bill should be reduced by.

106. Based on my consideration of the evidence, I am not persuaded that the tenant had established that the landlord’s camera system and ‘box of electrical cords’ used an excessive amount of electricity for which they should not be liable for. Other than a general assertion, no evidence was provided to substantiate the claim.

107. On this basis and having regard to the provision in s 38 of the RT Act, I find that the tenant is liable for the electricity usage in the property between 29 June 2023 to 2 August 2023.

108. Accordingly, I will allow the landlord $592.32 for the electricity usage.

Whether the tenant is liable for the water usage

109. The landlord claims that the tenant had failed to pay all of the charges for water usage and were currently owing $879.77.

110. As I have discussed above, s 39(1) of the RT Act only requires a tenant to pay the water usage charges for the residential premises if:

1. the premises are separately metered or the premises is not connected to a water supply service and water is delivered to the premises by vehicle, and

2. the premises contain water efficiency measures prescribed by the regulations, and

3. the charges do not exceed the amount payable by the landlord for water used by the tenant.

111. If any of these circumstances in s 39(1) are not met, the tenant would not be required to pay the water usage charges.

111. Relevantly, regulation 10 of the Residential Tenancies Regulation 2019 provides:

For the purposes of section 39(1)(b) of the Act, the following water efficiency measures are prescribed--

(a) for shower heads--a maximum flow rate of 9 litres a minute,

(b) on and from 23 March 2025, for toilets--a dual flush toilet that has a minimum 3 star rating in accordance with the WELS scheme within the meaning of the Water Efficiency Labelling and Standards Act 2005 of the Commonwealth,

(c) for internal cold water taps and single mixer taps for kitchen sinks or bathroom hand basins--a maximum flow rate of 9 litres a minute.

(d) at the commencement of the residential tenancy agreement and whenever any other water efficiency measures are installed, repaired or upgraded, the premises are checked and any leaking taps or toilets on the premises are fixed.

Note : Taps and shower heads having a maximum flow rate of 9 litres a minute have a 3 star water efficiency rating.

113. In the present case, there is no evidence before the Tribunal to demonstrate that the property had been upgraded with water efficiency devices in accordance with the requirements of the regulations. Further, it is also apparent that various taps within the property experienced leaking, which was not addressed by the landlord for an extended period of time.

114. Based on my consideration of the evidence, I cannot be satisfied that the property contains water efficiency measures as prescribed by the regulations. Accordingly, I have not allowed the landlord’s claim for water usage charges.

Whether the landlord is entitled to a break fee

115. The landlord claims that the tenant had terminated the lease before the end date, and on this basis, they should be entitled to a break fee in accordance with s 107 of the RT Act.

116. The remedy in s 107 of the RT Act is predicated on a finding that the tenant had abandoned the premises.

117. Section 106(4) of the RT Act provides:

(4) In determining whether a tenant has abandoned the residential premises the Tribunal may consider (but is not limited to considering) the following -

(a) the failure by the tenant to pay rent under the residential tenancy agreement,

(b) any evidence that the tenant no longer resides at the premises,

(c) any failure by the tenant to carry out any obligations relating to the residential premises under the residential tenancy agreement.

118. In Darren and Julie Patterson v David Dawson [2015] NSWCATAP 31, the Appeal Panel relevantly held at [56]:

… abandonment occurs when a tenant vacates within the fixed term of a lease without the consent of the landlord or without a Tribunal order…

An abandonment of the lease is a particular form of repudiation in which the tenant indicates their intention to be no longer bound by the lease by, physically leaving the property, refusing to pay rent and refusing to maintain the property to the extent required of tenant in the lease.

119. The tenant issued the landlord a termination notice on 5 November 2024 and advised that they would be vacating the premises on 19 November 2024. The tenant advised the landlord that they have made this decision due to the landlord’s refusal to undertake repairs in relation to the property.

120. As I have set out in my findings above, it is apparent that there were numerous issues requiring repairs in the property. These issues were repeatedly raised with the landlord via the agent during the tenancy. However, the landlord failed to take any action to address the vast majority of those issues. It is apparent from the correspondence between the parties as set out in the evidence that these issues caused significant frustration and consternation to the tenant and their family, and that the landlord’s refusal to arrange repairs was the main reason why the tenant decided to terminate the tenancy prematurely.

121. While I accept that the tenant had terminated the tenancy early, I find that the termination was in accordance with s 98 of the RT Act, whereby the tenant gave a valid termination notice that specified a termination date that is not earlier than 14 days after the day on which the notice was given. Further, the tenant also noted in their termination notice that the landlord had failed to undertake the relevant repairs. In light of this finding, it then follows that the tenant did not abandon the premises under s 106 of the RT Act.

122. On this basis, I have not allowed the landlord’s claim for a break fee.

Summary of orders in favour of the tenant

123. The landlord is to pay the tenants the sum of $3000.00 for the landlord’s breach of ss 50 and 63 of the RT Act.

Summary of orders in favour of the landlord

124. The tenant is to pay the landlord the sum of $1647.32 for the following:

1. $505.00 for the end of lease cleaning

2. $550.00 for the damage to the carpets

3. $592.32 for the electricity usage between 29 June 2023 to 2 August 2023.

Orders

125. The amount to be paid by the landlord is offset by the amount to be paid by the tenant, with a net result of $1352.68 payable by the landlord to the tenant.

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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: 13 August 2025