Rouvinetis v CTTT and Anor - [2007] NSWSC 391

CITATION: Rouvinetis v CTTT and Anor [2007] NSWSC 391

HEARING DATE(S): 23/04/2007

JUDGMENT DATE :
24 April 2007

JUDGMENT OF: Associate Justice Malpass

DECISION: The appeal fails. The summons is dismissed. The plaintiff is to pay the costs of the Summons.

CATCHWORDS: Residential tenancy agreement - application by tenant to have rebate of rent provision struck out - power to modify - applicable only to continuation of fixed term agreements

LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
Housing Act 2001 (NSW)
Housing Assistance Act 1996 (Cth)
Residential Tenancies Act 1987 (NSW)

PARTIES: Evangelos Rouvinetis
Consumer, Trader and Tenancy Tribunal
New South Wales Land and Housing Corporation

FILE NUMBER(S): SC 30175/06

COUNSEL: In Person (Pl)
Mr A. Jungwirth (2nd Def)

SOLICITORS: New South Wales Land and Housing Corporation, Solicitors (2nd Def)

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): RT 06/58430

LOWER COURT JUDICIAL OFFICER : R Rodriguez

LOWER COURT DATE OF DECISION: 18/12/2006

LOWER COURT MEDIUM NEUTRAL CITATION: Evangelos Rouvinetis v Corporation of Land and Housing

- 5 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

24 APRIL 2007

30175/06 Evangelos Rouvinetis v Consumer, Trader and Tenancy Tribunal and Anor

JUDGMENT

1 HIS HONOUR: The plaintiff and the second defendant are parties to a residential tenancy agreement (the agreement). The agreement contains the following term (the term) :-

“The tenant agrees that the landlord may formulate a policy for the granting of rebates or waiver of rents. The parties agree that in accordance with such policy the Department as landlord may grant a rebate or waive rent in its absolute discretion.”

2 The second defendant is a statutory corporation created by the HousingAct 2001 (NSW). It is charged with certain objects under that Act (including the provision of social housing to persons with demonstrable need for assistance in New South Wales). Financial assistance is provided by the Commonwealth via the Housing Assistance Act 1996 (Cth). The grant of rental rebates (to the plaintiff or any other social housing tenant) is a function of the obligations of the second defendant pursuant to both the Housing Act 2001 and the “2003 Commonwealth State Housing Agreement.”

3 The plaintiff is a long-standing subsidised tenant. The agreement is in standard form (prescribed by regulation). The term is a standard term in the agreement. It is contained in numerous agreements made by the second defendant with social housing tenants. The clause enables the second defendant to grant rebates and/or waive rent and provides a benefit to the plaintiff. It enables the second defendant to implement its policies and provide him with a subsidised level of rent.

4 The plaintiff made application to the Consumer, Trader and Tenancy Tribunal (the Tribunal) to have the term struck out of the agreement.

5 The application was dealt with by the Tribunal on 14 December 2006. A…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2007] NSWSC 391
Decision Date: 24 April 2007

CaseChat Overview and Summary

The case involved Rouvinetis, a tenant, and the Commission for Tenancy Tribunals and another respondent. The dispute arose from an application by Rouvinetis to have a rebate of rent provision in a residential tenancy agreement struck out. The matter was heard in the Supreme Court of New South Wales. Rouvinetis sought to have the rebate provision declared void due to its alleged unenforceability, arguing that the tribunal did not have the authority to modify such a clause.

The primary legal issue before the court was whether the tribunal had the power to strike out or modify the rebate of rent provision in the residential tenancy agreement. This required the court to interpret the relevant statutory provisions and determine the extent of the tribunal's authority under the Residential Tenancies Act. Specifically, the court had to consider whether the tribunal's power to modify tenancy agreements was limited to the continuation of fixed-term agreements or whether it could also extend to altering pre-existing terms.

In delivering its judgment, the court held that the tribunal's power to modify tenancy agreements was indeed limited to the continuation of fixed-term agreements. The court found that the rebate of rent provision was part of the original agreement and could not be altered by the tribunal once the fixed term had commenced. The court concluded that the tribunal did not have the authority to strike out the rebate provision, as it was not empowered to modify terms that were part of the original agreement. Consequently, the application was dismissed, and the rebate of rent provision remained enforceable.

The court's decision resulted in the dismissal of Rouvinetis's application to have the rebate of rent provision struck out. The court confirmed that the tribunal's power to modify tenancy agreements was confined to the continuation of fixed-term agreements and did not extend to altering pre-existing terms. The rebate of rent provision remained enforceable as part of the original agreement.

Orders