Ryan v Pan and Zhang

[2023] NSWCATCD 40

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Ryan v Pan and Zhang [2023] NSWCATCD 40

Hearing dates:

21 March 2023

Date of orders:

22 May 2023

Decision date:

22 May 2023

Jurisdiction:

Consumer and Commercial Division

Before:

C Campbell, General Member

Decision:

1. In accordance with s 44(1)(b) of the Act the Tribunal orders the rent is to be reduced as follows:

(a) The rent is not to exceed $614 from 28 March 2022 to the 19 April 2022; and

(b) The rent is not to exceed $579 per week from 20 April to 2022 to 25 December 2022; and

(c) The rent is not to exceed $629 from 26 December 2022 to 27 March 2023.

2. In accordance with s 65 of the Act, the landlord is to undertake the following work in a proper and workman like manner on or before 13 June 2023:

(a)    Repair the water ingress in the ceilings in both bedrooms

(b)   Repair the cracked ceilings and walls in both bedrooms

(c)   Upon completion of the above two work orders, the landlord is to undertake mould removal and treatment and paint the ceilings and walls in both bedrooms.

3. The application for an order pursuant to s 44(1)(a) of the Act is dismissed.

4. In accordance with s 115 of the Act the Tribunal declares the Notice of Termination served by the landlord is retaliatory and is of no effect.

Catchwords:

Rent reduction – Excessive rent increase – Repairs – Retaliatory notice of termination

Legislation Cited:

Residential Tenancies Act 2010

Category:

Principal judgment

Parties:

Christopher Ryan (Applicant)
Guohong Pan and Zongmin Zhang (Respondents)

Representation:

Counsel: N/A

Solicitors: N/A

File Number(s):

RT 22/52564

Publication restriction:

Nil

REASONS FOR DECISION

1. This is an application by the tenant seeking the following orders pursuant to the provisions of the Residential Tenancies Act 2010 (“the Act”)

a. An order for repairs pursuant to s 65;

b. An order for a rent reduction pursuant to s 44(1)(b);

c. An order that a rent increase is excessive pursuant to s 44(1)(a);

d. An order that a notice of termination is retaliatory pursuant to s 115.

2. Both parties appeared at the hearing. The tenant appeared in person. The landlord was represented by the managing agent Mr Huang.

3. Both parties filed and served their evidence in accordance with the procedural directions made by the Tribunal on the 22 December 2022.

4. The parties entered into a 12 month residential tenancy agreement which commenced on the 13 December 2021. The rent was $620 per week. The premises consist of a two bedroom, two bathroom apartment with two parking spaces.

5. The chronology of significant dates is as follows:

27 October 2021   Landlord served a Notice of Rent Increase to take effect on 26.12.22, with rent to increase to $700 pw

25 November 2022   Landlord agrees reduce rent increase to $670 pw a

26 November 2022 Tenant files the Application for orders pursuant to sections: 44(1)(a), 44(1)(b) and 65 of the Act

09 December 2022 Landlord serves Notice of Termination pursuant to s 84 of the Act

12 December 2022   Fixed term ends

22 December 2022 Leave granted to amend the application to include a claim pursuant s 115 of the Act

26 December 2022   Tenant commences paying the increased rent amount of $670 per week

6. The parties agree that all notices have been served in accordance with the relevant provisions of the Act.

7. Both parties filed and served their documentary evidence, which includes all the notices relevant to the application, ingoing condition report, residential tenancy agreement, photographs, emails and written submissions from both parties and a statutory declaration from the tenant.

tenant’s evidence

RENT REDUCTION

8. The tenant seeks an order for a rent reduction on the grounds the landlord was slow to repair faulty light fittings in the kitchen and failed to undertake repairs to remediate cracks in the ceilings and walls and remedy water ingress in both bedrooms. The rent was $620 per week. Although the tenant filed this application disputing the quantum of the landlord’s proposed rent increase, he paid the increased amount of $670 from the 26 December 2022 in accordance with the date on the notice and the sum agreed to by the landlord.

Lights

9. The tenant first reported two down lights in the kitchen were not working on the 28 March 2022. The landlord’s initial response to the request was that it was the tenant’s responsibility to replace the bulbs. The tenant reminded the agent on the 29 March 2022 that she had previously informed him that an electrician must replace the down lights. On the 08 April 2022 the agent informed the tenant she would arrange for the replacement of the lights “…the next time the electrician was in the building”.

10. On the 11 July 2022 the tenant informed the agent he had replaced the light bulbs but two of them were still only working intermittently and he expressed concern the wiring may be faulty. One of the lights was in the kitchen and the other in the bathroom.

11. The tenant said that the loss of light in the kitchen was more than a mere annoyance as it was located directly above the stove and interfered with the ability to see the stove area clearly.

12. The lights were repaired on the 09 December 2022. The applicant seeks a rent reduction of $6.00 per week for the faulty lighting from 28 March 2022 to 09 December 2022.

Water Ingress and Cracked Ceilings and Walls in Both Bedrooms

13. The tenant recorded “large cracks” on the ceilings in both bedrooms on the ingoing condition report. The applicant first reported there was water coming in through a crack in the ceiling in bedroom 2 on the 20 April 2022. The ceiling felt wet and soggy to the touch and the surface glistened with the moisture.

14. Three tradesmen attended to undertake inspection of bedroom 2 on the 05 May 2022. At that time the tenant informed the tradesmen that apart from bedroom 2, there was now a similar leak in the main bedroom (bedroom 1). He was told they would include this in their report. They spent some time at the property undertaking an inspection of the layout of his unit and the one above. It was not raining at the time of the inspection, but the ceilings were badly stained from the last time it had rained when the water penetrated the ceilings.

15. The applicant has put before the Tribunal a copy of a letter from the strata managing agent to the landlord’s managing agent dated 11 August 2022 which states inter alia:

“I have received the report from Result Trades, they have done intensive testing and could not get any water to leak. The residents advised they have never had a water issue, just the stains on the roof this would suggest that the stains were probably from past leaks. Result Trades recommended monitoring the ceiling to see if there are changes to the stains. If no changes then treat the ceiling and repaint….”

16. The tenant denied telling the tradesmen that he never had a water leak. Quite the contrary, as referred to above he informed them that it had spread to the ceiling in bedroom 1. In any event, notwithstanding the tradesman’s recommendation, the landlord did not monitor the ceiling. The landlord never attempted to treat the mould or repair the cracks in the ceilings and the walls. The cracks would need to be repaired prior to any painting. This was not done.

17. On the 10 November 2022 the tenant again reported there was a leak in bedroom 1.

18. The water did not drip down into either bedroom, but you could see the dampness on the ceiling. The dampness created a shimmering effect of the ceilings in both bedrooms and they were wet and soft to the touch. As result of the dampness mould started to grow around the cracks in the ceiling. The tenant said he tried to keep it clean, but it continued to grow back.

19. Both the tenant and his wife are sensitive to mould and their health has been adversely affected by its continued presence on the ceiling in both bedrooms. As has the health of their 18 month year old infant. In his opinion he felt the cracks in the ceilings and the walls and the moisture in the ceilings were the source of the high moisture in the apartment that led to the growth of mould. The mould could not be permanently eradicated until the water ingress and cracked walls and ceilings were repaired.

20. The agent suggested to the tenant that he keep the rooms ventilated more than usual. The tenant works from home. He uses bedroom 2 as his work area and when the windows are open people outside the can hear his conversations. He said this was inappropriate in his line of work.

21. The tenant relies on a number of photographs of the ceilings in both bedrooms which show the cracks and water marks on the ceilings, the cracks in the walls and evidence of mould. By December 2022 there was mould growing around the cracks in the walls.

22. The landlord has failed to undertake any repairs to remedy the water ingress and remove the mould and repair the cracks in the ceilings or the walls. On the 20 December 2022 the tradesman attended and undertook an inspection of the ceilings and the walls and told the tenant he needed access to the unit directly above his to investigate the source of the water ingress.

23. The tenant claims the following rent reductions for the loss of amenity arising out of the water penetration and mould:

a.   $48 per week from the 28 April 2022 to 25 December 2022; and

b.    $51.80 per week from 26 December 2022 to date and continuing until the repairs are completed.

REPAIRS

24. The tenant seeks an order for the landlord to undertake the following repairs pursuant to s 65 of the Act as the landlord has in accordance with their obligation to keep the premises in good order and repair (s 63). The repairs sought are as follows:

a.    Prevent water ingress in bedrooms 1 and 2.

b.   Repair of the cracked ceilings and walls in bedrooms 1 and 2.

c.   Upon completion of the above two work orders, the landlord is to undertake mould removal and mould treatment to the walls and ceilings in the bedrooms and lounge room.

EXCESSIVE RENT INCREASE

25. The landlord sought a rent increase from $620 per week to $700 per week. The parties entered into negotiations with each other and on the 25 November 2023 the landlord agreed to reduce the increase rent amount to $670 per week. The tenant says this is still excessive, but nonetheless has been paying the $670 amount from that date and continuing, subject to the outcome of these proceedings. The tenant has put before the Tribunal advertisements for properties which he claims are comparable and which were listed for rent contemporaneously with the date of service of the Notice of Rent Increase, that is 27 October 2022.

26. The landlord has failed to maintain the premises in a reasonable state of repair. Apart from the water ingress in the ceilings in both bedrooms, the cracks on the walls and the lights that went unrepaired for months, the tenant said there were other maintenance issues. The garage door did not work. There was no intercom for three weeks during September 2022 and the cracks in the ceiling have not been repaired. The lift capacity was also reduced in September 2022 on and off for a period of about three weeks.

27. His apartment block was built in 2011. The property consists of two bedrooms, two bathrooms and two car spaces and is air conditioned. Many of the properties relied on by the landlord as being comparable are significantly more modern apartments in buildings that were more recently built. Many of the modern apartments relied on by the landlord and said to be comparable have customised or dedicated study areas or rooms. There is no communal gym or BBQ area in the tenant’s apartment block.

28. The subject premises are located in Gordon. The tenant relies on comparable apartments in many suburbs on the North Shore and even one at Macquarie Park. Many of these suburbs are a long way from his local area. Only two of the properties are located in Gordon.

29. The advertisements for those two Gordon properties are described as follows:

a.    534/3-11 McIntyre Street Gordon: 2 x bedroom, 2 x bathroom, 2 x car space Fully furnished with a study and a modern building; This is same street as the applicant’s premises    $700 per week

b.    A405/17-23 Merriwa St, Gordon: 2 x bedroom, 2 x bathroom, 2 x car space, modern building          $780 per week

30. Apart from the photographs of the interior of his apartment which show the cracks and mould, the tenant also relies on photographs of the exterior. These photographs depict an outdoor blind which shows signs of deterioration and the Perspex awning which shows evidence of wear and tear and mould.

31. For all the above reasons the tenant submitted that an increase of $20 per week would be appropriate.

RETALIATORY NOTICE OF TERMINATION: s 115

32. The Notice of Termination was served pursuant to s 84 of the Act on the 09 December 2022, with possession to be given to the landlord on the 18 January 2023. The tenant submits this was retaliatory as he had filed this application on the 26 November 2022. The landlord was partly or wholly motivated to terminate the tenancy after the tenant had taken action to enforce his rights.

33. After the Notice of Rent Increase was served and before the Notice of Termination was served he had been negotiating with the landlord about the quantum of the rent increase.

34. As part of those discussions on the 03 November 2022 he sent an email to the landlord concerning the rent increase and asked about extending the lease term. On the same day the landlord emailed the tenant inviting him the nominate the lease term he would accept. To which the tenant replied 12 months. In the course of these discussions and emails the tenant raised the issue of the ongoing repairs which were outstanding.

35. It is his evidence that in the course of the discussions concerning the rent increase the landlord’s agent Mr Liu told him his only options were either pay the amount in the notice or “move out”.

36. On the 25 November 2022 the landlord sent an email stating that she agreed to reduce the rent increase to $670 with a new lease term of 12 months. The tenant commenced paying the $670 per week, but said he felt this was still excessive having regard the state of the bedroom ceilings and walls and the untreated mould issues.

37. On the 25 November 2022 the tenant deposes to a conversation he had with Mr Liu about the possibility of making an application to the Tribunal in relation to the rent increase. Mr Liu’s responded with words the effect:

“…in my experience the owner will just terminate the lease… it is likely because owner’s don’t want the headache of going to tribunal or having to deal with strata for repairs.”

38. He was unsettled by this response, he was having trouble negotiating what he considered was a reasonable rent increase and so filed his application on the 26 November 2022. He said he felt there was an implied threat made by Mr Liu that the tenancy would be terminated if he elected to file an application for the tribunal to decide whether the rent increase was excessive. He went ahead and filed the application in the Tribunal. The threat made by Mr Liu came to fruition when two weeks later he was served with the Notice of Termination.

39. On the 12 December 2022 the agent sent the tenant an email which states inter alia:

“The owner has an expected rental return for the change of her financial circumstances. We have been communicating a while for the rental price. It is regretful that no deal has been reached so far. She would like to take her property back now…”

40. The tenant responded:

“…It is regretful that the landlord has chosen to issue a termination notice when you had previously said that they wanted to find a way for us to work out a reasonable price and enter a new lease. I am still prepared to do so and I wanted to see whether the owner was still amenable to entering a new lease for a further 6 or 12 month period…”

There was no response by the landlord to that request.

41. It is the applicant’s submission that the owner was partly motivated to serve the Notice of Termination to frustrate his right to have the Tribunal to make a determination in relation to the rent increase. The owner had previously offered to extend the lease and those negotiations ceased at a time that was reasonably proximate to the filing of his application.

42. The tenant submits for all the above reasons the Notice of Termination is retaliatory.

43. He said if the Notice of Termination was enforced this would cause undue hardship to him. He has a government role which requires security vetting of any changes to his residential tenancy address. His role requires him to travel interstate. Due to language and cultural barriers his spouse has difficulty with assisting him to find alternate rental accommodation, organising removalists and the connection of utilities etc. He is solely responsible for these tasks and the time a costs involved with moving premises would place a personal and financial strain on him and his family.

landlord’s evidence

RENT REDUCTION

44. Mr Huang conceded that neither of the ceilings have been repaired as the date of the hearing. He also conceded that the lights had not been repaired until 09 December 2022.

45. He agreed there was some water seepage through the cracks in the ceilings in the two bedrooms but said the cracks were only very minor in nature. The mould which was on the ceilings was not due to the water seepage, but rather was due to the tenant failing to properly ventilate the apartment. The landlord had never provided the tenant with a de-humidifier to help with mould issue.

46. The landlord submits that due to the minor nature of the issues at the property any rent reduction should be small.

47. The ceiling cracks were noted on the ingoing condition report. On the 20 April 2022 the tenant notified the landlord by email of the water leak. This was reported to the strata managing agent the same day.

48. Included with the landlord’s evidence are written submission prepared by another agent Mr Liu. He states the owner intended to undertake repairs after the tenant vacated.

49. The landlord noted the presence of mould on the ceilings in the living room, both bedrooms and the main bathroom at the routine inspection on the 21 November 2022. It is the landlord’s submission the mould was not excessive and only appeared when it rains. It is for that reason no offer was made to remove the mould.

50. Contrary to that submission, Mr Liu then submits that mould removal, repainting of the ceiling had been agreed on and was planned to be carried out after the water leak was fixed.

REPAIRS

51. The landlord made no submissions in relation to the application for an order for the landlord to undertake repairs.

EXCESSIVE RENT INCREASE

52. Mr Huang noted the tenant has provided comparable for apartments for an extensive area of the upper North Shore, they are not comparable to the tenant’s particular locality.

53. He conceded the landlord’s comparable properties are more modern apartments that had been built more recently. However, all the landlord’s comparable properties only have one car space. An additional car space adds value to the property and the rent which can be attained.

54. The landlord has provided evidence of properties for rent both under and above the rent of $700 per week:

55. UNDER $700

56. 17/728-730 Pacific Highway Gordon    2 x bed, 1 x bath, 1 x parking: $630

57. 110/20 McIntyre St Gordon   2 x bed, 2 x bath, 1x parking: $680

58. 17/65A Werona Avenue Gordon       2 x bed, 1x bath, 1 x parking: $680

59. ABOVE $700

60. 304/6-14 Dumaresq St Gordon   2 x bed, 2x bath, study,1 x parking : $750

61. 609/904 Pacific Highway Gordon   2 x bed, 2 x bath, 1 x parking, large balcony: $750

62. 307/28 Dumaresq St Gordon      2 x bed, 2x bath 1 x parking: $760

63. 4/12-14 Cecil St Gordon         2 x bed, 2 x bath, 1 x park: $780

64. Mr Huang said that on analysis of the above properties the landlord’s rent increase is very reasonable.

RETALIATORY NOTICE OF TERMINATION: s 115

65. Mr Huang said there had been a process of negotiations between the parties and when they had exhausted the negotiations the landlord formed the view that as lease term was coming to an end the notice needed to be served prior to the 12 December 2022.

66. In the written submission from Mr Liu, he states the landlord acknowledged that the service of the notice of termination would possibly be considered retaliatory, but she was hoping to get the property back because of the change of her circumstances. She wanted the property back not only because of financial stress from rising interest rates but also a change of plan with her family.

67. In his written submissions Mr Liu denied the actual words attributed to him by the tenant. However, he did not resile from the meaning. He said he was trying to let the tenant understand the owner’s thoughts and he expressed to the tenant his experience with similar situations. He was hoping this would help to reach a mutual agreement. He said the tenant may have misinterpreted his communication.

LEGISLATION

68. The tenant’s rent reduction claim is made in accordance with s 44(10(b) of the Act:

44   Tenant’s remedies for excessive rent

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

(a)  …

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

69. The tenant seeks an order the rent increase is excessive in accordance with s 44(1)(a) of the Act:

44   Tenant’s remedies for excessive rent

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

(a)  an order that a rent increase under an existing or proposed residential tenancy agreement is excessive and that, from a specified day, the rent for residential premises must not exceed a specified amount,

70. Section 44(5) sets out the factors which the tribunal may take into consideration in relation to making orders under both s 44(1)(b) and(1)(a):

44   Tenant’s remedies for excessive rent

(1)….

(2)…

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

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

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

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

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

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

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

(g)  when the last increase occurred,

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

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

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

(b)  binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable.

71. The tenant seeks an order for the Tribunal to make a declaration that the Notice of termination is retaliatory in accordance with s 115 of the Act:

115   Retaliatory evictions

(1)  The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice—

(a)  declare that a termination notice has no effect, or

(b)  refuse to make a termination order,

if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application.

(2)  The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons—

(a)  the tenant had applied or proposed to apply to the Tribunal for an order,

(b)  the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law,

(c)  an order of the Tribunal was in force in relation to the landlord and tenant.

(3)  A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant.

decision

RENT REDUCTION CLAIM

72. I am satisfied on the evidence the tenant notified landlord in writing on the 28 March 2022 that the lights in the kitchen were not working. This was not disputed by Mr Huang. Nor did he dispute they were repaired on the 09 December 2022.

73. I am satisfied the lack of lighting in the kitchen did represent a withdrawal by the landlord of facilities provided by the landlord in the kitchen. I accept the uncontroverted evidence from the tenant that the lack of lighting over that extended period of time was more than a mere annoyance did interfere with the ability to cook on the stove top.

74. The tenant claims a modest sum of $6.00 per week rent reduction for the period the landlord took to fully repair the lights. I am persuaded that is not an unreasonable reduction having regard to the fact that cooking is undertaken on an almost a daily basis and often for several times a day.

75. For these reasons I order the rent is to be reduced by $6.00 per week from the 28 March 2022 to 09 December 2022.

76. As to the claim for the water ingress and mould in the bedrooms, I am satisfied on the evidence that there cracks in the ceiling at the commencement of the tenancy. The tenant reported “large cracks” on the ceilings in both bedrooms in the Ingoing Condition report which is before the Tribunal.

77. The parties are ad idem that the tenant first reported the water ingress on the 20 April 2022. I accept the evidence from both parties that the landlord arranged for tradesmen to attend some time after the tenant made the tenant’s first notification.

78. The tenant said it was on the 05 May 2022. I am comfortably satisfied it was some time before 11 August 2022, as that is the date of the email from the strata managing agent to the landlord’s agent. This confirms no repairs were undertaken by that time. The tradesman recommended the landlord monitor the ceiling to see if there were any changes to the staining. There is no evidence the landlord followed this recommendation, or the recommendation that the ceiling be treated and painted.

79. According to the written submissions from Mr Liu the landlord’s intentions were to undertake the repairs after the tenant vacated.

80. I do not accept the landlord’s submissions that the cracks and areas of mould were of a minor nature. On the other hand the cracks and water ingress did not render the rooms unusable, and nor was this the tenant’s evidence.

81. I am satisfied there were large cracks on both ceilings at the commencement of the tenancy. I accept the tenant’s evidence that although there was never water pouring into the bedrooms both ceilings would glisten with the moisture and would be wet to the touch. The photographs show extensive staining and what appears to be mould. I accept the tenant’s evidence that the mould was worse after it rained, as that was when there was an obvious ingress of water which was coming through the ceilings.

82. From my observation of the tenant he was not prone to exaggeration. He gave his evidence in a straight forward manner. I accept that when the mould appeared he would attempt clean it, but it would reappear.

83. I do not accept the mould was caused by any actions taken by the tenant, as suggested by the landlord. I am satisfied the reported moisture in the ceiling and the large cracks in the ceilings in both rooms were the cause of the ongoing growth of the mould.

84. The landlord took no steps to remediate either the mould or the cracks in the ceilings in both bedrooms.

85. I accept the tenant’s evidence that he spent time cleaning the mould himself. I accept his evidence that the mould was a cause of concern for him and his family’s health. I am satisfied the cracks were unsightly and that from time to time there was moisture on the ceilings which was visible to naked eye. I am also satisfied the ceilings were wet and spongy when touched. I find the state of the ceilings in the two bedrooms does represent a reduction by the landlord of facilities provided with the premises from the 20 April 2022.

86. For these reasons I find the rent is to be reduced by the sum of $35 per week for the reduction of the facilities in relation to both bedrooms from 20 April 2022.

87. In accordance with s 44(6) of the Act an order for a rent reduction is to be for a period not exceeding 12 months. In this case I find the rent reduction is to commence from the 28 March 2022. In accordance with s44(1)(b) the rent rent orders are as follows:

(a) The rent is not to exceed $614 from 28 March 2022 to the 19 April 2022; land; and

(b) The rent is not to exceed $579 per week 20 April to 2022 to 25 December 2022; and

(c) The rent is not to exceed $629 from 26 December 2022 to 27 March 2023.

REPAIRS

88. The respondent made no submissions in relation to the repairs.

89. The tribunal satisfied the landlord is liable to undertake the repairs in accordance with the statutory obligation pursuant to s 63 of the Act to maintain the premises in a reasonable state of repair

90. Accordingly, the tribunal orders the respondent to undertake the following work in a proper and workmanlike manner on or before the 13 June 2023:

a.    Repair the water ingress in the ceilings in both bedrooms.

b.   Repair the cracked ceilings and walls in both bedrooms.

c.   Upon completion of the above two work orders, the landlord is to undertake mould removal and treatment and paint the ceilings and walls in bedrooms 1 and 2.

EXCESSIVE RENT INCREASE

91. I acknowledge the parties did appear to negotiate in good faith in an attempt to reach an agreement as to the rent increase. I am satisfied for the reasons set out above that the landlord has not been punctilious in observing her obligations under the Act to repair and maintain the premises.

92. That being said, I prefer the landlord’s evidence in relation to rent increase. I reject most of the comparables relied on by the tenant as the advertisements relate to properties in suburbs that are kilometres away from the subject premises are not a reflection of the rents being paid in the tenant’s local area. Only two of the properties are in Gordon and are advertised with rents of $700 and $780 respectively. I acknowledge the former is fully furnished.

93. I accept the tenant’s evidence that his apartment is in an older style building. I also accept that many modern apartments have purpose-built study areas. However, only one of the comparables provided by the landlord has a study.

94. There is only one apartment put forward by the landlord which has two parking spaces and it also happens to have a large balcony. The rent for that apartment is $750 per week.

95. The landlord has put forward three apartments where the rent is under $700 per week. One which is located on the Pacific Highway and all of them only have one parking space.

96. I accept the landlord’s submission that a parking space adds value which is reflected in the rent payable. Using the advertisements of comparable properties in the same locale is an imprecise science. However, having regard to the reasonably large number of samples overall provided by both parties I find the rent of $670 per week falls slightly below the rents being paid for comparable apartments.

97. Taking into account the condition of the tenant’s premises, the fact it has two parking spaces and the data from the comparables from both parties, I am satisfied the rent increase to $670 per week is not excessive.

98. Accordingly, the application for an order that the rent increase is excessive is dismissed

RETALIATORY NOTICE OF TERMINATION

99. The determination of whether a notice of termination is a two step process. The first question to determine in this matter is whether the landlord was wholly or partly motivated to serve the notice for the reasons set out in sub-sections (2)(a) and (b). Secondly, is there any basis upon which the Tribunal should exercise its discretion in relation to the order sought.

100. There is no doubt the tenant had applied to the Tribunal for orders and the basis of the application was to enforce rights under the Act for orders that the rent increase was excessive, repairs and a rent reduction.

101. Mr Liu denied saying the words attributed to him by the tenant, however he did not deny that he spoke to him and said words to effect that had the same meaning. I am satisfied that Mr Liu said to the tenant or words to the effect deposed to by the tenant. Mr Liu said he said he was trying to let the tenant understand the owner’s thoughts and he expressed to the tenant his experience with similar situations.

102. I infer from Mr Liu’s comments that the owner’s thoughts and his own experience was to the effect if that if the tenant took steps to enforce rights he may have under the Act, the owner would serve a notice of termination. I accept the tenant’s evidence that this conversation in the course of negotiating a rent increase was a form of a threat. And once the tenant filed the application the landlord made good on the threat.

103. Up until that point in time the parties had been negotiating amicably concerning both the rent increase and the duration of the new lease term.

104. For these reasons I find the Notice of Termination was retaliatory.

105. The landlord did not ask the Tribunal to exercise its discretion in relation to the s.115 application. However, I note landlord said she wanted the property back not only because of financial stress from rising interest rates but also a change of plan with her family. This information was not raised by the landlord prior to the filing of this Application. In fact up until the date the application was filed the landlord was still negotiating the new lease term with the tenant.

106. Th landlord has not put before the Tribunal any evidence of financial stress such as bank statements, statements from any other financial institutions, records of any mortgage documentation, tax statements or statements of income. Nor was there any documentary evidence as how this financial stress manifested itself between the date the tenant filed his application and the date the Notice of Termination was served. Nor was there any elaboration or documentary evidence to explain what was the change of the family plan, or at what point in time the family plan changed.

107. On the other the tenant said the if the notice of termination were enforced he would suffer undue hardship both financially and personally due to him being solely responsible for finding new rental accommodation and arranging removalists, and dealing with the utility companies whilst working in a full time role that requires interstate travel.

108. I have weighed up the competing interests and the evidence in relation to the hardships to both parties and have formed the view that this is not a case where the tribunal should exercise its discretion to set aside the Notice of Termination.

109. For these reasons and in accordance with s 115 of the Act the Tribunal declares the Notice of Termination is retaliatory and is of no effect.

OrDERS

110. For the above reasons the Tribunal makes the following orders:

1. In accordance with s 44(1)(b) of the Act the Tribunal orders the rent is to be reduced as follows:

1. The rent is not to exceed $614 from 28 March 2022 to the 19 April 2022; land; and

2. The rent is not to exceed $579 per week from 20 April to 2022 to 25 December 2022; and

3. The rent is not to exceed $629 from 26 December 2022 to 27 March 2023.

2. In accordance with s 65 of the Act, the landlord is to undertake the following work in a proper and workman like manner on or before 13 June 2023:

1. Repair the water ingress in the ceilings both bedrooms.

2. Repair the cracked ceilings and walls in both bedrooms,

3. Upon completion of the above two work orders, the landlord is to undertake mould removal and treatment and paint the ceilings and walls in bedrooms 1 and 2.

3. The application for an order pursuant to s 44(1)(a) of the Act is dismissed.

4. In accordance with s 115 of the Act the Tribunal declares the Notice of Termination served by the landlord is retaliatory and is of no effect.

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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

Amendments

16 August 2023 - Formatting amendments.

Decision last updated: 16 August 2023