Sebastian v NMAA Holdings Pty Ltd

Case •

[2025] NSWCATCD 78

•

12 June 2025

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Sebastian v NMAA Holdings Pty Ltd [2025] NSWCATCD 78
Hearing dates: 27 February 2025
Date of orders: 12 June 2025 (Amended 03 July 2025)
Decision date: 12 June 2025
Jurisdiction:Consumer and Commercial Division
Before: JA Rose, Senior Member
Decision:

The Tribunal makes the following amended orders under section 63 of the Civil Administrative Tribunal Act 2013:

(1)   The respondent landlord, NMAA Holdings Pty Limited, must pay the applicant tenants, Kyla Janine Sebastian and Kevin-sunil Lal Bala, the sum of $420.00 immediately.

(2)   The rent payable by the tenant is excessive and must not exceed the sum of $800 per week from 28 February 2025 to and including the earlier of:

(a)   27 February 2026; or

(b)   the date the landlord gives the tenant keys that operate the locks on the security screen doors at the front and rear entrances to the house on the premises.

(3)   The landlord must immediately repay to the tenants any amount received in rent for the period covered by order (2) above that exceeds the sum specified in that order.

(4)   The application is otherwise dismissed as the Tribunal is not satisfied to the civil standard (being the balance of probabilities) on the material put before it that there are grounds for the Tribunal to make the remaining orders sought by the applicant in the proceeding.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — landlords obligations to provide and maintain locks and keys, and to provide and maintain premises in a reasonable state of repair

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent — Rent reductions

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Cases Cited:

Bhandari v Laming [2015] NSWCATAP 224

De Chazol v Scala [2010] NSWCTTT 135

Dupont and Rowe v Lawrence [1997] NSWRT 213

Hanney v McCabe Toshack [2014] NSWCATCD 239

Kwok v Tahiri [2015] NSWCATAP 244

Lawson v NSW Department of Housing [1992] NSWRT 30

Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

Perkins v Sutherland [2001] NSWRT 217

Quddus & Mehboob v Jones [2017] NTCAT 448

Schrell v NSW Land and Housing Corporation [2019] NSWCATAP 256

Shrestha v Crandell Pty Ltd [2010] NSWCTTT 240

Texts Cited:

A Anforth and ors, Residential Tenancies Law and Practice New South Wales (8th edition, 2022), The Federation Press

Category:Principal judgment
Parties: Kyla Janine Sebastian and Kevin-sunil Lal Bala (Applicants)
NMAA Holdings Pty Ltd (Respondent)
Representation: K Sebastian, in person (Applicants)
C Fleet, managing agent (Respondents)
File Number(s): 2024/358111
Publication restriction: Nil

REASONS FOR DECISION

Introduction

  1. This proceeding arises out of a residential tenancy agreement between the applicants as the tenants (the “tenants”) and the respondent as the landlord (the “landlord”), dated 17 September 2024 (the tenancy agreement), in respect of a residential house at [address], Concord NSW (the “premises”). By the application form that was lodged with the Tribunal on 25 September 2024, one of the tenants (Ms Sebastian) sought a variety of orders against the landlord under ss 43, 44, 45, 52, 63 and 70 of the Residential Tenancies Act 2010 (NSW) (the RT Act). In the “Why are you applying to NCAT?” Panel on the application form, Ms Sebastian described the basis of her application as follows:

* Unmatched double quotation marks in next paragraph *

“My premises were and are currently not made ready on the commencement of my tenancy on Oct 25, 2024. I was not provided with a lockable and secure garage, as advertised in the rental listing. I was not provided with a fully fenced yard, as advertised. The fence is collapsing with a large opening.

* Unmatched double quotation marks in next paragraph *

I was not provided with keys to locking mechanisms on property: 2x screen doors, backdoor and to garage doors.”

As set out below, the tenants’ claim has transformed significantly since that application was lodged.

  1. The proceeding came before the Tribunal for conciliation and an initial (group list) hearing on 30 October 2024. Conciliation was not successful, so the Tribunal (Member Lynch) made orders adjourning the proceedings for hearing as a special fixture on a date to be confirmed by the Registrar. In doing so, the Member made directions:

  1. joining Kevin-sunil Lal Bala as a co-applicant to the proceeding;

  2. requiring both the tenants and the landlord to lodge with the Tribunal and give to each other the documents they intended to rely on at the hearing, by certain dates; and

  3. noting that the claim made by the tenants had been reduced to the following:

* Unmatched double quotation marks in next paragraph *

“Tenant is seeking a rent reduction of 100% per week pursuant to Section 44(1)(b) of the Residential Tenancies Act 2010 (NSW) from 20-30 September arising from a breach of Section 70 as the property was not secure. The tenant is also seeking an ongoing rent reduction of $150 per week until the garage and fence are fully secure.

Leave is granted to the applicant to amend the application.

* Unmatched double quotation marks in next paragraph *

Tribunal notes the applicant’s amending the application by adding a claim for compensation/rent reduction for breaches of Section 70 and Section 52 of the Residential Tenancies Act 2010.”

  1. The parties have both lodged documents with the Tribunal, in substantial compliance with those directions.

The hearing

  1. The proceeding was then listed for hearing by me on 27 February 2025, with an estimate of 2 hours. Ms Sebastian, one of the tenants, represented both tenants at the hearing. The landlord was represented at the hearing by Mr Christopher Fleet, a property manager with Ray White The Ryde Group, its managing agents (the “managing agents”).

  2. The hearing proceeded in the usual manner. After both parties made brief opening submissions about the issues in dispute, parties were given reasonable opportunities to produce the evidence that they relied on in support of their respective cases, and to test the evidence produced by the other party. I also given reasonable opportunity to present their arguments to the Tribunal and to respond to the arguments presented by the other party. I am satisfied that both parties had a reasonable opportunity to be heard and to have their submissions considered in the proceeding.

  3. In opening the tenants’ case, Ms Sebastian stated that the tenants sought orders for:

  1. compensation for failing to provide premises that were fit for habitation or in reasonable repair (in breach of ss 52 and/or 63 of the RT Act) because of the condition of the side fence and/or for failing to provide locks that ensured the premises were reasonably secure (in breach of s 70(1) of the RT Act); and

  2. compensation of $300 for failing to provide keys to locks at the premises (in breach of s 70(2) of the RT Act) and/or a reduction of the rent under s 44(!)(b) while those keys were not provided.

Ms Sebastian stated that the tenants also wished to claim: (a) a further $600 in further compensation under the ss 52/63 claim, for pest control costs incurred by the tenant as a result of there being overgrown trees and a spider infestation at the premises at the start of the tenancy agreement – although she acknowledged that she had not put on any evidence in support of the claim; and (b) an order permitting the tenants to transfer the tenancy agreement to replacement tenants (under s 75 of the RT Act); and (c) that a termination notice that had been recently served on the tenant was a retaliatory notice under s 115 of the RT Act.

  1. For the landlord, Mr Fleet asserted that:

  1. The compensation claim was denied as the landlord asserted that it had completed the necessary repair works by 30 September 2024, including repairing the fence, repairing the locks at the premises, fitting a latch to the outside of the garage door;

  2. the managing agents had never been provided with any keys to the screen doors to give to the tenants;

  3. the claims of compensation for trees and spiders; to have the landlord’s termination notice declared retaliatory; and for orders permitting the transfer of the tenancy were not part of the claim, and had not been raised or discussed between the parties before the hearing.

  1. I gave the parties time to discuss the matter, after which they agreed that the tenants’ application would be amended to include a claim under s 75 of the RT Act and that the Tribunal may proceed to hear that application without any further delay (i.e., “instanter”), but the other additions to the claim were not agreed.

  2. After hearing from both parties I declined the proposed amendments concerning the tree/spider infestation and retaliatory notice issues, primarily on the grounds that (a) the respondent would need time to put on evidence in response to those issues; and (b) I did not consider that it was in the interests of the just, quick and cheap resolution of the issues in dispute in the proceedings for the current proceeding to be adjourned to allow the claim to be enlarged as proposed. Consequently, the hearing only dealt with the application as it was defined at the group list hearing and the claim under s 75, to transfer the tenancy agreement.

  3. At the end of the hearing I made the following orders and directions:

1    Kyla Janine [one of the applicants] is amended to Kyla Janine Sebastian.

2 By consent of the parties, leave is granted to the applicants … to further amend the application in this proceeding by adding a claim for an order under s 75(5) of the Residential Tenancies Act 2010 (NSW), that the said applicants may transfer the tenancy or sub-let the subject residential premises as referred to in subsection 75(2) of that Act, on the ground that that the landlord’s failure to consent to that transfer or sublease was unreasonable.

3    The decision is reserved.

4    The applicants … are to lodge with the Tribunal and give to the respondent, by 06 March 2025:

(a)    a copy of the application for consent to transfer or sublease that is relied on; together with

(b) any written submissions that the applicants wish to make in respect of the claim made under s 75(5) of the Residential Tenancies Act 2010 (NSW) (limited to 4 pages).

5 The respondent … is to lodge with the Tribunal, and give to the applicants, by 13 March 2025, any written submissions that the respondent wishes to make in respect of the claim made under s 75(5) of the Residential Tenancies Act 2010 (NSW) (limited to 4 pages).

6 The parties are to advise the Tribunal in writing, by 13 March 2025, if the claim under 75(5) of the Residential Tenancies Act 2010 (NSW) is resolved by consent, and if the claim under that subsection is withdrawn or to be dismissed.

  1. Neither party has provided the Tribunal any documents or advice as described in those directions. Consequently, I have determined the remaining parts of the application based on the material that was put before the Tribunal at the hearing.

  2. For the reasons that I now set out, tenant’s claim is partly successful. The landlord is directed to pay the tenant compensation totalling $585.75 on the door keys and side fence claims. The Tribunal also orders that the rent not exceed $800 from 28 February 2025 until the date the landlord gives the tenant keys to operate the security screen doors on the house at the premises or 27 February 2026, whichever is the earlier. The application should otherwise be dismissed.

The evidence

(a)   The documentary evidence

  1. The tenants relied on 4 bundles of documents:

  1. the bundle that was lodged with the Tribunal on 13 November 2024 (exhibit T1);

  2. amended written submissions (exhibit T2);

  3. a request to add to the application the additional orders described above (exhibit T3); and

  4. an invoice dated 7 November 2024 for the supply and installation of two door locks, to repair the side gate and to supply and install a plastic strip to the back door of the house (exhibit T4).

  1. The landlord relied on 2 bundles of documents:

  1. the bundle that was lodged with the Tribunal on 29 November 2024 (exhibit L1); and

  2. a bundle of invoices for work subsequently undertaken at the premises (exhibit L2).

(b)   The oral evidence

  1. Ms Sebastian gave sworn oral testimony in support of the tenants’ claim. Mr Fleet also gave sworn oral testimony in support of the landlord’s position. While both parties were given the opportunity to cross examine the other party’s witnesses, neither party sought to do so.

Jurisdiction

  1. Section 187(1) of the RT Act gives the Tribunal jurisdiction to make orders for the payment of money and compensation in respect of a residential tenancy agreement.

  2. I am satisfied on the evidence before the Tribunal that there is a residential tenancy agreement in force between the parties and that the Tribunal has jurisdiction to hear and determine the tenants’ claim. The amounts claimed by the tenants are within the landlord’s monetary jurisdiction under the RT Act.

The applicable law

  1. The tenants’ claims raise issues under the following provisions of the RT Act.

(a)   The door keys claim and the garage door claims

  1. Section 70 of the RT Act prescribes the obligations of the landlord and the tenant in respect of locks and other security devices at the premises. It provides as follows (my underlining):

70 Locks and other security devices

(1)    A landlord must provide and maintain the locks or other security devices necessary to ensure that the residential premises are reasonably secure.

(2)    A landlord or landlord’s agent must give to each tenant named in the residential tenancy agreement a copy of the key or any other opening device or information required to open a lock or security device for the residential premises or common property to which the tenant is entitled to have access.

(3)    The initial copies are to be provided free of charge but the landlord may recover from a tenant the cost of providing replacement or additional copies.

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

Note : Section 191 provides for matters to be considered by the Tribunal when determining an action for a breach of this Division.

  1. Section 191 concerns the issue of whether a landlord has provided residential premises that are reasonably secure. As such, the section is relevant to the garage doors claim. Section 191 provides (my underlining):

191 Matters for consideration by Tribunal in applications relating to security breaches

(1)   This section applies to proceedings before the Tribunal relating to a breach of Division 7 of Part 3.

(2)   For the purposes of determining whether a landlord has provided residential premises that are reasonably secure, the Tribunal may consider (but is not limited to considering) the following matters--

(a)   the physical characteristics of the premises and adjoining areas,

(b)   the requirements of insurance companies for allowing the tenant to obtain insurance for property of the tenant kept at the premises,

(c)   the likelihood of break-ins or unlawful entry or risks to the tenant’s personal safety.

(3)   For the purposes of determining whether compensation is payable to a tenant for a breach of the obligation to provide residential premises that are reasonably secure, the Tribunal must consider (but is not limited to considering) the actions taken, or that should reasonably have been taken, by the tenant and the landlord for the security of the premises.

(b)   The side fence claim

  1. Sections 52 and 63 prescribe the condition that the premises must be in at the start of a tenancy agreement. Those sections provide (relevantly):

52 Landlord’s general obligations for residential premises

(1)    A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant.

(1A)-(3)   …

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

63 Landlord’s general obligation

(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.

(c)   Excessive rent

  1. Section 44 of the RT Act entitles a tenant to apply for a periodic rent reduction in certain circumstances. That section provides (relevantly, my underlining):

44 Tenant’s remedies for excessive rent

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

(a)   …

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

(2)   …

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

(4)   Determination of excessive rent For the purposes of making an order under this section, the Tribunal may declare that amounts payable under a contract, agreement or arrangement under which goods, services or facilities are provided to the tenant are rent.

(5)   The Tribunal may have regard to the following in determining whether … rent is excessive--

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

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

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

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

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

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

(g)   when the last increase occurred,

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

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

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

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

(d)   The sub-letting claim

  1. Section 74 of the RT Act gives the tenant a conditional right to transfer the tenancy under the residential tenancy agreement to another person or sub-let the premises to another person if the landlord gives written consent to the transfer or sub- letting. That section reads as follows:

74 Transfer of tenancy or sub-letting by tenant

(1)    A tenant may transfer the tenancy under a residential tenancy agreement to another person or sub-let the premises to another person, if the landlord gives written consent to the transfer or sub-letting.

(2)    The landlord must not charge for giving consent to a transfer or sub-letting, other than for the reasonable expenses of giving consent.

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

  1. Section 75 of the RT Act then sets out the requirements for the landlord giving consent to a transfer of a tenancy or subletting. That section provides as follows:

75 Consent to transfer of tenancy or sub-letting

(1)    No requirement for reasonable refusal for whole transfer or sub-letting The landlord may withhold consent to a transfer or sub-letting relating to the whole tenancy or residential premises whether or not it is reasonable to do so.

(2)    Consent must not be unreasonably withheld for partial transfer or sub-letting The landlord must not unreasonably withhold consent to a transfer of a tenancy or sub-letting of premises if the transfer results only in one or more tenants in addition to an original tenant under the residential tenancy agreement or the partial sub-letting of the residential premises occupied by the tenant.

(3)    Without limiting subsection (2), the landlord is entitled to withhold consent if--

(a)    the number of proposed occupants is more than the number permitted by the residential tenancy agreement or any applicable consent or approval under the Environmental Planning and Assessment Act 1979, or

(b)    the proposed tenant or sub-tenant is listed on a residential tenancy database in accordance with this Act, or

(c)    the landlord is reasonably of the opinion that the transfer or sub-letting would result in the residential premises being overcrowded.

(4)    Subsections (1)-(3) are terms of every residential tenancy agreement. Subsections (2) and (3) do not apply if the landlord is a social housing provider.

(5)    Remedy if landlord refuses consent The Tribunal may, on application by a tenant, order that the tenant may transfer a tenancy or sub-let residential premises as referred to in subsection (2) if the Tribunal is of the opinion that the landlord’s failure to consent is unreasonable.

  1. As set out in those sections, many of those requirements are terms of every residential tenancy agreement.

  2. I have considered the tenant’s claims in accordance with those provisions.

The common ground between the parties

  1. It was common ground between the parties – and I find accordingly – that:

  1. There was a tenancy agreement between the parties on the terms contained in exhibit L1.

  2. The tenants moved into the premises on 18 September 2024.

  3. The landlord undertook some work at the premises in the two weeks after the tenants moved into the premises – although they differ on whether that work alleviated the landlord of any obligation to pay the tenants compensation as claimed.

The background facts

  1. Having weighed and considered the competing evidence produced by both parties (much of which was not the subject of any significant controversy), I am satisfied on the balance of probabilities that the background facts of the matter are as follows:

  2. The premises is a single story brick house on landscaped grounds at [address], Concord NSW. There is also a separate double lock-up garage at the rear of the property, facing the street behind the premises, which forms part of the premises.

  3. The tenants were introduced to the premises in late August or very early September 2024. At that time, the premises had been advertised as being “fully fenced” and having “secure parking”.

  4. On 4 September, the tenant and the managing agents exchanged email correspondence to the following effect:

Managing agents:   The owner is approved for the 18/09/24. You can come and pick up the key from the 18/09 and moving in anytime you prefer.

Kyla Sebastian:   We will not be able to do the move on the 18th. Please advise how to move forward from here being we are not in a position to commence the lease before the 20th.

Kyla Sebastian:   Please also advise when we can review and sign the lease. Also wanting to ensure the garage and back gate will be secured and lockable before the beginning of our tenancy.

Managing agents:   For the back gate, it’s lockable – you just need to put on a padlock. For the garage door, we are discussing with the owner for a few quotes that we have. I still need to ask the owner about your request for changing lease start date. We will send you the lease agreement shortly. [Did] you receive the bond link?

  1. On 11 September 2024 the managing agents’ Brendan Jones conducted an ingoing condition inspection of the premises in anticipation of letting the premises to the tenants, following which they prepared the ingoing condition report that is in the landlord’s evidence (the “agent’s ICR”). The agent’s ICR relevant commented that:

  1. there was a screen entry door, which was in good condition with no tears in the mesh;

  2. the front (timber) door was in good condition with a working key lock;

  3. there was a screen door off the dining room, which was in fair condition;

  4. the external laundry door was in fair condition;

  5. the garage was in fair condition with a floor-bolt installed to secure the garage;

  6. the fence in the back garden was falling.

The tenants did not sign or return the agent’s ICR in the events that follow. They now argue that the report was not accurate. Mr Jones has not given evidence in support of the agents’ ICR. Acknowledging that the agent’s ICR has been prepared in the absence of the tenants, I give the comments made in the document weight equivalent to an unsworn statement.

  1. The agent’s ICR contained a link to a bundle of photographs that the inspector had taken. Those photographs (which I accept as accurate in the absence of evidence to the contrary) showed:

  1. a key-lockable security screen door at the front of the premises, which was variously open and closed at the time the photographs were taken;

  2. a key lockable timber and glass door leading out from the dining room at the back of the house, which was both open and closed at the time the photographs were taken;

  3. a key-lockable security screen door with a pet flap at the back of the premises (in the same frame as the timber and glass door), leading to the rear porch, which was both open and closed at the time the photographs were taken;

  4. the external laundry door (which was not lockable) was crooked in the door frame, with gaps at the tope and side that suggested it was loose in the frame;

  5. the roller door in the garage did not have a door lock on the outside and the floor bolt referred to in the agent’s ICR was not apparent;

  6. a rusted iron gate bolt mounted on the outside of the single (swinging) door to the garage from the back yard, which could receive a padlock but did not appear to align with the hole in the door frame for it to lock properly;

  7. the garden gate, which had a rusted gate bolt mounted on the inside of the garden gate that could receive a padlock, was both open and closed in the photographs; and

  8. the section of metal fencing closest to the garage was leaning over, towards the street, with rubbish fallen into the hollow at the back of the fence.

I give those photographs greater weight than the comments in the agent’s ICR and find that the condition of the premises was (relevantly) as shown in those photographs at about the time the premises were let to the tenants. In particular, I find that the laundry door and the back single (swinging) door to the garage did not shut properly and were not lockable at the start of the tenancy agreement that followed.

  1. The parties entered into the tenancy agreement on 17 September 2024. The agreement which gave the tenants the right to occupy the premises as a residence for an initial term of 12 months, from 18 September 2024 to 17 September 2025. The starting rent of $810 per week was payable from 20 September 2025 (i.e., the tenants had a 2-day rent-free period at the start of the tenancy agreement). The tenancy agreement was in the form prescribed under the RT Act. Consistently with the provisions set out above, it contained clauses to the following effect:

  1. the landlord agrees:

  1. to provide and maintain locks or other security devices necessary to keep the residential premises reasonably secure (clause 32.1);

  2. to give each tenant under the agreement a copy of the key (etc) to open any lock or security device for the premises to which the tenant was entitled to have access (clause 32.2);

  1. the parties also agreed that:

  1. the tenant may, with the landlord’s written permission, transfer the tenant’s tenancy under the agreement or sub-let the premises (clause 35.1); and

  2. the landlord may refuse permission (whether or not it is reasonable to do so) to the transfer of the whole of the tenancy or sub-letting the whole of the premises; (clause 35.2);

  3. the landlord must not unreasonably refuse permission to a transfer of part of a tenancy or a sub-letting of part of the premises (clause 35.3); and

  4. without limiting clause 35.3, the landlord may refuse permission to a transfer of part of the tenancy or to sub-letting part of the premises if:

  1. the number of occupants would be more than was permitted under the tenancy agreement; or

  2. any proposed tenant or sub-tenant was listed on a residential tenancy database; or

  3. the transfer or sub-letting would result in overcrowding of the premises (clause 35.4).

  1. Addendum “A” to the tenancy agreement asserted that the tenants accepted the property in its (then) current condition – “as is”, however that clause sought to derogate from the landlord’s general obligations to provide premises that were fit for habitation (s 52), or to provide and maintain premises in a reasonable state of repair. For example, the clause was subsequently held out by the managing agent as a reason why the landlord was not required to restore the fence surrounding the premises to a reasonable state of repair, asserting that the fence was like that when the tenants had inspected the premises. As provisions which derogate from the statutory obligations in the RT Act are void under the Act, I consider that clause to be unenforceable. I have therefore given it no regard in coming to my decision on the tenant’s claim.

  2. On 18 September 2024, the managing agents gave the tenants two copies of a single key to the premises. That key unlocked only the main timber door at the front of the premises. While there were screen doors on the front and back of the premises, a timber and glass door at the back of the premises, and a floor bolt on the garage door, (a total of 4 other doors, in addition to the main entry door) the managing agents did not give the tenants copies of any keys to open those doors.

  3. Ms Sebastian raised this issue by email correspondence that night (amongst others), writing:

I was disappointed when I collected the keys today and was only provided to keys both for the solid front door. We require keys for both front and back screen as well has keys for both garage doors: the roller and swinging door, to ensure our things are properly secure.

Additionally there are quite a lot of pest in the house as well as hatchlings. I have attached images to show.

I have booked a fanatic pest control specialist to come out and treat the property tomorrow so I can ensure it has been done before we move in on Friday. I have used him for about 10 years. He is very effective and fairly priced for the market. His rate is $280 and this covers treatment for the entire property.

I would greatly appreciate the home owner covering the cost of this.

Please let me know when you can provide the required keys and the home owners response regarding the pest control.

  1. Later that evening, Ms Sebastian sent a further email to the managing agents, writing:

In addition to the urgent needs for the additional keys to secure the property, bedroom 3 needs a lock installed on it. There is currently no locking apparatus on it.

I would greatly appreciate these matters being tended to urgently. We tried to ensure matters of safety and security such as locks, [were] going to be ready prior to the beginning on our tenancy.

I am very unsettled sleepy and leaving my things in a home with a large ground floor window that can not be secured.

We had time at our previous place and [we’re] not rushed to move in right away.

May I ask why keys, locks and pest were not attended to prior to the commencement of the tenancy?

I appreciate these matters being appropriately resolved as soon as possible and discuss a rent reduction if this won’t be resolved this week.

  1. Ms Sebastian pressed the above points by email over the next few days. On 21 September, after having a pest treatment conducted at the premises, she sent the managing agents a bundle of photographs that had been taken at the premises, writing (relevantly):

We hope this message finds you well. As new tenants, we are writing to address several urgent matters that we believe should have been resolved prior to our entry date. We appreciate your attention to these issues to ensure a smooth tenancy.

…

2. Locks & Keys: We require keys for all locking mechanisms, including the front screen, back door, both garage doors, and a locking component for the third bedroom window. According to Division 7 of the Tenancy Act, this is essential. We request that our rent be frozen until all necessary keys and locks have been provided for security.

3. Pest Control: Attached is the invoice for the pest control service we had to arrange urgently, as we could not move in without this being addressed as the house had severe spider in fair station. Our moving truck is scheduled for September 20, so timely action was necessary. We hope there is no issues having the landlord reimburse us for this invoice [$308].

…

6. Backyard Fence Collapsing: The backyard fencing is on its way to collapsing. It has a wide opening where it has started to come down. This leaves the back yard completely unsecured.

We understand that preparing a recently purchased home can take time, but we feel these issues should have been managed prior to our tenancy.

We kindly ask for the rent to be frozen until the above concerns are resolved. Especially the fence, keys, and garden.

  1. Mr Brendan Taylor from the managing agents responded by email later the same day, writing (relevantly; the bolding is in the original):

Please see my updates/responses in blue below.

I notice you chose not to acknowledge that the landlord offered 2 days free rent, to appease your request of collecting the keys 1 day earlier to suit your removal list. As mentioned, the landlord did this as a courtesy to encourage a smooth transition from the property being sold to the new tenancy starting and to foster a good working relationship.

Omitting the conversations we’ve had with you and Kevin since Mon 16/9 in your email below kind of suggests a lack of willingness to be cooperative. The property is no different to renew viewed it at the Open Inspection, apart from more leaves and slightly taller grass due to growth.

…

2. Locks & Keys: … I acknowledged on the phone that our handyman Ray will install a lock on this sash window.

Once this is done (which will be promptly) the house is “reasonably secure” which means the landlord has met their obligation.

However, we will look into providing a key for the back door – due to the freestanding garage, it’s reasonable that the tenants will use the back door more often than the front door.

a.   Garage Door – I acknowledged on the phone call on Wed, in which I said our handyman Ray will attend to this. But we never agreed to locking the single door to the garage – Beatrix explained this to you previously. It’s the roller door that will be locked. However, Ray has fitted a new bar on that single door at the owner’s cost, which enables a tenant to use a padlock if they wish.

b.   We have issued you copies of the keys we have available. A landlord is to provide the tenants with a key/S to access the property, and have it reasonably secure. The front door key meets this obligation.

Once the third bedroom window has a lock, this property is “reasonably secure”.

The landlord is not obligated to provide a lock for the screen door, because the front door provides “reasonable security”. There’s lots of properties in NSW that don’t have a screen door.

3.   Pest Control: … Landlord already agreed – but you said the invoice was a total of $280. Now it’s $280 + gst.

The landlord will pay this – thanks for attaching it already.

…

6.   Back Fence Collapsing: … You accepted the property “as is”. This is why agents/landlords conduct Open Inspections. That said, as a property mgr I will forward your request on, and provide you with an update.

…

None of this warrants the rent to be frozen. The rent will not be frozen.

  1. Over the next few days, Ms Sebastian and Mr Taylor continued to exchange correspondence on the issues raised by the tenants. In that correspondence, Mr Taylor pressed that the property was not advertised as “fully fenced” or as having a secure/lockup grate (which Ms Sebastian later refuted with a copy of an advertisement for the property). He also agreed to provide an additional lock for the back door of the house “because of the design of the house”, but insisted that this and the key for the front door were adequate for the premises to be “reasonably secure”.

  2. As noted above, the tenants filed their application in these proceedings on 25 September – which was only a week after moving into the premises.

  3. On 31 October, the tenants sought permission from the managing agents for them to install locks on the laundry and garage single (“swinging”) door, at their own cost. The managing agents responded on 2 November, stating that the landlord had given permission for the tenants to install locks on those doors subject to three conditions:

1.   These are sourced and installed by you and/or at your cost.

2.   Within 2 weeks of installing the new locks, you inform us of this being carried out.

3.   Also within 2 weeks of installing our agency is provided with 1 key for each lock (or 1 key in total if both locks are the same key) And this key/s is to be provided to us within 2 weeks of installing the new locks.

The tenants subsequently engaged a tradesman to supply and install two door locks for the garage and a plastic strip to the back door, and to repair the side gate at the premises, which was done on 7 November at a cost of $300.

  1. Subsequently, on around 15 November, the managing agents gave the tenants a copy of the key to the back timber and glass door, but not the screen doors. I accept the tenants’ evidence that the screen doors can close and lock automatically while a person is outside the premises, potentially locking an occupant outside the house.

  2. On about 22 November, the managing agents’ handyman repaired the lock on the roller door to the garage, removing a broken key from the lock and servicing the lock.

  3. On 29 January, the landlord served the tenants with a termination notice alleging breach of the tenancy agreement by keeping a dog at the premises and by subletting. The notice required the tenant to vacate the premises by 13 February, however the tenants remained in the premises at the time of the hearing.

  4. On 3 February, the tenants wrote to the landlord, seeking approval for additional occupants to reside at the house with them on a share-house basis and refuting the claim that pets were being kept at the premises; asserting that they instead had a service dog at the premises. The managing agents then requested the tenants to provide more information about the service dog and to assert that landlord’s consent was still required before allowing another person to reside at the premises in a share house arrangement.

  5. Since the start of the residential tenancy, the landlord has incurred the following amounts in respect of the premises, as evidenced by invoices produced to the Tribunal (relevantly):

  1. on 17 September, for a tradesman to supply and install a stainless-steel barrel bolt on the single (swinging) garage door;

  2. on 15 November – for a tradesman to repair and brace the boundary fence to make the yard secure, and to repair the rear laundry jamb;

  3. on 22 November – for a locksmith to remove a key from a roller garage door and to service the lock; and

  1. on 18 February – for a locksmith to attend and service a lock that was not unlocking.

Those invoices confirm that findings that I have made, above.

Consideration – applying the law to the facts as found

(a)   The door keys claim

  1. The evidence establishes that there were four lockable doors on the house at the premises at the start of the tenancy agreement (being the front and back doors and the two screen doors) and a lock on the garage door, however the landlord only gave the tenants a copy of the key to open the lock on just one of those doors – which was the front door of the house.

  2. While the managing agents sought to resist the tenants’ request to be given keys to the other three doors on the ground that (on their reading of it) s 70(1) of the RT Act and clause 32.1 of the tenancy agreement only required the landlord to provide and maintain locks or other security devices that were necessary to keep the residential premises reasonably secure, and that this was done by providing the key to the front timber door. The managing agents did not go on to address subsection 70(2) and clause 32.2 – which was the tenants’ primary complaint in their responses to the tenant.

  3. Subsection 70(2) and clause 32.2 separately require the landlord to give the tenant copies of the keys that are required to open any lock for the rented premises. In this case, that included the locks on the two screen doors, the lock on the rear door of the house and the floor lock on the garage door. That was an additional requirement under the tenancy agreement.

  4. I am satisfied on the evidence, including the photograph of the keys that were provided at the start of the tenancy agreement, the correspondence exchanged between the tenants and the managing agents and the invoices produced by the landlord that the landlord and/or its agent did not give the tenants the necessary key to operate the lock on the roller door until 14 October (when it was repaired by the landlord’s locksmith), and did not give them the key to operate the back door of the house until 15 November. Further, the landlord has still not yet given the tenants keys to operate the locks on the two screen doors.

  5. I find on this basis that the landlord was in breach of s 70(2) of the RT Act and clause 32.2 of the tenancy agreement in failing to give those keys to the tenants at the start of the tenancy agreement. The tenants are therefore entitled to an order that the landlord comply with the tenancy agreement by providing those keys to the tenants. They are also entitled to compensation for any reasonable loss or damage that they suffered as a result of that breach.

  6. The tenants’ evidence set out that they suffered significant inconvenience in accessing and using the premises that was caused by the landlord’s failure to provide the keys to open the locks on the other three doors:

  1. Firstly, they were unable to use the back door of the house to access the back yard and the garage at the premises, because the back door was locked, until about 15 November.

  2. Secondly, they were unable to use the roller door on the garage to gain access to that garage from the street, until the broken key was removed and the lock was serviced on 22 November.

  3. Thirdly, they were unable to lock the screen door at the front of the premises to secure the premises while the front door was open. This impacted on their ability to draw fresh air or light into the premises from outside while they were in the premises, and to keep the premises secure while they did so.

  4. Fourthly, they were at constant risk of locking themselves out of the house if the front screen door closed and locked while one or both of them was outside the house.

That inconvenience and loss of use, which falls within the scope of non-economic loss for which the Tribunal is empowered to make a compensation order, has lasted from the date the tenants moved in (20 February) until the date of the hearing, a period of 23 weeks. It will also continue from the date of the hearing until the date the remaining keys (for the screen doors) are provided to the tenants.

  1. The tenants have not provided any evidence of any particular loss or damage that they have suffered because of the above breach by the landlord beyond asserting in the first case that the whole rent should be abated because of the landlord’s failure to provide those keys. I do not consider that to be a reasonable measure of the tenants’ loss in the circumstances of this case.

  2. The tenant has otherwise proposed compensation of $300 for failing to provide the keys to the security screen doors at the premises. Noting that the rent payable by the tenants under the tenancy agreement was $810 per week, allowing for the fact that the garage door lock was repaired on about 15 November and the rear door key was provided on 22 November, and doing the best that I can on the available evidence, I have agree that $300 is a reasonable sum for the landlord to pay for its breach of this requirement. Accordingly, the loss which the tenants have suffered because of the landlord’s failure to provide keys to those three doors is assessed at $300.

(b)   The garage door security claim

  1. As noted above, s 70(1) of the RT Act, and clause 32.1 of the tenancy agreement require the landlord to provide sufficient locks to ensure that the premises are “reasonably secure”.

  2. I have found above that the roller door issue was rectified when the landlord’s locksmith removed a broken key from the lock and the landlord gave the tenants a key for the roller door, on about 22 November. That leaves the rear single (“swinging”) door. That door cannot be considered in isolation; there are several factors which must be considered – as set out in the following authorities.

  3. The authors of Residential Tenancies Law and Practice New South Wales (8th edition, 2022) summarised the extent of a landlord’s obligation under those provisions, in the following terms (at [2.70.1] and 2.70.2):

[2.70.1]   Reasonable security

As a general rule the landlord is not liable for the criminal actions of third parties: Modbury Triangle Shopping Centre v Anzil [2000] HCA 61; Ashrafi Persian Trading Co P/L trading as Roslyn Gardens Motor Inn v Ashrafinia [2001] NSWCA 243; Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381. But s 70 imposes liability for the foreseeable consequences of a failure by the landlord to provide reasonable security.

The duty to provide ‘reasonable security’ does not make the landlord a guarantor or insurer of the tenant’s losses against any and all unlawful entry. The word ‘reasonable’ imports some limits. There are some unlawful entries that could not be prevented except by the most elaborate security, measures which could not be commercially viable for residential tenancies.

In Wojtowwicz v Wedzah P/L (1997) and De Almeida and O’Phee v Hackett (1997), the Tribunal reviewed at some length the scheme set out in former s 29, the equivalent of present s 70, including the issue of ‘reasonable’ security and the tests to be adopted:

The obligation at the commencement of the lease is simply to ‘provide’ the premises with the requisite security. Such a contractual provision is absolute in its nature (unless of course the contract itself provides otherwise), and is not to be read as being qualified by concepts related to the landlord’s state of mind or knowledge. The determination as to whether the devices present at the commencement of the lease, constitute reasonable security, is a question of fact, to be determined objectively and not according to the subjective views and state of knowledge of the landlord.

The duty to ‘maintain’ the premises in a reasonable state of security during the term of the lease, is a further and different contractual obligation on the landlord. The word ‘maintain’ may, on one view, be said to import some limitations stemming from the landlord’s state of knowledge, in the sense suggested by Loveday J above. Succinctly, it may be said that a landlord cannot maintain what he does not know is broken [or in need of repair].

The issue of the reasonableness of the security devices necessarily raises issues of foreseeability and remoteness, depending on the circumstances of the case, as outlined above in McQuillan [McQuillan v Dalton [1994] NSWRT 21].

In Mulcahy v Cope (2001), the Tribunal applied Dupont and Rowe v Lawrence (1997) and Wojtowicz in finding that the standard of ‘reasonable’ security required by former s 29 was to be determined on an objective basis rather than according to the subjective views of either party.

The provision of reasonable security is a mandatory term in the tenancy agreement imposed by s 70. It does not depend on the tenant putting the landlord on notice of the need for such security (Howe and Dwyer v Moujalli (1998)). …

In Milgate v Magelakis (2001) the Tribunal noted that the onus of proof of establishing how entry was gained to the premises and that the security was inadequate rests on the applicant.

[2.70.2]   Factors for the Tribunal to Consider

Section 70 should be read in conjunction with s 191 which sets out the relevant considerations in determining whether the security is adequate. See s 73 for the Tribunal’s powers to make orders to remedy inadequate security.

Section 191(2) provides these considerations include:

(a)   the physical characteristics of the premises and adjoining areas;

(b)   the requirements of insurance companies for allowing the tenant to obtain insurance for property of the tenant kept at the premises;

(c)   the likelihood of break-ins or unlawful entry or risks to the tenant’s personal safety.

Section 191(3) raises the issue of the action that both the tenant and the landlord could or should have taken to avoid the unlawful entry. If no reasonable security could have prevented the unlawful entry then no breach of s 70 has occurred and no compensation is payable. If the tenant is guilty of contributory negligence there may be a proportionate reduction in compensation.

  1. As noted at paragraph [2.70.4] of that text, the former Residential Tenancies Tribunal in Lawson v NSW Department of Housing [1992] NSWRT 30 reviewed the authorities to that date and derived from them that the question of whether a property was “reasonably secure” in a particular case had to be determined on its own facts, having regard to such factors as: (a) the lighting; (b) fencing; (c) design of the dwelling; (d) subdivision; (e) construction materials; (f) the foreseeability of break-ins as to which public statistics may be relevant; and (g) minimum insurance standards for home insurance. That case was cited with approval by another Australian Tribunal many years later, in Quddus & Mehboob v Jones [2017] NTCAT 448. Many of those factors are now contained in s 191, which I have set out above.

  2. Another relevant issue in determining if a property is “reasonably secure” is the purpose for which the relevant part of the premises is being used. Hence, in Perkins v Sutherland [2001] NSWRT 217, the Tribunal noted that the degree of security reasonably required for a garage depended on the purpose for which the garage was being used.

  3. The evidence adduced by the tenants established some of the factors that were set out in Lawson v NSW Department of Housing, or now contained in s 191. The evidence showed that:

  1. the garage was a separate building on the premises, and some distance from the house occupied by the tenants;

  2. the garage was enclosed by fibreboard (or similar materials), but the rear “swinging” door to the garage did not close until it was repaired by the landlord’s tradesman, who supplied and installed a barrel bolt that a padlock could be secured to on about 17 September (which was about when the tenancy began); and

  3. the fence to the back yard was dilapidated and falling over enough as to possibly allow someone to crawl through the gap created by it, until the fence was repaired by the landlord’s tradesman in mid-November (6 weeks after the tenancy had begun).

  1. The tenants did not adduce any evidence to establish any of the other factors stated in that case or in s 191. For example, there was no evidence concerning the lighting around the garage; or any relevant subdivision; or the foreseeability of break-ins in the area; or the minimum insurance standards for home insurance. Lastly, no evidence has been led to demonstrate that the tenants intend to use the garage for any particular purpose. I therefore consider as probable that the tenants would use the garage for its normal use, namely the parking of a motor vehicle and storing general goods of no particular value.

  2. One consequence of the dilapidated fence was that the back yard of the premises was not fully secure for the initial six weeks of the tenants’ tenancy, until it was repaired in mid-November. As a result of the dilapidation of the fence, it was possible for someone to bypass the gate (which could be locked) during that period and get access through the gap that had developed in the fence to reach the rear door of the garage, which was separate from the house. However the landlord’s tradesman had fitted a barrel bolt to that back door at about the start of the tenancy agreement. That bolt could be locked with a padlock that was supplied by the tenants.

  3. While the tenants argue that this was insufficient to ensure that the garage was reasonably secure, weighing the factors that have been evidenced I do not agree with that assertion. There was insufficient evidence to demonstrate that the garage needed any greater security than the lockable barrel bolt on that back door provided. Additionally, there was no evidence of any actual break-in into the garage.

  4. Taking all of the available factors into account, and in the absence of sufficient evidence dealing with the other relevant factors, I find on the balance of probabilities that the back door to the garage was reasonably secure from the start of the tenancy agreement. I therefore find that the tenants have not established this part of their claim, which must fail.

(c)   The side fence claim

  1. I am satisfied on the evidence put before the Tribunal that the side fence of the premises, which was dilapidated and leaning over, opening a gap in the fence, was not in a reasonable state of repair at the start of the tenancy agreement. As I have noted above, the “Addendum A” special condition providing that the tenants accepted the premises “as is”, which the landlord sought to rely on, is not enforceable as it derogates from the landlord’s obligations under ss 52 and 63 of the RT Act.

  2. The landlord’s tradesman fixed the issues with the fence on about 15 November. The tenants have not argued that the fence has fallen out of repair since that date.

  3. As I have referred to above, s 63 provides that a landlord must both 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. This means that the property doesn’t have to be in perfect condition, but it should be maintained to a standard that is reasonable given those factors. That obligation is ongoing and requires the landlords to address any issues either before the start of the tenancy or as they arise during the tenancy, to ensure that the premises are both provided and remain in a sufficiently reasonable state of repair: Bhandari v Laming [2015] NSWCATAP 224 at [38]. See also Kwok v Tahiri [2015] NSWCATAP 244 at [27]

  4. The phrase “reasonable state of repair” addresses the twin issues of safety and functionality, however the concept also addresses whether the premises are in a state of repair that is commensurate with the parties’ tenancy agreement as a contract between them.  Consequently, a landlord’s failure to maintain the premises in a reasonable state of repair may result in a liability to pay compensation to the tenants even though the premises are not inherently unsafe or failing to function because of the defect concerned. This was noted in Dupont and Rowe v Lawrence [1997] NSWRT 213, where the Tribunal said (my underlining):  

A lease is a contract and is governed by the law of contract. It is a fundamental tenet of contract law that a party warrants or guarantees strict performance, subject only to any qualification to be found in the contract or a statute … The only relevant qualifications in the [tenancy] agreement are those … as to reasonableness. In this context the word reasonable functions as an adjective qualifying the words state of repair. It does not bear upon the nature of the landlord’s circumstances. For example, it would not avail the landlord anything to argue that financial problems, problems with the builder or other such problems, precluded the repairs being done. The term reasonable does not go to these issues, and deals only with the actual state of repair. It is open to the landlord to argue that the actual state of repair is reasonable having regard to the rent, age and life expectancy of the premises. In this case the rent was commercial in nature and there is no suggestion that the age or life expectancy of the premises entered into the decision making process.  

  1. As noted there, the landlord’s failure to carry out the works with reasonable expedition is not excused by conduct or delay caused by tradesmen or suppliers, or if any delay was due to difficulties such as the time of year, poor availability of tradesmen and the like.  See also Shrestha v Crandell Pty Ltd [2010] NSWCTTT 240; De Chazol v Scala [2010] NSWCTTT 135; Hanney v McCabe Toshack [2014] NSWCATCD 239 at [49]-[50]. 

  2. As Gummow J stated in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, at 370-371, two criteria must be met for there to be a breach of an express covenant by a landlord to keep the premises in repair:

First the landlord must have information as to the existence of the defect such as would put a reasonable landlord on inquiry as to whether works of repair are needed and, secondly, thereafter the landlord must have failed to carry out the necessary works with reasonable expedition.

  1. I am satisfied that both criteria have been met in this case. Firstly, it was clear from the agent’s ICR, including the photographs taken at the agent’s ingoing condition inspection, that the fence was falling down – and therefore failing to function as a dividing fence. The issue was also raised by the tenants, through correspondence before the tenancy agreement began, and pressed by them through the start of the tenancy agreement. Consequently, the landlord, through the managing agents, was on notice of the need for repair work from before the start of the tenancy agreement.

  2. Secondly, it took the landlord some six weeks to have the failing fence repaired by its tradesman. I am not satisfied that this was sufficiently expeditious, given the importance of the landlord’s obligation under the tenancy agreement as a contract between the parties. The landlord sought to argue otherwise, asserting that the tenants had refused access to the tradesman to allow him to carry out that work. I reject that assertion, which is not supported by any of the evidence that has been put before the Tribunal. I also reject the landlord’s assertion that it is not fair on the landlord to require it to repair the fence and give a rent reduction or compensation for the period in which the fence was not in a reasonable state of repair, in breach of the tenancy agreement. That is precisely the landlord’s burden under the RT Act and the tenancy agreement.

  3. In these events, I am satisfied that the landlord failed to provide and maintain a boundary fence that was in a reasonable state of repair, in breach of s 63 of the RT Act.

  4. The tenants again argue that the rent should be reduced in full because of that breach. I again do not agree, as bears no relationship to the level of loss or damage that the tenants suffered from the failure to fix the fence with reasonable expedition. The tenants are, however, entitled to compensation for any reasonable loss or damage that they suffered as a result of that breach. The tenants have produced no evidence to demonstrate the loss that they have suffered as a result of the fence being in a state of disrepair. It therefore falls to the Tribunal to do the best that it can to assess the tenants’ loss on the available evidence and , if necessary, to make a nominal award in the tenants’ favour.

  1. Doing the best that I can on the available evidence, I consider $20 per week to be sufficient compensation for the landlord’s failure to repair the fence earlier than 6 weeks after the start of the tenancy agreement. On that basis, I award the tenants $120 on this part of their claim.

(d)   The rent reduction claim

  1. The landlord’s failure to provide the keys to the two security screens on the house is ongoing. I agree with the tenants that the landlord’s failure to provide those keys to the tenants when asked to do so amounts to the withdrawal of a good, service or facility provided with the premises, namely the withdrawal of use of the security screens for the purpose for which they were designed and (presumably) installed. In residential tenancy law, there can be an “overlap” between remedies: Schrell v NSW Land and Housing Corporation [2019] NSWCATAP 256 – such as the overlap between rent reductions and compensation where a tenant experiences a loss of enjoyment or functionality. While rent reductions can be a remedy, compensation may be more appropriate in some cases. In this case, however, I do not consider it necessary or appropriate to award the tenants both compensation and a separate rent reduction in respect of the same items, for the period before the date of the hearing. In my view, awarding the tenants both compensation and a rent reduction in respect of the period before the hearing – including for matters such as the garage door security claim and the side fence claim – would over-compensate the tenant for those items in that period. Consequently:

  1. In order to remove the overlap between those remedies in that period, I have taken the approach of assessing the total detriment to the tenants up to the date of the hearing under the head of compensation, including through making an allowance to compensate the tenants for the extent to which the rent that they were paying became excessive because of the landlord’s failure to repair the items complained of in a reasonable time, compared to what the tenants had contracted to receive.

  2. Conversely, I have considered the ongoing loss to the tenants through the landlord’s ongoing failure to provide keys for the security doors since the hearing – which also reduces or withdraws the facilities that those doors provide – solely through the prism of a rent reduction under s 44(1)(b) of the RT Act.

That approach has the added advantage of extending the future period for which the tenants can receive a rent reduction under s 44(5) out to a full 12 months from the date of the hearing, if the landlord persists in its ongoing failure to provide those keys. On this basis, I now turn to the s 44(1)(b) rent reduction claim.

  1. Neither party has produced any evidence concerning most of the factors set out in s 44(5), such as (a) the general level of rent in the locality or a similar locality; (b) the landlord’s outgoings under the tenancy agreement; or (c) any work done to the residential premises by or on behalf of the tenant. The agent’s ICR and photographs do however provide evidence of the fittings, appliances and other goods, services or facilities provided with the residential premises, as well as the state of repair of the residential premises. I have had regard to those in determining whether the rent is excessive because of the landlord’s withdrawal of the security screens.

  2. Having regard to the tenants’ ongoing inconvenience that is being caused by the landlord’s failure to provide keys for those security doors and to the factors set out in s 44(5) of the RT Act, I am satisfied that the rent payable by the tenants is excessive within the meaning of s 44(1)(b) of the RT Act, and that the Tribunal should make an order reducing the tenants’ rent by $10 per week from 28 February 2025 until either 27 February 2026 or the date the keys to the two screen doors are provided to the tenant, whichever is the earlier. That reduces the rent payable over that period to $800 per week. There should also be an order that the landlord refund the tenant the excess rent that has been paid over that amount in respect of that period.

(e)   The subletting claim

  1. As noted above, neither party has provided to the Tribunal any of the documents listed in the directions I made at the end of the hearing, nor have they advised the Tribunal if the tenants’ claim under s 75(5) is withdrawn or consent.

  2. In that circumstance, and noting that there are no documents before the Tribunal concerning any proposed request to transfer the tenancy or sub-let the premises as referred to in subsection 75(2) beyond email correspondence between the parties after the termination notice was served, in which the tenants requested approval from the landlord in general terms, I have not been satisfied by the tenants that the tenants have sought the landlord’s consent to transfer or sublet the premises in a particular way that satisfies s 74. In those circumstances, I am further satisfied that landlord acted reasonably in withholding its consent to the tenants transferring the tenancy or sub-letting the premises,

  3. Consequently, I am not satisfied on the material before the Tribunal that there are any grounds for the Tribunal to make the orders sought on this part of the tenants’ claim. This part of the tenants’ claim therefore fails.

Conclusion and orders

  1. The tenant has been partly successful on its claim, for the reasons set out above, including claims for:

  1. compensation totalling $420.00 on the door keys and side fence claims; and

  2. a rent reduction of $10 per week, for a period calculated from 28 February 2025.

  1. For those reasons, the Tribunal makes the following orders:

  1. The respondent landlord, NMAA Holdings Pty Limited, must pay the applicant tenants, Kyla Janine Sebastian and Kevin-sunil Lal Bala, the sum of $420.00 immediately.

  2. The rent payable by the tenant is excessive and must not exceed the sum of $800 per week from 28 February 2025 to and including the earlier of:

  1. 27 February 2026; or

  2. the date the landlord gives the tenant keys that operate the locks on the security screen doors at the front and rear entrances to the house on the premises.

  1. The landlord must immediately repay to the tenants any amount received in rent for the period covered by order (2) above that exceeds the sum specified in that order.

  2. The application is otherwise dismissed as the Tribunal is not satisfied to the civil standard (being the balance of probabilities) on the material put before it that there are grounds for the Tribunal to make the remaining orders sought by the applicant in the proceeding.

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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: 22 September 2025

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Matthew Hanney and Belinda Smiley v [2014] NSWCATCD 239
Northern Sandblasting Pty Ltd v Harris [1997] HCA 39
Northern Sandblasting Pty Ltd v Harris [1997] HCA 39