Terzic v Pettersen

[2025] NSWCATCD 4

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Terzic v Pettersen [2025] NSWCATCD 4

Hearing dates:

22 October 2024

Date of orders:

28 January 2025

Decision date:

28 January 2025

Jurisdiction:

Consumer and Commercial Division

Before:

J Alder, General Member

Decision:

(1) The time to bring the application is extended to 6 February 2024, pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 (NSW)

(2) Order pursuant to s 187(1)(d) of the Residential Tenancies Act 2010 (NSW) (Act), alternatively s 47 of the Act that the respondents, Brett Pettersen and Kobe Pettersen, are to pay the applicant, Danijela Terzic, the sum of $4,771 within 14 days.

Catchwords:

LANDLORD AND TENANT – tenant’s liability for water, gas and electricity charges where premises not separately metered – tenant’s agreement to pay utility charges unenforceable if premises not separately metered - time within which to bring claim for recovery of excessive charges – discretion to refund excessive charges - continuing breach - time in which to bring a claim for breach - assessment of damages

Legislation Cited:

Residential Tenancies Act (NSW) 2010, ss 3, 21, 38, 39, 40, 41(1A)(a), 41(1)(b), 47, 85(2), 187(1)(d),190

Civil and Administrative Tribunal Act 2013, s 41

Civil and Administrative Tribunal Rules 2014, r 8, 23(3)(b)

Cases Cited:

Bavin v Parklea Operations Pty Ltd [2019] NSWCATAP 120

Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28

Darius v Aron [2022] NSWCATCD 4

Haggerty v Dooley [2021] NSWCATAP 363

Hundt v Kong [2018] NSWCATAP 156

Hyndes v Maddak PL [2021] NSWCATAP 302

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

Knezevic v Kirby [2017] NSWCATAP 190

New South Wales Housing Corporation v Tanious [2016] NSWCATCD 57

Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9

Saqa v Kashro [2018] NSWCATAP 265

Udy v Tilley [2018] NSWCATAP 89

Category:

Principal judgment

Parties:

Applicant: Danijela Terzic

Representation:

Applicant: self-represented
Respondents: Brett Pettersen

File Number(s):

2024/00046725

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. Danijela Terzic (tenant) is seeking repayment of $8,500 from the respondents (landlords) for excessive charges for water, electricity and gas on grounds the premises were not separately metered for all utilities for her entire three year tenancy.

2. The respondents say the tenant’s claim is out of time, she agreed to pay for all utilities in addition to rent prior to entering into the tenancy agreement and she would be unjustly enriched if she was not required to pay.

Claim

3. On 6 February 2024 the tenant filed an application under the Residential Tenancies Act 2010 NSW (Act).

4. The tenant clarified during the hearing she sought a money order of $8,500 at the rate of $250 per month for 34 months pursuant to:

1. section 47 of the Act for repayment of excessive charges; alternatively

2. section 187 of the Act for compensation for the landlords’ breach of the Act in wrongfully charging her for utilities.

Facts/chronology

5. On 19 November 2020, the parties entered into a 12 month residential tenancy agreement (RTA) for a two bedroom duplex with a sunroom at Earlwood (premises). The weekly rent commenced at $520.

6. The tenant lived upstairs with her two children and the landlords lived in the three bedroom downstairs section with their two children.

7. The duplex was not formally subdivided, but upstairs and downstairs were independent of each other, with separate entrances and kitchens and bathroom.

8. The premises were not separately metred for water, electricity and gas.

9. Wolf Property Group managed the tenancy (Agent). Mr Robert Tomasello initially managed the tenancy and then Mr William Savopoulos took over.

10. The premises are now self-managed.

11. The premises were advertised for rent at $520 per week plus “outgoings” of $250 a month.

12. Prior to signing the RTA, the tenant wrote to the Agent asking whether the advertised amount of $250 for outgoings included water, gas and electricity and the written response from the Agent was that it did.

13. It was a purported term of the RTA that in addition to the rent, the tenant would pay $250 for outgoings.

14. However, inconsistently, the RTA specified the tenant was not required to pay separately for water usage.

15. The RTA also stated that gas and electricity were supplied to the premises from an embedded network.

16. From 28 December 2020 to 27 August 2023 (32 months) the applicant was invoiced and paid $250 a month for outgoings, totalling $8,000, as recorded in the ledger.

17. In around December 2022, the landlords installed solar and had a submeter installed that was able to measure the tenant’s electricity usage (p 112).

18. On 17 March 2023, a further three month tenancy agreement was entered into expiring on 15 June 2023 (extended to 29 June 2023) with the weekly rent increasing to $580 and the outgoings remaining at $250 a month.

19. From 28 March 2023 the ledger shows the tenant paid $580 per week rent.

20. In June 2023, the parties entered into negotiations to renew the RTA for a further three months from 29 June 2023. Due to increased electricity costs, the landlords wished to increase the outgoings. They also wished to increase the rent to $630 due to increased mortgage costs.

21. On 15 June 2023, Mr Tomasello presented two options to the tenant in relation to outgoings as follows:

1. the tenant pay a flat rate of $350 per month; or

2. the tenant pay a flat rate of $100 (to cover gas and electricity connection) plus $0.34 per kilowatt for electricity usage “(which will be measured from the meter and provided to you monthly).”

22. On 23 June 2023, the Agent (Robert Tomasello) emailed the tenant to advise the electricity provider’s rate had increased to $0.37 per kilowatt (which occurred from 1 March 2023).

23. On 23 June 2023 the tenant and Mr Tomasello had the following text message exchange:

Tenant:   Robert do I have my own meter for electricity?...Trying to work out best course of action for electricity.

Agent:   Yes Brett installed one.

Tenant:   Oh ok. I’ll respond now. Wasn’t sure how it would be measured otherwise.

Agent:   Ok

Tenant:   Am I not able to organise my own connection? When was the meter installed? I’ve been paying $750 per quarter for myself and two kids which I don’t have with me 100% of the time. I’m not sure what to do, sorry that’s why I’m asking.

Agent:    He has a sub meter installed. Only one main meter for your property. When you read submeter you can then calculate cost.

24. The tenant chose option 2, that is a lower flat rate and to be charged for her actual electricity usage.

25. On 28 June 2023, Mr Tomasello emailed the tenant confirming: “Electricity and gas will be $100 per month plus $0.37 per kilowatt (a submeter to be read and consumption can be worked out and billed to you).” The renewal offer was conditional on the tenant paying a new rent of $630 plus rent arears by the next day, failing which “a termination notice of 60 days will be issued (3/7/2023) and filed within 7 days from the date of issuing the termination (10/7/23).”

26. The tenant did not agree to the increase in rent to $630 and sent an email to Mr Tomasello on 28 June inquiring if the landlord was allowed to increase the rent more than once in 12 months. He responded on 28 June ignoring her question and stating that the rent would increase to $630 the next day.

27. On 28 June 2023 the tenant sent another email to Mr Tomasello as to the legality of the rent increase and received no reply.

28. On 30 June Mr Tomasello sent a text asking if the tenant was proceeding with the renewal terms.

29. Ultimately the tenant did agree. On 30 June 2023 the tenant sent a text message to Mr Tomasello that she would proceed (at the new rent of $630 and $100 plus readings for electricity and gas).

30. However, the Agent continued to charge the tenant the rate of $250 instead of $100 for outgoings.

31. From 11 July 2023, the ledger shows the tenant was charged $620 weekly rent.

32. On 12 July 2023 Mr Savopoulos emailed the tenant with a reminder that outgoings of $250 were overdue for 28 June 2023 to 27 July 2023.

33. On 12 July 2023 the tenant emailed Mr Savopoulos:

“William have we moved the goalposts yet again? I thought that outgoings were now going to be charged at $100 then actually have the meter read for correct and proper usage.”

34. On 12 July Mr Savopoulos replied that he was not aware of the changes and told the tenant to contact Mr Tomasello, however the tenant was not comfortable dealing with Mr Tomasello due to what she said was his aggressive nature (he had previously sent her a text message stating that: his “next message won’t be pleasant for you.”).

35. On 15 July Mr Savopoulos sent a further reminder to pay the July 2023 outgoings.

36. On 16 July the tenant sent an email to Mr Tomasello: “We changed the outgoings to $100 then meter readings. Can this please be updated?”

37. On 17 July Mr Tomasello emailed the tenant:

“I will take your email to mean that you do want the new terms and I will change the settings in your tenancy effective the 29/6/2023 with the meter readings photo to be taken by you or Brett and usage calculated.”

38. On 26 July Mr Savopoulos sent an email to the tenant: “are you proceeding with the new lease or vacating the property?”

39. On 26 July the tenant replied: “Yep. As per my message to Robert over 3 weeks ago.”

40. On 28 July 2023, Mr Savopoulos emailed an invoice # 41625 for August 2023 outgoings of $250 for 28 July 2023 to 27 August 2023 (p 169).

41. On 28 July the tenant responded:

“William, I really feel like I’m not being listened to. I have said multiple times now that there is a sub meter I am taking the option of $100 plus then the reading. I have paid $250 per month for myself and 2 children who are with me 50% of the time and I am barely there.”

42. On 1 August Mr Savopoulos replied: “…the decision has been made to have the property vacated…”

43. On 28 August 2023, the tenant was invoiced $250 for September 2023 outgoings (28 August 2023 to 27 September 2023). This invoice was subsequently cancelled.

44. On 5 September 2023, Mr Savopoulos emailed to the tenant further proposed renewal terms for a 3 month lease, being $700 rent and outgoings of $130 for water and gas usage and portion of electricity daily connection plus actual electricity usage at $0.4225 per kilowatt being the (then) rate that Energy Australia was charging.

45. On 6 September 2023, Mr Savopoulos emailed the tenant invoice #44042 for $323.62 for electricity usage. Attached was a excel spreadsheet for August 2023 setting out unspecified electricity usage of 458.261kw calculated @ 0.4225 per kilowatt totalling $193.62, plus a $130 monthly fee for “gas usage, water usage and electricity daily rates”. The $323.62 was described as “total outgoings for August 2023” (despite the tenant already have been invoiced $250 for the month of August as per invoice # 41625 on 28 July 2023). This invoice was subsequently cancelled.

46. On 14 September 2023 the tenant agreed to the $700 rent and on 15 September 2023, Mr Savopoulos replied he would draw up a new lease.

47. On 14 September the tenant paid $250 for the August 2023 outgoings which was her last payment for outgoings.

48. On 18 September 2023 the tenant gave notice. It appears the 21 day notice period was not enforced.

49. On 28 September the tenant was invoiced $250 for October 2023 outgoings (28 September 2023 to 27 October 2023). This invoice was subsequently cancelled.

50. On 29 September 2023, the tenant vacated.

51. On 10 October 2023 the Agent sent the tenant an email attaching an invoice for $196.85 water usage with no reference to what period it related to. The water usage was subsequently cancelled.

52. On 27 October 2023 the tenant received the bond of $2,080 in full.

53. On 6 November 2023, the landlords cancelled the invoices for:

1. #41625 for $250 outgoings for the month of September (28 August 2023 to 27 September 2023)

2. electricity usage of $323.62

3. water usage of $196.85

54. On or about 8 November 2023 the tenant says she became aware that tenants are not obliged to pay for water, gas and electricity unless the premises were separately metered.

55. On 8 November 2023 she sent an email to the Agent requesting copies of all bills for electricity and water.

56. On 20 November 2023 she sent a further demand for all invoices to be supplied within 7 days.

57. On 22 November 2023, the applicant issued a demand to the Agent by email, requiring repayment of $8,500 within14 days.

58. On 21 December 2023 the applicant issued a further demand direct to one of the landlords, Brett Pettersen, by email, requiring repayment of $8,500 within14 days.

Procedural background

59. The matter was listed before me for a 4 hour hearing on 22 October 2024. It was the fourth time the matter had been before the Tribunal. The landlords had failed to turn up on the first two occasions.

60. The tenant and one of the landlords, Mr Brett Pettersen appeared.

61. The matter had not resolved at the most recent conciliation on 19 July 2024.

Documents

62. The tenant relied on two bundles of documents filed 12 March 2024 and 2 August 2024 and the landlords relied on a bundle filed 16 August 2024 (173 pages).

63. Both parties gave sworn oral evidence.

Tenant’s submissions

64. Ms Terzic submitted as follows.

65. When she signed the RTA and agreed to $250 the Agent informed her that the bills would be looked at and the $250 would be assessed.

66. She did not read the lease as she trusted the Agent to provide her with the correct information and she was under pressure as “my now ex was causing domestic violence against myself and my 4 year old daughter...”

67. She had rented before.

68. She only spent 50% of her time at the property due to her work and often her children were with her ex-husband. She rarely used the air conditioner.

69. No bills were provided to her when she requested them at the end of the tenancy.

70. She was never informed a sub meter was put in until June 2023. Her oral evidence was at that stage she still didn’t know it was unlawful to be charged without the usage being measured.

71. She was not sure what the sub meter was for.

72. She did not look at the meter as “she was not that savvy”.

73. No meter readings were ever provided to her.

74. Even when the meter was installed, she was still charged $250 without gauging usage.

75. On 6 September 2023 she was charged usage but she was also charged for outgoings. She received an invoice for electricity usage for August 2023 for $323.62 plus she was invoiced to pay the $250.

76. On 10 October 2023 after she had vacated she received an invoice which included $196.85 for water usage, but she not sure what period it covered.

77. She is currently averaging $113 per month for electricity and gas, compared to the $200 a month/45% the landlords say she should pay for gas and electricity ($6,665 for her 34 month tenancy).

Landlords’ submissions

78. Mr Pettersen submitted as follows.

79. The landlords relied on the advice of their Agent whom they concede provided poor advice.

80. The landlords were charged and paid $18,747.64 during the tenancy for both their own and the tenant’s premises as follows:

1. $3,935.99 for water;

2. $2,755.61 for gas; and

3. $12,056 for electricity, broken down into years as follows:

1. $277.43 for 2020 (1.5 months)

2. $4,137.49 for 2021

3. $4,313.89 for 2022

4. $3,327.23 for 2023 (9 months)

81. They estimate the tenant was liable to pay 45% of the total amount $18,747.64 for her usage, which they calculated to be $8,436.22 broken down as follows:

1. $1,771.20 for water

2. $1,240.02 for gas

3. $5,425.22 for electricity

82. They calculated the figure of $250 on the basis of the upstairs duplex having 45% of the total floor space of the building.

83. They tendered a sample of invoices from Sydney Water and Energy Australia to demonstrate usage and the charges they incurred.

84. They have tendered five Energy Australia quarterly invoices for electricity for the period 7 June 2022 to 12 September 2023 as follows:

1. $1,320.33

2. $1,338.51

3. $167.31 (7 December 2022 to 13 March 2023)

4. $446.38 (14 March 2023 to 12 June 2023)

5. $444.75 (13 June 2023 to 12 September 2023)

85. They installed solar in December 2022 and a sub meter on the upstairs property, which explains the lower electricity charges from December 2022 onwards.

86. The sub meter had the air conditioner, dryer, oven and some wall outlets attached it.

87. The lights and fridge were on a protected circuit and not measured on the sub meter and the solar battery kept these circuits on.

88. Taking as an example electricity usage in 2023, the landlords submit they paid $3,327.23 for 9 months of combined usage in 2023. They say this figure is calculated according to actual combined bills and usage for both premises. According to a chart on page 111 of their documents, the combined actual usage for January 2023 to September 2023 is 9115kws and the tenant’s usage taken from the submeter is 4,178.21kws, which includes approximately 1,080kws the landlords added on for the fridge and lights on the different circuit. To work out an appropriate charge for the tenant’s usage of the additional circuit, the landlords allocated a daily rate of 4kws (4kws x 270 days/9 months to get 1,080kws) based on a daily combined usage when neither of the landlords or the tenant were home, which was 9.5kws. The split is roughly 40/60 tenant/landlord. The landlords calculated the costs at Energy Australia rates of: $0.33 per kw up to 28 February 2023, $0.37 per kw from 1 March 2023 to 31 July 2023 and $0.42 per kw from 1 August 2023. On these calculations, the cost to the tenant is approximately $1,500 of the $3,327, which is approximately 45%.

89. They will refund $1,771.20, the 45% they have estimated for water charges, as they concede water should being never have been part of the advertised “outgoings” as the premises were not separately metred.

90. The tenant is therefore liable to pay 45% for the total electricity and gas usage ($14,811.61) which is $6,665.24 for 34 months.

91. The property was advertised as requiring the tenant to pay “outgoings” of $250 per month, which the landlord intended would include electricity and gas and the tenant sought clarification and agreed to pay electricity and gas prior to signing the RTA.

92. The tenant has in fact paid $8,000 (and not $8,500 as she submits) as the first month was not invoiced by the Agent and the last month was refunded.

93. On the basis that the tenant has paid $8,000 and deducting the water of $1,771.20, the residual claim is $6,228.20. This represents 42% of electricity and gas.

94. The tenant would be unjustly enriched if she obtained a full refund as she seeks.

95. Given the agreement, there was no requirement to provide bills.

96. The landlord would have increased the rent if the Agent had advised them correctly. The starting rent was below market based on a previous signed lease Mr Pettersen had seen in July 2019 for $620.

97. The electricity costs were higher when compared with the tenant’s current $113 per month as the premises have a ducted air conditioner and the tenant used the air conditioner a lot, particularly in 2023.

98. The tenant is being opportunistic and disingenuous.

99. The tenant was generally uncommunicative for lengthy periods during the tenancy and 4 to 6 weeks behind in rent and the landlords were always supportive in allowing her to pay off arrears in instalments.

Obligations of parties concerning electricity and gas

100. Section 38(1)(a) of the Act (clause 11.1 of the RTA) states that a tenant must pay all charges for the supply of electricity and gas to the tenant at the residential premises if the premises are separately metered.

38 Utility charges payable by tenant

(1) A tenant must pay the following charges for the residential premises—

(a) all charges for the supply of electricity, gas (except bottled gas) or oil to the tenant at the residential premises if the premises are separately metered,

…

(e) any other charges prescribed by the regulations.

…

101. Section 40(1)(c) (clause 10.3) states that a landlord must pay for electricity and gas if the premises are not separately metered.

102. Section 40 is mandatory and has no room for discretion to be exercised.

103. Section 40(1A) states that the regulations may exempt a landlord, in specified circumstances, from the requirement to pay a charge under s 40.

104. Clause 34 of the Residential Tenancies Regulation 2019 (NSW) (Regulations) deals with electricity supply charges payable by a tenant pursuant to s 38(1)(e) of the Act, and provides:

34 Electricity supply charges payable by tenant—ss 38(1)(e) and 40(1A) of Act

(1) For the purposes of section 40(1A) of the Act, a landlord is exempt from the operation of section 40(1)(c) of the Act, in relation to the payment of charges for the supply of electricity to the tenant at the residential premises that are not separately metered if the premises have a meter that—

(a) measures the supply of electricity that satisfies paragraphs (a)–(d) of the definition of separately metered, and

(b) does not have an NMI assigned for the purpose of paragraph (e) of the definition of separately metered because it is located in an embedded network, and

(c) the meter is not required to have an NMI assigned.

(2) For the purposes of section 38(1)(e) of the Act, a tenant must pay any charges for the supply of electricity to the tenant at the residential premises that are not separately metered if the circumstances specified in subclause (1)(a)–(c) apply to the premises.

Note. Embedded electricity networks are common in high density apartment buildings, strata schemes, residential land lease communities and residential villages.

(3) In this clause—

NMI has the same meaning as in the National Energy Retail Law (NSW).

105. As mentioned, the RTA stated at page 3 that electricity and gas were supplied to the premises from an embedded network. An embedded network is when a privately owned energy network supplies multiple premises and residents within a building or site.

106. Clause 35 deals with non-bottled gas charges payable by a tenant in particular circumstances, and provides:

35 Non-bottled gas charges payable by tenant in particular circumstances—ss 38(1)(e) and 40(1A) of Act

(1) For the purposes of section 40(1A) of the Act, a landlord is exempt from the operation of section 40(1)(c) of the Act, in relation to the payment of charges for the supply of gas (except bottled gas) to the tenant at the residential premises that are not separately metered if the premises have a meter that—

(a) measures the supply of gas that satisfies paragraphs (a)–(d) of the definition of separately metered, and (b) does not have an MIRN or a delivery point identifier assigned for the purpose of paragraph (f) of the definition of separately metered because it is located in an embedded network.

(2) For the purposes of section 38(1)(e) of the Act, a tenant must pay any charges for the supply of gas (except bottled gas) to the tenant at the residential premises that are not separately metered if the circumstances specified in subclause (1)(a) and (b) apply to the premises.

Note. Embedded gas networks are common in high density apartment buildings, strata schemes, residential land lease communities and residential villages.

(3) In this clause—

delivery point identifier has the same meaning as in the National Energy Retail Law (NSW).

MIRN has the same meaning as in the National Energy Retail Law (NSW).

Obligations of parties concerning water

107. Section 39(1) (clause 11.6) states that a tenant must pay the water usage charges for the residential premises, but only if:

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

2. the premises contain water efficiency measures prescribed by the regulations for the purposes of this section, and

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

108. Further, s 39(2) (clause 12.1) states a tenant is not required to pay the water usage charges unless the landlord gives the tenant a copy of the part of the water supply authority’s bill setting out the charges, or other evidence of the cost of water used by the tenant.

109. A landlord must pay all charges in connection with a water supply service to residential premises that are not separately metered: s 40(1)(f) (clause 10.6).

Amendments to Act

110. Changes to the Act from 23 March 2020 brought in a definition for ‘separately metered’, for electricity, gas and water usage charges, a term that was previously undefined. Section 3 of the Act states as follows:

3 DEFINITIONS

(1) In this Act …

“separately metered” means that there is, in respect of residential premises, a meter--

(a) that satisfies an Australian Standard prescribed by the regulations (if any) dealing with electrical, gas, oil or water metering equipment, and

(b) that has been installed in accordance with the manufacturer’s instructions for installation or industry practice, and

(c) that measures the quantity of electricity, gas, oil or water that is supplied to, or used at, only those residential premises, and

(d) that enables a separate bill to be issued by the supplier for all charges for the supply and use of the electricity, gas, oil or water at those residential premises, and

(e) if the meter is to measure the supply of electricity--in respect of which an NMI, within the meaning of the National Energy Retail Law (NSW), has been assigned,

111. An “NMI” is a National Meter Identifier.

Inconsistent term unenforceable

112. To the extent that a clause in the RTA is inconsistent with a section of the Act, s 21 of the Act provides that the clause is void.

113. Therefore any agreement made between the parties or term in the RTA that obliged the tenant to pay for utilities is void under s 21 if the premises were not separately metered.

Right of repayment under s 47

114. Section 47 gives the tenant the right to seek a repayment of excess charges paid by the tenant over the amount that is properly payable under the Act or the RTA. The section relevantly provides:

47 Tenant’s remedies for repayment of rent and excess charges

(1)    Requests to landlord A tenant may make a written request to the landlord that the landlord repay to the tenant any rent, or other amounts, paid by the tenant that are not required to be paid under this Act or the residential tenancy agreement.

(2)    A request may be made during or after the termination of a residential tenancy agreement.

(3)    A landlord must, within 14 days of a written request by a tenant, repay to the tenant the amount of any rent or other amount paid in excess of the amount payable by the tenant under this Act or the residential tenancy agreement.

(4)    Tribunal orders A tenant may apply to the Tribunal for an order for the repayment of rent or any other amount paid by the tenant if a written request by the tenant for payment is not complied with by the landlord within 14 days.

(5)    The Tribunal may order that rent or any other amount be repaid to the tenant if it finds that the rent or amount was not required to be paid by the tenant under this Act or the residential tenancy agreement.

115. The Act does not specify a timeframe in which a demand may be brought under s 47(1).

116. A demand can be made after the RTA has ended: s 47(2), such as the case here.

117. On 22 November 2023 the tenant served a 14 day demand on the Agent seeking a refund of all outgoing payments, being what she calculated to be $8,500.

118. After receiving no response, the tenant served a second demand, this time to one of the landlords, on 21 December 2023

119. The demands and the landlords’ improper failure to respond to them, enlivened jurisdiction under s 47, which allows the Tribunal to make an order refunding utilities, if a finding is made that utilities were not required to be paid. See Saqa v Kashro [2018] NSWCATAP 265 at [26-29] and Udy v Tilley [2018] NSWCATAP 89 at [34].

120. Unlike s 190, there is no specified time limit to bring a claim under s 47. This means rule 23(3)(b) of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) applies and the claim must be filed within 28 days from when the applicant was entitled to bring a claim under s 47, which is upon expiry of a demand.

121. In a case dealing with residential communities analogous to this one, the Appeal Panel held that the fact that the dispute between the parties involved invoices that had been issued and paid for over an extended period of time, was not material to the question as to when time begins to run for the purposes of rule 23(3)(b). See Bavin v Parklea Operations Pty Ltd [2019] NSWCATAP 120 at [48].

122. The first 14 day demand (to the Agent) dated 22 November 2023 expired on 6 December 2024. Twenty eight days from 6 December 2023 is 3 January 2024. The claim was filed on 6 February 2024 and is 34 days late.

123. The second 14 day demand (to the landlord) dated 21 December 2023 expired on 4 January 2024. Twenty eight days from 4 January 2024 is 1 February 2024. The claim is therefore 5 days late.

124. Regardless of which demand applies, the claim under s 47 has not been brought within time.

125. The tenant may apply for an extension of time. It may not be necessary for her to do so, depending upon whether her alternative claim under ss 187/190 is within time. I address ss 187 and 190 under the heading immediately below and potential extensions of time in the following paragraphs.

126. Section s 47(5) is a discretionary power. In Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28, at [14], the Court of Appeal said the use of the word “may” did vest the Tribunal with a discretion to refuse to make the order sought even though the Tribunal was satisfied of the matters prescribed: see Saqa v Kashro [2018] NSWCATAP 265 at [32-55].

Breach and compensation

127. In the alternative to s 47, if a breach of the Act or RTA is established, the tenant may be entitled to compensation for her loss and damage.

128. Section 190(1) provides that a landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement.

129. Section 187 sets out the orders that the Tribunal may make, which includes and order for compensation under s 187(1)(d) and an order for the payment of money under s 187(1)(c).

130. Claims for breach under s 190 must be made within the period prescribed by the Regulations after the tenant became aware of the breach, which is three months: reg 39(9).

131. As to when time starts to run, depends upon when the breaches occurred and how the breaches are characterised.

132. The entitlement to bring a claim for breach of contract accrues on the date the breach occurs, unless s 190 applies.

What type of breach?

133. The unlawful rendering of utility charges may be viewed cumulatively as one singular “once and for all” breach (with the breach occurring when the damage originally occurred, that is, at the start of the tenancy when the tenant first made payment of $250).

134. An alternative approach adopted by various Tribunal Appeal Panels (when considering the obligation to repair) is to characterise a continuous problem as a continuing breach of an ongoing obligation. Compensation for each day of breach is separately claimable and the time limits would apply to each and every breach. In Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [91], the Appeal Panel said this position is similar to an ongoing failure to pay rent where a money order is sought in respect of a series of breaches. Awareness of a particular breach necessarily occurs at a fixed point in time for each such breach.

135. And a claim for a money order or compensation would be within time if brought within three months of the last of that continuum (here, being when the last invoice was rendered and payment made, which was on 14 September 2023), and an extension of time may be justified to pick up within the claim for compensation periods prior to the three months preceding the filing of the claim: Haggerty v Dooley [2021] NSWCATAP 363 at [29] referencing Hundt v Kong [2018] NSWCATAP 156 at [30]-[43] and authority cited therein, being New South Wales Housing Corporation v Tanious [2016] NSWCATCD 57 at [27-31] and Roberts at [91] and Hyndes v Maddak PL [2021] NSWCATAP 302 at [56].

136. As set out in the heading “Findings” later in these Reasons, I have found the landlords breached s 40(1)(c) and (e) by charging water, electricity and gas when the premises were not separately metered for any utility. I have also found the sub meter was not a proper meter so as to remedy the electricity breaches.

137. I find the breaches as to water, electricity and gas commenced at the start of the tenancy when the charges were unlawfully rendered and mistakenly paid.

138. By continuing to charge for outgoings, I find the landlords’ breaches were ongoing.

139. I find the breaches continued each month and were not remedied by the time the tenant vacated.

When was the tenant aware of the breach?

140. The distinction of multiple individual breaches or a singular breach in relation to water, electricity and gas is not necessarily relevant as the cause of action arising under s 190 occurs not when the breach or damage occurred, but when the tenant became aware, which the tenant says is 8 November 2023.

141. So, regardless of whether the tenant was aware of multiple individual breaches or was aware of a singular breach at the start of the tenancy, the issue is when she became aware.

142. To be within time, the tenant must have been aware that there had been a breach by the landlord not earlier than 6 November 2023, being 3 months before she filed her application (which was some 6 weeks after she vacated).

143. The tenant says she was not aware until 8 November 2023 (the same day she wrote an email to the Agent requesting copies of water and electricity bills) that the landlords had breached the RTA by charging her for water and electricity when they were not entitled to.

144. The landlords say there is evidence the tenant was aware earlier and her claim is out of time.

145. There is no specific evidence of when the tenant became aware.

146. It is possible the tenant was aware of the utility breaches earlier than 8 November 2023 as she referred to being “advised” in her email of 8 November, which could plausibly have been before 8 November 2023.

147. As to water usage, it was plain from the terms of the tenancy agreement (that the tenant signed, but says she did not read) that the tenant was not required to pay for water. I infer she did read the agreement and was “aware” of this term or at least was familiar with it, as this was not her first tenancy. It follows she was aware of the landlords’ breach of it by charging her water (regardless of whether the premises were separately or not). However, the tenant specifically asked the Agent (who incorrectly told her) that the $250 fee included water. In those circumstances I find the Agent caused and perpetuated the tenant’s misunderstanding and she continued to make water usage payments based upon her reliance upon the misrepresentation.

148. As to electricity, on 23 June 2023 she asked the Agent if she had her own meter and if she could organise her own connection and was told there was a sub meter that could be read.

149. She then had various email exchanges with the Agent between 12 and 28 July 2023 where she raised her dissatisfaction with the landlords continuing to bill her for $250 instead of reading the sub meter.

150. She says at page 1 of her first set of submissions that:

“I only became aware of my rights regarding outgoings when the agent kept pushing rental and outgoing increases. However as they consistently threatened me with termination I was hesitant to say anything as the last thing I wanted to do was uproot my children again.”

151. If on 23 June 2023 she was aware of her right not to pay for utilities at all, given the absence of a separate meter, she would be out of time to bring her claim under ss 190/187(1) as she would have been required to bring her claim within three months, that is, by 23 September 2023.

152. However whilst the tenant may have been aware of a set of facts in June 2023 to put her on a line of inquiry, this does not mean she was aware she had a cause of action and that no separate meter meant she did not have to pay any utilities at all. The words of s 190 are that actual knowledge of the breach is required; the section does not use the words “ought reasonably to have become aware”.

153. In Hundt v Kong [37-40] the Appeal Panel dealt with “awareness” and continuous breaches in relation to a landlord’s obligation to repair and found a tenant’s compensation claim was brought within time. The Appeal Panel said:

“…one’s awareness of the relevant issue must in our view be governed by the ongoing nature of the issue, reinforced by the ongoing nature of the response. It would not be within the scope of remedial legislation, which still requires prompt action, if the tenant did take prompt action by complaining about the breach, there was ongoing attempted resolution, but nevertheless awareness ran from the time of the first knowledge of the issue. It would force a tenant to go to the cost in time and money of a legal proceeding when the obvious defence would be that the proceeding was premature because the problem was under apparent remediation.”

154. I find the Agent caused a misapprehension that the sub meter was sufficient. They then ignored her when she sought to have the payments invoiced correctly and they attempted no remediation.

155. On balance, I find the tenant not aware of the breach until 8 November 2023 and is within time to bring a claim.

156. If I am wrong and she was aware prior to 6 November 2023, I would extend time to bring a claim for breach in accordance with my reasons immediately below.

Extension of time

157. Under s 41 of the Civil and Administrative Tribunal Act (NSW) 2013 (NCAT Act), the Tribunal may extend time by a party making an application, which as required by Rule 8 of the NCAT Rules, is required to be in writing.

158. The principles to be considered in determining whether time should be extended are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22], being the length of and reason for the delay, whether the tenant has a fairly arguable case and any prejudice suffered by the respondent if time were extended. Finally, and particularly where the applicant’s explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, whether the applicant is able to show that his or her case has more substantial merit than merely being fairly arguable.

159. The tenant has not applied for an extension of time either in her application or subsequently, despite the time limits that were explained to her at the conciliation hearing on 27 February 2024. She maintains she is within time as she only became aware of the breach on 8 November 2023.

160. Under s 41 of the NCAT Act, the Tribunal may of its own motion, extend time and the Tribunal may dispense with the written requirement under rule 8 of the NCAT Rules. To the extent necessary, I dispense with the written request.

161. In relation to s 47, the delay in this matter is relatively short, being between 5 and 34 days.

162. In relation to s 190, if the awareness is taken from 23 June 2023, the delay is 4 and a half months.

163. The tenant says she did not bring the proceedings earlier as she was attempting to negotiate a settlement from November 2023 to January 2024 onwards and she was scared of having her lease terminated as the Agent had threatened.

164. In this regard, I note that many of the rights and obligations under the Act were not met by the Agents and landlords, such as increasing the rent more than once in a year (in March 2023 and June 2023) in breach of s 41(1A)(a) of the Act, not issuing proper 60 day rent increase notices as required by s 41(1)(b) of the Act and threatening termination without giving the required 90 days’ notice for a periodic lease, in breach of s85(2) of the Act.

157. I am satisfied that the landlords have not suffered any prejudice as a result of the delay, whereas, if the extension is not granted, the tenant’s claim is barred and I am satisfied she has a strong case.

158. I will make an order extending time to 6 February 2024 for both actions under s 47 and s 190 of the Act.

Findings

Water

167. Water usage is no longer pressed by the landlords as they concede water should not have been billed.

168. There was no evidence of readings from a separate water meter.

169. The RTA stated the tenant was not responsible for water.

170. There was no evidence the tenant received copies of bills or that the premises had water efficiency.

171. I find the premises were never separately metered for water.

172. Consequently, the landlords were liable to pay for water.

173. I find that a breach of s 40(1)(f) of the Act by the landlords as they have failed to pay for water for the entire tenancy.

174. The only remaining issue to determine is the quantum of the refund.

175. The landlord says the actual amount they were billed for water for both premises for the duration of the tenancy was $3,935.99.

176. Of the four water bills tendered, only one is relevant to the tenancy period, so I am unable to verify the amount of $3,935.99.

177. The landlords have apportioned 45% of this to the tenant and propose an amount of $1,771. 20 should be refunded.

178. There is no floor plan in evidence for me to be able to substantiate if the 45% apportionment is just and reasonable.

179. The tenant challenged the method and 45%/55% apportionment used by the landlords to calculate the amounts payable for the utilities.

180. She said her children only lived there 50% of the time and she was often not there.

181. The tenant did not submit an alternative amount for a water refund.

182. In the absence of any other evidence, I will order a refund of $1,771 for water.

Electricity and gas

183. The tenant acknowledged she was provided with electricity and gas and agreed to pay for it, but now says she should not be required to pay for it.

Premises in an embedded network?

184. Despite the RTA stating the premises were located in an embedded electricity and gas networks, the landlords adduced no evidence to substantiate this. In the absence of such evidence, if the premises were not separately metered, the tenant had no obligation to pay electricity and gas charges pursuant to s 38(1)(e) of the Act when read with regs 34 and 35 of the Regulations. There was no Ingoing Condition Report in evidence that may have shed some light on the matter. So the exceptions to the landlords’ obligation to pay for electricity and gas under regs 34 and 35 of the Regulations were not applicable.

Is the agreement to pay for outgoings enforceable?

185. It is not in dispute the premises were not separately metered for electricity and gas up until sometime in December 2022, when a separate meter is said to have been installed.

186. The agreement between the applicant and the respondents in the text exchange between the tenant and William Savopoulos of the Agent dated 14 November 2020 for the payment of $250.00 per month for outgoings is not enforceable because it is contrary to the obligation of the landlords for the payment of electricity (and gas and water charges). To the extent that the landlords may have contended that there was a variation of the RTA, then the agreement was void pursuant to s 21(1)(a) of the Act.

187. In the circumstances, I find the landlord has breached s 40(1)(c) of the Act as the landlord has failed to pay for electricity and gas at the Premises, at least up until December 2022.

Did the installation of a sub meter in December 2022 satisfy the requirement for “separately metered”?

188. As to whether the separate meter described in the landlords’ evidence meets the definition of “separately metered” in s 3, all of the subsections (a) to (e) must be met.

189. In this regard, I find that the landlords:

1. failed to provide any photographic evidence of the existence and location of the meter and demonstrate (i.e. by way of a statement from a licensed electrician) it had been installed in accordance with the manufacturer’s instructions for installation or industry practice;

2. did not show that the separate meter enabled a separate bill to be issued by their provider, Energy Australia so as to show what actual usage was payable by the tenant, i.e. they did not provide copies of bills issued by Energy Australia for the tenant’s upstairs premises; and

3. did not adduce evidence of a separate national meter identifier.

190. Despite the installation of a separate meter in December 2022, there was no proper evidence of readings from separate electricity or gas meters. While there was some inconclusive images of readings for a sample of three days in April and May 2023 (p 113), no proper evidence of readings was provided.

191. The text messages from the Agent suggest that when the landlords received invoices from the provider, Energy Australia, for the total owing for both the main premises and the tenant’s premises, it was envisaged that either the Agent or landlord would read the meter for the upstairs, which showed how many kilowatts had been used. It was proposed they would then calculated how much was payable by the tenant by reference to the charge per kilowatt on the invoice.

192. However, even with the installation of the sub meter, usage was not charged to the tenant until 6 September 2023 (for August 2023) when an invoice for $363 was issued. This was the only month that actual electricity usage was charged to the tenant and the Agent continued to charge the tenant the same flat fee of $250 for outgoings, which the tenant disputed.

193. Whilst there is no requirement in the legislation for the landlord to give to the tenant an invoice from the supplier unlike the requirements for water usage charges in s 39 of the Act, the tenant challenged the method used by the Agent to calculate the amounts payable. 

194. Given my findings above, I find the sub meter does not meet the definition of s 3 in the Act.

195. Consequently, I find the landlord has breached s 40(1)(c) of the Act as the landlord has failed to pay for electricity at the Premises from December 2022 to the end of the tenancy.

196. As a result I find that the tenant is not obliged to pay for any electricity. There is no evidence the gas was ever separately metered and I make a similar finding of breach.

Discretion under s 47(5)

197. As mentioned, the Tribunal is not mandated to order a refund of the overpaid electricity charges.

198. Similarly, the power to award compensation under s 187(1)(d) is discretionary.

199. When exercising my discretion, I am required to take into account the facts and the law in the matter.

200. There are no mandatory considerations prescribed in the Act or the Regulations that I must take into account in the exercise of my discretion under ss 47(5) or 187. Nor are there any extraneous or prohibited considerations prescribed.

201. In the Appeal Panel decision of Saqa v Kashro [2018] NSWCATAP 265, one of the factors on which the Tribunal exercised its discretion was the agreement between the parties to pay an amount in lieu of the premises not being separately metered. Despite such an agreement being void, the Tribunal held because the tenant had been aware of her rights, it would be: “…fundamentally unfair and unequitable if the tenant was now allowed to ignore that agreement and to be repaid by the landlord…” 

202. However in Saqa’s case, unlike here, there was no mistake of law or fact that led to the agreement. Here, the evidence suggests that it was not until June 2023 that the tenant became aware there was a sub meter. I have accepted her evidence that she did not become aware until 8 November 2023 that she was not required to pay utility charges if the premises were not separately metered. So it cannot be said that the tenant engaged in the RTA with knowledge that the premises were not separately metered and willingly gave up a right.

203. However, I have considered that even after it became clear there was a separate meter, the tenant agreed to renew the lease in June 2023 and still pay a mixture of actual usage and a lower lump sum (although this was never properly executed). So although any further agreement upon renewal to charge outgoings would also be void, the tenant had knowledge there was a separate meter (albeit misconceived).

204. The landlords submits that the tenant would be unjustly enriched if she was not required to pay for electricity and gas. In the exercise of its discretion, the Appeal Panel in Saqa took into account the fact that the tenant had had fair use of the water, gas and electricity. I have also taken that into consideration.

205. Further, during the tenancy the tenant did not ask for any invoices to verify the overcharging, even when it could be said she was on notice of a line of inquiry from 23 June 2023 when she learnt there was a sub meter and yet was double charged.

206. Based on the above, I am prepared to exercise my discretion and not allow a full refund of the balance of outgoings (for gas and electricity).

207. The question then becomes how much should be refunded under s    47(5)?

Amount of refund under s 47(5)/assessment of damages under s 187(1)(d)

208. I accept from the ledger that $8,000 and not $8,500 was paid by the tenant.

209. When taking into account the 45% water usage of $1,771 that I have already ordered be refunded, the balance to be refunded for gas and electricity is $6,229.

210. The landlords assert they paid $12,056 for electricity alone and $14,811 for gas and electricity.

211. The landlords submit the tenant should pay for 45% of the actual cost of electricity, being $5,425.22 and the actual cost of gas, being $1,240, which totals $6,665.22, which approximately equals the residual (with a difference of $436), which they submit is a fair and equitable amount to pay and there should be no refund.

212. As to electricity, I have been unable to verify actual charges as the landlords have only supplied five Energy Australia invoices.

213. I have found discrepancies in the amount of $3,327.23 the landlords say they paid for electricity in 2023 and what the invoices reflect was in fact charged.

214. For instance, for January and February 2023, the landlords say the combined usage for both premises is 635kw for January and 794kws for February and the tenant’s sole usage is 286kw and 231kws respectively. This would mean the landlords’ usage for January 2023 is 349kws and the landlords’ usage for February 2023 is 563kws. However the Energy Australia invoice for 7 December 2022 to 13 March 2023 indicates the usage for three months is only 280kws.

215. It is not clear if 280kws for 3 months is landlord-only usage or combined usage. The landlords seek to explain this discrepancy and reduction due to the introduction of solar. It is unclear if the tenant received the benefit of the solar. If she did not, this would be inequitable as the landlords have attempted to enforce electricity charges which include a “surcharge” of 4kws per day for the lights and fridge which they says are generated by the solar system.

216. The tenant has never received copies of the bills despite asking at the end of the tenancy.

217. Doing the best I can, I will allow a refund of $3,000 for gas and electricity. This means that after taking into account the water refund of $1,771 from the $8,000 the tenant has already paid ($6,229), the tenant becomes liable for $3,229 for gas and electricity for 34 months ($6,229 minus $3,000). This represents an average of $95 a month for 34 months of gas and electricity, which is comparable to what she is currently paying at her new premises.

218. It also represents 22% of $14,811, being what the landlords submit was the actual costs paid by them for 34 months for gas and electricity. However, as I have said, I am sceptical that the landlords did in fact pay that much for electricity in 2023.

219. This means the tenant receives a total refund of $4,771.00.

220. I would assess damages payable on the same basis.

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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: 16 May 2025