Wang v Abdel-Messih; Wang v Abdel -Messih; Abdel-Messih v Wang

[2017] NSWCATCD 11

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Wang v Abdel-Messih; Wang v Abdel -Messih; Abdel-Messih v Wang [2017] NSWCATCD 11

Hearing dates:

26 October 201614 February 2017

Date of orders:

22 February 2017

Decision date:

22 February 2017

Jurisdiction:

Consumer and Commercial Division

Before:

M Eftimiou

Decision:

1. The landlord is to pay the tenant $444.28 for the following:

 

(a) Car Space $90.00;
(b) One day rent for 18 August 2016, $154.28 by way of rent credit;
(c) Swipe Key $100.00;
(d) Television Point not working $100.00.

 

2. The landlord is to attend the premises with a licensed electrician and carry out investigations and repairs to the electrical circuit of the premises.

 

These orders are to be complied with no later than 7 days from the date of this decision.

 3. The Applications are otherwise dismissed.

Catchwords:

RESIDENTIAL TENANCY – termination breach of agreement and claim by tenant for compensation

Legislation Cited:

Residential Tenancies Act 2010

Cases Cited:

Ellul v Bridge (2001) CTTT
Abdel-Messih v Dai (2017)NSWCATAP 20
Lea v Fuzessery (2011) CTTT
Reiss v Helson (2001) NSWSC 486

Category:

Principal judgment

Parties:

Le Dong Wang (Landlord)
Bishoy Abel-Messih (Tenant)

File Number(s):

RT 16/42344, RT16/44922 and RT16/39468

Publication restriction:

Nil

REASONS FOR DECISION

1. There are three applications before the Tribunal.

RT 16/42344

2. This application was filed by the landlord on 21 September 2016. The landlord sought termination and possession of the residential tenancy agreement pursuant to section 87 and 88 of the Act. The reasons for seeking termination and possession were set out as follows:

1. The tenant has breached the terms of the residential tenancy agreement by subletting without the consent of the landlord.

2. The tenant has failed to pay rent on time.

RT 16/44922

3. This application was filed by the landlord on 11 October 2016. The landlord sought termination and possession of the residential tenancy pursuant to section 87 for non-payment of rent and also an order pursuant to section 89(5) that the tenant had frequently failed to pay rent on time.

RT 16/39468

4. This application was filed by the tenant on 1 September 2016. The tenant has sought the following orders:

1. An order pursuant to section 65(1)(a) that the landlord carry out repairs.

2. An order pursuant to section 68(1)(a) an order that the tenant may install a fixture or make a renovation/alteration/addition to the residential premises.

3. An order pursuant to seciton73(c) requiring a copy of a key or other opening device or other opening device or information to be given to the tenant.

4. An order pursuant to section 75(1) that the tenant may transfer a tenancy or sublet the residential premises.

5. An order pursuant to section 111 declaring that a termination notice was or was not given in accordance with the Act.

6. An order pursuant to section 187(1)(b) that requires an action in performance of a residential tenancy agreement.

7. An order pursuant to section 187(1)(d) as to compensation.

8. An order pursuant to section 187(2)(a) as to compensation for loss of rent.

5. The matters were listed together on 26 October 2016 and were then adjourned part heard until 14 February 2017.

6. On 26 October 2016 the Tribunal made the following interim orders on RT16/44922:

(1) The tenant is to pay the landlord the sum of $8640.00 immediately:

Reasons:

Rent from 01 September 2016 to 26 October 2016 $8640.00.

The tenant is to pay the landlord rent presently $1080.00 per week, next payment due on 26 October 2016, and once the arrears are paid in full, to pay rent in accordance with the residential tenancy agreement.

The landlord has the right to relist the mater at any time before the next hearing date if the tenant has not complied with these orders.

7. In relation to all matters the following procedural directions were made on 26 October 2016.

1. By determination of the Member, the hearing was adjourned to a date to be fixed by the Registrar.

2. The parties will not be permitted to present any additional evidence in relation to this dispute without the leave of the Tribunal. Any request to submit additional evidence must be made in writing at least 21 days before the scheduled hearing date.

8. On 31 January 2017 the Tribunal received an adjournment request from the landlord. The landlord stated;” Bishoy Abdel-Messih gave us lot of documents to review for this tribunal, as a result, we need more time to make any preparation.”

9. On 3 February 2017 the Tribunal refused the adjournment request for the following reasons:

The parties attention is drawn to order 2 made by the Tribunal on 26 October 2016.

No leave was given to the parties to file additional evidence. No request has been submitted before the hearing date for leave.

No new evidence will be permitted to be filed without the leave of the Tribunal.

10. On 25 January 2016 the tenant filed a new application with the Tribunal RT17/04077 seeking the following orders: s44 (1)(b),65 (1)(a), 187(2)(a),75, 187(1)(b)), 70(3) and 31(a). Attached to the application was a folder of documents with more than 130 folios.

11. At the commencement of the hearing on 14 February 2017 the tenant sought to have the matter RT17/04077 heard at the same time at these proceedings. The tenant advised the Tribunal that he had sent an email to the Tribunal in early January 2017 seeking leave to file additional material. He had not had a response to his email and so he decided to file a new application amending his claim and seeking to submit additional evidence. The material he sought to rely upon was sent to the landlord on 25 January 2017 and it was the tenant’s opinion that the landlord had had ample opportunity to consider the material.

12. The Tribunal determined that matter RT 17/04077 could not be heard on 14 February 2017. The Tribunal gave the following reasons at the hearing as to why the matter would be adjourned:

1. No time had been allocated to hear the matter on 14 February 2017.

2. Orders were made on 26 October 2016 that no new evidence would be permitted to be submitted without the leave of the Tribunal.

3. The Tribunal had no record of the email that the tenant claimed to have sent in early January 2017 seeking leave. A copy of the email on the tenant’s computer was shown to the Member.

4. Even if the Tribunal is wrong in its assessment of not having received the email from the tenant, the tenant is an experienced litigant before the Tribunal. The tenant was not able to provide a reasonable explanation as to why he did not follow up with the Registry when he did not receive a response to his email seeking leave to file additional documents.

5. The Tribunal refused the landlord’s request for an adjournment made on 30 January 2017 and advised the landlord that no new evidence would be allowed to be relied upon without leave, it would now be procedurally unfair to allow the tenant to rely on new evidence.

6. No reasonable explanation has been provided by the tenant for his non-compliance of the procedural directions made on 26 October 2016.

13. The Tribunal adjourned the proceedings in RT 17/0477 with directions including the tenant having to provide submissions as to why the new application was not an abuse of process. The Tribunal gave to the tenant an opportunity to withdraw the part of his claim that was currently before the Tribunal and was not yet determined so that he could proceed in the matter RT17/0477. The tenant did not wish to withdraw.

BACKGROUND

14. The parties entered into a residential tenancy agreement on 18 August 2016. The agreement is for 12 months commencing on 18 August 2016 and ending on 17 August 2017. The rent is $2,160.00 per fortnight. A rental bond of $4,320.00 has been lodged with the rental bond service.

15. Prior to signing the residential tenancy agreement, the tenant informed the landlord that he would be moving from his then current lease in 3 months’ time and requested that he be allowed to have four (4) people reside in the premises until he was able to personally occupy the premises. It was agreed between the parties that in October/November 2016 the tenant would reside in the premises with three other occupants and that the tenant could have other occupants in the premises until that time.

16. On 23 August 2016 the landlord received an application from Mr Simon Arthur Marshall as an occupant to the premises. The landlord approved his application and notified the building manager of the three month shared occupancy by Mr Marshall.

17. On 24 August 2016 the building manager informed the landlord that he had received a second residential tenancy agreement for the premises, which named the tenant Mr Bishoy Abdel-Mesih as a landlord to Mr Marshall.

18. On 24 August 2016 the landlord arranged to meet the tenant and personally handed to him a termination notice for breaching the tenancy agreement by subletting without the landlord’s consent.

19. On 29 August 2016 the tenant advised the landlord that there would be two new occupants to the premises Ms M Khurshid and Ms J Goel. The landlord requested information from the two new occupants before approving their occupancy.

20. The tenant approved Ms Khurshid and Ms Goel occupancy of the premises without waiting for the consent of the landlord.

21. The tenant then ceased to pay his rent because the landlord had not approved the occupancy of Ms Khurshid and Ms Goel.

22. The landlord issued to the tenant a second termination notice on 30 September 2016 for non-payment of rent. At the time that the termination notice was issued the tenant was more than 14 days in arrears of rent.

23. The landlord is aware that the tenant is running an accommodation business in the building and other building’s in the city. The landlord as well as for other reasons given does not wish to have the premises subject to the wear and tear that would flow from having different occupants moving in and out of the premises.

24. The landlord sought termination of the tenancy due to breach of the tenant by subletting without consent and also for non payment of rent in accordance with the residential tenancy agreement.

25. The tenant is seeking repairs and compensation from the landlord for a breach of the residential tenancy agreement for not carrying out the repairs in a timely manner and also unreasonably refusing to consent to the tenant subletting the property, as well as other issues.

RT16/42344

Issue

Has the tenant breached the terms of the residential tenancy agreement by subletting the premises without the consent of the landlord?

26. The landlord seeks to rely on the termination notice issued on 24 August 2016 to the tenant for breach of the residential tenancy agreement.

27. Clause 32 of the Residential Tenancy Agreement provides as follows:

Transfer of tenancy or sub letting by tenant

32   The landlord and the tenant agree that:

32.1   The tenant may with the landlord’s written permission, transfer the tenant’s tenancy under this agreement or sublet the residential premises, and

32.2   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 residential premises, and

32.3   the landlord must not unreasonably refuse permission to a transfer of part of a tenancy or a sub letting of part of the residential premises, and

32.4   without limiting clause 32.3 the landlord may refuse permission to a transfer of part of the tenancy or to sub letting part of the residential premises, if the number of occupants would be more than is permitted under this agreement or any proposed tenant or sub tenant is listed on a residential tenancy database or it would result in overcrowding of the residential premises.

28. The landlord and tenant have attempted to vary the standard clause 32 of the Agreement by the following.

The word “may” has been crossed out of clause 32.1

The word “may” has been crossed out of clause 32.2

The word “may” has been crossed out of 32.4.

29. In addition the numbering of clause 32.2 has been circled and the tenant has written s75(1) in the margin.

30. It is not clear what the parties’ intention was in attempting to vary the standard term clause in the lease. The tenant claims that the landlord has given him consent to sublet. The landlord claims that she made it abundantly clear to the tenant that she would not allow subletting.

31. The tenant has given evidence that he moved into the premises between 12 October 2016 and 9 November 2016. He is now residing in the premises permanently. Mr Simon Marshall moved into the premises on 23 August 2016. Ms Coel and Ms Khurshid moved in on 29 August 2016, however, they vacated on 16 September 2016 because they were not given access to security keys to enter the building. The tenant had interest from a fourth person but could not sign a lease because he could not guarantee consent from the landlord that they could occupy the premises.

32. The tenant submitted that by writing s75(1) in the margin of clause 32 he understood that this gave him permission to sublet the premises.

33. The landlord’s managing agent gave evidence that there was a verbal agreement with the tenant that four people could reside in the premises. The managing agent understood this to mean that the tenant would reside there together with three other family members. There was never any agreement that the tenant would be allowed to sublet the premises. The landlord stated that she agreed to Mr Marshall moving in as an occupant, she did not consent to the tenant sub letting the premises to Mr Marshall.

34. The landlord’s managing agent gave evidence that by crossing out the word “may” is clause 32.1 and 32.2 and 32.4 she was confirming with the tenant her verbal agreement with him that he was not permitted to sublet the premises. The managing agent explained to the tenant that the landlord would not consent to any short term leases, no subletting and no backpackers allowed in the premises.

35. Part 4 of the Residential Tenancies Act deals with Changes of tenant and landlord. Section 74 provides that a tenant may transfer the tenancy under a residential tenancy agreement to another person or sublet the premises to another person, if the landlord gives written consent to the transfer or subletting. This is a term of every residential tenancy agreement. Section 75 refers to the landlord’s consent to transfer the tenancy or subletting.

36. As set out in Anforth Residential Law and Tenancy NSW (6th Edition) Federation Press at 2.74.1, subletting is distinguished from assignment or transfer. A subletting occurs when the head tenant creates a residential tenancy agreement with a sub tenant in respect of all or part of the premises. This requires that each of the indicia of a residential tenancy is fulfilled; see [2.13.3]. In Ellul v Bridge (2001) the Tribunal held that a subletting could not occur without the landlord’s consent and the consent of the other tenant. The Appeal Panel in Abdel-Messih v Dai [2017]NSWCATAP 20 found that the provisions of special conditions 32 and 74 and 75 of the Act place upon the tenant an obligation to seek the landlord’s consent to sublet the premises.

37. Section 219 prohibits contracting out of the Residential Tenancies Act. Section 219(1) provides that a term of any residential tenancy agreement, contract or other agreement is void to the extent that it purports to exclude, limit or modify the operation of this Act or the regulations or has the effect of excluding limiting or modifying the operation of this Act or the regulations.

38. The Tribunal is satisfied that by crossing out the words “may” in Clauses 32 of the Agreement, the landlord’s intention was to let the tenant know that the landlord would not agree to the tenant subletting the premises. The tenant by including the writing s 75(1) in the column of Clauses 32 was intending that clause 75 could not be excluded by law.

39. It is difficult to accept the landlord’s argument that she understood that the tenant would be residing at the premises with three other family members. There is nothing in the evidence that would support such a finding. There was no evidence given of any conversation had between the parties where the tenant told the landlord that he would be residing at the premises with three family members. The Tribunal is satisfied that the landlord when entering the agreement understood that the tenant would be moving into the premises in October 2016 and he would sublet to three other occupants, bringing the total amount of occupants allowed to reside in the premises to 4 people. This is supported by the fact that the landlord has approved the occupancy of Mr Marshall and that the landlord was considering approving the occupancy of Ms Goel and Ms Kurshid before they vacated the premises.

40. The Tribunal is satisfied that the provisions of section 10 of the Act were satisfied in so far as there is a residential tenancy agreement between the tenant (as head tenant) and Mr Marshall. The Tribunal is also satisfied that the landlord has consented to the subletting of the premises by approving Mr Marshall’s occupancy of the premises and instructing the building manager to issue to Mr Marshall a security key to the building.

41. The Tribunal is satisfied that the landlord was considering the application by Ms Goel and Ms Khurshid when they vacated the premises on 16 September 2016. An application was lodged with the landlord for consideration of Ms Goel and Ms Khurshid occupying the premises on 29 August 2016. Ms Goel and Ms Khurshid provided their passports and visas, and the landlord sought additional information from them before approving their occupancy.

42. The Tribunal finds that at the time that the termination notice was issued to the tenant on 24 August 2016 the landlord had consented to the sub letting of the premises to Mr Marshall. The Tribunal finds that the tenant has not breached the terms of the residential tenancy agreement by sub letting the premises to Mr Marshall without the landlord’s consent. This application is dismissed.

RT16/44922

43. The landlord seeks termination and possession of the residential tenancy on the basis of section 87 of the Act. The landlord is also seeking an order pursuant to section 89(5)

44. The Tribunal is satisfied that on 30 September 2016 the landlord issued to the tenant a valid termination notice pursuant to section 87 of the Act. The Tribunal may on application by a landlord, make a termination order if it is satisfied that:

1. the tenant has breached the residential tenancy agreement, and

2. the breach is in the circumstances of the case, sufficient to justify termination of the agreement, and

3. the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.

In considering the circumstances of the case, the Tribunal may consider ( but is not limited to considering the matters set out in section 87(5).

Section 85(6) provides that the Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach.

45. There is no dispute that the tenant stopped paying rent on 31 August 2016. The tenant gave evidence that he stopped paying rent because the landlord had repudiated the tenancy agreement by not consenting to him sub letting the premises. The tenant has stated that because the landlord denied him permission to have three other persons residing at the premises he stopped paying rent. Mr Marshall was approved as a sub tenant on 24 August 2016. Ms Goel and Ms Khurshid moved into the premises on 29 August 2016 , however, they were not given a swipe security key and moved out of the premises on 16 September 2016. This is the reason given by the tenant for not paying his rent.

46. A tenant has a fundamental obligation to pay rent. A tenant is not entitled to withhold rent on the basis of any breach by the landlord of the residential tenancy agreement.

47. The tenant gave evidence at the hearing on 26 October 2016 that he was able to pay all the arrears and continue to pay rent in accordance with the residential tenancy agreement.

45. The Tribunal made interim orders on 26 October 2016 that the tenant was to pay all of the arrears immediately and to continue to pay rent in accordance with the residential tenancy agreement.

46. This part of the claim was withdrawn by the landlord on 14 February 2017. The landlord advised the Tribunal that the rent has been paid in accordance with the residential tenancy agreement.

RT 16/39468

50. The tenant is seeking the following orders:

1. Compensation for landlord’s breach of section 75 of the Act;

2. Order for repair of Lights, dryer, microwave and television signal.

3. Permission to install a fixture, namely curtains in all of the bedrooms;

4. Compensation for the landlord’s failure to maintain and repair the premises;

5. Compensation for not having use of the car space;

6. Compensation of one day rent because the tenancy did not commence until 19 August 2016;

7. Compensation of $100 for the swipe key that the tenant had to purchase.

8. Advertising Costs of tenant $82.47.

Section 75 has the landlord unreasonably withheld consent to sublet?

51. The tenant submits that he had the verbal consent of the landlord to sublet the premises. The landlord denies that this consent was ever given. The landlord states that it was always her intention to allow the tenant to reside in the premises with three other occupants on the condition that the occupants would reside on the same terms and conditions as the tenant. The managing agent of the landlord gave evidence that before entering into the agreement with the tenant she made it perfectly clear to the tenant that the landlord would not accept any short term tenancies for the property. The landlord understood this to mean no tenancies of less than 6 months duration. The landlord stated that the tenant did not mention to the landlord that he has a subletting business that he runs in this building together with other buildings in the central business district of Sydney. The landlord stated that her intention was made clear by crossing out clause 32 of the residential tenancy agreement to make a point to the tenant that subletting would not be permitted by the landlord. It is submitted that the concerns of the landlord regarding subletting were made clear to the tenant prior to him entering into the agreement.

52. The landlord’s concerns regarding subletting were expressed as follows during the hearing:

1. The landlord is aware that the tenant runs a business of subletting numerous apartments in the central business district of Sydney.

2. The landlord is aware of a number of cases on the public recording at the Tribunal where the tenant is engaged in litigation with numerous tenants and landlords.

3. The landlord became aware of several complaints made to the Building Manager of the property from various sub- tenants of the tenant regarding disputes about the rental bond.

4. The landlord became aware of the Police needing to be called on one occasion due to a dispute between the tenant and his other sub-tenants.

5. The landlord is concerned regarding fair wear and tear to the premises if numerous other people are occupying the premises over the terms of the tenancy agreement.

6. The landlord has no objection to the tenant subletting to other persons, who are approved by the landlord on the same term and conditions as the tenant’s agreement. The landlord conceded that it would agree to 6 month tenancies.

7. The landlord is willing to allow the tenant to add additional persons to his own lease on the same terms and conditions.

8. The landlord is willing to allow the tenant to break his fixed term lease without penalty.

53. 53.   The landlord holds a very strong position that she does not want to consent to the tenant subletting the entire premises. At the first hearing of the matter the landlord submitted that the tenant was not residing at the premises. This argument was not pursued at the second hearing. The tenant provided to the Tribunal evidence of his driver’s license having him residing at the premises. The tenant also gave sworn evidence that he has amended the electoral role and his student enrolment to the address of the premises. The tenant gave evidence that he resides permanently in bedroom 1 of the premises. The tenant stated that he began to move his things into the premises on 12 October 2016 and moved in on a permanent basis by 9 November 2016.

54. The landlord is only able to withhold consent to transfer or subletting in relation to whole tenancy if the tenant is not residing at the premises.

Section 75 provides that:

(g) The landlord can refuse consent to sublet if the subletting relates to the whole of the tenancy.

(h) The landlord cannot unreasonable withhold consent if the sub letting results only in one or more tenants in addition to an original tenant under the tenancy agreement. In additional the landlord is entitled to withhold consent if the number of proposed occupants is more than the number permitted by the agreement or any applicable consent or approval under the Environmental Planning and Assessment Act 1979 or the proposed tenant or sub tenant is listed on a residential tenancy database or the landlord is reasonably of the opinion that the subletting would result in the premises being overcrowded.

55. The landlord has provided evidence that the tenant has signed residential tenancy agreement with four other units in the same building. The landlord has also sought to rely on other decisions of the Tribunal and the Appeal Panel to support her claim that the tenant is running a professional subletting accommodation business. The landlord has provided the following residential tenancy agreements entered into between the tenant and other lot owners in the building;

1. Agreement entered into on 22 October 2015 between the tenant and the landlord of U4608 in the same building. The agreement is for 12 months ending on 21 October 2016.

2. Agreement entered into on 14 March 2016 between the tenant and the owners of Lot 4201A of the building. This agreement is a 12 month agreement entered into on 19 March 2016 and ending on17 March 2017.

3. Agreement entered into on 24 June 2016 between the tenant and the owner of Lot 3313B of the building. This agreement is for 12 months commencing on 17 August 2016 and ending on 15 August 2017.

56. The landlord has also provided additional evidence from previous sub tenants of the tenant and the building supervisor which shows that the tenant is offering premises for accommodation through Air B N B and other short term sites.

57. The tenant does not deny that he is running an accomodation business. The tenant states that he does not offer tenancies of less than 3 months, therefore he does not accept that he is offering short term accommodation. The tenant denies that he is running his business model of subletting at these premises.

58. As stated elsewhere the landlord has given evidence that she does not want short term rentals in the premises. By this the landlord means tenancies of less than 6 months. The landlord has given evidence that if the tenant found long term occupants for the premises and if he continued to reside in the premises she would consent to the subletting of the premises. The landlord is concerned with wear and tear to the premises with various occupants moving in and out. The landlord is also concerned with disputes between various occupants which may impact on the landlord. The landlord is trying to avoid situations which have occurred in other lots in the building, where the tenant is running his business model of three month tenancies and disputes have arisen with subtenants, landlords, the building manager and the strata scheme. The landlord is also concerned regarding the tenant breaching by laws in the premises. By law 13.1 states that an owner or occupier of a lot must not transport any furniture or large objects through or on common property within the building unless sufficient notice has first been given to the executive committee so as to enable the executive committee to arrange for its nominee to be present at the time when the owner or occupier does so. The landlord was advised by the strata manager that the tenant had breached by law 13. The landlord also alleges that the tenant has breached a by law in relation to animals by keeping a pet on the premises. The tenant refused to answer the question put to him by the landlord during the hearing as to whether he is breaching a by law by having a dog on the premises. The landlord also alleges that the tenant has breached By law 39 which prohibits short term letting. Short term letting is defined as less than 3 months.

59. The tenant concedes that he is running a subletting business in the building. He claims that at all times he has the landlord’s consent to sublet and he has complied with by laws of the building.

60. The Tribunal is satisfied that there are two bedrooms in the premises and the sun room is being used as a third bedroom. The Tribunal is satisfied that the tenant resides in bedroom 1. The landlord has consented to Mr Luan and Ms Lai residing in bedroom 2. Mr Luan and Ms Lai signed a six month tenancy agreement with the tenant on 10 November 2016. This was done with the consent of the landlord. The Tribunal is satisfied that Mr Co entered into a six month tenancy agreement with the tenant on 16 November 2016. This agreement was consented to by the landlord.

61. The Tribunal is not satisfied that the landlord has unreasonably withheld consent to a subletting of the premises. There is no breach of section 75 of the Act. There are currently four persons residing in the premises in accordance with the residential tenancy agreement. The tenant resides permanently in the premises and the landlord has consented to three other persons subletting the premises.

Compensation

Bedroom 1

62. The tenant alleges that the landlord unreasonably withheld consent for Ms Kurshid and Ms Goel to occupy the premises. The tenant states that Ms Kurshid and Ms Goel occupied the premises between 29 August 2016 and 16 September 2016. The tenant claims that because the landlord did not grant consent to him to sublet the premises, Ms Kurshid and Ms Goel were forced to move out because they were unable to obtain a security key. The tenant is now seeking compensation of the rent for the bedroom which was $480 per week from 16 September 2016 until he moved into the bedroom on 9 November 2016. This is a total of 55 days being $3771.43.

63. The landlord gave evidence that she received an application for permission to allow Ms Kurshid and Ms Goel to move into the premises around the end of Augsut 2016. The landlord requested that Ms Goel and Ms Kurshid provide to her certain information regarding their tenancy application, including evidence of their passport and visa. This information was provided by Ms Goel and Ms Kurshid. As they were the holders of student visas, the landlord requested further evidence of confirmation of their enrolment as Students at an Educational Institute. This information was not provided. The landlord was advised that they had moved out of the premises and the application to consent to their occupancy was not considered further by the landlord. The landlord gave evidence that the tenant by allowing Ms Goel and Ms Kurshid to move in before the landlord approved their tenancy has breached a by law of the strata scheme, by not notifying the landlord and the building manager of the name of the persons residing in the premises. The landlord submitted that this is evidence of the tenant not respecting the landlord’s concerns regarding subletting of the premises.

64. The Tribunal is not satisfied that the landlord has unreasonably withheld consent to the subletting of the premises to Ms Goel and Ms Kurshid. The landlord is reasonably entitled to carry out due diligence in relation to who is moving into the premises. This can include the occupants completing a tenancy application and providing evidence to satisfy the landlord that they are genuine tenants. It is not unreasonable for a landlord to request a person who is on a student visa to provide evidence of current enrolment in an education institution as this is a requirement for holding a valid student visa. The tenant has provided no evidence that he had the consent of the landlord for Ms Khurshid and Ms Goel to move into the premises prior to their tenancy being approved by the landlord in accordance with section 75 of the Act. The Tribunal finds that the landlord has not unreasonably withheld consent and that Ms Khurshid and Ms Goel vacated the premises not having provided to the landlord evidence of their current student enrolment. This part of the tenant’s claim is dismissed.

Bedroom 2

65. The tenant is claiming compensation for Mr Marshall having vacated the premises on 5 November 2016. Although this claim did not form part of the tenant’s original application, the Tribunal allowed this matter to be argued as there was no disadvantage to the landlord. The tenant submits that the landlord interfered with the tenancy causing Mr Marshall to vacate prior to the end of his fixed term.

66. The landlord gave consent to Mr Marshall occupying the premises on 24 August 2016. Mr Marshall had entered into a three month tenancy agreement with the tenant. The landlord states that she believed that Mr Marshall was the tenant’s friend and he would be occupying the premises. It was only when the building manager showed to the landlord a copy of the tenancy agreement between Mr Marshall and the tenant that the landlord became concerned that the tenant was subletting without consent and issued a termination notice to the tenant.

67. In the matter RT16/48675 the tenant brought proceedings against Mr Marshall in the Tribunal, alleging that Mr Marshall had abandoned the property and seeking a break lease fee. The Tribunal dismissed the tenant’s application. The tenant has advised the Tribunal that he has filed an appeal of this decision. The Tribunal orders however have not been stayed and the decision stands, until a decision is made by the Appeal Panel.

68. The Tribunal does not accept the tenant’s submission that the landlord interfered with the tenancy. Mr Marshall notified the tenant by text message towards the end October 2016 of his intention to vacate. On 26 October 2016 the current proceedings were on foot in the Tribunal. These proceedings included an application for termination of the tenancy by the landlord due to non-payment of rent. The Tribunal, being part heard on that day made interim orders in relation to the payment of rent owing which was $8640.00 as well as continuing to pay rent of $1080.00 per week. It was open to Mr Marshall on the information that he had to infer that the tenancy was at risk due to the non- payment of rent by the tenant. In addition, the Tribunal found in RT 16/48675 that:

“the Tribunal accepts the tenant’s evidence (see statutory declaration of respondent made on 23 December 2016) that the Head landlord’s agent had informed him, and he reasonably believed that the Head Agreement would be terminated by the landlord for breaches of the Head Agreement by the applicant including non-payment of rent and absence of consent (as required under printed condition 32 of the Head agreement”

69. The Tribunal is not satisfied that the landlord has interfered with the tenancy and dismisses the tenant’s claim for compensation in relation to the bedroom 2 being vacant from 5 November 2016 until 10 November 2016. The Tribunal has already determined the question of whether the tenant is entitled to a break lease fee in RT16/48675 and that matter was dismissed.

Bedroom 3

70. The tenant claims compensation for the landlord unreasonably withholding consent for the sunroom (bedroom 3) for the period 28 August 2016 until 16 November 2016. The tenant submits that he had interest from a prospective tenant to move into the premises on 28 August 2016. Due to the issues that the tenant was having with the landlord the tenant did not want to risk not being able to give this person a swipe key and therefore he did not enter into any agreement with him. The tenant sought the landlord’s consent for a Mr Co to sublet the premises on 7 November 2016. Mr Co was approved by the landlord on 16 November 2016.

71. The Tribunal finds that no request was made to the landlord for the subletting of the sunroom of the premises which has been unreasonably refused by the landlord. The only application made to the landlord for the sunroom is the application made by Mr Co and this was approved by the landlord in accordance with section 75 of the Act. This part of the application is refused.

Evidence of Mr Mathew Maher

72. The tenant summoned Mr Maher, the building manager to attend the hearing and to give evidence before the Tribunal. Mr Maher attended and answered questions put to him by the tenant. The tenant asked Mr Maher various questions regarding what advice he gave to the landlord regarding subletting in the premises.

The tenant in his submissions was not able to establish that the evidence of Mr Maher had any relevance to his case.

Garage Key

73. The tenant seeks compensation for not having access to the garage key from 18 August 2016 until 31 October 2016. Evidence was given by the tenant that he entered into an agreement for the letting of the garage with a Mr Cao. The agreement was entered into on 23 August 2016 and the key to the garage was not provided to him by the landlord until 31 August 2016. Evidence has been given by the landlord that she was overseas and the tenant was advised that the key would not become available until the landlord returned. The tenant wrote to the landlord on 23 August 2016 requesting permission to rent out the car space with his lot. On 23 August 2016 the landlord wrote to the tenant confirming that as Mr Cao resided in the same building consent was given to the car space being rented to another occupant in the building.

74. The Tribunal finds on the evidence that the landlord consented on 23 August 2016 to the tenant renting out the car space in the building. The key was not provided to the tenant until 31 August 2016. The tenant is entitled to compensation from 23 August 2016 until 31 August 2016. The Tribunal has allowed 9 days compensation for the garage. The garage is rented at $70 per week. The tenant is entitled to $90 compensation from the landlord.

The date the tenancy commenced

75. The tenant seeks compensation of one day rent. The tenancy agreement was entered into on 18 August 2016. The tenant was not given the key to the premises until 19 August 2016. The landlord states this was because it was waiting for the tenant’s rent and bond money to enter its trust account. The tenancy agreement commences on the day that the tenant is given possession of the property. The tenant was given possession of the property on 19 August 2016. The landlord is to pay to the tenant $154.28 by way of rent credit for one days rent.

Security Key Costs

76. The tenant seeks compensation of $100 for having to pay for a swipe key for the premises. The evidence before the Tribunal is that the landlord gave to the tenant a swipe key belonging to the previous tenant. The swipe key was activated for only three days and then the tenant had to apply for a new swipe key.

77. Section 70(2) provides that a landlord must give to each tenant named a copy of a key or any other opening devise. Section 70(3) provides that the initial copies are to be provided free of charge.

78. The Tribunal is satisfied that the tenant has made out this part of the claim and is entitled to compensation of $100.00 from the landlord for the cost of the security swipe key.

Advertising Costs

79. The tenant’s claim for his advertising costs on Gum Tree are dismissed. The Tribunal is not satisfied that the landlord has breached section 75 of the Act and therefore the tenant is not entitled to compensation for the tenant’s advertising costs on Gumtree in trying to find a subtenant.

REPAIRS

80. The tenant claims that the following items, lights, dryer, microwave and television outlet, were brought to the landlord’s attention on 1 September 2016. The tenant claims that the landlord has failed to maintain and repair the items with reasonable diligence. The tenant is seeking that the repairs be carried out as well as compensation for breach by the landlord.

80. Section 63 of the RT Act sets out general obligations on landlords in respect of residential premises. Section 63 is a term of every residential tenancy agreement by operation of section 63(3) of the RT Act. It relevantly provides:

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.

…

82. Section 63 of the RT Act is relevant in this case because the Managing Agent contends that there was no breach of the agreement by the landlord; that it acted with reasonable diligence to fulfil its obligation to maintain the premises in a reasonable state of repair upon being notified of the issues.

83. There is no dispute that the tenant notified the landlord on 1 September 2016 that the lights, microwave, dryer and Television signal were not working.

84. In relation to the lights, the managing agent attended the premises on 14 September 2016 and installed LED lights. The landlord gave evidence that this was done at great expense to try and save energy costs for the tenant. The tenant complains that the lights have been replaced with different coloured lights and some are white and some are yellow. The tenant has provided no evidence that the lights that have been installed do not comply with Safety standards or any other Building Code or Standard or that the lights are not working. The Tribunal finds that the landlord has acted with reasonable diligence to have the repairs carried out.

85. In relation to the dryer, the managing agent gave evidence that she attended the premises with the electrician on 30 September 2016. The dryer was examined and left running for 30 minutes without any issues. The tenant gave evidence that the dryer switches off after 15 minutes and it is causing other electricity circuits to short circuit. The Tribunal orders the landlord to attend the premises within 7 days of the day of this order with a licensed electrician and to carry out diagnostic tests to ensure that the use of the dryer is not causing the short circuit of the electrical board in the premises. This is a safety issue and needs to be addressed immediately. The Tribunal is not satisfied that the landlord has breached the terms of the tenancy agreement by not acting with reasonable diligence to have the repair carried out. The landlord attended the premises within 14 days to investigate the issue together with a licensed electrician. The Tribunal is satisfied that the dryer is working. Further investigation needs to occur by the landlord in relation to the electrical circuit.

86. The Tribunal is satisfied that the microwave was replaced by the landlord on 12 October 2016. The Tribunal finds that the landlord has acted with reasonable diligence to have the repair carried out. The tenant is not entitled to any compensation.

87. The tenant claims that he has no Television Signal at the premises. This issue has been raised by the landlord with the strata manager. This issue has not yet been resolved.

88. In circumstances where the issue relates to common property of the strata scheme, the landlord has a duty to use such rights as the landlord holds to compel the owners corporation to take action to remedy defects in the landlord’s tenanted premises, including taking action against the owners corporation under the Strata Schemes Management Act 1996 (Lee v Fuzessery (201)CTTT)). This is the consistent approach taken by the Tribunal in circumstances where the owners corporation refuse to carry out repairs that impact on the tenancy agreement that the landlord has with the tenants. This position is supported by Master Harrison in Reiss V Helson [2001]NSWSC486 where he upheld a decision of the Tribunal to the effect that inaction by the owners corporation is no defence to a claim against a landlord for failure to repair.

89. Section 187(1)(d) of the RT Act provides that the Tribunal may make an order for compensation. However, in order to enliven the Tribunal’s power to do so, in the circumstances of this case, the tenant must establish with evidence that the landlord breached a term of the agreement causing them damage and loss for which they are entitled to be compensated. In other words it falls to the tenant, first, to establish a breach of an obligation by the landlord, and once that is proved, to then prove the damage and loss that is a consequence of the breach.

90. The Tribunal is satisfied that the landlord has breached section 62 by failing to maintain and repair the premises in relation to the television power points. It can also be argued that the landlord has reduced/withdrawn facilities in the premises (s44(1)(b). The tenant seeks compensation for this breach by the landlord. The tenant has provided little evidence of his own usage of television or any other loss he may have suffered as a result of the television power points in the premises not working. Little evidence has been provided of what loss the tenant has suffered as a result of no television power point not working. For example the tenant has not explained why he cannot watch free to air or other networks through his computer or through an HDMI or similar Cable. The Tribunal makes an order for a nominal amount of $100 as it is not satisfied as to the extent of the loss suffered by the tenant.

91. The tenant is seeking an order that he be permitted to install curtains in all of the bedrooms of the premises. The tenant claims that there is too much light entering the premises. The tenant stated that there are blinds installed however they are not efficient. The tenant sought the landlord’s permission on 27 October 2016 and the tenant is still awaiting a response. The landlord has given evidence that the owners corporation consent is required to install curtains in the sun room ( by law 33) and the owners corporation consent is needed to mark or damage or screw into the common property ( by law 5). The landlord gave evidence that she has requested from the owners corporation that consent be given to the tenant to install curtains. The Tribunal is not satisfied that the tenant has established that he has suffered any loss by not having been given consent to install curtains in the premises. The tenant has given evidence that there are blinds in the premises. Even if the Tribunal is wrong in relation to this finding, the Tribunal is not satisfied that the tenant has mitigated any loss that he may have suffered in relation to the landlord not consenting to the installation of curtains. The Strata Schemes Management Act allows an occupier of premises to request the owners corporation to consent to the installation of curtains both in the bedrooms and the sunroom. The landlord has made this request to the owners corporation. The Tribunal cannot make an order contrary to the strata scheme by laws. The tenant has a remedy by seeking consent of the owners corporation under the Strata Schemes Management Act 2015 to have the curtains installed. This part of the tenant’s claim is dismissed.

92. In the tenant’s written submissions to the Tribunal he has raised a number of issues that were not argued during the hearing. For completeness sake the Tribunal has dealt with those issues.

93. The tenant is seeking an order requiring the landlord to provide three additional keys for the premises. Section 70(2) provides that a landlord is only responsible to provide a set of keys to each tenant named in the residential tenancy agreement. As the tenant is the only person named in the residential tenancy agreement and the landlord has provided him with a set of keys, there is no breach of section 70(2) by the landlord. The landlord has no legal obligation to provide keys to the tenant’s sub tenants.

94. The tenant seeks a declaration that he be permitted to sublet the premises . As was stated by the Appeal Panel in Abdel-Messih v Dai [2017]NSWCATAP 20: the provisions of the Act require the tenant to seek the approval of the landlord each time he wishes to sublet the premises and approval must not be unreasonably withheld (special condition 32 of the Agreement and section 75 of the Act). The Tribunal is not able to order the landlord to allow the tenant to sublet the premises.

95. The tenant seeks a reduction of rent payable for withdrawal of gym facility, theatrette sauna, spa and pool. No evidence was given by the tenant at the hearing in relation to this issue. Little evidence was provided in his submissions to satisfy the Tribunal that there has been a withdrawal of these named services by the landlord. The tenant was given an opportunity to outline his claim on a number of occasions and was also given ample opportunity to say anything further in relation to his claim during the hearing. This issue was not raised by the tenant.

96. The tenant also seeks “unliquidated damages”. Under this heading the tenant has outlined the following:

1. the wasted efforts for the purposes of inspections, moving items, answering distress emails and calls;

2. acting as the gatekeeper for Ms Goel and Ms Khurshid;

3. Having Mr Maher and Ms Chiu fabricating allegations against me and making false defamatory imputations;

4. Having the subtenant Mr Marshall being subjected to private nuisance through Ms Chiu advising him that she will be evicting him;

5. Having my sub tenant Mr Marshall harassed by Mr Maher and having his swipe key deactivated for simply assisting me upstairs to the apartment;

6. Ms Chui may be involved in unlawful private tort of nuisance by constantly harassing my subtenants and such indirectly may be a private nuisance against me;

7. having myself and my sub tenants be treated like garbage by both Mr Maher and Ms Chiu;

97. The tenant has stated in his written submission that he seeks damages for non-economic loss “as per s16 of the Civil Liabilities Act 2002”. There is no evidence before the Tribunal of any injury that the tenant has suffered. Although not presented in this way the claim of the tenant at its strongest is a claim for interruption of the enjoyment of the property. The Tribunal has no jurisdiction to make orders for damages as that term is defined in section 3 of the Civil Liabilities Act. (Tralee Technology Holdings Pty Limited v Yun Chen [2015] NSWSC 1259). If the tenant’s claim is brought as a claim for compensation for loss of enjoyment of the property, the tenant must first establish that there has been a breach of the agreement by the landlord before compensation can be considered by the Tribunal. The tenant has not been able to satisfy the Tribunal that the landlord has breached section 75 of the Act. Therefore it follows that the tenant is not entitled to compensation for non-economic loss. The only breach that the tenant has been able to establish is a breach of section 62 of the Act. The Tribunal has dealt with the issue of compensation in relation to those breaches elsewhere. The tenant’s claim for non-economic loss is dismissed.

M Eftimiou

General Member

Civil and Administrative Tribunal of New South Wales

22 February 2017

*****

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

31 July 2017 - corrected paragraph numbering

Decision last updated: 31 July 2017