Yassine v Saeed; Saeed v Yassine - [2022] NSWCATCD 78

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Yassine v Saeed; Saeed v Yassine [2022] NSWCATCD 78
Hearing dates: 14 March 2022
Date of orders: 11 May 2022
Decision date: 11 May 2022
Jurisdiction: Consumer and Commercial Division
Before: P French, Senior Member
Decision:
RT 21/39348 and RT 21/39349
(1) The applications are dismissed.
RT 21/41277
(2) Billal Yassine must pay Tariq Saeed $951.00 immediately.

Catchwords:
LEASES AND TENANCIES: Residential Tenancies Act 2010 (NSW) – rights and obligations of landlords and tenants – tenant claim for compensation for landlord’s breach of duty to maintain premises in a reasonable state of repair – landlords claim for water usage changes and for compensation for tenant’s breach of duty leave premises reasonably clean and to leave the lawns and gardens in a condition similar to the start of the tenancy.
LEASES AND TENANCIES: Residential Tenancies Act 2010 (NSW) – tenant’s claim that rent was excessive having regard to the reduction or withdrawal, by the landlord of goods, services and facilities provided with the residential premises.

Legislation Cited:
Residential Tenancies Act 2010 (NSW)
Residential Tenancies Regulation 2019 (NSW)

Cases Cited:
Adoncello v Sazdanoff (Tenancy) [2006] NSWCTTT 577
Austin v Bonney [1999] QCA 8
Brigninshaw v Briginshaw (1938) 60 CLR 336
Cure v Bridge Housing Ltd [2014] NSWCATAP 80
Elhassen v Ayoub [2018] NSWCATAP 34
Eliezer v Residential Tribunal and Ors [2001] NSWSC 1092
Fitzpatrick v Wu NSWRT, 2001, (01/16425)
Hadley v Baxendale [1954] EWHC J70l
Lindsay v NSW Land and Housing Corporation [2016] NSWCATAP 128
Marcourt v Clark [2012] NSWCA 367
New South Wales v Watton [1998] NSWSC 589
Northern Sandblasting P/L v Harris (1997) 188 CLR 313
O’Brien v Twynam [2016] NSWCATAP 125
Roberts v Aboriginal Housing Office [2017] NSWCATAP 9
Sunray Investments P/l v Cruwys [1992] NSWRT 95
Westpac General Insurance v Cooper [2006] ACTSC 91
Westpac General Insurance v Cooper [2006] ACTSC 91

Texts Cited:
Nil

Category: Principal judgment
Parties:
RT 21/39348
Bill Yassine (Applicant)
Tariq Saeed (Respondent)

RT 21/39349
Bill Yassine (Applicant)
Tariq Saeed (Respondent)
RT 21/41277
Tariq Saeed (Applicant)
Bill Yassine (Respondent)
Representation: Applicant (Self-represented)
Ralph First Real Estate (Respondent)

File Number(s): RT 21/39348, RT 21/39349, RT 21/41277
Publication restriction: nil

REASONS FOR DECISION

Introduction

There are three applications before the Tribunal in these proceedings.
The first application in time is RT 21/39349. By this application the tenant originally applied for an order pursuant to s 44(1)(b) of the Residential Tenancies Act 2010 (RT Act) that rent was excessive due to the reduction or withdrawal, by the landlord, of goods, services and facilities provided with the residential premises. The tenant also applied for an order pursuant to s 65(1)(a) of the Act that would require the landlord to carry out repairs to the roof of the premises. This application was made to the Tribunal on 29 January 2021 (the tenant’s first application)
The second application in time is RT 21/39348. By this application the tenant originally applied for orders pursuant to s 44(1)(a) of the Act…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] NSWCATCD 78
Decision Date: 11 May 2022

CaseChat Overview and Summary

In the matter of Yassine v Saeed; Saeed v Yassine, the dispute arose from a residential tenancy under the Residential Tenancies Act 2010 (NSW). Billal Yassine, the tenant, claimed compensation for the landlord, Tariq Saeed’s, alleged failure to maintain the premises in a reasonable state of repair. Saeed, on the other hand, sought compensation for what he claimed were breaches by the tenant, including failure to leave the premises reasonably clean and the lawns and gardens in a condition similar to when the tenancy began. Additionally, Saeed claimed the rent was excessive given the reduction or withdrawal of goods, services, and facilities provided with the premises.

The primary legal issues the court needed to address were whether Saeed had breached his statutory duty to maintain the premises in a reasonable state of repair, whether Yassine had breached his duty to leave the premises reasonably clean and to maintain the lawns and gardens, and whether the rent charged was excessive. The court had to interpret the statutory obligations under the Residential Tenancies Act 2010 (NSW) and apply these to the facts presented.

The court found that Yassine’s claim for compensation for the landlord's alleged breach of duty to maintain the premises was not substantiated. Conversely, the court found that Yassine had breached his duty by failing to leave the premises reasonably clean and failing to maintain the lawns and gardens. The court also found that the rent charged was not excessive given the conditions of the premises and the services provided. Consequently, the court dismissed all claims and counter-claims except for the counterclaim for arrears of rent. The court ordered that Yassine must pay Saeed $951.00 immediately.

Orders

Orders of the court

RT 21/39348 and RT 21/39349

(1) The applications are dismissed.

RT 21/41277

(2) Billal Yassine must pay Tariq Saeed $951.00 immediately.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Yassine v Saeed; Saeed v Yassine [2022] NSWCATCD 78
Hearing dates:	14 March 2022
Date of orders:	11 May 2022
Decision date:	11 May 2022
Jurisdiction:	Consumer and Commercial Division
Before:	P French, Senior Member
Decision:	RT 21/39348 and RT 21/39349 (1) The applications are dismissed. RT 21/41277 (2) Billal Yassine must pay Tariq Saeed $951.00 immediately.
Catchwords:	LEASES AND TENANCIES: Residential Tenancies Act 2010 (NSW) – rights and obligations of landlords and tenants – tenant claim for compensation for landlord’s breach of duty to maintain premises in a reasonable state of repair – landlords claim for water usage changes and for compensation for tenant’s breach of duty leave premises reasonably clean and to leave the lawns and gardens in a condition similar to the start of the tenancy. LEASES AND TENANCIES: Residential Tenancies Act 2010 (NSW) – tenant’s claim that rent was excessive having regard to the reduction or withdrawal, by the landlord of goods, services and facilities provided with the residential premises.
Legislation Cited:	Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW)
Cases Cited:	Adoncello v Sazdanoff (Tenancy) [2006] NSWCTTT 577 Austin v Bonney [1999] QCA 8 Brigninshaw v Briginshaw (1938) 60 CLR 336 Cure v Bridge Housing Ltd [2014] NSWCATAP 80 Elhassen v Ayoub [2018] NSWCATAP 34 Eliezer v Residential Tribunal and Ors [2001] NSWSC 1092 Fitzpatrick v Wu NSWRT, 2001, (01/16425) Hadley v Baxendale [1954] EWHC J70l Lindsay v NSW Land and Housing Corporation [2016] NSWCATAP 128 Marcourt v Clark [2012] NSWCA 367 New South Wales v Watton [1998] NSWSC 589 Northern Sandblasting P/L v Harris (1997) 188 CLR 313 O’Brien v Twynam [2016] NSWCATAP 125 Roberts v Aboriginal Housing Office [2017] NSWCATAP 9 Sunray Investments P/l v Cruwys [1992] NSWRT 95 Westpac General Insurance v Cooper [2006] ACTSC 91 Westpac General Insurance v Cooper [2006] ACTSC 91
Texts Cited:	Nil
Category:	Principal judgment
Parties:	RT 21/39348 Bill Yassine (Applicant) Tariq Saeed (Respondent) RT 21/39349 Bill Yassine (Applicant) Tariq Saeed (Respondent) RT 21/41277 Tariq Saeed (Applicant) Bill Yassine (Respondent)
Representation:	Applicant (Self-represented) Ralph First Real Estate (Respondent)
File Number(s):	RT 21/39348, RT 21/39349, RT 21/41277
Publication restriction:	nil