Rezay v Wang [2021] NSWCATCD 80

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rezay v Wang [2021] NSWCATCD 80 Hearing dates: 16 July 2021 Date of orders: 17 August 2021 Decision date: 17 August 2021 Jurisdiction: Consumer and Commercial Division Before: P French, Senior Member Decision: (1) By consent, an oral hearing is dispensed with. (2) The application is refused. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Retaliatory evictions Legislation Cited: Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW) Cases Cited: Steinbeck v McDonald [2015] NSWCATAP 90 Texts Cited: Coronavirus (COVID 19) Temporary Changes to NCAT Operations procedure (18 March 2020 and as subsequently updated) Category: Principal judgment Parties: Khashayar Rezay (Applicant) Lijue Wang (Respondent Representation: Applicant (in person) First National Real Estate (Respondent) File Number(s): RT 21/22431 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. This is an application by Khashayer Rezay (the tenant) under section 115(1)(a) of the Residential Tenancies Act 2010 (RT Act) for a declaration that a termination notice issued to him by the Lijue Wang (the landlord) under section 85 of the RT Act is of no effect because it is retaliatory. The application was made to the Tribunal on 24 May 2021 (the application). 2. For the reasons set out in greater detail following, the application is refused. Section 115 confers discretion on the Tribunal to deprive a landlord of a right to regain possession of premises in circumstances where the landlord has engaged in disentitling, morally wrongful, conduct. That is not what has occurred in this case. While there can be little doubt that the landlord was motivated, at least in part, to give the termination notice by the tenant's obstruction of his and his agent's attempts to remedy the root cause of water ingress into the premises, this conduct was not 'retaliatory' in the sense contemplated by section 115. It was not an act of reprisal or revenge manifesting an abuse of the landlord's superior title in response to a justifiable exercise of rights vested in the tenant by the residential tenancy agreement, the RT Act, or another law. It was a rational and morally defensible response to the tenant's rude, combative and obstructive behaviour, and the complete breakdown of a relationship between contracting parties.