O’Brien v Carlo-Stella [2022] NSWCATCD 12

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: O'Brien v Carlo-Stella [2022] NSWCATCD 12 Hearing dates: 8 December 2021 Date of orders: 24 January 2022 Decision date: 24 January 2022 Jurisdiction: Consumer and Commercial Division Before: A Lynch, General Member Decision: 1. Pursuant to Section 44(1)(b) the rent was excessive from 26 June 2020 to 15 November 2020 and is to be reduced by the sum of $100 per week and during the period from 12 July 2021 to 22 October 2021 in the sum of $250 per week. 2. The landlord is to pay the tenants the sum of $5,614.44 on or before 21 February 2021. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Excessive rent — Section 44(1)(b) — Duty of landlord to repair — Rent reduction Legislation Cited: Residential Tenancies Act 2010 (NSW) Cases Cited: Fuller v NSW Land and Housing Corporation [2013] NSWCTTT648 Bannister v Cheung [2014] NSWCATCD Texts Cited: Nil Category: Principal judgment Parties: Ricky O'Brien (First Applicant) Galia Ayala (Second Applicant) Ernesto Carlo-Stella (Respondent) Representation: First Applicant (Self-represented) Second Applicant (Self-represented) Respondent (Self-represented) File Number(s): RT 21/42007 Publication restriction: Nil

REASONS FOR DECISION

decision 1. The proceedings arise out of a residential tenancy agreement between Ricky O'Brien and Galia Ayala ("the tenants") and Ernesto Carlo-Stella ("the landlord"). 2. The tenancy commenced on 5 April 2017 for twelve months and the tenancy continued on a periodic agreement until the tenants vacated on 22 October 2021. 3. The application was lodged on 8 October 2021 for a rent reduction pursuant to Section 44(1)(b) of the Residential Tenancies Act 2010 (NSW) ("the Act") and an order reducing the rent on the basis the property was uninhabitable pursuant to Section 52. The tenants have applied for a rent reduction of $400 per week for twelve months. The rent was $790 per week. The tenants confirmed they accepted the jurisdictional limit of the Tribunal of $15,000. 4. The matter was heard in a virtual hearing room on 8 December 2021. 5. Both tenants appeared at the hearing. Mr O'Brien gave sworn oral evidence on behalf of the tenants. The tenants provided documents dated 27 October and 12 November 2021. The landlord had received those documents. They included the following:- 1. Chronology 2. Floor plan showing where the tenants had identified mould in the property 3. Emails between the landlord and the tenants in September 2017 4. Photographs including photographs of the linen closet, gutters, personal items with mould growth, mould on walls including the bedrooms 5. Emails from 18 March 2021 to 22 September 2021 6. Additional photographs of shower and structural issues 1. The landlord was represented by Mr Basil Carlo-Stella who has Power of Attorney and Mr Julian Carlo-Stella who gave sworn oral evidence as he primarily managed the property on behalf of the landlord. The landlord provided documents dated 25 November 2021. The tenants confirmed they had received those documents. They included the following:- 1. Overview of tenancy by landlord 2. Landlord's response to the tenants' evidence 3. Chronology 4. Rapid Building Inspections report dated 29 September 2021 5. Access Property Services Pty Limited Building Condition report of 26 October 2021 6. Correspondence between landlords and tenant 7. Property photos during various periods including those provided by the tenant on 31 October 2021 showing mould on clothing 8. Residential Tenancy Agreement 9. Ingoing condition report