Tamayo v Abdulrahim [2022] NSWCATAP 339

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tamayo v Abdulrahim [2022] NSWCATAP 339 Hearing dates: 27 September 2022 Date of orders: 01 November 2022 Decision date: 01 November 2022 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member D Robertson, Senior Member Decision: 1. Time to appeal is extended up to and including the day the Notice of Appeal was filed. 2. Monica Tamayo and Nicolas Guillermo Gonzalez are joined to the appeal as second and third appellants. 3. Monica Tamayo and Nicolas Guillermo Gonzalez are joined to the proceedings at first instance nunc pro tunc. 4. Appeal upheld. 5. The orders of the Tribunal made on 12 July 2022 are set aside. 6. In substitution thereof: (a) order that the rent under the residential tenancy agreement between the parties was excessive and that: (i) from 9 June 2021 to 8 March 2022 (inclusive) the rent for the residential premises must not exceed $440 per week; and (ii) from 9 March 2022 to 8 June 2022 (inclusive) the rent for the residential premises must not exceed $378 per week. (b) order the respondent to pay the appellants $4,716.29 immediately. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — excessive rent — reduction or withdrawal of goods, services or facilities by the landlord – failure to maintain may be a reduction or withdrawal by the landlord – evidence – Tribunal in error in finding no evidence the landlord was aware of water leaks prior to 8 March 2022 Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 44, Sch 4 cl 12(1)(c) Residential Tenancies Act 1987 (NSW) Residential Tenancies Act 2010 (NSW), ss 44(1)(b), 63(1), 190(1), Sch 2 cl 3 Residential Tenancies Regulation 2019 (NSW), r 39 Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Chanaa v Zarour [2011] NSWCA 199 Cominos v Di Rico [2016] NSWCATAP 5 Commissioner of Police, NSW Police Force v Fine [2014] NSWCA 327 Mendonca v Legal Services Commissioner [2020] NSWCA 84 Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 Texts Cited: Nil Category: Principal judgment Parties: Macarena Gonzales Tamayo (First Appellant) Monica Tamayo (Second Appellant) Nicolas Guillermo Gonzalez (Third Appellant) Mohammed Abdulrahim (Respondent) Representation: First Appellant in person Respondent in person File Number(s): 2022/00227689 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 12 July 2022 Before: M Jayasinghe, General Member File Number(s): RT 22/17134