Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tuckwell v Ientile [2022] NSWCATCD 124 Hearing dates: 28 June 2022 Date of orders: 29 July 2022 Decision date: 29 July 2022 Jurisdiction: Consumer and Commercial Division Before: G Sarginson, Senior Member Decision: (1) The Notice to Terminate dated 31 March 2022 issued pursuant to s 85 of the Residential Tenancies Act 2010 (NSW) is declared as having no effect on the basis that it is a retaliatory notice under s 115 of the Residential Tenancies Act 2010 (NSW). (2) By 31 August 2022, the respondent is to conduct the following works to the residential premises the subject of the residential tenancy agreement between the parties: (a) Repair or replace all missing; non-operative and damaged window shutters. (b) Repair or replace all missing; non-operative and damaged blinds. (c) Repair or replace sliding door so that it is in good working order. (d) Repair or replace clothesline so that it is in good working order. (3) By 31 August 2022 the respondent is to give the applicants a rent credit in the amount of $1,280 and the tenancy ledger is amended accordingly. (4) The applicants are to give reasonable access to the residential premises to the landlord; the landlord's agent; any representative of the landlord; and any tradesperson engaged by the landlord so that the works in Order 1 can be performed. (5) All other claims by the applicants are dismissed. Catchwords: LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---repair of premises---breach---remedies---assessment of compensation LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---notice to terminate---whether retaliatory under s 115 Residential Tenancies Act 2010---discretion to set aside Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW) Cases Cited: Bannister v Cheung [2014] NSWCATCD 105 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Kork v Merheb [2021] NSWCATAP 349 Mercieca v Fu [2017] NSWCATAP 205 Murarer v Andresson [2016] NSWCATAP 15 Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361 Pan v Malveholm [2021] NSWCATAP 101 Roberts v Aboriginal Housing Office [2017] NSWCATAP 9 Torpey v Stewart [2021] NSWCATAP 248 Williams v Gerringong Aboriginal Housing Corporation [2022] NSWCATAP 144 Worrall v Commissioner for Housing of ACT [2002] FCAFC 127 Texts Cited: Anforth, Christensen and Adkins, Residential Tenancies Law and Practice NSW (7th ed, 2017) Category: Principal judgment Parties: Leigh Tuckwell (Applicant) Simon Emerson (Applicant) Natalie Adams (Applicant) Rosa Ientile (Respondent) Representation: Applicants (self-represented) S Mamone (Respondent) File Number(s): RT 22/18445 Publication restriction: Nil REASONS FOR DECISION 1. This is a residential tenancy dispute where the real issues in dispute involve: 1. Whether the landlord has breached its obligation to keep the premises in a reasonable state of repair. 2. Whether a rent reduction under s 44 (1) (b) of the Residential Tenancies Act 2010 (NSW) ('the RT Act') should be awarded. 3. Whether an order should be made the landlord perform repairs. 4. Whether a 90 day 'no grounds' Notice of Termination with a date of vacant possession of 5 July 2022 should be set aside as a retaliatory notice under s 115 of the RT Act. 1. Although the tenants seek additional orders in the application, the above issues are the key issues in dispute. 2. The tenants filed an application with the Tribunal on 28 April 2022. In addition to the orders identified above, the tenants also sought orders to limit the landlord accessing the residential premises (s 61 (1) of the RT Act) and that rent be paid to the Tribunal (s 187 (1) (f) of the RT Act). 3. The matter was listed for a Conciliation and Hearing at the Tribunal on 24 May 2022. The dispute did not resolve. It was set down for a final hearing with directions regarding the filing and serving of documentary evidence. It was noted in the directions that: 1. The tenants were claiming damages for non-economic loss of $4,700; and for a rent reduction for 12 months. The tenants consented to the jurisdictional limit of the Tribunal under the RT Act and Residential Tenancies Regulation 2019 (NSW) ('the RT Regulation'). 2. The tenants amended their application to withdraw any claim for repairs (or rent reduction) of the kitchen rangehood, which had been repaired on 9 May 2022. 1. The matter was listed for hearing on 28 June 2022 by Audio Visual Link. The tenants appeared. Mr Mamone, the agent of the landlord, appeared by telephone. Mr Tuckwell presented the tenants' case. 2. Both parties were ready to proceed, and no adjournment was sought by either party. 3. Mr Tuckwell gave evidence and was cross examined. The landlord did not seek to cross examine Mr Emerson and Ms Adams on their affidavits. The landlord was also present at the hearing by way of listening on the telephone. Documentary Evidence of the Parties 1. The applicant's documents were filed and served on 12 May 2022 and 18 May 2022. 2. The respondent's documents were filed and served on 16 June 2022. 3. Both parties' documents were admitted into evidence subject to weight and relevance, with the exception of the managing agency agreement between the landlord and the agent. This document had not been served. In any event, it had not relevance to the issues in dispute because the tenants accepted that Mr Mamone was duly authorised by the landlord to manage the residential premises and appear for the landlord at the hearing. 4. The documents of the tenant filed and served on 12 May 2022 comprised of 239 pages. The documents included affidavits of each tenant; the ingoing inspection report for the residential premises; emails; and photographs. 5. The landlord's documents filed and served on 15 June 2022 comprised of 81 pages. The documents included a tenancy ledger compiled by the former agent (Showcase Real Estate); the Notice of Termination dated 31 March 2022; period inspection reports of 15 September 2020 and 18 February 2021; a complaint lodged by Mr Tuckwell with NSW Fair Trading on 7 February 2022. background to the dispute 1. The tenancy commenced on 3 October 2019 by way of a written residential tenancy agreement. At the commencement of the tenancy there were 3 tenants. Of those tenants, only Mr Emerson remains as a tenant. Ms Adams and Mr Tuckwell subsequently moved into the property at different times and became tenants. 2. The property is a freestanding house in a north-western Sydney suburb. The house is 5 bedrooms. The original rent payable for the premises was $640 per week. According to the tenancy ledger of the former agent contained in the landlord's documentary evidence, as of August 2021 the rent remained $640 per week. 3. Neither party in their evidence or submissions clearly addressed what the current rent is. However, there is reference in the tenants' affidavits to a discussions with the landlord in 2021 about the rent increasing to $800 pw. 4. On 14 January 2022 the tenants wrote a lengthy letter to the landlord stating, amount other things, that in December 2021 after an inspection of the property the landlord proposed increasing the rent to $800 pw. The tenants letter opposes the rent being increased; and complains about the condition of the property. 5. It does not appear from the documentary and oral evidence that the landlord has served a notice of rent increase under s 41 of the RT Act. Accordingly, on the evidence before the Tribunal, the rent remains $640 per week. 6. In November 2020 Ms Adams moved into the property. 7. On 1 December 2020, Mr Tuckwell moved into the property. As discussed previously, the landlord did not dispute that he is a tenant rather than an occupant. 8. On 14 January 2022 the tenants sent a lengthy email to the landlord. It is unnecessary to set out in detail, but it is expressed in a forthright manner. In substance, the email states: 1. There was no basis for a rent increase from $640 pw to $800 pw, which was not in accordance with the condition of the property or rents for comparable premises. 2. The tenants would commence proceedings in NCAT if the landlord attempted to increase the rent. 3. There were "repair and security issues" at the property. Those issues were identified as: 1. A broken clothesline which had not been repaired since the commencement of the tenancy in 2019 and was noted in the ingoing inspection report. The tenants "demanded" this be repaired by 21 January 2022. 2. A broken rangehood on the stove, which had not been repaired despite being raised by the tenants on 4 January 2021. 3. Broken block out shutters in the dining room, which had been noted in the ingoing report. 4. A "broken glass sliding door "and "lack of blinds slats on the Venetian blinds" in the dining room. According to the tenants, the broken block out shutters; broken sliding door; and broken Venetian blinds not only reduced the tenant's amenity of the premises; but were also a "fire safety risk". The tenants demanded these items be repaired by 24 January 2022. 5. The landlord had failed to provide "sets of keys to all of the locks in the house, specifically to the back door and windows located in the ex-garage" despite the tenants raising the issue by way of an email to the (former) agent on 4 January 2021; and at inspections on 18 February 2021 and 5 March 2021. The tenants asserted that the landlord had promised to provide keys to the said back door and windows of the "ex garage" but had failed to do so. The tenants "demanded" keys be provided or locks changed and keys to new locks provided to the tenants "at your expense" by 24 January 2022. 6. The tenants had "recently become aware" of mould in the downstairs bathroom around the toilet. The tenants asserted this was likely caused by the repair to the sewer pipe on 23 October 2021. The tenants asserted the repair was inadequate and there had been a flood of the bathroom floor with raw sewerage that had been inadequately cleaned by the plumber; and chipboard cover had been removed. The tenants asserted they had taken "all reasonable measures" to clean the mould and ventilate the room. The tenants demanded the landlord "pay for the cost of having this mould professionally assessed/inspected for health and safety risks" and that the landlord provide the tenants with "a written copy of this assessment/inspection, and the mould removed, no later than 31/1/2022". If the landlord failed to do so the tenants "reserved the right" to complain to NSW Fair Trading and take proceedings in NCAT for repair orders under s 65 of the RT Act. 7. The tenants claimed it had "recently became apparent" that block out shutters in the downstairs bedroom had become "inoperable and do not roll up". The tenants claimed this caused a loss of amenity and was a "fire hazard". The tenants "demanded" a repair by 31 January 2022. 8. The tenants asserted that they had never been provided with a "green waste bin and green waste services". The tenants asserted they had raised this issue with the former agent Ms Li on 25 January 2021. The tenant's claimed that the failure to provide a "green waste bin and green waste services" was a breach of the RT Act and "demanded" the landlord provide this to the tenants by 24 January 2022 "or that you admit you or your agents did knowingly conceal a material fact prescribed by the Regulations". 1. The tenants asserted that if their demands were not met, they would file proceedings in NCAT. 2. The tenants referred to the landlord's husband and son attending the property on 23 May 2021 to repair doors of the "shed". According to the tenants the landlord and his son attended without notice and they were "shocked and disgusted by such an intrusion of our privacy" and a contravention of the RT Act. The tenants asserted that if there were any further "intrusions" by the landlord or on her behalf they would refer the matter to the police "for criminal investigation and prosecution" and the matter would be "subject to claims for compensation with the Tribunal for breach of the covenant of quiet enjoyment". 3. The tenants asserted that after the property ceased to be managed by Ms Li of Cherrybrook Real Estate and was self-managed for a period by the landlord the landlord had failed to provide "written notice" of the landlord's contact details for communications and service of documents. The tenant's asserted this was a breach of the RT Act. 4. The tenants referred to the suggestion by the landlord when the landlord raised the issue of increasing the rent that to $800 pw that they "take on a fourth tenant" (sic) to assist with payment. The tenants stated that there was no obligation for them to do so and that they "will not entertain any further mention of a fourth tenant, in any form, in any discussions about any proposed rent increases". 5. The tenants asserted that any further communications from the landlord about a rent increase be "served in writing" to Mr Emmerson's email address or the property's letter box "and that any such communication not be subject to legal privilege or marked 'without prejudice'". The tenants stated that "any further attempts to use telephone as a mode as the mode with which to contact us about his matter will be terminated with prejudice" and if there were "repeated attempts" to contact the tenants by telephone "this notice will be referred to the police for criminal charges for Use of a Carrier service (sic) to harass and intimidate". The tenants stated that if the landlord attended the property without notice to discuss this matter in person "you will be ordered to leave, and non-compliance (sic) will be referred to the police for criminal prosecution of (sic) trespass". 1. In late February 2022, Mr Mamone of Cherrybrook Real Estate took over management of the property. Previously, the property was managed by Showcase Realty on behalf of the landlord and then self-managed by the landlord. 2. On 7 February 2022, Mr Tuckwell on behalf of himself and the other tenants lodged an online complaint with NSW Fair Trading. The complaint stated as follows: There are several outstanding repair issues that the landlord has been notified of, some since the commencement of the tenancy, that the landlord has refused to address. These include a non-functional rangehood; a broken clothesline; 2 broken block out shutters; broken sliding door, mould growth, access to green waste services, and keys to lock the house, only one of which was provided which only opens the front door. They have also failed to provide us with rent records within 7 days of request in writing. 1. NSW Fair Trading did not resolve the dispute between the parties. 2. On 1 March 2022 Mr Tuckwell emailed Mr Mamone asserting he was "a resident" at the property and "duly authorised to act on behalf of (Mr Emerson) the tenant as their (sic) advocate". 3. The email asserts that the tenants want all correspondence to be in writing "and can be used as evidence at NCAT"; and if the agent contacts the tenants by telephone "this will be done on the understanding that all conversations are recorded and can be used as evidence at NCAT or any other court with jurisdiction". The email states that the dispute extents "beyond the remit" of NSW Fair Trading; that the tenants had "further demands" for compensation and a rent reduction "reflecting our loss of amenity to (sic) the property over the tenancy, the reduction and withdrawal of goods and services to the property and damage to our belongings". 4. The email of Mr Tuckwell dated 1 March 2022 states that unless the dispute was resolved to the satisfaction of the tenants within 14 days the tenants would commence proceedings in NCAT. 5. On 2 March 2022 Mr Tuckwell emailed Mr Mamone asserted that due to "intense rainfall" combined with a "poorly maintained retaining wall" and "potentially blocked drainage pipe" there was minor flooding at the premises (in the downstairs room). Mr Tuckwell stated that clearing the drainage pipe should be added to the "list of repairs" previously provided. 6. On 3 March 2022 Mr Mamone emailed the tenants, attaching a copy of their tenancy ledger with Showcase Real Estate. The email also contained a spreadsheet of rent payments that were made into the landlord's bank account when she was self-managing the property. 7. The email stated that from Mr Mamone's calculations the tenants were up to date with their rent; and requesting that the tenant advise if they asserted Mr Mamone's calculations were incorrect; with a rent payment being due that day. The email concluded with Mr Mamone seeking information about who was actually living at the property as the lease Mr Mamone had been given only the original written lease. 8. On 3 March 2022 Mr Tuckwell replied to Mr Mamone's email stating that the ledger was incorrect because it did not take into account at least one payment. The email identified who was living at the property and asserted the tenants would be "making an application to NCAT regarding this" as the landlord had "unreasonably refused" to "transfer" (sic) the tenancy. 9. On 3 March 2022 Mr Mamone replied to Mr Tuckwell's email by stating that he had rectified the ledger and wanted to know who was in the property so that the bond could be "sorted out" as it was still in the names of the original tenants. Mr Mamone stated that as "organised" with Mr Emmerson he would be attending the property "next Friday" (i.e. 12 March 2022) to "look at the maintenance issues". 10. There was a further email exchange between Mr Mamone and Mr Tuckwell about the rental ledger on 3 March 2022. That exchange continued until about 7 March 2022. From these emails it appears any discrepancy regarding rent paid to the landlord was resolved. 11. On 7 March 2022 Mr Tuckwell emailed Mr Mamone stating that there had been "ongoing flooding problems" due to high rainfall, which had caused the door to the downstairs room to swell. According to Mr Tuckwell, the landlord's son had failed to property repair the door "in late March of last year" and the door was to be added to the "list of repairs". 12. On or about 12 March 2022 Mr Mamone attended the property for an inspection and discussion about repair issues. Mr Tuckwell subsequently emailed Mr Mamone complaining that the inspection was not a "periodic inspection" and had it been regarded as such the tenants would have taken different measures. 13. On 14 March 2022 Mr Mamone emailed Mr Tuckwell (with a copy of the email to the other tenants) relevantly stating that he had: 1. Organised a plumber to attend to the back drain; 2. A locksmith the attend to the backdoor and garage (sic) windows. 3. A handyman to attend to the back door and front door scraping; and re-stringing the clothesline. The handyman would also inspect the laundry toilet area to ascertain if water leaks were causing mould. 4. A smoke alarm technician to check the smoke detectors. 5. The "shutters" would also be repaired. 1. In the period from 14 March 2022 to 31 March 2022 there were further email exchanges between Mr Tuckwell and Mr Mamone about repairs; including when tradespersons would attend the property. In respect of shutters, the landlord's agent requested the tenants provide measurements, which they did. The landlord's agent stated the landlord's husband and son would repair or replace the shutters, which the tenants opposed. There was also a dispute about an unpaid water bill. 2. Regarding repairs, a handyman attended the property and (according to Mr Tuckwell) did not accept that water leaking was the cause of the mould in the laundry/bathroom area. The tenants continued to assert that the area should be inspected by a mould remediation expert. The rangehood was fixed and the drainage pipe attended to. Repairs to the door; shutters, and clothesline did not occur. According to Mr Mamone, that was due to the high volume of work of tradespersons at the time, and he informed the tenants that there would be some delays. 3. On 31 March 2022 the landlord served a Notice to Terminate on the tenants under s 85 of the RT Act. 4. In evidence and submissions at the hearing, Mr Mamone asserted that the reason the landlord issued the notice was that the landlord's wanted to sell the property because the "headache" of renting it was no longer worthwhile. As discussed previously, Ms Ientile did not prepare a written statement of evidence; statutory declaration or affidavit. She also did not seek to give oral evidence at the hearing, with the only evidence from the perspective of the landlord coming from Mr Mamone. 5. On 28 April 2022 the tenants filed proceedings in the Tribunal. EVIDENCE OF THE TENANTS 1. As discussed previously, all tenants affirmed affidavits. It appears from the contents of the affidavits; the preeminent role Mr Tuckwell took in communicating with the landlord and Mr Mamone; and the content of Mr Tuckwell's submissions that he drafted the affidavits. 2. However, Mr Emerson and Ms Adams were not cross examined on their affidavits. Irrespective of who drafted the affidavits, there is nothing to suggest that the contents do not reflect the evidence of Mr Emerson and Ms Adams. 3. It is unnecessary to detail the contents of each of the affidavits. Most of the relevant communications between the tenants; the landlord; the landlord's former agent; and the landlord's current agent are set out in the contemporaneous emails that were contained in the annexures to the tenants' affidavits; and the documents of the landlord. 4. Further, much of the affidavits of the tenants contain opinion evidence and submissions about the purported legal effect of the salient events, rather than setting out in detail the events. There is also significant overlap between the affidavits of each of the tenants. 5. Of the relevant events that were not referred to in the email correspondence, the following relevant events are set out in the affidavit of Mr Tuckwell: 6. In December 2020 there was a power outage at the property. The tenants notified the landlord's former agent, Ms Li. An electrician was sent to the property and restored power. 7. On 4 January 2021 Mr Tuckwell emailed a list of items for repair to the landlord's agent. 8. On 19 January 2021 the landlord arranged for repairs to occur to the front retaining wall. Mr Tuckwell asserts that the tenants were not notified. 9. At a periodic inspection on 18 February 2021, Mr Tuckwell told the landlord's agent he intended to begin negotiating a rent reduction due to the condition of the property. 10. In March 2021 the Mr Tuckwell emailed Ms Li seeking a $100 pw rent reduction and asserting that proceedings would be taken in NCAT. Ms Li stated she would pass the request for a rent reduction onto the landlord. 11. On 5 March 2021 there was a periodic inspection attended by the landlord and her husband where the issues of repairs and a rent reduction were discussed. The landlord refused a rent reduction. The landlord stated she would supply keys to all doors and windows of the premises. The landlord blamed the agent for not passing on the tenants' request for repairs. 12. In March 2021 the landlord's son, husband and an electrician performed various repairs to the property. In April 2021 the landlord's son attended the property and cleaned the gutters of the roof. 13. In May 2021 the landlord's husband and son attended the property without prior notice to repair doors to the garden shed. The tenants stayed inside the premises and took photographs whilst the works were being performed. Approximately two to three weeks later the door came off. 14. In October 2021 the landlord's husband attended with a person he said was a plumber and conducted emergency repairs of the sewerage system. According to Mr Tuckwell during repairs the plumber drained a large sewerage pipe which flooded the bathroom and laundry; and the plumber only attempted to clean by a "light hosing" of water. 15. In November 2021 the landlord raised the issue of increasing the rent to $800 per week. On about 11 December 2021 there was an inspection by the landlord, her husband, and a person who the landlord stated was a bank valuer. Mr Tuckwell raised the issue of the purported lack of repairs to the property, and the property was not worth $800 pw rent. The landlord stated that she intended to increase rent to $800 pw. Mr Tuckwell disagreed; and the discussion was not harmonious. According to Mr Tuckwell the landlord said that if the tenants' applied to NCAT she would give them "notice" and they could leave. 16. Mr Tuckwell's affidavit detailed the events from January 2022 to the end of March 2022. It is unnecessary to repeat those events, which have been set out previously in the decision. 17. In response to questions by Mr Mamone at the hearing; and in submissions, Mr Tuckwell stated: 1. The landlord provided keys to all parts to the property on 18 March 2022. 2. Mr Tuckwell believed there was asbestos at the property. However, he had not raised this issue in any contemporaneous correspondence with the landlord or the landlord's agent; nor made any complaints to any Authority, such as the local Council or Environmental Protection Authority. 3. The first time the tenants had raised the issue of mould in the premises was January 2022. 4. Mr Tuckwell believed that there were parts of the premises that were "structurally unsound" including a balcony and the sunroom. He also complained of "cracked and uneven tiles" in the living room. EVIDENCE OF THE LANDLORD 1. As discussed previously, there was no statement, statutory declaration or affidavit from the landlord. Other than documentary evidence, the only evidence on behalf of the landlord was the oral evidence of Mr Mamone. That evidence can be summarised as follows: 2. After Mr Mamone took over management of the property, he attempted to resolve the tenants' complaints about the condition of the property. Some repairs were delayed due to COVID and difficulties in obtaining tradespersons. However, most repairs had been performed. The only repairs outstanding involved shutters/blinds (which the landlord wanted to arrange) and the clothesline. 3. Mr Mamone accepted that the previous agent had not managed the property efficiently, and the landlord (by her husband and son) had sought to perform and engage repairs themselves rather than through the agent. 4. Mr Mamone stated that the tenants were difficult to deal with in respect of being prepared to give access to the property so that repairs could be performed. Mr Mamone did not agree that many of the items raised by the tenants required repair. Mr Mamone believed the condition of the premises was consistent with its rent and amenities. 5. Mr Mamone stated he had been instructed by the landlord that she wished to sell the property, and that is the reason he was instructed to issue the Notice to Terminate on 31 March 2022. CONSIDERATION The Tenants' Claims for a Rent Reduction (Or Damages) Due to the Condition of the Premises 1. Under s 44 (1) (b) of the RT Act, the Tribunal can award compensation by way of a rent reduction if it is satisfied that the rent is excessive having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises. An application under s 44 (1) (b) must be brought during the tenancy rather than after the tenancy has ended. Any rent reduction cannot be for a total period of more than 12 months. 2. A "reduction" or "withdrawal" of "goods, services or facilities" includes a failure by a landlord to conduct repairs during the course of the tenancy in breach of ss 63 and 65 of the RT Act (Roberts v Aboriginal Housing Office [2017] NSWCATAP 9). 3. However, the "reduction" or "withdrawal" must involve items that fell into disrepair and were not repaired during the course of the tenancy, not items that remained in the same condition (or not provided) at the beginning of the tenancy (Pan v Malveholm [2021] NSWCATAP 101). 4. If goods, services, or facilities were not present at the commencement of the tenancy, then the potential applicable causes of action arise under ss 52; 63; 65, 187 and 190 of the RT Act. Section 52 involves whether the premises are reasonably fit for habitation at the commencement of the tenancy. Sections 63 and 65 involve whether the landlord has kept the premises in a reasonable state of repair. Sections 187 and 190 are remedial provisions that allow orders for damages and compensation (among other remedies). 5. However, the limitation period for Tribunal proceedings under ss 187 and 190 of the RT Act is different to s 44 (1) (b) of the RT Act. By reasons of Regulation 39 (9) of the RT Regulation the limitation period is 3 months from becoming aware of the breach. The Tribunal can extend the limitation period under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW), applying the principles in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] as follows: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant — Gallo v Dawson [1990] HCA 30 at 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; … (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), — Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable — Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58]–[59]. 1. The landlord has an obligation under s 63 (1) of the RT Act to provide and maintain premises in a reasonable state of repair having regard to the age of, rent payable for, and prospective life of the premises. The obligation applies even if a tenant had notice of the state of disrepair before entering into occupation of the premises (s 63 (2) of the RT Act). 2. By reason of s 65 (3) (a) and (b) of the RT Act, the landlord has not breached its obligation under s 63 (1) of the RT Act unless the landlord is aware, or should reasonably have been aware, of the need to repair and has failed to act with reasonable diligence to have the repair performed. 3. The principles applicable to whether or not there has been a breach of s 63 (1) have been considered by the Appeal Panel on many occasions, including Murarer v Andresson [2016] NSWCATAP 15 at [11]-[16] and Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [115]-[121]). The test is objective and once the landlord knew or should reasonably have known of the need to repair the repair must be carried out within a reasonable time and is not excused by conduct or delay caused by tradespersons or suppliers. 4. In respect of s 52 of the RT Act, under s 51 (2) premises must be in a reasonable state of cleanliness and fit for habitation at the commencement of the tenancy. Fit for habitation involves consideration of issues including the safety; structural integrity; and amenity of the premises; and the matters set out in s 52 (1A) of the RT Act (Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361 at [144]-[147]). Shutters, Blinds, Sliding Door; and Clothesline 1. In a letter to the Tribunal filed on 4 April 2022 the tenants' identified the particular issues regarding repair of the premises in respect of which compensation was sought. This document, in essence, particularises the claim of the tenants. The issues raised are generally consistent with the contemporaneous correspondence between the parties; and the affidavit evidence of the tenants. 2. On the tenants' own evidence, the said items were either not provided or were in the same condition as at the commencement of the tenancy in 2019. Accordingly, the tenants have no claim under s 44 (1) (b) of the RT Act. 3. The Tribunal is satisfied that the landlord is in breach of its obligations under ss 63 and 65 of the RT Act, as the tenants have made complaints about these items on a number of occasions during the course of the tenancy, including in the correspondence detailed earlier in this decision. 4. The landlord's agent accepted that the clothesline, shutters, and blinds have not yet been repaired. The Tribunal accepts that the landlord has had a reasonable time to conduct the repairs. 5. In respect of these items, the Tribunal is prepared to extend the time period to bring a claim under ss 187 and 190 of the RT Act pursuant to s 41 of the NCAT Act. Although there was no detailed explanation for why the tenants failed to take proceedings in the Tribunal (which is more puzzling considering Mr Tuckwell's repeated assertions in correspondence with the landlord had her agent that the tenants are aware of their 'rights' under the RT Act) the landlord has accepted that such repairs should be performed and there is no unfairness to the landlord in extending time. 6. However, the Tribunal does not accept that the failure to repair such items has caused any significant loss of amenity of the premises, considering its age; life expectancy and rent payable. 7. The appropriate touchstone for assessing damages for breach of ss 63 and 65 of the RT Act is the loss of amenity (i.e. use and enjoyment of the premises) caused by the breach. Relevantly, the Tribunal can use the amount of weekly rent payable for the premises as a consideration in the assessment of damages. 8. Despite Mr Tuckwell asserting in correspondence to the landlord that $640 per week rent was excessive due to the condition of the property and that the tenants would adduce evidence of rents for comparable premises in the area; no such evidence was adduced by the tenants. 9. Although the tenants' evidence and submissions were replete with assertions that the landlord had acted egregiously towards the tenants, there was little evidence on the actual loss of amenity of the premises. The Tribunal accepts that the lack of operational shutters; a sliding door not working adequately; blind slats being missing; and a clothesline missing an arm and not being able to be used has caused, assessed objectively, a loss of amenity of the premises. 10. The evidence does not establish any "fire risk" by reason of the said failure to repair. 11. The Tribunal is satisfied that the loss of amenity is minor. The Tribunal awards damages of $1,280 for breach of the landlord's obligation to keep the premises in a reasonable state of repair in respect of these items. That amount is the equivalent to two weeks rent. 12. The Tribunal also makes an order for repairs under s 65 of the RT Act, as detailed later in this decision. 13. The Tribunal is satisfied there is mould in the downstairs bathroom around the toilet and that the tenants became aware of the mould in January 2022. Mould caused by water ingress into the premises can constitute a breach of the duty to keep the premises in a reasonable state of repair (e.g. Bannister v Cheung [2014] NSWCATCD 105). 14. However, in this matter the tenants have provided no evidence to establish the cause of the mould or that it was attributable to any failure by the landlord to keep the premises in a reasonable state of repair. The mould may have been caused by substantial rainfall and moisture in the Sydney area in early 2022 rather than any breach of ss 63 or 65 of the RT Act. In their email to the landlord of 14 January 2022, the tenants speculate that the cause of the mould was due to a "retrofitted sewerage pipe" in October 2021. That is merely opinion evidence of the tenants; and is not supported by any expert evidence obtained by the tenants. 15. The tenants bear the onus of establishing breach by the landlord, and they have failed to discharge that onus. The claim for damages under s 187 of the RT Act or a rent reduction under s 44 (1) (b) of the RT Act in respect of mould is dismissed. 16. It follows that the tenants' claim that the Tribunal order a "mould remediation expert" attend the premises is also dismissed. Alleged Lack of Structural Adequacy of the Premises and Cracked Tiles 1. The tenants allege that the balcony and sunroom are not structurally sound; and that there are cracked tiles in the premises. 2. No expert evidence was served by the tenants to support such claims, and the lay evidence of the tenants does not satisfy the Tribunal that the landlord is in breach of its obligations under the RT Act in respect of such items. Accordingly, the tenant's claims are dismissed in regard to such items. Asbestos 1. The tenants claim there is exposed asbestos at the property. No expert evidence has been served by the tenants to support this assertion. The tenants have never complained to their local Council or any statutory Authority regarding the purported existence of asbestos at the premises. The Tribunal is not satisfied that the tenants have established any breach by the landlord of its obligations under the RT Act and the claim in respect of the existence of exposed asbestos is dismissed. Lack of Green Bins/Green Waste Services 1. The Tribunal is not satisfied that the lack of a green bin or green waste services constitutes a breach of the RT Act by the landlord. In any event: (a) the tenants could have avoided any loss by contacting the local Council themselves; (b) the Tribunal is not satisfied of any loss of amenity of the premises by reason of their being no green bin/green waste service; and (c) the tenant's claim is significantly out of time, in circumstances where the tenants were aware of this issue since the commencement of the tenancy. This is not a matter that the Tribunal regards it as appropriate to extend time under s 41 of the NCAT Act. Keys 1. The Tribunal is satisfied that all relevant keys to the property have now been provided to the tenants. The Tribunal is also satisfied that there was a period when keys to some parts of the property were not provided. That constituted a breach of s 70 (2) of the RT Act, but the breach has now been remedied. 2. However, the Tribunal is not satisfied on the evidence that the lack of some keys caused sufficient loss of amenity to the premises that an award of damages is appropriate. Further, the tenant's claim is significantly out of time in circumstances where the tenants were aware of the breach since the commencement of the tenancy and the Tribunal is not satisfied that time should be extended under s 41 of the NCAT Act. Rangehood 1. The rangehood to the premises has been repaired, and the tenants withdrew their claim regarding this item, as noted in the orders of the Tribunal on 24 May 2022. Accordingly, this issue does not require consideration. Other Miscellaneous Repair Issues 1. The evidence of the tenant also raised other complaints about the property, but the Tribunal is not satisfied any of the further matters identified constitute a breach by the landlord of its obligations under the RT Act. Loss of Quiet Enjoyment 1. The tenants claimed the landlord had breached the tenants' quiet enjoyment under s 50 of the RT Act by her husband and son attending the property to (inadequately) repair doors to the former garage in May 2021; and by her husband and son attending the property at other times. 2. 97 Under s 50 (1) of the RT Act, a tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord. Under s 50 (2) of the RT Act a landlord must not interfere with, or cause or permit, any interference with, the reasonable peace, comfort, or privacy the tenant in using the residential premises. 3. 98 The legal principles for whether there has been a breach of s 50 of the RT Act are well established (e.g. Worrall v Commissioner for Housing of ACT [2002] FCAFC 127 at [68]-[76]). When assessing compensation or damages for breach of s 50 of the RT Act, the Tribunal must also be careful not to award 'double compensation' for any overlapping breach of ss 52 and/or 63 of the Act (Kork v Merheb [2021] NSWCATAP 349 at [68]-[69]. 4. The Tribunal is not satisfied that any of the actions of the landlord (or her husband and son) in attending the property constitute a breach of quiet enjoyment sufficient to award damages to the tenants. In any event, the attendance at the property in May 2021 was approximately 11 months prior to proceedings being commenced in the Tribunal. Any claim for loss of quiet enjoyment arising from this incident is substantially outside the limitation period to commence proceedings in the Tribunal; and the Tribunal is not satisfied that time should be extended. Claim For General Damages 1. The tenants claim general damages for distress and inconvenience in addition to the claim for damages by reason of loss of amenity. In addition to damages for loss of amenity, the Tribunal can, in addition to the compensation or damages awarded for breach of contract, award general damage for distress and inconvenience (Torpey v Stewart [2021] NSWCATAP 248 at [22]-[31]). 2. The Tribunal is not satisfied that general damages should be awarded in addition to the damages awarded for loss of amenity due to failure of the landlord to keep the premises in a state of good repair. The tenants' claims of distress and inconvenience are exaggerated, in circumstances where much of the contemporaneous correspondence from the tenants contains rhetoric and bombast about the condition of the premises and alleged conduct of the landlord that was not substantiated by the evidence at the hearing. Claim for Order That the Tenants Pay Rent to the Tribunal Rather than the Landlord 1. There is no basis established for making an order under s 187 (1) (f) or (g) of the RT Act that the tenants pay rent to the Tribunal. This aspect of the claim is dismissed. Were (and are) the Premises Wholly or Partially Unfit for Habitation? 1. From the previous findings of the Tribunal it is clear that the premises were reasonably fit for habitation at the commencement of the tenancy; and remain fit for habitation. 2. Although the tenants did not raise s 43 (2) of the RT Act that provides that rent abates if premises become destroyed; wholly or partially uninhabitable; or cease to be able to be lawfully used as a residence other than by reason of breach of a residential tenancy agreement, the Tribunal has considered this issue for the sake of completeness. No basis for ordering a rent abatement under s 43 (2) of the RT Act is established on the evidence. The Claim That the Notice of Termination Is Retaliatory Under s 115 of the RT Act 1. Section 115 of the RT Act states as follows: 115 Retaliatory evictions (1) The Tribunal may, on application by a tenant or when considering an application for a termination order or in relation to a termination notice— (a) declare that a termination notice has no effect, or (b) refuse to make a termination order, if it is satisfied that a termination notice given or application made by the landlord was a retaliatory notice or a retaliatory application. (2) The Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons— (a) the tenant had applied or proposed to apply to the Tribunal for an order, (b) the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law, (c) an order of the Tribunal was in force in relation to the landlord and tenant. (3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant. 1. In respect of the content of termination notices, Section 82 of the RT Act states: 82 Termination notices (1) A termination notice must set out the following matters— (a) the residential premises concerned, (b) the day on which the residential tenancy agreement is terminated and by which vacant possession of the premises is to be given, (c) if the notice is not given under section 84, 85, 96 or 97, the ground for the notice, (d) any other matters prescribed by the regulations. (2) A termination notice must be in writing and be signed by the party giving the notice or the party's agent. (3) A termination notice for a periodic agreement may specify a day other than the last day of a period for the payment of rent as the termination date. 1. Under s 113 of the RT Act, the Tribunal may still make a termination order despite defects in the termination notice or manner of service if (a) it thinks fit to do so in the circumstances of the case; and (b) it is satisfied that the person on whom the notice was served has not suffered disadvantage because of the defect in the notice, or any disadvantage has been overcome by the order and any associated order. 2. In this matter, the Tribunal is not considering whether to terminate the tenancy and is only considering whether the notice should be set aside as retaliatory. Consequently, whether there is a defect in the Notice to Terminate is not a matter for consideration in these proceedings. 3. Notices to Terminate are served in the manner set out in s 223 of the RT Act. In this matter, the tenants did not raise any dispute that the Notice to Terminate was properly served in accordance with s 223 of the RT Act. 4. The time limit for bringing an application under s 115 of the RT Act is; in respect of a Notice to Terminate under s 85 of the RT Act, 30 days after the Notice to Terminate was given (Reg 39 (4)(a) of the RT Regulation 2019). 5. In this matter, proceedings were filed in the Tribunal on 28 April 2022 which is within the limitation period to bring proceedings to set aside the Notice under s 115 of the RT Act. It is unnecessary to consider whether time should be extended under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW). 6. A tenant can make an application to set aside a Notice to Terminate as retaliatory under s 115 of the RT Act despite the landlord not having to provide grounds to terminate a periodic tenancy under s 85 of the RT Act (Mercieca v Fu [2017] NSWCATAP 205 at [43]-[44]; Williams v Gerringong Aboriginal Housing Corporation [2022] NSWCATAP 144 at [43]-[54]). 7. Under s 115 of the RT Act, the Tribunal: 1. Must be satisfied of one of the matters in s 115 (2) of the RT Act. The test is the landlord's motivation at the time the Notice to Terminate was issued. The motivation need only be retaliatory in part (see the discussion of authorities in Anforth, Christensen and Adkins Residential Tenancies Law and Practice NSW (7th ed, 2017) at pp 292-295); and 2. Must be satisfied that it should exercise its discretion in favour of declaring the Termination Notice retaliatory. 1. In this matter, the tenants clearly stated to the landlord in correspondence that they would be taking proceedings in the Tribunal if various repairs were not performed within a stipulated timeframe. The landlord was clearly on notice that the tenants intended to take proceedings in the Tribunal. There were also clearly a number or repair issues that needed to be attended to when Mr Mamone took over management of the property. 2. The landlord gave no evidence as to why she issued the Notice to Terminate. Mr Mamone stated that the landlord had instructed him the property was a "headache" and that the landlord wanted to sell the property. However, limited weight can be given to this assertion when the landlord did not give sworn or affirmed evidence to the Tribunal. Further, there is no evidence to indicate the landlord has taken any measures to advertise the property for sale, or seek access for it to be inspected by prospective purchasers. 3. From the documentary and oral evidence of Mr Tuckwell, the Tribunal is satisfied that the landlord was partially motivated to issue the Notice to Terminate under s 85 of the RT Act because the tenants proposed to apply to the Tribunal for an order (s 115 (2) (a) of the RT Act). 4. The Tribunal accepts that much of the language used by the tenants in their correspondence with the landlord and the landlord's agent from late 2021 onwards was unnecessarily aggressive in tone and contained a number of allegations about the condition of the property and the conduct of the landlord which have been found to lack substance. 5. However, there was substance to some of the requests by the tenant for repairs; and the mere fact that the tenants adopted an unnecessarily belligerent and bellicose tone in correspondence does not change the fact that the Tribunal is satisfied on the evidence that the landlord was partially motivated to issue the Notice to Terminate because the tenants proposed to apply to the Tribunal for orders. 6. In all the circumstances of the matter, the fact that the tenants adopted a confrontational approach in their dealings with the landlord is not a sufficient basis not to set aside the Notice to Terminate. There is no evidence of any other breach of the residential tenancy agreement by the tenants. There is no evidence the landlord seeks to take back possession of the premises and repair or renovate the residence for the purpose of sale. There is no evidence of any financial or other hardship to the landlord if the Notice to Terminate is not set aside. 7. The Tribunal is satisfied that it should exercise its discretion to set aside the Notice to Terminate. 8. In setting aside the Notice to Terminate, neither party is precluded from exercising any extant or future rights under the residential tenancy agreement or the RT Act. How Should the Order for Compensation Be Expressed? 1. Considering there are 3 tenants, the Tribunal does not regard it appropriate to make an order that the landlord pay the tenants $1,280 simply by way of a money order. The reason is that the order would be a single order jointly and severally in favour of all tenants for that amount. The Tribunal is not ordering the landlord pay each tenant $1,280 separately. 2. To avoid future disputes about how monies are to be paid and to whom they are paid, the Tribunal makes the order as an order for compensation to be payable by way of a rent reduction credited in favour of the tenants on the rent ledger. The Tribunal has the power to make such an order by reason of s 187 (1) (d) and s 188 (c) of the RT Act. orders 1. The Notice to Terminate dated 31 March 2022 issued pursuant to s 85 of the Residential Tenancies Act 2010 (NSW) is declared as having no effect on the basis that it is a retaliatory notice under s 115 of the Residential Tenancies Act 2010 (NSW). 2. By 31 August 2022, the respondent is to conduct the following works to the residential premises the subject of the residential tenancy agreement between the parties: 1. Repair or replace all missing; non-operative and damaged window shutters. 2. Repair or replace all missing; non-operative and damaged blinds. 3. Repair or replace sliding door so that it is in good working order. 4. Repair or replace clothesline so that it is in good working order. 1. By 31 August 2022 the respondent is to give the applicants a rent credit in the amount of $1,280 and the tenancy ledger is amended accordingly. 2. The applicants are to give reasonable access to the residential premises to the landlord; the landlord's agent; any representative of and any tradesperson engaged by the landlord so that the works in Order 1 can be performed. 3. All other claims by the applicants are dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 04 October 2023 - Formatting amendments. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 October 2023