Cowling v Tran; Tran v Cowling [2022] NSWCATCD 128

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cowling v Tran; Tran v Cowling [2022] NSWCATCD 128 Hearing dates: 16 June 2022 Date of orders: 08 August 2022 [amended 15 August 2022] Decision date: 08 August 2022 Jurisdiction: Consumer and Commercial Division Before: J Alder, General Member Decision: The Notice of Order issued 8 August 2022 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows: RT 22/15789 1 The Residential Tenancy Agreement is terminated in accordance with section 84 of the Residential Tenancies Act 2010, as the landlord has served a termination notice for termination at the end of the fixed term. 2 The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3 The order for possession is suspended until 5 September 2022. 4 The tenant shall pay the landlord a daily occupation fee at the rate of $121.43 per day from the day after the date of termination, namely 9 August 2022 until the date vacant possession is given to the landlord. 5 Within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing. RT 22/13149 6 Pursuant to s 187(1)(d), the landlord is to pay the tenant the sum of $6,842.90 for breach of s 63 of the RTA. Payment is due on or before 22 August 2022. 7 Pursuant to section 44(1)(b) rent is not to exceed $850 per week from 17 June 2022 to 8 August 2022. 8 To the extent that the rent paid since 17 June 2022 to 8 August 2022 (7.43 weeks/52 days) exceeds the sum of $850 per week, the landlord is to immediately repay such amount to the tenant, which I calculate to be $1,114.50. 9 The balance of the application 22/13149 is dismissed. Catchwords: LANDLORD AND TENANT – retaliatory – end of fixed term notice - compensation - failure to repair and maintain – withdrawal and reduction of goods, services and facilities – rent abatement – excessive rent Legislation Cited: Residential Tenancies Act (NSW) 2010 Residential Tenancies Regulation 2019 Civil Liability Act (NSW) 2002 Civil and Administrative Tribunal Act (NSW) 2013 Cases Cited: Bannister v Cheung [2014] NSWCATCD 105 Bridgford v Brien [2017] NSWCATAP 111 Bulmash v Webster [2016] NSWCATCD 23 Hadley v Baxendale [1854] 9 Ex 341 Menashi v Ly [1997] NSWRT 162 Steinbeck v McDonald [2015] NSWCATAP 90 Category: Principal judgment Parties: David Cowling and Michelle Cowling (Applicants/cross defendants)