Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Curry v Eftimovski [2023] NSWCATAP 290 Hearing dates: 27 October 2023 Date of orders: 31 October 2023 Decision date: 31 October 2023 Jurisdiction: Appeal Panel Before: T Simon, Principal Member Dr R Dubler SC, Senior Member Decision: 1. Leave to appeal refused. 2. Appeal dismissed. Catchwords: RESIDENTIAL TENANCY – whether or not eviction notice was a retaliatory notice pursuant to s 115 of the Residential Tenancies Act 2010 (NSW) – whether the Tribunal erred in its award of compensation for failure by the landlord to effect repairs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Camilleri v Eastlake [2018] NSWCATAP 176 Collins v Urban [2014] NSWCATAP 17 Mercieca v Fu [2017] NSWCATAP 205 Quader v Bell [2017] NSWCATAP 24 Smith v Li [2020] NSWCATAP 59 Williams v Gerringong Housing Aboriginal Corporation [2022] NSWCATAP 144 Texts Cited: Nil Category: Principal judgment Parties: Andrew Curry (Appellant) John Eftimovski & Diane Eftimovski (Respondents) Representation: Appellant (self-represented) K Martin (Agent for Respondents) File Number(s): 2023/00285097 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 30 August 2023 Before: J Searson, Member File Number(s): RT 23/27513 REASONS FOR DECISION Introduction 1. This is an appeal by the Appellant (the Tenant) in respect of orders made by the Tribunal on 30 August 2023 with reasons published on 31 August 2023 (the Reasons). The Tenant and the Respondents (the Landlord) entered into a fixed term agreement (the Agreement) commencing on 28 February 2019 and ending on 27 February 2020 for the lease of premises for $470 per week. 2. The Agreement is a residential tenancy within the meaning of the Residential Tenancies Act 2010 (NSW) (the RTA). 3. The Tenant sought orders from the Tribunal with the respect to compensation, rent reduction and a declaration that a termination notice was retaliatory. 4. The Tribunal declined to make any declaration in respect of the termination notice and ordered the Landlord to pay the Tenant the sum of $2,000 by way of compensation. 5. This is our reasons in respect of the Tenant's appeal. The Appeal 1. The decisions of the Tribunal, such as the decision before us, are internally appealable decisions and appeals can be made as of right where there is a question of law and, otherwise, with the leave of the Appeal Panel: see s 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. The principles applicable to the grant of leave were considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [82] – [84]. In respect of decisions of the Consumer and Commercial Division, the Appeal Panel can grant leave only if it is satisfied that the Appellant may have suffered a substantial miscarriage of justice because: 1. The decision was not fair and equitable; 2. The decision was against the weight of evidence; or 3. Significant new evidence is now available that was not reasonably available at the time of the hearing. Retaliatory termination notice The Tribunal's reasons 1. The Tribunal dealt with the claim that the Landlord's termination notice ought be declared to be of no effect pursuant to s 105 of the RTA at [11] – [20] as follows: 11. Section 115 of the Residential Tenancies Act states: 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. 12. In order for the tenants to succeed in their claim that the termination notice given by the landlord on 14 June 2023 was in fact retaliatory they need to prove on the balance of probabilities and with evidence that the landlord was wholly or partly motivated to give the notice based on the reasons contained in s 115(2) of the RT Act. 13. With respect to 115(2)(a) and 115(2)(c) there is no evidence to support a finding that the landlord was wholly or partially motivated to give the notice because the tenant had applied or proposed to apply to the Tribunal for an order. There is also no evidence to support a finding that the landlord was wholly or partially motivated to give the notice because an order of the Tribunal was in force in relation to the landlord and tenant. 14. Therefore, the remaining ground is with respect to the tenant having taken or proposing to take any other action to enforce a right of the tenant under the residential tenancy agreement, Residential Tenancies Act or any other law. It appears that in this regard the tenant was alleging that the landlord had issued the notice of termination in response to the tenant making a report to the police in relation to the landlord's son damaging an item precious to the tenant. 15. The termination notice was given on the grounds of s 85 of the RT Act, namely that the landlord required possession of the property during the periodic agreement without any reason and giving 90 days notice. 16. The reasons given by the landlord for the termination of the agreement (although no reason is required for a notice under s 85) was to relieve the landlords of the worry and stress which they are currently experiencing. In this regard, the landlord relied upon a letter from Dr Patrick Diu, Cardiologist, dated 26 July 2023. 17. The applicant did not make any submissions about the provisions of s 115(2) but seemed to be relying on a broader definition of what may be considered to be "retaliatory". 18. The Tribunal therefore cannot make a finding on the evidence that the landlord was motivated or partially motivated to give the notice of termination based on any of the grounds contained in s 115(2) of the RT Act. 19. Further or in the alternative in accordance with Section 115 of the RT Act, the Tribunal has a discretion to declare that a termination notice has no effect or to refuse to make a termination order if it is satisfied that the termination notice or the application for an order of termination were retaliatory. Even if the Tribunal was satisfied that the termination notice was retaliatory, the Tribunal would not exercise discretion in this case to declare that the termination notice has no effect. 20. Therefore, the Tribunal finds that the notice was not in fact a retaliatory notice and dismisses this part of the application. The Appellant's submissions 1. The Appellant's grounds of appeal in the Notice of Appeal were expressed as follows: We provided clear evidence outlining that due to the Tribunal being mentioned and criminal charges being laid on Friday 9 June 2023, we were given an eviction notice on Wednesday, 14 June 2023. This is clearly at least partially the reason for eviction, if not wholly evidence of 115(2)(a) and 115(2)(b). The Landlord's medical certificate even supports our argument in relation to 115(2)(a). 1. The Appellant points to the fact that on Friday, 9 June 2023 the Tenant advised the Landlord's son that he was seeking the Tribunal's assistance due to neglected repairs and also that he was filing a police report due to destruction of his personal property which the Tenant described as an 'extremely personal and sentimental item' which was allegedly damaged by the Landlord's son when attending on 5 June 2023 to complete repairs. 2. The Tenant then referred to the Notice of Eviction and email of 12 June 2023 which gave a reason for terminating the lease as follows: The Notice was issued to relieve us of stress and worry which we were experiencing. We are both elderly and John Eftimovski in particular is in poor health. We have an extra copy of the letter from Dr Patrick Diu, cardiologist, dated 26 July 2023. 1. The Tenant submits the date of the Notice and the admission that the Tribunal proceedings will cause stress is significant. The Tenant was at pains to point out that he had not caused any stress or worry to the Landlord, though this is irrelevant to the question at hand. 2. The Tenant nextly referred to the claim that three other tenants in the complex were also being evicted. 3. Next, the Tenant referred to the evidence of Ms Martin at the hearing on 6 July that it was the agent's belief that the eviction was issued out of retaliation by the Landlord's son. We note, however, that such statement of 'belief' is not highly probative of what was in fact in the mind of the Landlord. 4. The Tenant next referred to a conversation he had with the agent on 14 June 2023 where the agent advised that the termination notice came about because the son had 'convinced his parents to terminate'. Again, this does not of itself evidence the state of mind of the Landlord nor that the termination notice was retaliatory. 5. Finally, the Tenant put forward a number of allegations against the Landlord's son, including that he was 'perverting the cause of justice'. All of these allegations put against the Landlord's son is not relevant to the question at hand. Consideration 1. There is repeated authority of the Appeal Panel that s 115 of the RTA is available as a defence to an application under s 85 of the RTA: Williams v Gerringong Housing Aboriginal Corporation [2022] NSWCATAP 144 at [43] – [53]; Quader v Bell [2017] NSWCATAP 24 at [51]; Mercieca v Fu [2017] NSWCATAP 205 at [40]-[44]; Camilleri v Eastlake [2018] NSWCATAP 176 at [16]-[24]; Smith v Li [2020] NSWCATAP 59 at [55]. 2. The reasons of the Tribunal clearly indicate that the Tribunal did consider whether the notice of termination was retaliatory. This ground of appeal does not raise a question of law. Leave to appeal is required. 3. The Tribunal dealt with the evidence before it and was not satisfied that the Notice of Termination was due in whole or in part to the advice that the Tenant was taking proceedings in the Tribunal and file a Police report. We see no error in this conclusion of the Tribunal. 4. We are not satisfied that the Tenant has suffered a substantial miscarriage of justice because: 1. The decision was not fair and equitable. 2. The decision was against the weight of evidence; or that 3. Significant evidence was now available that was not reasonably available at the time of the hearing. 1. In our view, the decision was fair and equitable and consistent with the weight of evidence and accordingly we refuse to grant leave to appeal in respect of this ground of appeal. Compensation order Tribunal's reasons 1. The Tribunal described the claim for compensation at [21] as follows: 21. The applicant is seeking orders for compensation in relation to a failure by repair by the landlord, specifically in relation to the failure to implement code compliant smoke alarms, the failure to install an exhaust fan in the laundry, failure to repair sliding doors, failure to service the air conditioner, failure to repair the front door frame, failure to repair the cellar door lock, failure to address mould staining on the bedroom ceiling, failure to repair / replace cooktop and oven and stress and inconvenience caused. 1. The Tribunal determined the claims at [29] – [46] as follows: 29. In relation to smoke alarms clause 14 of the Residential Tenancies Regulation 2019 says:14 Time to repair or replace smoke alarm (1) For the purposes of section 64A(2)(c) of the Act, a landlord who becomes aware that a smoke alarm is not working must, within 2 business days- (a) repair or replace the smoke alarm in accordance with clause 15, or (b) cause the smoke alarm to be repaired or replaced in accordance with clause 15. (2) Subclause (1) does not apply to a landlord if the tenant notifies the landlord that the tenant will carry out the repair in accordance with clause 15. 30. In relation to the issue of the smoke alarms the evidence was that the landlord was advised that extra alarms were required on or about 22 June 2023. These were not installed until 17 July 2023, almost 4 weeks later. This is clearly a breach of the landlord's obligations. 31. In relation to the issue with the stovetop and oven the tenants evidence was that they were without a stovetop for 3 weeks and without an oven for 4 weeks. In total being without an operational stovetop and oven for a total of 7 weeks. This is also clearly a breach of s 63. 32. The issue with the front door lock is also in the nature of an urgent repair. This is a breach of s 63. 33. The tenant also said that it had taken four and a half years to repair a sliding door. This is also clearly a breach of s 63. 34. In relation to the installation of an exhaust fan in the laundry, this is in the nature of capital works rather than a repair. As noted in Residential Tenancies Law and Practice New South Wales, 6th Edition by Allan Anforth, Peter Christenson and Sophie Bentwood ("Anforth") at [2.63.7]: "The tenant's rights extend to the repair and maintenance of the premises with the services and facilities provided as part of the tenancy agreement. It does not extend to the provision of new parts to the premises or new facilities and services that did not form part of the tenancy agreement". 35. It appears that a number of other repairs were not conducted in a timely manner, these include the failure to repair the sliding doors, failure to repair the front door frame, failure to repair the cellar door lock, failure to address mould staining on the bedroom ceiling. 36. Having found a breach of these obligations by the landlord the Tribunal then needs to consider what a fair and reasonable amount of compensation is for the breach, keeping in mind that any compensation should only place the applicant in the position they would have been for the breach. 37. The applicant sought an amount of $2040 compensation (equalling 4 weeks rent) plus a rent reduction of 20% until all of the various repairs were completed. 38. The Tribunal considers that an amount of $2000 is fair and reasonable to compensate the tenant for the various breaches outlined above by the landlord in relation to the failure to repair. This amount includes an amount of $500 for non-economic loss. 39. The Tribunal does not consider that a rent reduction is also payable in addition to this compensation. This is because Section 43 provides that the rent payable under a residential tenancy agreement abates if the residential premises are destroyed, or become wholly or partly uninhabitable, otherwise than as a result of a breach of an agreement. 40. The Tribunal finds that they were due to breaches of the residential tenancy agreement by the landlords and therefore Section 43 does not apply. 41. Tribunal finds that it is appropriate to deal with the application in accordance with Section 187(1)(d), rather than under Sections 43 and 45. 42. The Tribunal also considers that the tenant is entitled to an amount of compensation representing non-economic loss for the loss of enjoyment of the premises and distress caused by the various issues in the premises. 43. This loss is recoverable as the RTA is contract for enjoyment pleasure and relaxation and therefore falls under the exception to the general rule that damages for distress and disappointment are not recoverable see: Baltic Shipping Co v Dillon [1993] HCA 4. 44. The Tribunal also accepts that distress, disappointment, and anxiety do not constitute a personal injury for the purposes of the Civil Liability Act 2002 (NSW) ("CLA") and s 16 of the CLA does not apply see: Moore v Scenic Tours Pty Ltd [2020] HCA 17. 45. In this regard the Tribunal considers that an amount of $500 is fair and reasonable to compensate the tenant for the loss of enjoyment and distress caused by the various issues in the premises. 46. Therefore for the reasons as set out above the Tribunal will order that the respondent is to pay the applicant the sum of $2000 on or before 30 September 2023. Consideration 1. The Tenant in his submission on appeal has sought what he described as 'compliance orders' to ensure ongoing required repairs are finalised. 2. We note in respect of this submission the following: 1. This does not relate to any ground of appeal in the Notice of Appeal; 2. It was not sought in the original application to the Tribunal; and 3. Was not dealt with by the Tribunal below; and 4. Was not pursued at the hearing. 1. In such circumstances, we are of the view that such a claim cannot be raised for the first time be brought up on appeal. 2. The Tenant next requested 'the Landlord pay compensation for wilfully, deliberately and unnecessary endangering his family's life for a period of three weeks. As the Tenant put it: I have been advised by a solicitor that this compensation is to be sought via the Tribunal as it is not a civil matter and was not previously compensated. For resolution of this matter, we request a minimum sum of $10,000 but feel this could be closer to $50,000 to ensure this Landlord is punished for their gross negligence endangering lives and to deter other landlords from so carelessly endangering familup such a fresh claim for the first time on appeal. 1. Otherwise, the Tenant has not sought to challenge the orders for compensation. 2. This ground of appeal does not raise a question of law. Leave to appeal is required. 3. The Tribunal dealt with the evidence before it. The amount awarded for compensation was reasonably open to it on the basis of that evidence. We see no error in its conclusion. We are not satisfied that the Tenant has suffered a substantial miscarriage of justice because: 1. The decision was not fair and equitable. 2. The decision was against the weight of evidence; or that 3. Significant evidence was now available that was not reasonably available at the time of the hearing. 1. In our view, the decision was fair and equitable and consistent with the weight of evidence and accordingly we refuse to grant leave to appeal in respect of this ground of appeal. Disposition 1. The orders of the Appeal Panel are: 1. Leave to Appeal refused. 2. Appeal dismissed. ********** 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 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: 31 October 2023