Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kordas v Ahmed [2024] NSWCATAP 64 Hearing dates: 19 March 2024, written submissions completed on 4 April 2024 Date of orders: 19 April 2024 Decision date: 19 April 2024 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member J McAteer, Senior Member Decision: (1) The appeal is allowed in part. (2) Order 9 made by the Tribunal on 12 January 2024 is set aside. (3) The respondent's claim pursuant to s 44 (1) (a) of the Residential Tenancies Act 2010 (NSW) that the rent increase sought by the appellant in the rent increase notice dated 27 September 2023 payable from 1 December 2023 is excessive is remitted to the Tribunal for reconsideration. (4) Order 7 made by the Tribunal on 12 January 2024 is set aside insofar as it concerns the period from 1 December 2023 to 12 January 2024. (5) Order 8 made by the Tribunal on 12 January 2024 is set aside to the extent that the amount of $2,631.20 stated in the order contains a refund of rent for the period from 1 December 2023 to 12 January 2024. (6) The outstanding questions resulting from Orders 3 and 4 above as to the amount of rent to be paid by the respondent for the period from 1 December 2023 to 12 January 2024 and the amount of rent (if any) to be refunded to the respondent in respect of this period are remitted to the Tribunal for reconsideration having regard to the respondent's claims pursuant to s 44 (1) (a) and (b) of the Residential Tenancies Act 2010 (NSW). Catchwords: LEASES AND TENANCIES-residential tenancy-tenant's claim that rent increase was excessive-written rent increase notice required to be given pursuant to s 41 (1) of the Residential Tenancies Act 2010 (NSW) (RTA) -tenant acknowledged receipt of notice within the 60 day time period requirement-validity of written notice when given by email where no email address specified as required by s 223 of the RTA-Tribunal found invalid-Tribunal did not consider significance of tenant's acknowledgement of receipt-error of law. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Electronics Transactions Legislation Amendment (Government Transactions) Act 2017 (NSW) Interpretation Act 1987 (NSW) Residential Tenancies Act 1987 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2006 (NSW) Cases Cited: Capper v Thorpe [1998] HCA 24; 194 CLR 342 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Pan v Shanehsazzadeh [2024] NSWCATAP 23 Reiss v Helson [2001] NSWSC 486 Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 Category: Principal judgment Parties: Arthur Kordas (Appellant) Eva Kordas (Appellant) Mostaque Ahmed (Respondent) Representation: P Poulos (Agent) (Appellant) Respondent (self-represented) File Number(s): 2024/0029794 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: N/A Date of Decision: 12 January 2024 Before: S Bliim, General Member File Number(s): 2023/00371798 REASONS FOR DECISION Introduction 1. This appeal concerns a residential tenancy of a two-bedroom unit in Belmore, Sydney. The appellants are the landlords and the respondent is the tenant. 2. The respondent has occupied the premises as tenant for some 14 years. In January 2010 the parties entered into a written residential tenancy agreement in respect of the premises for a fixed term of 6 months. At that time, the Residential Tenancies Act 1987 (NSW) and the Residential Tenancies Regulation 2006 (NSW) provided the applicable legislation concerning their relationship. From 17 June 2010, the Residential Tenancies Act 2010 (NSW) (the RTA) applied to their relationship. 3. It is uncontroversial that the parties entered into the standard form of residential tenancy agreement in existence in January 2010. This was the standard form set out in Schedule 1 of the Residential Tenancies Regulation 2006 (NSW). The agreed weekly rent was $390.00. 4. Following the expiry of the fixed term, the tenancy has continued as a periodic tenancy. 5. The appellants appeal from three of nine orders made by the Tribunal on 12 January 2024. Those orders were as follows: 7 The Tribunal orders that the rent shall not exceed the sum of $389.40 per week from 13 January 2023 to 12 January 2024. 8 The respondent [landlord]… is to pay the applicant [tenant]… the sum of $2,631.20 on or before 02 February 2024. 9 The Tribunal determines that the rent increase from $440.00 to $580.00 per week is not effective because the rent increase notice was invalid as it was served by email and the tenant had not signed a written agreement to accept email service of notices. 1. Order 8 followed from the rent reduction order made in Order 7. 2. The appellants do not appeal from any of the other orders made by the Tribunal which concerned orders that the landlords carry out specified repair work at the residential premises by 29 February 2024. This repair work concerned repair and repainting of the ceilings and cornices in the living room and laundry, patching and painting of settlement cracks in the entry hall and laundry, removal and treatment of mould in the cornices and ceiling of the bedrooms and inspection of carpets in the bedrooms by a professional carpet supplier and replacement of those carpets, if necessary. 3. These deficiencies in the residential premises provided the foundation for the rent reduction orders the subject of Orders 7 and 8. 4. The order concerning the rent increase (Order 9) related to a written notice from the landlord dated 27 September 2023 for a rent increase to commence on 1 December 2023. The written notice specified that it had been given by email to an email address notified by the tenant. However, it was uncontroversial that no such email address had been supplied by the tenant and that the tenant had not provided any consent for notices to be given or served by email. 5. However, it was also uncontroversial that the tenant had received and become was aware of the contents of the written notice on 27 September 2023, which was within the 60-day requirement set out in s 41 of the RTA (see further below). 6. For the reasons set out below, we have decided that the Tribunal made an error of law in deciding that the rent increase notice was invalid. Relevant provisions of the RTA 1. The provisions of the RTA apply to the residential tenancy agreement even though residential tenancy agreement was made on 8 January 2010 before the commencement of the RTA: see s 6 of the RTA. 2. The following provisions are relevant to the appeal: 41 Rent increases (1) The rent payable under a residential tenancy agreement may be increased only if— (a) the tenant is given a written notice by the landlord or the landlord's agent specifying the increased rent and the day from which it is payable, and (b) the notice is given at least 60 days before the increased rent is payable. … (3) A rent increase is not payable by a tenant unless the rent is increased in accordance with this section or the rent is increased by the Tribunal. … 44 Tenant's remedies for excessive rent (1) Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders— (a) an order that a rent increase under an existing or proposed residential tenancy agreement is excessive and that, from a specified day, the rent for residential premises must not exceed a specified amount, (b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount. (2) Time limit for excessive rent increase applications An application for an order that a rent increase is excessive must be made within the period prescribed by the regulations after notice of the increase is given. (3) Applications on withdrawal of goods or services A tenant may, before the end of a tenancy, make an application that the rent is excessive, having regard to the reduction or withdrawal of any goods, services or facilities provided with the residential premises, even if those goods, services or facilities were provided under a separate or a previous contract, agreement or arrangement. … 223 Service of notices and other documents (1) A notice or other document that is authorised or required by this Act or the regulations or a residential tenancy agreement to be given to or served on any person may be given or served by— (a) in the case of a natural person— (i) delivering it to the person personally, or (ii) delivering it personally to a person apparently of or above the age of 16 years at the person's residential or business address, or (iii) delivering it in an envelope addressed to the person and leaving it in a mailbox at the person's residential or business address, or (iv) sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or (v) sending it to an email address specified by the person for the service of documents of that kind, or (vi) any other method authorised by the regulations for the service of documents of that kind, or … (2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner. … The Tribunal proceedings at first instance 1. On 13 October 2023, the tenant lodged his Tribunal application in which he raised no issue about the validity of the rent increase notice. Rather, he sought orders under s 44 (1) (a) and (b) of the RTA concerning the alleged excessive rent (along with an order that various repairs be carried out). 2. On appeal, the appellants did not provide us with any of the documents they relied upon at the hearing at first instance. Nor did they provide any written submissions in support of the appeal or any transcript of the Tribunal's reasons for decision and the oral evidence given at the hearing. 3. Whilst a short statement of the Tribunal's reasons for Order 9 appears from the terms of that order, it is stated in the orders issued by the Tribunal that oral reasons were given for its decision. 4. Despite the need for the appellants to demonstrate appealable error and despite orders made on 9 February 2024 concerning the conduct of the appeal (particularly, order 3 (d)), which directed the appellants to provide a typed transcript of the relevant parts of the hearing (together with the sound recording) if oral reasons were given, no such transcript and sound recording were supplied by the appellants. 5. Nevertheless, an informal transcript of the whole of the hearing at first instance was supplied by the respondent, Mr Ahmed. At the hearing of the appeal, Mr Ahmed told us that this transcript had been prepared by an online software application from the sound recording of the hearing. The transcript did not identify the person speaking. 6. This informal transcript was included in a bundle of documents for the appeal (155 pages) lodged by the respondent the day before the hearing of the appeal. This bundle included the documentary material the respondent had relied upon at the hearing at first instance, as well as written submissions in opposition to the appeal. 7. The documentary material presented to the Tribunal at first instance, including a document concerning the orders sought and a submission about the rent increase, did not contain any contention that the rent increase sought was invalid because no rent increase notice had been given as required by s 41 (1) of the RTA. 8. Significantly, the documentary material included a statement from the respondent about the rent increase and contentions that it was excessive having regard to market rents in the area. This statement began as follows: On the 27th of September I received a rent increase of $140 from $440 per week to $580 per week… 1. This statement was consistent with the respondent's letter to the landlord dated 13 October 2023, included in the documentary material for the Tribunal, which commenced: "I have received your letter dated 27/09/2023 stating that my rent will increase from $440.00 per week to $580.00 per week on 01/12/2023…" 2. The respondent's documentary material for the Tribunal at first instance included a copy of a document headed "NOTICE OF RENT INCREASE", dated 27 September 2023, giving notice of an increase for the residential premises from $440 to $580 per week payable from 1 December 2023. 3. This notice also included a section headed "SERVICE OF NOTICE" (section 223) which went on to give an "X" in the box of options concerning the method of giving notice which stated "Emailing it to the tenant at a specified email address for the service of notices (the notice can only be sent this way if the tenant has already given express consent to use the specified email address to receive notices and other document this way)". 4. As we have already said, it is uncontroversial that the tenant never supplied such a specified email address for service of notices. 5. Apart from what was stated in the notice of increase itself, no other evidentiary material was presented to the Tribunal as to the method by which the notice had been given to the respondent. As to this, the appellants sought to adduce fresh evidence on the appeal, which we address later in these reasons. It appears from the informal transcript that the Tribunal proceeded on the basis that the only method by which the notice had been given was by email. 6. The respondent's evidence to the Tribunal at first instance included two pages only of the then standard form residential tenancy agreement signed by the parties. These two pages did not contain any provisions concerning the method of giving notices required to be given under the relevant legislation, including rent increase notices. At that time, the prescribed standard form of residential tenancy agreement (Schedule 1 of Residential Tenancies Regulation 2006) did not contain any provisions concerning the giving of notices by email. Provisions concerning this subject in the prescribed standard form of residential tenancy agreement were first introduced in the Residential Tenancies Regulation 2019, Schedule 1. Those provisions included clause 50.1 under which the parties agree to only serve notices on the other party by email if the other party has provided express consent that a specified email address is to be used for the purpose of serving notices. Nature of the appeal 1. Section 80 (2) (b) of the NCAT Act, relevantly, provides: … (2) Any internal appeal may be made— … (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. 1. Accordingly, the appellant has a right of appeal on a question of law but otherwise required leave to appeal. 2. In respect of a self-represented, non-legally trained appellant, the material presented by the appellant should be considered generally (subject to procedural fairness considerations) to determine whether a question of law has been raised (Cominos v Di Rico [2016] NSWCATAP 5 at [13]) 3. As to leave to appeal, cl 12 of Sch 4 is applicable. This provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because— (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. As was stated in Collins v Urban [2014] NSWCATAP 17 at [83]-[84], ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact- finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. Grounds of appeal-Orders 7 and 8 1. In their Notice of Appeal, the appellants state that the grounds of appeal in respect of Orders 7 and 8 are: Order No.7, There was no withdrawal by the landlord of any goods, services or facilities provided with the residential premises occupant has. The occupant made this application when they received a notice to increase the rent. Order No.8, The occupant has 12 months to make an application to NCAT not almost 3 years. This only goes to show how insignificant the issue(s) are. 1. In the Notice of Appeal, in respect of Orders 7 and 8, the appellants indicated that they sought leave to appeal on the basis that the decision was against the weight of evidence. As to this, it was said that their evidence was not looked at and that the Tribunal erred by extending the time period for his application about excessive rent from 12 months to almost 3 years. 2. As to this latter point, however, as appears from s 44 (3), the tenant is entitled to bring an application for a reduction in the rent payable due to withdrawal of services or facilities at any time before the end of the tenancy. This is distinct from an application to have determined that a rent increase is excessive, which is the subject of s 44 (2). 3. It is uncontroversial that the tenant's application concerning a reduction in the rent payable over the period from 13 January 2023 to 12 January 2024 was commenced in accordance with the time prescribed in s 44 (3). 4. In his oral submissions on the appeal, Mr Poulos, real estate agent, who appeared for the appellant, made submissions to the effect that the Tribunal had erred in making these orders because there had been no loss of, or inability to use, any services or facilities and that there had been merely some cracks which had not interfered with or detracted from the tenant's ability to live in and use the premises. 5. Implicit in the submissions appears to be a contention that the Tribunal had misunderstood the relevant test, which does raise a question of law. 6. However, it is well established that a breach of the repair obligation may support a conclusion under s 44 (1) (b) that rent is excessive on the basis that there has been a reduction of the facilities the subject of the residential tenancy agreement: see, for example, Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [113] – [114]. 7. In the circumstances, we do not discern any such error of law by the Tribunal. 8. Otherwise, the very limited material and contentions that the appellant put forward on the appeal in writing and orally did not address the evidentiary basis for the Tribunal's orders about the rent being excessive and seek to contend that there were findings by the Tribunal for which there was no probative evidence or which were legally unreasonable. 9. Accordingly, to the extent that it can be said that the appellants appeal on a question of law in respect of Orders 7 and 8 we do not accept such submission. 10. As to their application for leave to appeal in respect of these two orders, the appellants have fallen a long way short of providing any foundation for their contention that the decision was against the weight of the evidence. As to this, it is sufficient to point out that the appellants made no attempt to provide the Appeal Panel with the totality of the evidence presented at the hearing at first instance, nor did they provide any written submissions in support of this contention, as was directed by the Tribunal on 9 February 2024. 11. These grounds of appeal concerning Orders 7 and 8 are rejected. Grounds of appeal-Order 9 1. In their Notice of Appeal, the appellants state that their grounds of appeal in respect of Order 9 are: Order No.9, The Notice was also delivered to the property and not only emailed. 1. Elsewhere in the Notice of Appeal, it emerges that the appellants also challenge this order on the basis that the tenant never stated that the notice was not received and prepared an 87 page application as to why the increase was excessive. 2. It is clear from the Notice of Appeal that the appellants accept that their contention on appeal that the notice of a rent increase had been delivered to the property was a new contention that had not been made to the Tribunal at first instance. As to this, in the Notice of Appeal the appellants sought leave to appeal on the basis of significant new evidence that was not reasonably available at the time of the hearing, consisting of photos of the previous property manager taking that notice to the premises and placing it under the door. 3. For reasons that will, shortly, emerge it is unnecessary for us to address the question of leave based upon new evidence in any detail, other than to say that it is difficult to see how the photos could be described as "significant" new evidence in circumstances where the respondent acknowledged he had received the notice on 27 September 2023 and delivery to the premises by the means illustrated by the photos is not a method of service provided for in s 223 of the RTA. 4. There is also the question whether this new evidence was not reasonably available at the time of the hearing. As to this, there was an explanation by Mr Poulos about his lack of knowledge of this method of giving the notice at the time of the hearing which did not tend to support a conclusion that the evidence was not reasonably available. However, there was also the fact that until the question about invalidity because the notice had been given by email was raised by the Tribunal, validity of the notice had not been an issue between the parties. 5. Nevertheless, as appears below, it is unnecessary for us to arrive at a final conclusion about the request for leave to appeal based upon new evidence. 6. At the hearing of the appeal, we raised the question whether the Tribunal had erred in making Order 9 by failing to have regard to the respondent's acknowledgment of receipt of written notice of a rent increase from $440 to $580 on 27 September 2023, having regard to the approach to the meaning of giving or service of notices set out in the decision in Reiss v Helson [2001] NSWSC 486. 7. We raised this question having regard to the approach to be taken concerning appeals involving unrepresented parties outlined in the Cominos decision, to which we have already referred. 8. After discussion with the parties, we made directions for the provision of written submissions concerning this issue. 9. In the Reiss decision the Court addressed the validity of the service of a notice of termination of a residential tenancy in the context of residential tenancy legislation prior to the RTA. At [41]-[50], the Court said: 41 In proceedings No 30002/2001 the grounds of appeal are that the Tribunal erred in law in finding that: (1) The defendant validly served a notice of termination. (2) Holding that s 130(4) of the Residential Tenancy Act and cl 25(2) of the Residential Tenancies (Residential Premises) Regulations 1995 in combination were not mandatory. (3) Finding that pursuant to s 53(a)(i) of the Residential Tenancies Act the defendants had validly terminated the agreement. (4) Dismissing the plaintiffs' application for compensation. 42 The tenants served the notice of termination by placing it under the door of the landlords' agent's premises on the evening of 9 December 1999. It is important to note that the landlords' agent acknowledged receipt of the notice on 13 December 1999 in a letter to the tenant. The landlords received the notice through service upon their agent. Hence, the landlords were aware of the notice. 43 The relevant part of s 53 of the Residential Tenancies Act provides: "Termination of residential tenancy agreements A residential tenancy agreement terminates only in one or more of the following circumstances: (a) if the landlord or the tenant gives notice of termination under this Part and: (i) the tenant delivers up vacant possession of the residential premises on or after the day specified in the notice, or …" 44 The relevant portion of s 63 states: "(2) A notice of termination of a residential tenancy agreement given to a landlord by a tenant shall: (a) be in writing, (b) be signed by the tenant or the agent of the tenant (if any) appointed under section 31, (c) identify the residential premises the subject of the agreement, (d) specify the day on which vacant possession of the residential premises will be delivered up to the landlord, and (e) specify and give particulars of the ground (where applicable) on which the notice is given." 45 Section 130(4) provides: "A notice of termination given under this Act may be given in such manner as may be prescribed for the purposes of this section." 46 Regulation 25(2) of the Residential Tenancies (Residential Premises) Regulation 1995 provides: "Service of notices of termination: sec 130 (4) (1) For the purposes of section 130 (4) of the Act, a notice of termination given under the Act to a tenant may be given: (a) by delivering it personally to the tenant or a person apparently of or above the age of 16 years by whom the rent payable by the tenant is ordinarily paid, or (b) by delivering it to the residential premises occupied by the tenant and by leaving it there with some person apparently of or above the age of 16 years for the tenant, or (c) by sending it by post to the residential premises occupied by the tenant. (2) For the purposes of section 130 (4) of the Act, a notice of termination given under the Act to a landlord may be given: (a) by delivering it personally to the landlord, the landlord's agent under the residential tenancy agreement or a person apparently of or above the age of 16 years to whom the rent payable to the landlord is ordinarily paid, or (b) by sending it by post to the landlord's usual place of residence or business or employment, or (c) by sending it by post or facsimile transmission to the usual place of business of the landlord's agent under the residential tenancy agreement." 47 The Tribunal member referred to the definition of the words "may" and "shall" in s 9 of the Interpretation Act 1987. The word "may" if used to confer a power indicates that the power may be exercised or not, at discretion. 48 It suffices to refer to a recent authority, namely Capper v Thorpe [1998] 194 CLR 342 the High Court in a joint judgment stated: "…However, unless the statute says so, a document may be "served" although it is not personally served. Thus, it may be served by posting it to the person required to be served. In many statutory contexts, a document may also be "served" when it is brought to the notice of the person who has to be served. At all events, it will be "served" in such contexts if the efforts of the person who is required to serve the documents have resulted in the person to be served becoming aware of the contents of the document." 49 The Tribunal members at paras 13.17 and 13.18 stated that: "13.17 If the factual circumstances are considered in this case having regard to the summary by Pearce & Geddes passage above there is substantial compliance together with the decree of substantiality. That is, the notice of termination came to the notice of the landlords' agent within the required time period specified in the legislation. The legislation must be read as a whole. The time limits for service of the notice and the method of service are designed to ensure the notice comes to the attention of the relevant person within time limits specified. For the foregoing reasons I am satisfied that a strict interpretation of the Act and regulation requiring service only in the circumstances proscribed would lead to an absurd result. The landlord, aware of a notice of termination (or indeed a tenant in another case), could avoid legal consequences though the person has been given completely adequate notice. That would be absurd. As such I do not find the provisions mandatory. 13.18 I am satisfied for the foregoing reasons that the landlord was served with the notice of termination." 50 The Tribunal member was entitled to find that the wording "may" was discretionary and that as the landlord had knowledge of the notice of termination, service was effected. It is my view that the Tribunal member made no error of law. 1. In Capper the High Court was concerned with the validity of a written notice of breach of a sale of land contract which was required by the relevant section of the legislation to be "served on the purchaser". It concluded that the notice had not been served within the required 28 day period to remedy the breach in circumstances where it had been sent by post and it had been shown that the notice had not been delivered within time. In addition to the passage referred to in Reiss at [21], the Court also said: 22 In its ordinary and natural meaning, therefore, s 6 of the Act requires service in fact of the notice "requiring the purchaser to remedy the breach". … 26 The ordinary meaning of "served on the purchaser ... in writing" therefore requires that the writing be brought to the attention of the purchaser by the efforts of the vendor or those acting on his or her behalf. That meaning is extended by the terms of ss 75 and 76 of the 1984 Act. Ordinarily, then, a vendor cannot terminate a terms contract for breach unless, in the case of non-payment of money, at least 28 days have expired since the vendor in fact served the default notice on the purchaser. Exceptionally, a vendor can also terminate a terms contract where the vendor can demonstrate that the requisite period of notice was given by virtue of the service or attempted service falling within the terms of ss 75 and 76. 27 In the present case, although the purchaser did not receive the posted Default Notice until 3 October 1995, some- time between 15 and 19 September 1995 he received a copy of that notice. For the purpose of s 6, receipt of that copy constituted service upon him. Since the vendor terminated the contract on or about 9 October 1995, however, the purchaser did not have the required 28 days' notice of the vendor's intention to terminate the contract. That being so, the Full Court was right to dismiss the appeal. 1. The above reasoning in Capper and Reiss provides a persuasive basis for a conclusion that in this case written notice of the increase was given to the respondent in compliance with s 41 (1) of the RTA. On the respondent's own evidence, the notice of increase was brought to his attention within the required time period. 2. In his written submissions the respondent maintained his position that the Tribunal's decision was not affected by any error of law, nor had the requirements for the grant of leave to appeal been satisfied. 3. In these written submissions the respondent also presented a number of arguments as to why we should not arrive at this conclusion, as follows: 1. In Reiss, the Court was not concerned with a legislative regime for service by email, which raised unique considerations in respect of which express consent for such service was essential. Rather than applying the reasoning in Reiss, we should follow the decision of the Appeal Panel in Pan v Shanehsazzadeh [2024] NSWCATAP 23 at [60] and conclude that notice by email did not suffice when, as here, no email address for service of notices had been provided; 2. Furthermore, the decision in Reiss concerned a situation in which none of the methods of service specified in the relevant regulation had been attempted, whereas in this case one of the methods in s 223 had been adopted (by email) but was not available according to its terms. 3. It is made clear by s 223 of the RTA that giving notice by email should not be seen as adequate where no express consent had been given because this allowed notice by email only in the stated event, namely where an email address had been specified by the intended recipient. To conclude that notice had been given in other circumstances would be to permit a party to evade the RTA and create a system where an increase could occur without following due process. Furthermore, such a conclusion would be contrary to the Electronics Transactions Legislation Amendment (Government Transactions) Act 2017 (NSW). 4. Furthermore, a conclusion that notice of the increase had been given would be contrary to the intention of the parties as revealed by the residential tenancy agreement. 1. We do not agree with the respondent's submissions. 2. In the first place, we consider that the matter we are addressing does raise a question of law because the Tribunal did not ask itself the right question and failed to take account of relevant considerations. 3. Turning to the other points made by the respondent, in Pan, the Appeal Panel was concerned with a landlord's claim for a rent increase from 1 November 2022. The landlord had sent a notice of increase by email on 19 September 2022 or 26 September 2022, but, plainly, these could not be effective because the 60 day notice requirement was not met. However, at the hearing at first instance the landlord had also come to rely upon a written notice dated 20 August 2022 which it was claimed had been posted (no reference had been made to any such notice in later correspondence and it had not been included in the landlord's bundle provided before the hearing). The tenant denied receipt of the notice dated 20 August 2022 and the Tribunal did not accept it had been posted. 4. On appeal, the Appeal Panel said that the substance of the landlord's position on appeal was that the Tribunal should have found that the landlord had validly served the notice dated 20 August 2022 (at [54]), but the Appeal Panel did not accept that leave to appeal against this finding should be given. 5. Although not the issue presented by the appellant on appeal, the Appeal Panel, nevertheless, reiterated that the notices sent by email were not effective because they failed to comply with the 60 day notice requirement (at [56] and [58]). 6. The Appeal Panel also added that the notice sent by email could not constitute valid service "by reason of s 223 (1) (v)" because the tenant had not specified that notices could be served by email. 7. Clearly, the Appeal Panel was correct about this conclusion, but it was not a conclusion about whether s 41 (1) of the RTA had been complied with by virtue of notice having been given in fact as established, for example, by an acknowledgement by the tenant that this had occurred. On the facts in Pan, any such factual question was irrelevant because the email notice did not meet the 60 day time requirement. 8. Accordingly, we do not regard the decision or reasoning in Pan as supporting the appellant's position on the facts in this case. 9. The appellant's submissions about the legislative intent of s 223, the different legislative provisions in Reiss and the different position concerning service by email do not grapple with the established position, as adopted in Reiss, that a section of this nature is facultative and does not set out the exclusive means by which service or giving of notices can occur. 10. We do not see how the introduction of a provision concerning email communication in 2017 by the Electronics Transactions Legislation Amendment (Government Transactions) Act 2017 (NSW) (this replaced a provision concerning facsimile communication) is capable of changing the ordinary meaning of "may" be given in s 41 (1) so that it means "shall" be given: see also s 9 of the Interpretation Act 1987 (NSW). 11. The respondent did not explain how it could be said that a conclusion that notice had been given would be contrary to the Electronics Transactions Legislation Amendment (Government Transactions) Act 2017 (NSW). By that legislation (1.31 of the Schedule), the email communication provision in s 223 of the RTA (s 223 (1) (v)) was introduced in substitution for the existing provision concerning the giving of notices by facsimile transmission. 12. As to the respondent's contention about the contractual intention of the parties, the first answer is that such intention is not relevant. The question is determined by the construction of the relevant provisions of the RTA, not by the contractual agreement of the parties. Furthermore, any contractual term that purported to modify the operation of the RTA would be void; see s 219 (1) of the RTA. 13. Yet further, the standard form residential tenancy agreement that the parties entered into did not contain any provision concerning the giving or services of notices by email. 14. Accordingly, Order 9 must be set aside Orders on appeal 1. The question whether the rent increase was excessive needs to be determined on its merits. The issue is disputed by the landlord and a variety of evidence concerning the issue, including, evidence concerning market rents, was presented to the Tribunal. Because of the Tribunal's conclusion that the notice was invalid it made no findings of fact concerning the question. The issue needs to be redetermined by the Tribunal at first instance. We see no reason why that issue cannot be redetermined by the same Tribunal but the order we make will allow for the issue to be determined by the same or a different Tribunal according to the convenience of the Tribunal at first instance. 2. Our decision on this aspect of the appeal has a flow on effect to Orders 7 and 8 but only insofar as those orders relate to the period between 1 December 2023 (the time when the landlord claims the rent increase commences) and 12 January 2024. The current orders were made on the basis that the rent increase sought was invalid. There must be a new assessment made as to the rent required to be paid for the period from 1 December 2023 to 12 January 2024 on the basis that a valid rent increase notice was given by the notice dated 27 September 2023. 3. For these reasons, we make the following orders: 1. The appeal is allowed in part. 2. Order 9 made by the Tribunal on 12 January 2024 is set aside. 3. The respondent's claim pursuant to s 44 (1) (a) of the Residential Tenancies Act 2010 (NSW) that the rent increase sought by the appellant in the rent increase notice dated 27 September 2023 payable from 1 December 2023 is excessive is remitted to the Tribunal for reconsideration. 4. Order 7 made by the Tribunal on 12 January 2024 is set aside insofar as it concerns the period from 1 December 2023 to 12 January 2024. 5. Order 8 made by the Tribunal on 12 January 2024 is set aside to the extent that the amount of $2,631.20 stated in the order contains a refund of rent for the period from 1 December 2023 to 12 January 2024. 6. The outstanding questions resulting from Orders 3 and 4 above as to the amount of rent to be paid by the respondent for the period from 1 December 2023 to 12 January 2024 and the amount of rent (if any) to be refunded to the respondent in respect of this period are remitted to the Tribunal for reconsideration having regard to the respondent's claims pursuant to s 44 (1) (a) and (b) of the Residential Tenancies Act 2010 (NSW). ********** 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: 19 April 2024