Lennon v Finegan [2023] NSWCATCD 158

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lennon v Finegan [2023] NSWCATCD 158 Hearing dates: 20 November 2023 Date of orders: 18 December 2023 Decision date: 18 December 2023 Jurisdiction: Consumer and Commercial Division Before: Dr K M George, General Member Decision: 1. The rent shall not exceed $1025.00 per week from 12 April 2023 to 11 April 2024. 2. Any rent paid in excess of that amount shall be paid to the tenant as a rent credit on the ledger immediately. Catchwords: LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Definition of residential premises – Mistake – Reduction or withdrawal of facilities – Excessive rent Legislation Cited: Residential Tenancies Act 2010 (NSW) Australian Consumer Law 2010 (NSW) Cases Cited: Mazengarb v Sethi [2021] NSWCATCD 51 Moroko v Cojay Holdings Pty Ltd [2022] NSWCATCD 79 Randy River Health and Beauty Aid Co P/L t/as Middlerock Village Park v CTTT [2007] NSWSC 1142 Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd [2004] HCAT 52 Texts Cited: Nil Category: Principal judgment Parties: James Lennon (Applicant) Fiona Finegan (Respondent) Representation: James Lennon, self represented (Applicant) Ms Reid and Mr Pose, agents (Landlord) File Number(s): 2023/00383391 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. The tenant's application is dated 28 July 2023. Pursuant to section 44(1)(b) of the Residential Tenancies Act 2010 (NSW) ("the Act") he seeks an order that rent is excessive due to the reduction or withdrawal of goods, services or facilities provided with the residential premises. 2. The tenant contends that a storage room, measuring 3.3 x 3.1 metres, was included in the lease of the premises at Hereward St, Maroubra ("Hereward St"), however, has since been withdrawn and is used by the landlord. The tenant seeks a reduction in the rent from $1100.00 to $900.00 per week. 3. At the hearing and in written submissions, the tenant referenced s 18 of the Australian Consumer Law 2010 (NSW) ('ACL') regarding misleading or deceptive conduct, claiming that the advertising of the premises and the tenancy agreement itself contained false representations and amount to misleading or deceptive conduct. 4. Via the tenant's written submissions sent on or around 11 September 2023, the landlord was aware of the alleged breach of s 18 and addressed this briefly in her submissions in response. 5. However, the tenant has never sought leave to amend his application to claim a breach of the ACL, and he has not been granted such leave. Nor did his written submissions identify any remedy pursuant to the ACL. 6. Section 236 of the ACL does allow for a remedy of damages (i.e. compensation) due to a breach of s 18. However, the tenant's written and oral submissions have always identified the outcome sought as an order for a rent reduction i.e. that, from a particular day, the rent for the premises must not exceed a specified amount. This is not the same as an order for compensation. 7. Therefore I do not consider that it would be in the interests of justice between the parties to consider the applicant's submissions regarding the ACL. I have only considered and determined the tenant's claim pursuant to the Residential Tenancies Act 2010 (NSW).