Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Susan Trevallion v Vivian Puccini-Scuderi and Peter Puccini [2014] NSWCATCD 81 Hearing dates: 30 April 2014 Decision date: 20 May 2014 Before: B Howe, General Member Decision: The Residential Tenancy Agreement is terminated in accordance with section 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement by failing to comply with clauses 15.2, 15.4 and 27.1 of that agreement. The Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. The order for possession is suspended until 22 May 2014. The tenant shall pay the landlord a daily occupation fee at the rate of $124.28 per day from the day after the date of termination, namely 7 May 2014 until the date vacant possession is given to the landlord. 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. Catchwords: Nuisance, damage to premises, unauthorised alterations Legislation Cited: Residential Tenancies Act 2010 (the "Act") Strata Schemes Management Act 1996 Cases Cited: None Texts Cited: None Category: Principal judgment Parties: Susan Trevallion (applicant) (the "landlord") Vivian Puccini-Scuderi and Peter Puccini (respondents) (the "tenant") File Number(s): RT 14/20843 Publication restriction: None reasons for decision 1The landlord leased premises to the tenant. The lease commenced on 13 September 2013 and the fixed term of 52 weeks concludes on 11 September 2014. The rent was declared to be $870.00 per week. 2The landlord's property manager posted a notice of termination to the tenant on 4 March 2014. The notice claimed the tenant had breached section 87 of the Act by failing to comply with clauses 15.2, 15.4 and 27.1 of the tenancy agreement. The notice was posted to the tenant and so it is deemed served on 10 March 2014. It required the tenant to give the landlord possession of the property on 25 March 2014, some 15 days later. The tenant has not vacated the premises, leading to this application being lodged. 3The landlord seeks orders that prohibit the tenant from removing a fixture; that the tenant pay compensation for the cost of rectifying work done by the tenant on the residential premises, and termination of the tenancy agreement and for possession of the premises to be surrendered. 4Section 87 of the Act reads - 87 Breach of agreement (1) A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement. (2) The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given. (3) The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement. (4) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that: (a) the tenant has breached the residential tenancy agreement, and (b) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and (c) the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice. (5) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following: (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the tenant to remedy the breach, (d) any steps taken by the landlord about the breach, (e) the previous history of the tenancy. (6) The Tribunal may refuse to make a termination order if it is satisfied that the tenant has remedied the breach." 5The Tribunal is satisfied that the notice of termination is valid and that it satisfies the requirements of subsections 87(2) and (3). The requirements of subsections 87(4) and (5) are now dealt with. The clause 15.2 breach 6Clause 15.2 of the residential tenancy agreement specifies that the tenant agrees not to cause or permit a nuisance. 7The Macquarie Dictionary, fourth edition, The Macquarie Library Pty Limited, defines "nuisance" as - 1. A highly obnoxious or annoying thing or person. 2. Something offensive or annoying to individuals or to the community, to the prejudice of their legal rights." 8The property manager tendered to the Tribunal a log of the emails sent by the tenant during the period 19 September 2013 to 17 March 2014. There were some 58 emails sent by the tenant to the property manager complaining about minor flaws perceived to exist at the property. The log totals three pages. On the other side of each page, the property manager has indicated the action taken to respond to these emails. 9To set out in writing matters which the landlord is required to attend to at the property to fulfil legislative requirements should take only one letter, perhaps followed up a week or two after, enquiring as to progress made. 10To "bombard" a property manager with this many emails, including several on the same day, expecting instant responses, inspections and repairs to be carried out is, in the view of the Tribunal, a nuisance. The clause 15.4 and 27.1 breach 11Clause 15.4 of the residential tenancy agreement specifies that a tenant is not to intentionally or negligently cause or permit any damage to the residential premises. 12Clause 27.1 of the residential tenancy agreement specifies that the tenant agrees not to install any fixture or renovate, alter or add to the residential premises without the landlord's written permission. 13The property manager tendered a Routine Condition Report, dated 28 February 2014, listing various alterations that the tenant has carried out at the premises, as well as noting the complaints therein. 14At the "entrance" it is noted that the tenant has peeled back all the paint causing damage. In the kitchen it is noted that there is material in the gaps between the microwave oven and the cavity it sits in. Apparently the tenant believes that air comes out of the microwave oven. 15In bedroom 1 it is noted that there is a hole in the ceiling from where work was done. The tenant was noted as refusing to give access to maintenance personnel to replace the vent cover and close up. It is further noted that the tenant has tampered with light fittings in that bedroom and that there is masking tape all around the edge of the ceiling space. 16In bedroom 2 it is noted that the tenant had peeled back a lot of paint from a previous leak which has caused damage. The tenant is noted as claiming that the leak still exists but the property manager has noted that there are no damp or wet spots. 17In the hallway, the tenant has placed masking tape all throughout the hallway to the ceiling edges, has tampered with the light fittings, has covered the filter for the air conditioner and all vents with plastic and masking tapes. 18In the ensuite the property manager noted that the tenant had tampered with the walls structurally, added construction tape and tampered with a fixture so that metal is now exposed and there are large gaps apparent. The tenant had tampered with the light fitting, sprinkler and exhaust fan and removed it from the ceiling so that it is hanging dangerously and is covered in masking tape. 19The property manager notes that the walk in robe has been tampered with and the light fitting removed from the ceiling and is hanging dangerously. The tenant had removed the sliding doors from their tracks and they are now free standing against the wall. The tenant has declined to rectify these doors to the original placement and to fix them. 20Under the heading "General Comments" the property manager noted that the apartment is in a terrible state of disarray. Prior to letting the premises to the tenant, while it was vacant, it was professionally cleaned and looked presentable. The current state of the apartment was noted as being similar to a construction zone, with the intent of the tenant to cause damage to the apartment and to change the appearance of the apartment. All of these alterations to the fittings and fixtures were made without the prior written consent of the landlord. 21The final paragraph of the condition report notes that the tenant has continually informed of new repairs and maintenance required almost every day, all of which the agent has engaged tradespersons to attend and carry out repairs, or raised concerns immediately with the relevant authorities to investigate the concerns of the tenant. 22To assist the Tribunal come to the same conclusion, the property manager has tendered photographs of the apartment. These corroborate the comments noted in the inspection report. 23The tenant has launched proceedings RT 14/07304, in which he is seeking compensation for failure of the landlord to repair the premises. Those proceedings are listed for a formal hearing on 13 June 2014. 24When it was brought to the tenant's notice that he was claiming that the premises are uninhabitable, due to the numerous perceived problems of smoke and sewerage vapours entering the unit, the Tribunal suggested to the tenant that he should move out as soon as possible if the conditions he described were having such a deleterious effect on his health. The tenant declined the offer to vacate the premises, claiming that he would not be moving until the expiration of the fixed term, and certainly not before his claim was heard and determined. 25The Tribunal is satisfied that the landlord has made good a case that the tenant has breached the residential tenancy agreement by failing to comply with clauses 15.4 and 27.1 of that agreement. 26The tenant's response to the landlord's claim is to assert that the notice of termination was retaliatory. Section 115 of the Act deals with such an assertion. That section reads- 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." 27In his written submission on this issue, the tenant has extracted and cites large texts from the Tenants' Rights Manual. Thinking that you have a claim, and proving that you have claim, are two different concepts. Merely reciting what a body, such as the Tenants Union, consider to be the law and helpful advice to tenants does not ground a claim without any evidence to support that claim being advanced. 28There has been no evidence adduced by the tenant to satisfy the requirements of section 115 of the Act and so the Tribunal declines to make the declaration about retaliation. 29The Tribunal is of the view that the landlord has adopted the same concern as the Tribunal expressed for the tenants' health and welfare by assisting him from the property. The landlord is seeking an order for vacant possession to be given by the tenant on 22 May 2014. 30It became readily apparent at the hearing that the tenant considers that all of the flaws he perceives in the building are, if they exist, caused by the failure of the Owners Corporation to repair and keep in good and serviceable condition the common property. The building is a strata complex of several lots. When it was put to the tenant to explain exactly what the landlord had done wrong or failed to do, the tenant was adamant that the landlord should have fixed the common property. The landlord has no such powers under the Strata Schemes Management Act. 31The Tribunal put to the male tenant whether he, as an occupier of a lot, had launched any application with the Tribunal for an Adjudicator to make a finding concerning the failures of the Owners Corporation. The Tribunal was informed that no such action had been lodged. 32The claims for an order prohibiting the tenant from removing a fixture and for compensation to be paid were not pressed at the hearing. The Act places on a tenant the obligation to return the property to the landlord when vacating in the same condition as when it was leased, save for fair wear and tear. Until the tenant vacates, he may return the premises to original condition, otherwise, there will be a new cause of action for the landlord to claim. 33There was no evidence produced by the property manager quantifying the compensation required to be paid by the tenant. 34Consequently, the findings of the Tribunal are reflected in the orders made. B Howe General Member Civil and Administrative Tribunal of New South Wales 20 May 2014 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 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 July 2014