Mercieca v Fu [2017] NSWCATAP 205

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mercieca v Fu [2017] NSWCATAP 205 Hearing dates: 31 July 2017 Date of orders: 24 October 2017 Decision date: 24 October 2017 Jurisdiction: Appeal Panel Before: L Pearson, Principal Member A Boxall, Senior Member Decision: (1) The appeal against Order 5 made on 14 June 2017 is upheld.

(2) Pursuant to s 81 (1)(b) of the Civil and Administrative Tribunal Act 2013, Order 5 made on 14 June 2017 is varied to be:

"5. (i) The rent payable under the residential tenancy agreement shall not exceed the sum of $693.50 per week from 1 February 2017 to 6 June 2017.

(ii) Any rent paid by the tenant in excess of that amount is to be refunded through an adjustment to the rent ledger, or by refund by the landlords to the tenant, within 14 days of the date of these orders."

(3) Leave to appeal is otherwise refused, and the appeal against Orders 1, 2, 3, 4 and 6 made on 14 June 2017 is dismissed.

(4) Pursuant to s 81(1)(b) of the Civil and Administrative Tribunal Act 2013, Order 2 made on 14 June 2017 is varied to be:

"2. The order for possession is suspended until 14 days from the date of publication of these orders." Catchwords: APPEAL: Residential tenancies - Whether termination notice retaliatory – Rent reduction Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Residential Tenancies Act 2010 Residential Tenancies Regulation 2010 Cases Cited: Clarke v Tapp [2015] NSWCATAP 81 Collins v Urban [2014] NSWCATAP 17 Howard v B Miles Foundation Inc [2012] NSWSC 1173 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWSC 424 O'Keefe v Davies [2016] NSWCATCD 7 Quader v Bell [2017] NSWCATAP 24 Category: Principal judgment Parties: Wayne Mercieca (Appellant) Anita Fu (First Respondent) Saar Yizhaki (Second Respondent) Representation: D Baddeley (Appellant) R Simeon (Respondents) File Number(s): AP 17/27981 Publication restriction: No Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 14 June 2017 Before: L Wilson, Senior Member File Number(s): RT 17/10573 and RT 17/10808