Angelkov v Tobbagi; Tobbagi v Angelkov [2025] NSWCATCD 195;

1. The parties entered into a 12-month residential tenancy agreement (RTA) commencing on 26 July 2024 and expiring on 25 July 2025 for a 4-bedroom, one bathroom house at Revesby (Premises). The RTA was signed by Theresa Demech from Property Place (Agent) on behalf of the landlord on 24 July 2025 and Nazha Tobbagi on 18 July 2024 and Anthony Tobbagi on 23 July 2024.
2. The tenants moved in on 26 July 2024.
3. There were six occupants, the tenants and their four children aged 8, 7, 6 and 2. The RTA allowed up to six occupants.
4. The rent was most recently $800 a week. On 23 May 2025, a 60-day rent increase notice was served increasing the rent by $50 to $850, to take effect on 1 August 2025.
5. On 30 May 2025 the tenants emailed the Agent a notice of intention to vacate on 19 June 2025. They handed back keys on 19 June 2025, leaving some 5 weeks before the end of the fixed term. They say they physically moved out on 12 June 2025 as they had signed a lease for different premises which they moved into on 12 June 2025.
6. On 18 July 2025, the Premises were relet.

(1) $800 - one week break (the Agent holds $200 of this amount pending the outcome of this dispute); and

(2) $828 for end of tenancy damages:

(a) $250 to repair scratches on floorboards in bedrooms 2 and 3;

(b) $169 broken bathroom door handle lock;

(c) $280 to paint damage on kitchen door; and

(d) $129 blind cord damage in bedroom 4.

1. The tenants refute all bond claims. They say they left early due to safety concerns with the shower and a faulty air conditioner and the landlord is not entitled to the break fee.
2. Further, they allege the landlord beached s 63 of the Act by failing to maintain the Premises in a reasonable state of repair, specifically the shower screen and the air conditioner. They seek compensation flowing from a breach of s 63 as follows:

(1) $600 for the cost to hire a trailer to move out;

(2) $875 for one week's rent charged at the new premises as the tenants were required to pay two lots of rent for the period 12 June 2025 to 19 June 2025; and

(3) $450 for loss of wages from their self-operated café in attending to tradesmen in their last week at the Premises.

1. On 22 September 2025 both applications came before me for a three-hour final hearing. The landlord was represented by Ms Klinker from the Agent's office and both tenants appeared in person.
2. The landlord relied on:

(1) documents filed on 25 August 2025 (375 pages) including an ingoing condition report and two outgoing condition reports.

(2) documents in reply filed on 15 September 2025 (100 pages) which included written submissions (pp 60 to 62);

(3) oral submissions of Ms Klinker.

1. The tenants relied on two bundles of documents comprising:

(1) 203 pages including 7 pages of written submissions; and

(2) 4 pages of written submissions and 33 colour photographs;

1. They also made oral submissions.
2. There were no copies of either of the tenants' bundles on the Tribunal file. The tenants said they had lodged them by post at separate times. Ms Klinker had been served with them. Copies were handed up to me at the hearing.

Relevant sections of the Act and legal principles

1. Under s 63(1) of the Act (and clause 19.3 RTA), a landlord must maintain the premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.
2. This duty is qualified by the notion of reasonableness. The standard of repair is not perfection. By reason of s 65(3A) and 65(3)(b), the landlord has not breached his obligation under s 63(1) unless the landlord is aware, or should reasonably have been aware, of the need to repair and has failed to act with reasonable diligence to have the repair performed.

1. Section 51(3) (and clauses 18.2 and 18.3) sets out the obligations of the tenant when giving vacant possession of the leased premises back to the landlord. The obligations include leaving the premises as nearly as possible in the same condition as at the beginning of the tenancy (fair wear and tear excepted) and leaving the premises reasonably clean.
2. A tenant is not responsible for fair wear and tear to the premises. Fair wear and tear is a general term for anything that occurs through ordinary use, such as the flooring becoming worn in frequently used areas.
3. Under s 51(1)(d), a tenant has a duty not to intentionally or negligently cause or permit any damage to the Premises, during the tenancy. This is replicated at clause 16.4 in the RTA.
4. An action under s 51(1)(d) asserting intentional or negligent damage can be brought and damages awarded during the tenancy or after. It is separate to a cause of action under s 51(3)(b): Aboriginal Housing Office v Fernando [2021] NSWCATAP 95 at [10-12].

1. If a party has breached the tenancy agreement and as a result the other party has suffered damage, a party may make a claim for compensation under s 187(1)(d).

1. In order to claim compensation for breach, claims must be brought within three months of a party becoming aware of the breach: s 190(1) and reg 39(9) of the Residential Tenancies Regulation 2019 (Regulations). Claims may be made during or after the RTA: s 190(2).
2. A party may apply for an extension of time pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). Under s 41, the Tribunal may of its own motion extend time.
3. The principles to be considered in determining whether time should be extended are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22], being the length of, and reason for, the delay, the applicant's prospects of success and any prejudice suffered by the other party.
4. Alternatively, the breaches may concern continuing obligations by both the landlord and tenant up to the date of the applications on 15 and 16 July 2025: Haggerty v Dooley [2021] NSWCATAP 363 at [29], in which case an extension of time would not be necessary.

29 The shower was not fixed until the tenants moved out. I consider this to be a continuing breach and the tenants' claim to be within time. A fault was not raised with the air conditioner until May 2025, so this claim is similarly within time.

1. Claims for the Bond can be made within six months after the bond is paid out: s 175(3) and Reg 39(8). The landlord's bond claim is also within time.

1. Section 29(1) requires a landlord to prepare a condition report that states the condition of the residential premises before or when the tenancy agreement is given to a tenant for signing.
2. Two copies or one electronic copy of the condition report which has been completed and signed by the landlord or agent must be given to the tenant before or when the tenant signs the tenancy agreement: s 29(2).
3. The tenant must complete their comments on the report and give one copy of the report with any comments they have made to the landlord not later than 7 days after taking possession: s 29(3).
4. Section 29(6) states the condition report must be in the prescribed form, which reg 7 specifies is in the form set out in Schedule 2 of the Regulations. Schedule 2 sets out notes on how to complete the report, including Note 6 that:

If photographs or video recordings are taken at the time the inspection is carried out, it is recommended that all photographs or video recordings are verified and dated by all parties. Any photographs should be attached to this condition report, in hard copy or electronically, under the heading "Photographs/video recordings of the premises".

Any video recordings should be attached to this condition report electronically.

NOTE: Photographs and/or video recordings are not a substitute for accurate written descriptions of the condition of the premises.

1. The tenants received a copy of the ingoing report signed by Ms Theresia Geagea on behalf of the landlord on 31 July 2024. The report attached images numbered 1 to 463 taken by the Agent on 25 July 2024. On 31 July 2024, the tenants returned a signed copy with their comments. There is no covering email in evidence.
2. Shortly after they moved in, the tenants took their own photos**.** These appear as 22 (undated) images numbered 464 to 485 which have been incorporated in the ingoing report.
3. If there is a dispute (such as here), s 31 provides that the Tribunal may, on application by a landlord or tenant, order that a condition report must be amended or is not required to be amended. No such application was made.
4. Upon vacation, the Agent prepared an outgoing report dated 20 June 2025 with coloured images.
5. On 5 July 2025, the tenants returned to the property to rectify some items.
6. On 7 August 2025, the Agent prepared a second outgoing report with further coloured images dated 7 August 2025.
7. Section 30(1) provides that a condition report that is signed by both the landlord and the tenant is presumed to be a correct statement, in the absence of evidence to the contrary, of the state of repair or general condition of the residential premises on the day specified in the report.

1. Each party bears the onus of establishing their respective claims. The landlord bears the onus for his claims on the bond and the tenants bear the onus in relation to their compensation claim. The civil standard of proof is the balance of probabilities.

1. The ingoing report describes the door in good condition with no damage and the tenants agreed by recording a "Y". The outgoing photo shows the paint chipped at the bottom of the door. On 5 July 2025, the tenants returned to address the issue and the landlord contends they just painted over the damage without properly patching and sanding and using the correct paint colour and the new paint flaked off. The Agent can't be sure but speculates the door was last painted in 2021.
2. The tenants submit this is wear and tear. The door is old and the other side of the door had hangers on the back for brooms and cleaning equipment, which meant it was constantly in use. They attempted to fix the peeling by painting over. The cost of $280 to patch and paint a small section of one side of a door is excessive.
3. For all of his damage claims, the landlord relies on a single quote dated 10 July 2025 from Happy Home Group for $828 and their invoice dated 18 July 2025 for $578 for three of the items (excluding the floors).

1. I disallow this claim as I consider the paint flaking off an old door to be wear and tear. The standard is not perfection when considering the tenants' obligation to restore the property to what it was at the start of the tenancy. The test of "fair wear and tear" is objective and is not assessed from the subjective perspective of a "fastidious and obsessive landlord": Sakr v Saward [2016] NSWCATCD 32 at [10]. Even if the tenants were liable, the door was last painted at least 4 years ago and has depreciated and I find the amount to be excessive.

1. The landlord claims damage for one long scratch in bedroom 2 (referred to as "bedroom" in the ingoing report and bedroom 2 in the outgoing report) running from the doorway to the middle of the room
2. The landlord has recorded on the ingoing report, "few chips and scratch noted".
3. The Agent says the scratch has been made worse by the tenants.
4. The Agent also says there are other scratches in bedroom 2 in the centre of the room near the window that were pre-existing that the landlord is not claiming.
5. The landlord relies on ingoing images 13-18 (particularly image 15 showing no scratch at the entrance), enlarged printed photograph (unlabelled) of what looks to be image 10, images 15 to 19 in the first outgoing report dated 20 June 2025, enlarged printed photos (unlabelled) of what look to be images 18 and 19 from the first outgoing report, images 14 to 17 in the second outgoing report dated 8 July 2025 and enlarged printed photographs (unlabelled) of what look to be images 14, 15, 16 and 17 from the second outgoing report.
6. The tenants have specified "N" on the ingoing report to denote they disagree with the landlord's description. They have recorded on the ingoing report, "scratch present on floor on the walk way" and have added image 478 which they say they took the day they moved in on 26 July 2025, the day after the landlord's photo. They dispute the scratch was caused by their removalist and say they took the photo before any furniture had been put in the bedroom and image 478 clearly shows the room is empty. It was quite a significant scratch, so they made a note of it when they moved in and immediately took a photo of it.

1. The landlord claims for a chip in bedroom 3 (called bedroom 2 in the ingoing report). The landlord has recorded "floor in good condition light paint marks" in bedroom 2 of the ingoing report and "scratch noted" in bedroom 3 of the outgoing report. The landlord relies on images 51-54 in the ingoing report, enlarged printed photo (unlabelled) of what looks to be image 51 showing no chip, images 27 to 31 in the first outgoing report, enlarged printed photos (unlabelled) of what look to be images 28 and 29 from the first outgoing report, images 29 and 30 in the second outgoing report and enlarged printed photo of what looks to be image 29 from the second outgoing report.
2. The tenants recorded "Y" in the ingoing report to denote they agreed that bedroom 2 flooring was undamaged.
3. The Agent was not aware of the age of the wooden floors. The tenants say the flooring is very old.

1. I find this claim to be very confusing because:

(1) the bedrooms are described differently in the ingoing and outgoing reports, making it difficult to determine which flooring in which bedroom is being compared and making it difficult to cross reference the scratches and photos, especially when the landlord is not claiming for all scratches;

(2) the selection of enlarged ingoing and outgoing photos of the flooring in the two bedrooms are not individually labelled, making the cross referencing difficult; and

(3) there are two outgoing reports.

1. The flooring in the first bedroom had a pre-existing scratch which is apparent from the ingoing photo (image 17). It is difficult to determine from the photos the extent to which it has become longer (if at all), allegedly due to the tenants' misuse, and if there is any overlap between this larger scratch and the other scratches in the first bedroom that the landlord is not claiming.
2. The tenant has supplied a photo she took at the start of the tenancy (image 478) which she supplied to the Agent when she returned the ingoing report with her comments on 31 July 2024 which shows the alleged "worsened" damage was already existing.
3. If the landlord was of the view the tenants had caused this further damage at the start of the tenancy sometime between the period when the Agent's photo was taken on 25 July and the tenants' photo was said to be taken on 26 July or when the ingoing was returned (between 1 and 6 days), whether by their removalists, or some other way, the landlord should have brought a claim for compensation at that time under a different section - s 51(1)(d). He is now out of time to do so, it being more than 3 months since he became aware of the alleged damage. He cannot now claim a remedy under the guise of compensation for end of tenancy damages, which is based upon a breach of a different section - s 51(3)(b). If the landlord disputed the tenants' comments and photos, it was open to him to file an application under s 31 within 3 months. He did not do so and is now out of time. Ms Klinker has said she can't recall if she raised with the tenants the fact she disputed image 478 as being an accurate depiction of how the tenants found the bedroom. She said she did not want to disrupt the tenants whilst they were moving in. However, this is no excuse for the delay.
4. I note that the tenants' image 478 (and indeed other photos they say they took on 26 July and provided to the Agent on 31 July) were not verified and dated by all parties as required by Note 6 in Schedule 2(6) of the Regulations. The Note also states photos are not a substitute for accurate written descriptions of the condition of the premises.
5. However the statutory presumption in s 30(1) that a condition report signed by landlord and tenant is correct, is rebuttable and does not provide a basis for rejecting or ignoring other evidence as to the state of the premises at the relevant time, where the evidence happens not to be contained in a condition report signed by both the landlord and the tenant: Hall v Hawkins [2015] NSWCATAP 197 at [64].
6. I find that the landlord accepted the tenants' comments and photos as forming part of the ingoing report.
7. The dispute could have been avoided if the Agent had provided a copy of the ingoing report to the tenants at the time the tenants signed the RTA, as s 29(2) requires the landlord to do. The tenants signed the RTA on 18 July 2024 and 23 July 2024 respectively, moved in on 25 July, took their own photos on 26 July and did not receive a copy of the ingoing report attaching the landlord's photos which had been taken on 25 July, until 31 July. The landlord was in breach of s 29(2) which attracts a penalty.
8. The floors look to be old and likely to have significantly depreciated. The Agent was not able to advise the Tribunal when the floors were last polished. The landlord does not appear to have incurred any cost for flooring. Whilst the quote of 10 July 2025 refers to $250 compensation, the invoice of 18 July 2025 for the other repairs does not indicate any flooring work has been carried out. Arguably there is no loss.
9. For all of the above reasons, I disallow this claim for flooring as I find the landlord has failed to discharge his onus of proof that the tenants caused damage to the flooring in two bedrooms that was beyond reasonable wear and tear over the course of a 12 month tenancy which allowed up to 6 occupants.

1. The blind in question is located in "bedroom 3" in the ingoing report and "bedroom 4" in the outgoing report.
2. The landlord says the blind cord did not fully unroll at the end of the tenancy.
3. The landlord relies on a photo dated 25 July 2024 which shows a working blind and the notation in the ingoing report that the blind was "intact and working".
4. The tenants did not agree. They have recorded a damaged blind when they returned the ingoing report on 31 July 2025. They say the connection was broken and had been repaired in the past. They have written: "blind gets caught due to repair done to blind to connect the broken chain."
5. The Agent acknowledges the tenants mentioned this issue in the ingoing report but says the tenants have caused this damage in the 6 days between moving in and returning the condition report on 31 July 2024.
6. The Agent was unsure as to the age of the blind.

1. I disallow this claim. I find it unlikely the tenants would have damaged the blind within the space of days, and if they did, the landlord was on notice. Similar to the floorboard situation referred to above, it is not a claim that properly falls under the Bond and s 51(3)(b). Instead, the landlord should have made a claim in compensation at the time under s 51(1)(d), if he believed the tenants had damaged the blind when they moved in. He did not do so and he is now out of time to agitate such a claim.

1. The claim is for a damaged lock on the bathroom door handle.
2. The landlord submits the key did not insert easily into the lock after the tenants vacated.
3. The ingoing report states the "door is in a good condition with no damage" and the tenants agreed with a "Y". The ingoing photos (images 184, 185 & 188) show no damage.
4. The tenants returned to try and fix the lock with the Agent's consent, but did not fix it properly.
5. The photo (p 358) shows a bent lock after the tenants' repair attempt.
6. The tenants claim they did not damage the lock and it was a functioning door, they did not lock doors with small children. The damage is pre existing and they "did not see a little dent in the lock latch as an issue with the door." They returned on 5 July 2025 to do some gardening and cleaning and tried to fix the lock as a good will gesture.
7. The tenants say the ingoing photos do not show a proper close-up view of the lock, only a side view of the door handle.

1. I do not accept this was pre-existing damage as there is no record of any damage in the ingoing report and the tenant agreed. I find on balance the tenants have caused damage to the bathroom door lock beyond reasonable wear and tear. Damage caused by negligence is not fair wear and tear.
2. I allow this claim.

1. On 1 August 2024 the tenant sent an email to the Agent complaining about a leaking shower and sent photos. It created a pool of water on the tiles whilst being used.
2. A routine inspection took place on 1 November 2024 and the tenants raised the leaking shower again.
3. Various tradesmen attended at different stages (it is unclear as to when) and the tenants say they were told any repairs would not guarantee it would be properly sealed and a new screen was required and the installation, including time to dry and set, would take three days. As it was the only shower, the tenants offered to stay in a hotel and for a week's rent to be waived.
4. The owner did not believe the shower screen required replacing and no repairs were done.
5. The tenants raised the leak again by email on 11 December 2024 and referred to the handyman who had previously come to inspect the shower who told them the screen needed replacement. They also reported that a second handyman had not turned up. The Agent responded by saying the owner did not wish to replace it.
6. On 3 January 2025, the tenants again chased up shower repairs and reported silicone peeling off and the leak becoming worse and sent photos.
7. Later on 3 January 2025, the tenant wrote again:

"I have complained about this shower since 2 days into moving into the house. It is beyond repair and you have been told this by your repair man. We want this issue fixed and I am also angry at your office for also dragging your feet on this issue. The photo attached is the mess we deal with every shower and we have to lay down towels to avoid our kids falling over and slipping on the tiles. I want this issue resolved and am frustrated that it has almost been half a year without solution."

1. On or about 9 January 2025, a tradesmen removed all the existing plastic strips, but did no repairs and the door started banging.
2. Another tradesman attended to see if magnetic strips would resolve the issue.
3. They have 4 children under the age of 8 and were concerned it was unsafe and they could slip and their two year old son did slip.
4. On 23 May 2025, they asked if the landlord would be fixing the shower screen.
5. On 29 May the Agent said she was getting quotes and would have the issue fixed soon.
6. On 29 May the tenants responded that many trades had already come out to quote for the shower screen.
7. After they gave notice, during their last week in the property, they received multiple text messages from tradesmen, on 30 May, 2 June 2025 and 4 June asking for access to fix the shower screen. Ms Tobbagi had to leave the family run café where she worked about 30 minutes from the Premises to let them in.
8. After they vacated, they returned on 5 July to attend to some cleaning. They noticed a new shower screen had been put in.
9. The landlord submits there is insufficient evidence of any serious water leak.
10. Silicone work had been carried out not long before the tenants moved in. The invoice from H Dirani of Happy Home Group dated 10 June 2024 states: "bathroom shower screen seals uninstalled and replaced with new shower screen seals."
11. Mr Dirani also provided another report dated 13 September 2025 stating he had attended to inspect the shower area three times and each time he observed no water coming out and the tenants did not use a mat to mitigate wet.
12. The Agent says the landlord did not ignore requests. He received conflicting opinions as to how to address the issue.

1. I find that the landlord has breached the tenancy agreement and s 63 of the Act by failing to carry out repairs to the shower in a timely manner. The fact that it has now been replaced after the tenants vacated, is proof it was defective. It was clearly a known issue, with seals being supposedly fixed a month before the tenants moved in.
2. The shower screen was reported on 1 August 2024, within 1 week of the tenants moving in and never fixed for the entire 11 months. This is an unreasonable delay.
3. Once the landlord knew of the need to repair, the repair must be carried out within a reasonable time and is not excused by conduct or delay caused by tradespersons or suppliers, or the impecunity of a landlord.
4. The mere fact that an attempt is made to repair is no defence to a landlord's liability to repair and maintain where such attempts are unsuccessful.
5. The tenants are entitled to compensation flowing from the breach of s 63.
6. There is no evidence to prove the particular loss and damage sought. The tenants claim a week's overlapping rent at the new premises but have tendered no lease. They claim loss of wages from their self-owned café but have produced no wage records. Finally, they claim moving costs but have provided no invoice.
7. In awarding compensation under s 187(1)(d), the Tribunal has a discretion. The purpose of a compensation order is to put a party in the position they would be in but for the other party's breach of the RTA.
8. I assess damages for breach of s 63 at $1,000. In assessing compensation, I have taken into account there was only one shower and six occupants. I find the reduction of amenity has been significant. I also find the leaks caused a safety issue.

1. On 3 November 2024, the tenants reported a urine smell from the air conditioner and the unit not opening of its own accord.
2. It only came to their attention in November as they did not use the system in winter for heating due to the asthma of a family member.
3. The Agent said it had recently been serviced prior to the tenants moving in.
4. On 23 May 2025 the tenants reported the unit only worked for short periods and then stopped.
5. On 29 May the Agent asked the tenants to clean the filters.
6. On 29 May the tenants reported that the filter was clean and the unit needed a proper service.
7. The Agent arranged for a technician to attend in June 2025. The tenants say the tradesperson looked at the filters and said the unit was too old to be repaired (p. 187). He left without doing anything and merely hosed the air filters and put the wet filters back in the unit.
8. During their last week at the Premises, Ms Tobbagi had to constantly leave work to allow access to the air-conditioning technician.
9. The Agent says the tradesperson did not identify any issues. An undated text message has been tendered from "Cane" who states: "... The only thing was the indoor unit filters were a little bit dirty and the indoor coil, the outdoor gas level and [temperature] were normal."
10. The Agent says the new tenants have not complained about the air conditioning unit.

1. Having reviewed all the evidence presented by the parties as set out above, I am not satisfied on the evidence before me that there was any breach of the obligation by the landlord under s 63 in relation to the air conditioner. The matter of an odour was raised in early November 2024 and then not again for 7 months until 23 May 2025, when the tenants reported it worked only sporadically. There was no issue with it not working from the start of the tenancy up until May 2025. If the issue was pressing, I find the tenants would have followed the matter up, as they did with the shower. The technician reported no issues in June 2025. I find there is insufficient evidence as to any defect.

1. The landlord claims one week break fee pursuant to clause 51.4 of the RTA and s 107(4)(d) as the tenants left prior to the end of the tenancy agreement, in the last quarter of the 12-month term.
2. The landlord submits the tenants left in response to a rent increase notice given to them on 23 May 2025.
3. The tenants dispute this was the reason. They concede they were negotiating a rent increase and a 12-month renewal, but insist they left due to the broken air conditioner and shower, which they had been complaining about for many months.
4. A break fee is a landlord's remedy upon the abandonment of premises by a tenant during the period of a fixed term agreement: ss 106 and 107.
5. A break fee has no application if the RTA was terminated for a permissible reason in accordance with law.
6. One such permissible reason is under s 81(2) which provides a tenancy agreement terminates if a tenant gives a termination notice in accordance with the Act and the tenant gives vacant possession of the residential premises. No Tribunal order is required.
7. The tenants did not serve any formal notice under the Act. Natasha Tobbagi did send an email on 30 May 2025 at 4.29pm to the email address rentalsprofessionalspadstow@reply.propertytree.com, stating:

"We have successfully secured another property so I am giving notice that we will be returning the keys for 288 the river road Revesby on the 19th June 2025."

1. On 23 May in response to the rent increase and renewal offer, Natasha Tobbagi sent an email to the Agent stating:

"We would like to ask if the landlord will be fixing the shower screen which we have had issues with for the entire year which we have lived at the property. We have told your agency about it multiple times and have had multiple tradies come out, but nothing has been done to rectify the issue. Also can we have someone look at the air conditioning unit. It only works for short periods of time and then stops working. We brought this up to the agent a while ago and have heard nothing back other than the ac was serviced prior to us moving in."

1. On 29 May 2025, Ms Theresia Geagea of the Agent's office sent an email: "Regarding the air con, can you please try cleaning the filters and let us know if the issue persists? I am getting quotes for the shower door and I will have the issues fixed soon."
2. On 29 May Ms Tobbagi responded: "The filter of the ac is clean it needs a proper service. 2 trades people have come out to quote the shower already. 3 have come out to quote repairing it too. If we did decide to stay another year... would the owner consider accepting $820 per week."
3. On 29 May the Agent replied she would get back to the tenant, however the next day, 30 May 2025, the tenants gave their notice to vacate.
4. On 31 May the Agent informed the tenants a 1-week break fee was payable and issued invoice #199972 for $800.
5. After they gave notice, the tenants asked multiple times if the break fee could be waived. The landlord never agreed. On 5 June they sent an email: "... the main reason why we decided to vacate was due to safety concerns around the shower screen which we complained about since we moved in. The glass and water issue has been a massive concern for us since moving in and hasn't been fixed. This week saying we are going to vacate I have been bombarded with tradies which wasn't the case whilst living in the premise."
6. On 5 June 2025 the tenants paid usual rent of $800 and an additional sum of $200. The tenants say the $200 was additional rent as they wanted to reduce the final amount of rent payable the following week, which would be the last before they vacated. The tenants concede they never communicated to the Agent the payment of $200 was for rent. The Agent allocated the $200 towards the break fee in accordance with the invoice, as the rent was up to date.
7. As it happened, the tenants did not pay less on their final rent payment. They paid usual rent of $800 on 12 June which the ledger shows took them to their vacate date of 19 June 2025. The tenants say on 5 June the Agent improperly allocated the $200 rent towards the break fee. They say they had always disputed the break fee and it should not have been allocated and instead upon vacation they were owed $200 in overpaid rent.
8. On 16 June they wrote again, "...confirm that you will discuss the waiving of the break fee with the owner... we feel our issues and safety were disregarded in the property."
9. The Agent says she was unaware until the hearing that there was any dispute with $200 being allocated to the break fee which the Agent part allocated on 5 June 2025 pursuant to the invoice issued on 31 May 2025. The tenants made a claim for the whole Bond when they were aware of the damages claim, which was paid to them in full on 15 July 2025.
10. In order to determine the landlord's entitlement to the break fee, it is necessary to determine how the tenancy agreement terminated within s 81 of the Act, i.e., whether by giving a termination notice "in accordance" with the Act and vacant possession within s 81(2), or by another mode, relevantly, abandonment of the premises within s 81(4)(d).

Was the notice to vacate a compliant notice of termination?

1. The 14-day notice requirement for breach by a landlord is set out in s 98(2). The notice to vacate emailed on 30 May 2025 complies with the timeframe.
2. The notice to vacate has been served by an authorised method of service within s 223(1)(a)(v) of the Act to the email address for the service of notices on the landlord specified in the RTA.
3. The requirements for a termination notice are set out in s 82(1). A termination notice must set out the following matters: (a) the residential premises concerned, (b) the date on which the residential tenancy agreement is terminated and by which vacant possession of the premises will be given, and (c) the ground for the notice. Further, a termination notice must be in writing and it must be signed by the party giving the notice: s 82(2).
4. Whilst (a) and (b) are satisfied, the email sent by the tenant to the Agent on 30 May 2025 does not state any ground for termination, only that the tenants had found another property.
5. It follows that the tenants did not give a termination notice "in accordance with" the Act as required by s 81(2).
6. Termination of the tenancy agreement by this method would require consideration of whether this defect could be waived pursuant to s 113 of the Act.
7. Section 113 of the Act provides that the Tribunal may make any other order even though there is a defect in the termination notice or its manner of service, if it thinks it is appropriate to do so in the circumstances of the case and it is satisfied that the person to whom the notice was given (landlord) has not suffered any disadvantage because of the defect in the notice.
8. Section 113 is more typically concerned with remedying minor defects, not substantial ones such as a failure to provide particulars of the alleged breach as the basis for breaking a fixed term agreement.
9. This is particularly so given s 98(4) of the Act which gives the landlord a right to challenge a termination notice for breach if the landlord disputes the breach or had taken steps to remedy it: s 98(4) within 7 days: reg 39(3). He did not do so, but the tenants did not specify any breach, merely stating that they had found another property.
10. The Tribunal is able at look at more than one document to constitute a termination notice: Kenny v Killalea [2015] NSWCATAP 66 at [35]. The earlier emails between 23 May 2025 and 30 May 2025, may, when taken together, arguably provide the reason.
11. Under s 113, I would be free to make "any other order" despite the defect in the termination notice, including an order dismissing the landlord's claim for a break fee, if I think it is appropriate: Shik v Wu [2021] NSWCATCD 96 at [73-75].
12. The landlord submits that the real reason the tenants gave notice was not due to any breaches but because they were served on 23 May 2025 with a rent increase notice of $50 per week to take effect on 1 August 2025.

1. When considering the emails between 23 May and 30 May, I am not convinced that the decision to terminate early was due to the shower and air-conditioning issues. I find the shower and air conditioner were raised (again) in the context of rent and lease renewal negotiations and the tenants were hoping to negotiate a good rent for the next 12 months and had expressed an interest is staying if the rent was favourable. The air conditioner had not been raised for 7 months and only then due to an odour, not a malfunction.
2. Once the tenants gave notice to vacate, the landlord took steps to fix the shower and assess the air conditioner. The tenants could have waited for the landlord to repair the shower and could have remained in possession and paid rent until the lease expired.
3. However, I do not believe that the shower being remedied would have persuaded the tenants to stay, as they had already found alternative accommodation.
4. If the tenants had been serious about the safety issue in the shower, which had been ongoing since the start of the tenancy, they could have brought a claim for repairs at the Tribunal.
5. I find that the email giving notice to vacate is not a valid termination notice as it does not set out the grounds for termination and I have not been able to discern those grounds as the reason for issuing the notice from the surrounding correspondence.
6. It follows that I find the tenancy did not come to an end as a result of s 81(2). Rather, I find the tenancy came to an end as a result of the tenants abandoning it before the end of the fixed term under s 81(4)(d).

1. Notwithstanding that I found the tenants abandoned the tenancy, the Tribunal has a discretion as to whether or not to make an award for the payment of a break-fee under s 107(1): Abdel-Messih v Marshall [2017] NSWCATAP 136 at [25]- [29].
2. Those circumstances might include that the tenants had spent many months attempting to have the landlord maintain the residential premises in a reasonable state of repair in multiple respects, culminating in lodging an application for compensation and repairs in the Tribunal where the landlord had repeatedly breached s 63 of the Act.
3. However this is not such a case. I find the shower defect, whilst serious and longstanding in nature, was the sole defect constituting the s 63 breach and was not the subject of any Tribunal application brought by the tenants.
4. The landlord has suffered a loss as the Premises were not relet until 18 July 2025, four weeks after the tenants vacated.
5. In my view, the discretion under s 107(1) should not be exercised substantially on the basis that I have awarded the tenants compensation for the leaking shower. It would not be appropriate in circumstances where the tenants have already been compensated for such breach by the landlord, to deny the landlord his losses upon the tenants' abandonment of the fixed term agreement: Yan v Yan [2024] NSWCATAP 32 at [48].
6. Accordingly, I find and will order that the tenants are to pay the landlord a break-fee of one weeks rent in the amount of $800 under s 107 of the Act. The landlords hold $200 in lieu, so the tenants are ordered to pay $600.

1. The tenants allege that the landlord, via the Agent, has misappropriated a $200 rent credit and not repaid it to the tenants but partially applied it towards the break fee, which they disputed.
2. Section 33(3) prohibits a landlord, or landlord's agent from knowingly appropriating rent paid by the tenant for the purpose of any amount payable by the tenant other than rent.
3. However s 166 sets out the matters that can be the subject of a rental bond claim, including (1)(b) any rent or other charges owing and payable under the RTA or Act. This would include a break fee.
4. In my view the Agent, not being told otherwise by the tenants, believed the monies were a part payment of the break fee. The parties were at that stage discussing proceeding to NCAT to determine the dispute. The Agent was entitled to hold the monies in its trust account pending the outcome of the Tribunal proceeding, just as it would have held the Bond if the Bond or any part of it, had been paid to it by the RBB.
5. The tenants immediately applied for the Bond knowing there were many disputed items and it was paid out to them by the RBB, seemingly without RBB being aware the tenants' claim was disputed by the landlord.

1. The tenants are to pay the landlord the sum of $769:

(1) $600 being the balance owing for one week's break fee; and

(2) $169 to repair the broken bathroom door handle lock.

1. The landlords are to pay the tenants the sum of $1,000 in compensation for breach of s 63 relating to a failure to repair the shower screen.
2. The net result is the landlord is to pay the tenants the sum of $231 immediately.
3. The balance of both applications are 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.