//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2014] NSWCATAP 101
NCAT Appeal Panel
2014-09-02
Original judgment source is linked above.
reasons for decision 1The appellants are tenants of a residential property at Frenchs Forrest. On 4 June 2014, the Tribunal below made the following orders in regard to the appellants' application for orders under sections 44(1)(b), 45, 65(1)(a) and 65(5) of the Residential Tenancy Act 2010 (RT Act): 1. The landlord, ... is to pay the tenants, ..., the sum of $100. 2. The balance of the application is dismissed because having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established. 2On 17 June 2014, the appellants made an application for leave to appeal against the decision of the Tribunal and if leave was granted they sought to appeal, on the merits, the decision of the Tribunal in regard to the second order it made. 3Subsection 80(1) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) makes provision for making an appeal against an 'internally appealable decision' to the Appeal Panel. There is no dispute that the decision from which the appellants seek to appeal is an 'internally appealable decision.' 4Subsection 80(2)(b) of the NCAT Act provides that an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. However, where an appeal is sought from a decision of the Consumer and Commercial Division of the Tribunal, as is the case in this appeal, clause 12(1) of Schedule 4 of the NCAT Act requires the appellant to obtain the leave of the Appeal Panel in order to appeal. 5The appellants' application for leave to appeal was heard on 2 September 2014. At the conclusion of that hearing the Appeal Panel found that it was satisfied that the appellants had established that they had suffered a substantial miscarriage of justice in that the decision of the Tribunal below was, in part, not fair and equitable and against the weight of the evidence. On the basis of this finding the Appeal Panel made the following orders: 1. Pursuant to cl 12(1) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 leave is granted to the appellant to appeal the decision of the Tribunal, under s 80(2)(b) of that Act, in regard to the following matters: (a) the installation of the rainwater tanks (b) the failure to install an outdoor light at the front door of the premises (c) the failure and delays in undertaking repairs as requested by the appellants, other than in regard to the balustrades. 2. By consent the appellants' appeal on the matters identified in order 1 above is to be determined on the papers. 6The powers of the Appeal Panel in determining an internal appeal is set out in section 81 of the NCAT Act as follows: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal. 7We have now considered all the material before the Appeal Panel and for the reasons set out below we have allowed the appeal in part in regard to the appellants' claim for an excessive rent order due to a reduction or withdrawal by the respondent of the outdoor patio and bedroom facilities through the installation of rainwater tanks on the premises after the residential agreement between the parties was entered into.
The residential tenancy agreement 8It is convenient to first deal with the relevant terms of the residential tenancy agreement between the parties and the premises the subject of that agreement. 9The agreement was for a 12 month period, commencing on 24 January 2012. The rent payable was $3,693.45 per month. The agreement provided that no more than three people were to reside in the premises. At the time the appellants entered the agreement and took possession of the property the appellants were expecting their first child, which was known to Ms Leach, the respondent's agent. 10The agreement set out the residential address of the premises in Frenchs Forest. The agreement stated that the premises included: Small storage space on the side of the house, 2 car spaces out at the front of the garage, use of ½ the back yard only (left hand side) 11The agreement also noted what the premises did not include. These were: The use of the right hand side of the back yard, no garage, the apartment on the bottom level of the property or under the house storage. No access to the back yard from the front yard right hand side of the property. 12At the leave hearing, Ms Leach explained that the property, a two storey suburban house, had recently been renovated and divided into two separate premises (an upper level and lower level premises). The appellants leased the upper level and the lower level remained unoccupied as at the date of the leave hearing. 13Entry to the upper level of the property is through a front door located on the lower level of the property that faces the road and is adjacent to the driveway. Immediately to the right of this front door is another door, which is the front door of the lower level premises of the property.
The decision at first instance 14In their application before the Consumer and Commercial Division, the appellants sought compensation, rental reductions and orders for repairs, due to a number of specific alleged breaches by the respondent of the terms of the tenancy agreement and the Act. For the purpose of this appeal the alleged breaches were described by the appellants in their original claim (i.e. as at 7 March 2014) as follows: Item # 1 26 Disclosure of information to tenants generally (1) False representations ... Installation of the rain water tank on the outdoor patio area. The landlord received planning approval for the rain water tank on the 12th November 2013 but this information was withheld from us as we were never informed of this planned significant change to the property. NOTE: The planning permission documentation is inaccurate and does not reflect the existing dwelling size and shape. Approval of the water tank location is different to where it has actually been placed. Invalidates planning permission. >> The tenants request that the rent amount is reduced to compensate for the loss of use of the outdoor area and back bedroom until such time the watertank is relocated. It is expected that any rental reduction agreed be backdated to the time in which the tank was installed which was the 7th February 2014. Indication of rental reduction amount in the region of 20% which is $170/week. Item # 2 43 Rent reductions (1) Reductions in goods, services or facilities ... ... The installation of the rain water tank which has resulted in a significant loss of outdoor space (in an area for which we chose to rent the property) and the loss of a bedroom due to noise. ... Item # 5 52 Landlord's general obligations for residential premises (3) ... 63 Landlords general obligation (1) ... (2) ... Urgent Repair Item 1 - Gas hob. Two back rings don't work. Hob has a tendency to fire the ignite switch by itself on the odd occasion. Generally hard to light using the ignite. Also rubber seal on oven is broken, not causing issues yet but may make sense to get both looked at the same time. Section 62. Urgent repair definition J Urgent Repair Item 2 - the outdoor light cannot be turned on from our unit, we assume this is because the switch is in the ground floor unit. This is dangerous at night as we cannot see where we and our visitors are walking. Section 62. Urgent repair K Urgent Repair Item 3 - [rest to be added] 15As noted above, the Tribunal found that it was not satisfied, to the civil standard of proof, that the 'grounds required to make the orders sought' by the appellants in regard to the abovementioned matters had been established. In the reasons for decision the Tribunal made the following findings of fact in regard to each of the above matters in the appellants' claim: ... THE RAINWATER TANK The tenants claim a breach of section 26 of the Act. ... ... The Tribunal is of the view that the approval to install rainwater tanks, and not disclosing that prior to entering the residential tenancy agreement, is not a material fact which comes within the prescribed extreme material facts as set out in the Act and the Regulations. The tenants have been granted verbal consent to now have use of the full area of the backyard, and so the Tribunal is of the view that if they consider that the installation of the tanks have impeded their social activities in the leased portion of the yard, this has now been overcome by the verbal consent of the landlord, through the landlord's agent, to use the entire yard. Consequently, this part of the claim fails. ... COMPENSATION OF $7,118-75 The tenants claim that the landlord has breached sections 52(3) and Subsections 63(1) and 63(2) of the Act. ... ... The tenants raise seven issues concerning the alleged failure to provide and maintain in a reasonable state of repair being - The problems with the stove in that the two back rings don't work and the electronic igniters constantly fired. The tenants reported the problem to the landlord's agent on 29 January 2014 and the result was that the stove was completely replaces on 14 March 2014, after a lapse of 44 days. The outdoor light could not be turned on from the tenants' portion of the premises and there is still no switch to activate this light. The hall light above the stairs could not be used as it tripped the circuits, but this problem was fixed by the electricians working on separately metering the two portions of the dwelling before the end of February 2014. There was no hot water available from the ensuite hand basin. Hot water was available for all other outlets in the premises and the situation was rectified within 29 days. The pelmet frame above the sliding door between the kitchen and dining room was slightly ajar from the wall. It was securely screwed back into position by 20 March 2014. The wooden flooring in the hallway and the living room is that of a floating floor. It has been constantly repaired by the installer under the warranty provisions and that tradesperson is willing to attend the premises at any time to correct the deficiencies in this regard. ... The tenants rely on the definition of 'urgent repairs' as set out in section 62 of the Act.. ... ... It is the tenant's claim that rather than contact ... tradespeople due to the 'urgency' of the situation, they thought it was cordial to contact the landlord's agent. In doing so, the agent ensured that repairs were carried out in a timely manner, once notice was given of the problem and so there has been no breach of the tenancy laws. ... The Tribunal is not satisfied that the tenants have demonstrated that once alerted to a problem with the premises, the landlord failed in the legislative duty to make good any repairs, and so this part of the claim fails. REPAIRS REQUIRED The tenants seek an order that two repairs be ordered for the landlord to carry out: install a switch for the outdoor light and ... The outdoor light is located above the front door leading to the lower portion of the premises. Consequently, the Tribunal is of the view that the light is of no concern of the tenants who occupy the upper portion of the premises and so no order will be made about the installation of any light switch. ... The findings of the Tribunal are ..., there has been no evidence to substantiate any breach of the Act by the landlord. Therefore, the findings of the Tribunal are reflected in the orders made. ...
Appellants' grounds of Appeal and Respondent's Reply 16In their Notice of Appeal, the appellants identified the following as their grounds of appeal: 1. Failure to consider overwhelming evidence of the applicants [appellants] 2. Failure to deal with the 7 urgent repair items referred to in Item 4 of the application. 3. Failure to deal with separately with item 4 issues. 17In the annexure to their Notice of Appeal the appellants reiterated the basis on which each item of their claim had been made. This included a summary of the evidence on which they relied, the applicable sections of the RT Act and the orders sought in regard to each item of their claim. A copy of the documentary evidence and written submissions that were before the Tribunal at first instance were also attached. This included the evidence and written submissions of the respondent. 18In her Reply, the respondent said she supported the original orders made by the Tribunal at first instance.
Consideration 19As the issues relating to the installation of the rainwater tanks differ to those concerning the alleged 'urgent repairs' it is convenient to deal with these separately.
The rainwater tanks 20As noted in paragraph 14 above, the appellants asserted that prior to entering the residential tenancy agreement, the respondent deliberately misrepresented or concealed the fact that the local council had approved her plans to install a large rainwater tank on the property. This they asserted to be a breach of section 26 of the RT Act and they sought an order for its removal and an order for a reduction in rent, pursuant to sections 43 and 44 of the RT Act, from the time the rainwater tanks were installed and up to the time they were removed. 21As noted in paragraph 15 above, the Tribunal Member in his reasons for decision, dismissed the appellants' claim on the basis that the installation of rainwater tanks were not a 'material fact' falling within subsection 26(1) of the RT Act and the appellants having been given verbal consent to use the entire back yard had overcome the appellants' concern about their social activities being impeded. 22Subsection 26(1) of the RT Act is in the following terms: 26 Disclosure of information to tenants generally (1) False representationsA landlord or landlord's agent must not induce a tenant to enter into a residential tenancy agreement by any statement, representation or promise that the landlord or agent knows to be false, misleading or deceptive or by knowingly concealing a material fact of a kind prescribed by the regulations. 23As noted by the Tribunal Member in his reasons for decision, clause 7 of the Residential Tenancies Regulation 2010 (RT Regulation) sets out those matters which are 'material facts' for the purpose of subsection 26(1) of the Act. It is unnecessary to repeat these as they do not include matters of the kind that is the subject of the appellants' claim in regard to the installation of the rainwater tanks. Accordingly, the findings of the Tribunal Member, in this regard is correct. 24However, in our view, on its proper construction, subsection 26(1) is not limited to matters falling with clause 7 of the RT Regulation. That section is made up of two parts. The first part applies any 'statement, representation or promise' that is made by a landlord or the landlord's agent to induce a tenant to enter into a lease, which the landlord or landlord agent knows to be false, misleading or deceptive. The second part applies where a landlord or the landlord's agent induces a tenant to enter a lease by 'knowingly concealing a material fact prescribed by the regulations' (i.e. those matters set out in clause 7 of the RT Regulation). 25As the appellants did not point assert that they were induced to enter the residential tenancy agreement by a particular statement or representation by the respondent or her agent, which the respondent or her agent knew to be false, misleading or deceptive, we have not considered this aspect of subsection 26(1) any further. For completeness, we note that there was no evidence before the Tribunal at first instance as to when the respondent decided to install the rainwater tanks on the outdoor patio area of the premises occupied by the appellants and not in accordance with the plans approved by the local council. We also note, there was no dispute that at the time the appellants entered into the residential tenancy agreement there was no mention of the rainwater tanks being installed on that section of the property the appellants were to occupy. This fact alone would not constitute a breach of section 26. 26Accordingly, we find that the appellants failed to establish the respondent's alleged breach of section 26. 27As noted above, in his reasons for decision, the Tribunal Member gave no consideration to the appellants' claim for a reduction of rent under section 44 of the RT Act. That claim was based on the rainwater tanks resulting in a 'significant loss of outdoor space' and the 'loss of a bedroom due to the noise.' Instead of considering the material before him and the relevant provisions of the RT Act, the Tribunal Member appears to have approached this aspect of the appellants' claim only on the basis that the respondent's oral offer of allowing the appellants access to the whole of the back yard. That is, despite the appellants' rejection of the oral offer and continuing to press their claim, the Tribunal Member appears to have determined on the claim on the basis that the oral offer provided an appropriate resolution to the dispute. In our view, if this is correct, the Tribunal Member erred in the exercise of his jurisdiction. 28Section 43 of the RT Act relevantly provides: 43 Rent reductions (1) Reduction in goods, services or facilitiesThe tenant may make a written request to the landlord at any time for a reduction in rent if the landlord reduces or withdraws any goods, services or facilities provided with the residential premises, even if those goods, services or facilities are provided under a separate or a previous contract, agreement or arrangement. (2) ... ... (4) Effect of sectionThis section does not limit the rights of landlords and tenants to agree to reduce the rent payable under a residential tenancy agreement. (5) This section is a term of every residential tenancy agreement. 29Section 44 of the RT Act sets out a tenant's remedy for excessive rent. That section relevantly provides: 44 Tenant's remedies for excessive rent (1) Excessive rent ordersThe Tribunal may, on the application of a tenant, make any of the following orders: (a) ..., (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) ... (3) Applications on withdrawal of goods or servicesA 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. (4) Determination of excessive rentFor the purposes of making an order under this section, the Tribunal may declare that amounts payable under a contract, agreement or arrangement under which goods, services or facilities are provided to the tenant are rent. (5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive: (a) the general market level of rents for comparable premises in the locality or a similar locality, (b) the landlord's outgoings under the residential tenancy agreement or proposed agreement, (c) any fittings, appliances or other goods, services or facilities provided with the residential premises, (d) the state of repair of the residential premises, (e) the accommodation and amenities provided in the residential premises, (f) any work done to the residential premises by or on behalf of the tenant, (g) when the last increase occurred, (h) any other matter it considers relevant (other than the income of the tenant or the tenant's ability to afford the rent increase or rent). (6) Effect of excessive rent orderAn order by the Tribunal specifying a maximum amount of rent: (a) has effect for the period (of not more than 12 months) specified by the Tribunal, and (b) binds only the landlord and tenant under the residential tenancy agreement or proposed residential tenancy agreement under which the rent is payable. ... 30There is no dispute about when the rainwater tanks were installed (i.e. on 7 February 2014, two weeks after the appellants took possession of the premises). They were installed by the respondent's workmen on the outdoor patio space against the back wall of the upper level premises occupied by the appellants and directly under the window of the bedroom used by the appellants. The tanks were 2100 mm long, 1800 mm high and 700 mm wide and on the basis of the photographs tendered by the appellants were clearly visible from inside the bedroom. 31As noted above, on 17 February 2014, the appellants first wrote to the respondent seeking a reduction of rent on the basis of the respondent having reduced 'goods, services or facilities' that were provided with the premises occupied by the appellants. In their written submissions, provided to the Tribunal at first instance, the appellants described the effect of the installation of the rainwater tanks as follows: Installation of the rain water tank on the outdoor patio area. The landlord received planning approval for the rain water tank on the 12th November 2013 ... but this information was withheld from us as we were never informed of this planned significant change to the property. If this information had been provided to us in advance we could have made an informed decision on renting the property or not. As communicated to the Managing Agent, one of the big selling points of this property was the outdoor patio space we had as we liked to entertain. Whilst the actual size of space lost to the water tank is only 1.71 sqm the loss to us is much more significant than that. It is unsightly, has removed some of our valuable outdoor space and resulted in is having to keep the BBQ in the flower bed so there is room for the water tank, BBQ, Table and Chairs. The noise from the constant dripping from the inlet water wipe (sic) and the buzz of the water pump has rendered the backroom unfit for use. Tenants are not able to sleep in there while the pump is on and it's raining outside. 32The respondent did not challenge the appellants' evidence in regard to the size and location of the rainwater tanks and the impact they had on the outdoor patio area and the bedroom. However, she did dispute the appellants' assertion about the level of noise from the tanks when it was raining. She asserted that their claim was unreasonable as there is noise everywhere when it is raining. 33In our view, the appellants' photographs show that the rainwater tanks had significant visual and physical impact on the outdoor patio facilities and the bedroom of the premises occupied by the appellants. 34Given the location of the rainwater tanks, we also find that there was no basis not to accept the appellants' evidence about noise within the bedroom from water entering into the tanks. The tanks were empty and were fed from the roof of the premises, through a pipe running against the side of the bedroom window, into the top of the tanks. The fall of the water into the tank would have been considerable and causing a loss of amenity of the bedroom. 35Accordingly, we find that the appellants' did provide sufficient evidence to establish their claim for an order under subsection 44(1)(b) of the RT Act. That is, we find that the appellants have established that, from the time the rainwater tanks were installed by the respondent, the rent payable under their residential tenancy agreement was excessive because the rainwater tanks reduced the their amenity and use of the agreed accessible outdoor patio area and a bedroom of the premises. As we have noted, not long after the rainwater tanks were installed the appellants gave the respondent written notice of their claim for loss and reduction of facilities and requested a reduction of rent in accordance with subsection 43(1) of the RT Act. 36The appellants have sought a 20% reduction in respect of loss of the outdoor facilities and a 5% reduction for noise. 37As noted above, subsection 44(5) of the RT Act does not support a simple percentage approach to determining the extent to which the rent payable is excessive. Consideration is to be given to matters such as comparable rents, the state of repair of the premises, the accommodation and amenities provided and the fittings, appliances and facilities provided with the premises. 38In this regard Ms Leach, the respondent's agent, informed the Appeal Panel that the rent payable by the appellants under the agreement was comparable to other leased premises in the area. That is, it was an appropriate level of rent for premises of the same size and condition. The condition Ms Leach explained was that of premises that had been recently fully renovated. On the basis of our findings that the installation of the rainwater tanks, after the appellants entered into possession of the premises, have reduced the appellants' use and amenity of the agreed outdoor patio and the bedroom, we find that an appropriate reduction in rent is $350.00 per month. That is, the rent payable from 8 February 2014 to the end of the agreement is $3,343.45 per month (i.e. $3,693.45 - $350.00).
(b) the Urgent Repairs 39As noted above, prior to lodging their claim with the Tribunal below, the appellants wrote to the respondent's agent requesting she rectify the 'urgent repairs' specified in their claim. At the time of the hearing the respondent had attended to alleged 'urgent repairs' in relation to the stove, the hall light, the hot water, the pelmet and the wooden flooring. As a consequence, the appellants did not press their application for orders under section 65 of the RT Act that the respondent undertake these repairs. 40However, the appellants' still pressed their claim for an order under subsection 44(1)(b) of the RT Act that the rent payable under the residential tenancy agreement was excessive during the period the respondent took to undertake the alleged 'urgent repairs.' That is, the appellants alleged that during the period the stove, the hall light, the hot water, the pelmet and the wooden flooring were unattended to by the respondent there was a reduction of those particular 'goods, services or facilities' that were provided with the residential premises. 41As noted above, the Tribunal at first instance found that these repairs 'were carried out in a timely manner' after the appellants gave notice of their concerns. The Tribunal appears to have considered the matter in regard to these items no further. 42The appellants contend that the Tribunal's finding that the time taken by the respondent to undertake the repairs was wrong. They contended that given the nature of the requested repairs the time taken to attend to them was unreasonable. 43In our view, the findings of the Tribunal Member in this regard were open to it on the material it had before the Tribunal. In this respect we note the respondent's written submissions before the Tribunal at first instance set out an explanation as to why matters took as long as they did to repair. In some instances, the appellants were unavailable when the relevant serviceman came, or planned to the premises. 44In light of our finding that it was open to the Tribunal Member to make the finding he did in regard to the time taken to undertake the repairs to the stove, the hall light, the hot water, the pelmet and the wooden flooring, we have considered this issue no further. Nor is it necessary for us to consider whether the repairs requested by the appellant were 'urgent repairs' as defined in section 62 of the RT Act. 45However, the question remains as to whether the appellants have established their claim for an order under subsection 44(1)(b) of the RT Act that the rent payable under their residential lease agreement was excessive because of a reduction of 'good, services or facilities' (i.e. the stove, the hall light, the hot water, the pelmet and the wooden flooring) during the time they were not attended to. In support of their claim the appellants largely relied on the assertions as noted in paragraph 14 above. These, in our view, went no further than identifying the matters for which repairs were sought and the time it took for them to be completed. 46In the absence of any evidence as to how the respondent's conduct in attending to the repair of these matters was a 'reduction or withdrawal' of 'goods, services and facilities', the appellants' claim could not succeed. That is, if 'goods, services and facilities' are reduced or withdrawn, a tenant is not thereby instantly entitled to a rent reduction. Factors relevant to determining whether an order for rent reduction should be made includes:
Conclusions and orders 57On the basis of our findings in regard to the respondent's installation of the rainwater tanks, the appropriate order is to allow the appellants' appeal in part, set aside order 2 of the Tribunal at first instance and make an order in substitution thereof that pursuant to subsection 44(1)(b) of the RT Act that the rental payable under the residential tenancy agreement between the parties is excessive and is to be reduced by $350 per month, from the 8th of February 2014 until the end of the agreement, or a period of twelve months, whichever is the earlier. 58As a result of our finding, the appellants have paid around $3,675 in excessive rent from 8 February 2014 up to 24 November 2014, when the last amount of rent was due and payable under the residential lease agreement (10 months x $350 plus 15 days from 8 February to 23 February). However, a final order in this regard should not be made until the parties have had an opportunity to make written submissions as to the correct amount of overpayment by the appellants since 8 February 2014. 59Accordingly, the Appeal Panel ORDERS that:
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
Amendments 12 December 2014 - corrected paragraph numbering Amended paragraphs: 1-59 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: 12 December 2014
Anthony
Mao