Cowling v Tran; Tran v Cowling

Tenants' claim

1. In file number RT 22/13149 filed 25 March 2022 the applicants (tenants) seek the following orders (as amended on 16 June 2022 pursuant to leave sought on 17 May 2022): 1. Pursuant to s 187(1)(c), payment of the sum of $12,283 for withdrawal of 11 amenities and services due to a failure to provide, repair and maintain the Premises up to 16 June 2022 (date of hearing), or in the alternative $10,312 up to 18 May 2022 (date evidence was filed). 2. Pursuant to s 187(1)(d), compensation in the sum of $4,307 for reimbursement for monies spent on repairing the Premises. 3. Pursuant to s 187(1)(f) and/or s 65(5), that future rent be paid into the Tribunal until all repairs are carried out. 4. Pursuant to s 44(1)(b) an order that rent is excessive due to the reduction or withdrawal of goods, services and facilities and that it be reduced by $300 per week. No rental period is specified. 1. Pursuant to s 45, an order reducing rent by $300 per week until all repairs are completed, on grounds the Premises are unusable or uninhabitable. 2. Pursuant to s 65(1)(a) that the landlords carry out repairs. 3. Pursuant to s 115, that a 30-day end of fixed term termination notice issued by the landlord under s 84 of the Act on 2 March 2022 and expiring on 8 April 2022 (Termination Notice) is retaliatory. 4. In the event a termination order is made, the cost of $5,000 in moving fees.
2. The orders for specific performance under s 187(1)(b) and (h), that the managing agent provide the tenants with the contact details for the landlords, are no longer pressed.
3. The claim for reimbursement of $4,307 is made up as follows: 1. Blinds for pool room - $1,500 as per a quote from IMS Blinds dated 24 November 2021. The tenants submitted this was paid in December 2021, but they have not produced an invoice. 2. Blinds for upstairs - $572 as per tax invoices from Bunnings dated 26 November 2021 and 16 October 2021. 3. Pool cue rack and brushes - $84 as per tax invoices from NP Amusements dated 7 January 2022 and 29 December 2021. 4. Fuses - $ 33 (no receipt). 5. High pressure cleaner hire - $77 as per tax invoice from Bunnings dated 13 November 2011. 6. Shelves - $281 - as per three invoices from Bunnings dated 16 and 18 October 2021. 7. Cupboard openers - $40 (no receipt). 8. Pool maintenance (cost of chemicals due to ongoing drainage issue) - $100 (no receipt). 9. Labour charges of the tenants at $40 per hour - $1,520 (38 hours) for cleaning the roof, shed, crawlspace and outdoor entertaining area and cutting shelves. 10. Power point installation - $100 (no receipt).
4. The claim for withdrawal or reduction of amenities for $12,283 as at the date of the hearing (16 June 2022) is based on a failure to repair 11 items set out in the spreadsheet updated as at 18 May 2022 (Appendix 7) as follows: 1. Spa bath motor not repaired - from 11 October 2021 to 16 June 2022 at $50 per week - $1,943 2. Air conditioning - from move in date of 8 October 2021 to date of replacement on 8 November 2021 - 4 weeks at $150 per week - $600 3. Pool solar heating not repaired - from date of request on 15 November 2021 to 16 June 2022 at $50 per week - $1,943 4. Pool drainage inadequately repaired - from date of request on 15 November 2021 to 16 June 2022 at $100 per week - $3,885 5. Pool filter wastewater pipe not repaired - from date of request on 15 November 2021 to 16 June 2022. The pool filter claim is included in item (4) above. 6. Loose and cracked pool and balcony tiles not repaired - from date of request on 15 November 2021 to 16 June 2022 at $20 per week - $717. 7. Loungeroom TV aerial point partially repaired - from date of request on 11 October 2021 to 16 June 2022 at $20 per week - $777. 8. Gutters in the entrance area/above outdoor entertaining area not repaired - from date of request on 15 November 2021 to 16 June 2022 at $50 per week - $1,993. 9. Leak in laundry not repaired - from date of request on 15 November 2021 to 16 June 2022. No amount has been claimed for this item. The tenants said during the hearing that this item had just been noted and the tenants were not aware they could claim it. 10. Gardens and lawns - from date of request on 27 September 2021 (from move in date of 8 October 2021) to date of repair on 1 December 2021 - 8 weeks at $50 per week - $400. 11. Garage remote - from date of request on 11 October 2021 to date of repair on 1 November 2021 - 3 weeks at $25 per week - $75.
5. Of the 11 items: 1. Three have been repaired (air conditioning, gardens and garage remote); and 2. Eight have allegedly not been repaired.
6. Of the eight unrepaired items: 1. Two of the items the landlords say have been repaired, but the tenants dispute the adequacy of repairs (aerial and pool drainage/stormwater). 2. Three items the landlords dispute they have a liability to repair - (spa bath motor, pool solar heating and gutters). 3. One item the landlords acknowledge needs repairing (cracked pool tiles). 4. There appears to be no evidence of repair of one item (pool filter waste water pipe). 5. One item is not part of the claim (water pooling in the laundry).

Landlord's claim

1. In file number RT 22/15789 filed 11 April 2022 the landlords seek a termination order under s 84 and a possession order under ss 95 and 187(1)(i) of the Act.

Background

1. The tenants moved in on 8 October 2021.
2. The Premises were managed by Raine and Horne Seven Hills (Agent).
3. The weekly rent was $1000.00.
4. The Premises are approximately 40 years old.
5. There were five occupants, the tenants and their three children, then aged 13, 15 and 18.

End of fixed term termination notice

1. Section 84 of the Act provides: (1) A landlord may, at any time before the end of the fixed term of a fixed term agreement, give a termination notice for the agreement that is to take effect on or after the end of the fixed term. (2) The termination notice must specify a termination date that is on or after the end of the fixed term and not earlier than 30 days after the day on which the notice is given. (3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.

Retaliatory notice - s 115

1. Section 115(1)(a) provides that the Tribunal may, on the application of a tenant declare that a termination notice has no effect if it is satisfied that a termination notice given by the landlord was a retaliatory notice.
2. Section 115(2) provides that the Tribunal may find that a termination notice is a retaliatory notice if it is satisfied that the landlord was wholly or partly motivated to give the notice 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, the Act, or any other law; (c) an order of the Tribunal was in force in relation to the landlord and tenant.
3. In Steinbeck v McDonald [2015] NSWCATAP 90 at [26], an Appeal Panel of the Tribunal described the exercise of the discretion conferred by s115(1) as a "two-step process". The Tribunal must first determine having regard to the terms of s115(2) if the termination notice is a retaliatory notice. If that is not found the application must be refused and step 2 is not reached. If the termination notice is found to be retaliatory the Tribunal must then consider in its discretion if it ought to declare it of no effect. If it does so, the tenant will not be obliged to give up possession of the premises in accordance with that notice and the landlord will be prevented from making any application to the Tribunal for a termination order on the basis of that notice.
4. A "retaliatory" action means an act of revenge, and in the context of s 115, it bears the additional connotation that it is an unjustifiable or ethically wrong act of revenge that constitutes an abuse by the landlord of the superior title they hold in relation to residential premises. It is a serious matter to find that any person has acted in such a way, and it is therefore not to be found lightly.

Compensation

1. The tenants seek a money order of $16,590 in total.
2. Should the Tribunal be satisfied that the landlords have breached any of the sections of the Act or RTA, it is open to the Tribunal to make a money order or a compensation order under s 187(1)(c) or (d) of the Act.
3. The use of the word 'may' in s 187 indicates that the Tribunal's powers under that section are discretionary.
4. Although s 187 sets out the order-making powers of the Tribunal, such as the payment of money, those powers do not exist in abstract. They are only enlivened when a substantive provision of the Act is engaged, for example, a breach of the RTA.
5. For one of the parties to obtain compensation, they must prove on the balance of probabilities that the other party has breached its obligations under the RTA or under the Act, and that the party's breach caused the damage or loss.
6. No particular section of the Act or clause of the RTA is stated to be relied upon as having been breached as the basis for the compensation claim. However, I consider that the issues in dispute raise the question of whether the landlords have breached ss 63 and 52(1) of the Act.

Jurisdictional limit for compensation

1. The Tribunal cannot award amounts over $15,000: s 187(4)(a) and Regulation 40(b).
2. The tenants have submitted to the jurisdictional level.

Fit for habitation - s 52(1)

1. Section 52(1) provides that a landlord must provide to the tenant at the start of the tenancy the residential premises in a reasonable state of cleanliness and fit for habitation.
2. This term is found in clause 19.1 of the RTA.
3. The Act was amended on 26 March 2020 to define a series of 7 minimum standards of fitness for habitation: s 52(1A). Relevant to this dispute, two of the new standards require the premises to: (a) be structurally sound and (e) have adequate plumbing and drainage.
4. Section 52(1B) deems premises to be structurally sound only if the floors, ceilings, walls, supporting structures (including foundations), doors, windows, roof, stairs, balconies, balustrades and railings - 1. are in a reasonable state of repair, and 2. with respect to the floors, ceilings, walls and supporting structures - are not subject to significant dampness, and 3. with respect to the roof, ceilings and windows - do not allow water penetration into the premises, and 4. are not liable to collapse because they are rotted or otherwise defective.
5. The timing for the performance of the obligation under s 52(1) is the date on which possession of Premises passes from the landlord to the tenant.
6. The duty of habitability is strict; a landlord's ignorance is no excuse.
7. A residential premises is fit for habitation if it is able to be used and dwelt in by a tenant with safety and reasonable comfort having regard to contemporary standards: Menashi v Ly [1997] NSWRT 162. The cases have stated that a finding of uninhabitability is a difficult test to satisfy and should not be found lightly: Bannister v Cheung [2014] NSWCATCD 105 at [20].

Duty to repair and maintain - s 63

1. Section 63(1) requires a landlord to provide and 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 term is found in clause 19.3 of the RTA.
3. Section 63 concerns the condition of the premises at the start of the tenancy, it also concerns the maintenance of the premises throughout the tenancy. Unlike s 52(1) however, both limbs of s 63 are qualified by the concept of "reasonableness" as to the state of repair of the premises.
4. As noted in s 65 of the Act, factors that determine whether a landlord has breached the obligation to maintain premises in reasonable repair include: 1. that the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair: s 65(3A); and 2. whether the landlord failed to act with reasonable diligence to have the repair carried out: s 65(3)(b).
5. A landlord who is put on notice of a potential defect in the state of repair of an item at the premises is under a duty to investigate the defect and, if it is found to require repairs to return the item to a reasonable state, to undertake that work with all due despatch.
6. A landlord's financial situation is no defence to a failure to carry out required repairs.
7. In considering these repairs, as envisaged by s 63(1), I have had regard to the fact the Premises are some 40 years old and given the amount spent on repairs an occupant's expectations cannot be unduly unreasonable.
8. Should the Tribunal be satisfied that the landlord has breached s 63, it is open to the Tribunal to both make an order for repair and award damages.

Rent abatement/order for repayment of excessive rent - ss 43/45

1. The tenant has applied for an order under s 45.
2. Pursuant to s 45(2)(a) of the Act, the Tribunal may make an order that from a specified day, the rent is not to exceed a specified amount in circumstances in which the rent is abated under s 43(2) of the Act. Under s 45(2)(b) the Tribunal may also order that the landlord must repay to the tenant any rent paid since the specified day that is in excess of the specified amount.
3. Section 43(2) provides that the rent abates if residential premises are destroyed or become wholly or partly uninhabitable otherwise than as a result of a breach of an agreement: s 43(2)(a).
4. A tenant's remedy lies elsewhere if the premises have been rendered wholly or partly uninhabitable because of a breach of the agreement by the landlord.
5. There is no limit on the period that an order under s 45 may last. The order may therefore operate for so long as the premises remain wholly or partly unfit for habitation under s 43(2). Once the rent has abated it continues to abate until such time as it is repaired (or vacant possession is given).

Withdrawal of goods, services and facilities - s 44(1)(b)

1. Separately to ss 43/45, s 44 allows the Tribunal to make an order reducing the rent if the landlord has reduced or withdrawn the goods, services or facilities that were provided with the premises.
2. The section is directed toward a withdrawal or reduction in the physical state of the property by an act of the landlord.
3. Some of the problems complained of by the tenants have existed from the beginning of the tenancy. Section 44 does not apply to those repairs as that section concerns reductions or withdrawals of services or facilities i.e., something less than existed at the commencement of the tenancy. They might however be caught by s 63(1), subject to time limitations.
4. The most common case in which a reduction or withdrawal of service or facility by the landlord occurs is where the landlord fails to carry out repairs to services or facilities which has an adverse effect on the tenant's amenity in using the premises. Therefore the factual scenario quite often involves a breach.
5. Therefore, subject to time limits, it is possible for a tenant to seek orders both for reduction of rent and for compensation. Should the Tribunal be satisfied that the landlord has breached s 63, and that the rent payable is excessive under s44(1)(b), it is open to the Tribunal to make an order for repair and award damages and award a rent reduction. However, there should be no double dip and the period for which rent is reduced should not overlap with a period in respect of which compensation has been awarded: Bridgford v Brien [2017] NSWCATAP 111 at [38].
6. The general amenity of residential premises constitutes a facility provided with the premises: Bulmash v Webster [2016] NSWCATCD 23 (3 March 2016) at [52]. This is recognised in subsection 44(5)(e) of the Act.
7. In determining whether rent is excessive, as specified in s 44(5) of the Act the Tribunal may have regard to the following factors: (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, … (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)

Retaliatory

1. Section 115(3) provides that the tenant may make such an application to the Tribunal before the termination date (which is 8 April 2022) and within the period prescribed by the Residential Tenancies Regulations (NSW) (2019) after the termination notice is given to the tenant. Regulation 39(4)(b) states it must be within 14 days of a termination notice (other than a s 85 notice) being given. The Agent gave the Termination Notice to the tenants on 2 March 2022 and the tenants' application was made to the Tribunal on 25 March 2022.
2. The application is out of time by nine days and should not be allowed.
3. The parties have not raised the question of time and the tenants have not asked for an extension of time, which can be granted under s 41 of the Civil and Administrative Tribunal Act (NSW) 2013 (NCAT Act).

Extension of time

1. Section 41 allows the Tribunal to extend time of its own motion, dispensing with the requirement for written notice.
2. The delay in this matter is relatively short. Whilst no reason is given as to why the proceedings were not brought earlier, the Tribunal accepts that the tenants were not represented and may have been unaware of the time limit. This does not in itself excuse the delay. However I am prepared to extend time, because I am satisfied that the landlords will not suffer any prejudice as a result of the delay, whereas, if the extension is not granted, the tenants' claim is barred.

Breach

1. Claims in relation to breach must be brought within three months of the tenant becoming aware of the breach: s 190 and regulation 39(9).
2. I find that the three of the eleven repairs that have been completed, namely the gardens, air conditioning and garage remote, are out of time as they were each repaired before 25 December 2021.
3. Again, no extension of time was sought. I have disallowed compensation for those claims that I have determined to have been made outside the three-month timeframe. I will not extend time in this instance as these three items may constitute a withdrawal or reduction in goods, services and facilities, such that they fall into s 44(1)(b). I discuss this below.
4. I find the compensation claims relating to six of the eight other items that the tenant alleges have not been repaired to be continuing breaches and within time. In relation to the remaining two claims of inadequate repairs (aerial and drainage), I find for reasons given below the tenants have not proven the aerial was not adequately repaired on 1 December 2021. This claim is therefore out of time. I find for reasons given below that the drainage is a continuing breach. I have dealt with each of these eight items at paragraphs 156 to 174 below.

Excessive rent - ss 43, 44 & 45

1. Claims under s 44(1)(b) must be brought prior to the end of the tenancy. There is no specific time frame within which such a claim must be brought. A claim can constitute up to 12 months of excessive rent: s 44(6)(a). The claim by the tenants for a $300 rent reduction is within time.
2. Applications under s 45 for excessive rent orders must be filed within 28 days of the tenant becoming aware of her entitlement to make the claim: rule 23(3)(b) Civil and Administrative Tribunal Rules 2014 (NSW). There is no limit on the period that an order under s 45 may last. The order may therefore operate for so long as the premises remain wholly or partly unfit for habitation under s 43(2). Once the rent has abated it continues to abate until such time as it is repaired (or vacant possession is given).
3. Given the issues arose earlier than 28 days prior to 25 March 2022, the claim under s 45 for a $300 rent reduction is out of time.
4. In any event, for reasons given at paragraphs 178-179 below, I have found s 45/43 does not apply.

Procedural

1. The tenants relied on documents filed 8 April 2022 and 17 May 2022 (marked exhibits T1 and T2) and their oral evidence.
2. The landlords relied on documents filed 29 April 2022 (206 pages), which I have marked exhibit L1 and the oral evidence of Mr Callan Root of the Agent's office.
3. The hearing was conducted by telephone in light of the Covid restrictions.

Tenants' evidence and submissions

1. In August 2021, the landlords purchased the Premises, a couple of months prior to the tenants moving in.
2. The tenants submit there was an immediate conflict of interest as Mr Adrian Root, the leasing agent for the Premises from the Agent's office had sold the Premises to the current owners. The Agent sold the landlords a "lemon" and did not disclose all of the problems to them. "By drip feeding the issues to the landlords, they made it look as though we (the tenants) are forever asking for additional repairs."
3. The tenants were "set up" from the outset by a "bad agent making a money grab with complete disregard for the stability and wellbeing of [their] family".
4. On 24 September 2021, they made an application to rent the Premises and had an inspection. They "loved the house", but it was only a "fast ten-minute inspection" and they did not pick up on many issues. They noted on their application that "it seems the air con needs servicing". Adrian Root agreed to carry out a general clean, to rectify the lawns and gardens and fix the air conditioner prior to any tenants moving in.
5. On 28 September 2021, they signed the RTA for six months.
6. They were looking for a longer tenancy than six months. They only signed a six -month lease as Adrian Root informed them that it was the Agent's policy to start with a six-month lease, but that the owners were looking for a long-term tenancy.
7. On or about 8 October 2021, the Agent gave them a copy of the Ingoing Report which had been signed by the Agent on 6 October 2021. The Agent had not noted any issues in the report. On or about 11 October 2021, the tenants returned the ingoing condition report (dated 15 October 2021) and noted multiple issues in the report, including relevant to the 11 items in this claim the following: 1. Drainage around pool/entertainment area poor 2. Leak from unknown source in laundry 3. Lounge room TV aerial point not working 4. Garden was in a "disgraceful condition" hazardous overgrowth in the rear yard, unmown and full of weeds. 5. Pool tiles cracked, steps loose to pool area 6. No power in garage so remote cannot be used 7. Vines interfering with downpipes 8. Air conditioner needed repairing 9. Pool vacuum not working 10. No plug in the ensuite spa bath
8. The Agent expressly stated in the ingoing report the air conditioner would be repaired.
9. The same day, on 11 October 2021, the tenants sent a separate email to Adrian Root as they could not fit all their concerns in the body of the ingoing report. They reiterated each of the above issues and many more, plus noted they had been unable to test the spa bath as there was no plug. It seemed the landlords had removed the power cord.
10. Each of the above issues have formed part of their compensation claim. Many other issues noted in the ingoing report have not formed part of their claim, such as broken dishwasher and shed full of rubbish (they have claimed labour costs to clear the shed).
11. They rely on 11 photos they took on 8 October 2021 which, relevant to the claim, show the pool to be green and the garden overgrown.
12. Despite all the issues at the start of the tenancy, they were prepared to work with the Agent to spread out the cost of repairs as they understood there was a lot to be done. They paid 10 weeks rental up front to help with the required repairs.
13. Soon after moving in, they were introduced to their new property manager, Mr Cameron Gough, who was inexperienced, but "great" and arranged many repairs they requested. Mr Callum Root, who gave evidence at the hearing, was not privy to the many conversations they had with Mr Gough.
14. On 15 and 18 October 2021, they reported two leaks, one from the upstairs (main) bathroom to the ensuite bathroom below (which the tenants believed was due to overflowing gutters) and the other from the ensuite spa bath into the laundry ceiling below. They raised again that the spa did not function.
15. On 22 October, Mr Gough arranged for MR Plumbing to inspect the leaks, who determined further works were required and advised the roof and gutters should be cleaned.
16. On 25 October, the tenant arranged for Poolwerx to quote to clean the pool and fix the pool vacuum and look at the heating and regular maintenance. The tenants reported to Mr Gough the same day that the Poolwerx contactor had told them the pool waste water was illegally flowing into the storm water and not the sewer and the heater control unit had error messages. Mr Gough arranged for another pool supply company, Swimart to give a quote. Mr Gough wrote to Swimart: "Understand the last point regarding the outlet of waste water may need to be addressed at a later time as it quite some work. Maybe discuss with them ongoing maintenance?"
17. On 27 October, Mr Gough arranged a plumber to replace the hot water relief valve which the tenants believed was causing water pooling in the laundry. However, the tenants say the leak persisted.
18. On 27 October, the lawns were mowed.
19. On 1 November the power outlet in the garage was fixed so the remote could function.
20. On 8 November 2021, the air conditioner was replaced.
21. On 15 November 2021, the tenants sent an email to Mr Gough (T2, p 14) raising a new issue, namely the non-functioning solar pool heating. The pool solar heating has never worked and does not work today. They dispute that no one was aware of solar panels at the start of the tenancy. They submit it is a feature of the Premises that was not excluded in the RTA and should be in working order. Shortly after this email, they say they had a conversation with Mr Gough who said the owners wished to defer repairs to the solar heating (and pool lights) to after the financial year and the tenants agreed.
22. In the 15 November email, they also chased up the arial, the bath leak and advised the bath had been unusable from the start of the tenancy. They also reported only some of the lawns had been mowed and gardening had occurred and the rear corner remained overgrown and was a pest issue.
23. Around 19 November 2021, Swimart inspected the pool and quoted to carry out repairs and to supply and install a new pool cleaner/vacuum.
24. On 1 December 2021, the Agent arranged for an electrician to attend to fix the aerial. He restored two of the aerial points in other rooms, but only two channels can be obtained on the lounge TV, where they spend most of their time. The lounge ariel remains non-functioning.
25. On 1 December 2021, the pool was cleaned and the pool vacuum replaced by Swimart.
26. On 6 December 2021 the tenants gave Mr Gough a list of some 35 repair items (pp 192-193 L1). Relevant to the present application were two repairs, firstly, the leaking gutters into the outdoor entertainment area and secondly the spa motor. The non-functioning spa had been raised in the Agent's work order of 15 October 2021.
27. A further issue of a "water leak through tiles in the laundry" was raised in the 6 December list.
28. The pool drainage/storm water and pool filter issues were raised again on 6 December. The pool filter is still broken and pool waste water, which is supposed to go to the sewer, is going to the storm water or back into the pool, which the tenants submit is illegal. They have only used the pool about 5 times in the eight months they have been there.
29. There is still inadequate drainage in the adjoining yard which causes dirt to drain into the pool. Whilst the Agent states that a drainage system was installed on 11 March 2022 along with stormwater repairs, the tenant disputes the adequacy of the repairs and says that the new drain has no effect on the problem area and says that mud continues to flow into the pool when it rains.
30. The tenants say that the gutters above the outdoor entertainment area are leaking and flooding the covered area. They dispute the Agent's explanation that it is due to excessive weather events.
31. In the 6 December 2021 list, they raised the spa bath leak again and raised for the first time that the spa motor needed replacing. The tenants also chased up matters raised in the ingoing report (loose tiles) and matters raised in their email of 15 November (the solar pool heating).
32. On 7 December 2021, the rest of the gardening work, including mowing and weeding was finished (p 10 T2).
33. On 31 January 2022, the leak from the spa bath was fixed, but large holes have been left in the laundry ceiling, despite the recommendation from the plumber at the time that it be filled and made good. The spa motor has never been repaired.
34. As to other issues still not repaired:
35. The loose tiles around the pool created a safety issue and have still not been fixed.
36. Water pooling in the laundry continues on a daily basis.
37. On 1 March 2022, Michelle Cowling called Mr Gough to follow up on the drainage and guttering issues as the pool was green and the entertainment area had flooded after heavy rainfall.
38. The next day, they received the Termination Notice.
39. Although they are only claiming repairs and compensation for the items in the spreadsheet, there were many more repairs, both noted in the ingoing report and leaks that arose during the tenancy that are not part of the claim. For instance, on 5 April 2022, they discovered a ceiling leak from the light fitting on the stairwell. It was not raining at the time. Mr Cowling went into the roof cavity to investigate. He noticed the gyprock was soaked. He slipped and fell on a beam and the roof caved in and he suffered an injury to his leg and was off work for 10 days and he still requires ongoing treatment.
40. The Agent arranged for the original air conditioner installer to investigate, who determined that the leak was caused by the overflow from the air conditioning being blocked at the gutters, causing water to flow back on to the roof. The tenant submits that the Agent was on notice of the blocked gutters when MR Plumbing had attended to inspect the bath leak into the laundry on 22 October 2021 and determined: "we would recommend getting a professional roof cleaning company to clean the roof and gutter as a form of preventative maintenance."
41. They still have a "gaping" hole in the roof which allows in dust from the roof and for heating and cooling to escape, adding to the cost of running the air conditioner.
42. On 21 April 2022, they sent a follow up email to Mr Gough listing 24 repairs. They also reported other leaks that had presented in heavy rain in the ensuite, main bedroom and the office doorway.
43. They carried out their own repairs and spent money and time on cleaning as a gesture of good will, such as building cupboards and shelves, high pressure cleaning hire and pool chemicals. They were happy to spend their own time and money as they viewed the Premises as their long-term home. However, they were not happy to be "used" to get the Premises "into an immaculate state". They spent many hours and time off work waiting for tradesman to arrive.
44. They rely on an email from Cory Felton dated 11 May 2021, a previous tenant for 12 months to May 2021. Mr Felton spoke of multiple issues during his tenancy, such as leaks, leaking gutters, broken air conditioner, broken dishwasher.
45. They also rely on an email from Lucia van Gerwen, a previous tenant in 2014 - 2015 who spoke of the Agents being crooks.
46. They rely on Google and Facebook reviews of the Agent as evidence that the Agent "regularly withheld bond monies".
47. They engaged a private investigator who obtained a phone number for the landlords as the Agent would not provide them with a number. On 27 April 2022, they contacted Ms Le, one of the owners direct, who told them that she had never asked the Agent to issue a termination notice, but that the Agent had taken it upon themselves to issue a notice because the tenants "complained too much". Ms Le said she did not intend on moving back into the Premises.
48. They have found out the owner is an "elderly woman" and her partner lives overseas. They say it is "preposterous that a single elderly woman would move in to a large six-bedroom house." The landlords own many other properties. They submit the Agents have bullied Ms Le into making her signed statement or "convinced her to lie".
49. They do not want to leave. They love the neighbourhood. It is a great house and their children have made friends with other children in the street.
50. "The tenants submit the Agent and not the landlords want to evict them "as punishment for simply bringing issue to their attention. The reason they want us out of the house is so that they can pull this scam on some other unsuspecting victim."
51. They have been exceptional tenants and always paid rent on time.
52. They have been looking for other properties and have attended several open house inspections without success. The process is slow as there is a lack of supply and their requirements are unique.

Landlord's evidence and submissions

1. There was a lot of interest in the property.
2. The landlords dispute that the tenants paid 12 weeks rental payment up front to help with repairs. Their covering letter submitted with their rental application dated 24 September 2021 states: "If it would help our [rental] application, we are willing to offer 12 weeks rental payment up front (Plus the bond)".
3. They rely on a signed statement from one of the owners, Ms Le (L1, p 98) who states that she requested the Agent on 2 March 2022 to issue the "end of fixed term no grounds termination" notice. Ms Le attests that an inquiry agency passed on her mobile number without her consent to the tenants and she is not comfortable with this. She does not wish to be contacted directly by the tenants. Mr Root offered to pass on any correspondence from the tenants to the owners.
4. The Agent submits that the landlords would like vacant possession so they can complete necessary repairs.
5. The landlords dispute that they have failed to maintain the Premises. They have tendered tax invoices as proof they have spent $17,813 on repairs during this tenancy, including pool repairs for $725.65, air conditioner replacement for $7,942, storm water and drainage repairs for $1,538.94, repairs to spa bath for $1,540 and a new antenna for $385.00.
6. The spa bath motor complaint relates to the bubble function. This function had been decommissioned prior to the tenancy. The landlords did not approve this repair. The Agent arranged to have a bath tub leak repaired on 31 January 2022 that had been reported on 6 December 2021 and since 31 January 2022 the bath has functioned. Mr Root submits the 5% reduction sought is excessive.
7. In relation to the air conditioner, the Agent concedes that the landlords agreed to fix this and all attempts were made to have it fixed. It has been completely replaced on 8 November 2021 and some issues with zones were reported on 19 November 2021 and rectified on 29 November 2021. The landlords have offered $50 per week (5%) for four weeks from when the tenants moved in on 8 October 2021 to 8 November 2021.
8. In relation to the pool heating, this function had been decommissioned prior to the tenancy. Neither the Agent nor the landlords were aware that there was a solar heating system on the roof. It was first reported in an email on 6 December 2021. The landlords have not approved the repairs. The Agent submits that there has been no withdrawal or reduction of service as the tenants took the property without his function.
9. 131 In relation to the yard drainage, the tenant reported on 6 December 2021 dirt and water running into the pool. The landlord submits this occurs on occasion and is caused by the heavy downfalls and is not the fault of the landlord. A new drainage system was installed on 11 March 2022.
10. 132 The TV aerial was replaced on 1 December 2021 after faulty reception was reported on 11 October 2021. Both antenna ports operate as they should and it is likely that the tenants' equipment is faulty. The landlords dispute there should be any rent reduction.
11. 133 The Agent concedes there are a number of pool tiles that need fixing and they have attempted to have a handyman spot tile, but retiling the entire area is required. The Agent disputes there is any loss of service or use and no rent reduction is justified.
12. As to the gutters, the extreme rainfall in Sydney at the start of the year has led to the gutters becoming fuller, but they operate correctly.
13. The gardens and lawns were attended to on 27 October 2021 and 7 December 2021, which was as soon as weather permitted.
14. No claim for the laundry has been made.
15. As to the claim for reimbursement of expenses, the repairs carried out by the tenants were not authorised. They were not urgent. The tenants caried them out voluntarily and are now seeking to reclaim them some five months later. The correspondence indicates the landlords did not agree to paying for blinds, but allowed the tenants to install them and take them when they left. The labour component of the reimbursement claim for unapproved works is not justified.
16. They have attempted to find an alternative property for the tenants to move into.

Is the end of fixed term Termination Notice retaliatory?

1. I am satisfied that the circumstances contemplated by s 115(2)(a) or (c) are not engaged. As at 2 March 2022, the tenant had not applied or proposed to apply to the Tribunal for an order nor was there an order of the Tribunal in force in relation to the landlords and tenants.
2. The tenants' case seems to be that they fall under s 115(2)(b); they submit their request for repairs was an action taken to enforce their rights under the RTA and the Act and the landlords' response was a "retaliatory" termination notice.
3. I accept that the tenants were taking an action under the RTA, however I am not satisfied that the Termination Notice issued by the landlords is an act of revenge. This is not to say that the tenants' complaints concerning repairs are unreasonable as I have found in these proceedings by awarding compensation (see my findings below). But I do not find that the landlords are motivated by a desire to avoid these complaints or avoid a liability to the tenants under the Act in seeking termination of the tenancy, as the landlords have done multiple repairs at the tenants' request and have spent a large amount of money, nearly $18,000, on repairs during the tenancy.
4. I accept the evidence of Mr Root that the landlords wish to retain their property to carry out and complete repairs and I also accept the evidence of Ms Le that she authorised the termination notice and was not bullied into it, as the tenants submit.
5. Conversely, much of the evidence the tenants have produced concerning the Agent's behaviour is hearsay. The tenants have cut and pasted into their submissions 18 adverse quotes from alleged undated Google and Facebook nameless reviewers about the Agents, without including the original review. They have included some bad Google reviews from tenants, one of whom dealt with the Agent eight years ago. I have not given much weight to this hearsay evidence. In any event, I do not consider the opinions of third parties to be relevant to this claim as such opinions could be motivated by any number of factors.
6. Further, I would decline to use my discretion to declare that the Termination Notice has no effect for the following reasons: 1. A landlord in NSW can give a fixed term notice any time before the end of the fixed term tenancy agreement. They do not have to have a reason to give an end of fixed term notice. But in any event, I accept that the landlords wish to retain their property and carry out repairs and seek to exercise their right of superior title. 2. There is no evidence to corroborate the assertions of the tenants that the Agent gave them verbal assurances at the start of the tenancy that the landlords would renew the lease at the end of the six months. 3. Many of the tenants' allegations relate to the conduct of the Agent. However, the tenants are in a contract with the landlords not the Agent, and it is this contract the landlords wish to end. One of the landlords claims the tenants are harassing her by telephoning her directly. A landlord should be able to engage a managing agent to deal with tenants if a landlord chooses to, without interference by a tenant. 4. I consider that the relationship between the tenants and the Agent/landlords has broken down. The tenants claim the Agents have engaged in "deceptive practices" and a "calculated attack on their family". The landlords do not wish to be in a lease with these tenants anymore and it is appropriate that it comes to an end.

Termination

1. Since I have found that the Termination Notice is not retaliatory, I am mandated to terminate the tenancy agreement: s 84(3).
2. The tenants do not dispute service, but say they did not receive a copy via the mail. The notice was served by email and the tenants expressly consented to electronic service when they signed the RTA and 37 days' notice was given. I find the Notice to be valid.
3. I make a termination order accordingly.
4. I have a discretion under s 114 to suspend the possession order. I have considered that the tenants have been on notice since 2 March 2022, which is some five months and well over the required 30 days. I accept that they have been looking for a property and the Agents have been assisting, but the tenants say they have unique needs and there is not a huge supply. I have taken this into account and the fact that the tenants have three school/university aged children. I suspend possession for four weeks from the date of these reasons.

Section 52(1)

1. Of the various issues mentioned in the ingoing report, I do not consider them to have rendered the Premises partly or wholly uninhabitable at the start of the tenancy within the meaning of s 52(1).
2. The problem for the tenants is that the evidence they rely upon is based wholly on assertions they make in their written submissions and email correspondence with the Agent and some photos. The making of those assertions does not establish the existence of the underlying problem(s). Those problems must be established by other means, such as expert evidence, but many have not been established on reliable evidence in this case.
3. The tenants have not obtained a building report to support the assertion the Premises are structurally unsound or had inadequate drainage at the start of the tenancy. The drainage issue which was reported during the tenancy relates more to the dirt flying into the pool after rainfall. There is no expert evidence that the recent leak from above the stairwell reported on 5 July is due to blocked gutters as then tenants assert, or to any structural issue.
4. The cut and pasted text of an alleged conversation the tenants had on an unknown date with an unnamed contractor who made alleged negative comments concerning the state of repair of the Premises is hearsay. Similarly, the cut and pasting of an undated text message the tenants say they received from a previous tenant and builder, Mr Everett as to the state of disrepair (whose date of tenancy is unknown) is also hearsay.

Section 63

1. For the reasons given below, I find there has been a failure by the landlord to both provide and maintain the Premises in a reasonable state of repair during the tenancy and I find the landlords have not acted with due diligence to make repairs, amounting to a breach of s 63.

Work orders

1. Given I have found a breach of s 63(1), I am able to make work orders under 65(1)(a).
2. However, given I have terminated the tenancy, it would be futile to make work orders.

Compensation for repair items - s 187(1)(d)

1. I have already determined to be out of time the three completed repair items, namely the gardens, air conditioning and garage remote. Notwithstanding, the landlord has offered $50 per week for four weeks for the air conditioning instead of the $150 per week for four weeks claimed by the tenants. I will allow $200.
2. In relation to the eight alleged outstanding repairs, I have allowed six of those repairs.
3. I have allowed compensation based on rent reductions over the respective periods from the date of complaint to the date of the hearing (16 June 2022). In their spreadsheet, the tenants have applied a blanket 35.85 week (35 weeks 6 days) period from 11 October 2021 to 16 June 2022. However, whilst some issues were reported at the start, other issues were reported at different times. Thus, the 35.85 week time frame is required to be adjusted accordingly.

Pool

1. I accept that the three pool issues (plus cleaning) were not addressed either at all, or in a timely manner. The tenants' photos dated 8 October 2021 show the pool to be green and caked in dirt. I accept that the tenants have had minimal use of the pool, a highly valued facility for most of the tenancy, including over the summer months.
2. The broken pool vacuum was raised in the ingoing report and the email of 11 October 2021. The pool was not cleaned until 1 December 2021, a delay of more than 7 weeks, which I find unreasonable. The tenants have spent money on chemicals. I am inclined to allow an extension of time as it is only out of time by some 3 weeks and it is one component of various pool complaints which are ongoing and interlinked.
3. The stormwater issue was raised by Poolwerx on 25 October 2021 and the tenants told the Agent the same day and Mr Gough raised a work order to Swimart. The issue was again raised in the 6 December list of repairs. The drainage was installed on 11 March 2022, which the tenants say is inadequate. Although related to the yard/pool drainage, there is no evidence the pool filter wastewater pipe has ever been actioned for repair.
4. On 25 October 2021, the tenants advised the Agent of the faulty pool heater control unit which had been identified by Poolwerx. The solar heating panels were raised in the email of 15 November. The tenants maintain the landlords deferred these repairs for seemingly financial reasons. The Agent says the solar function had been decommissioned, it was not working at the start of the tenancy, no one knew about it, it is not a facility that has been withdrawn or that the landlord has failed to repair. Whilst it may be that the decommissioned pool heating does not constitute a facility that has been withdrawn or reduced from the start of this tenancy within the meaning of s 44(1)(b), a landlord is still under a duty to repair and maintain such facilities to a reasonable standard during the tenancy under s 63 and I find they have failed to do so. This is a continuing breach and whilst the tenants may have agreed to a temporary deferral, impecuniosity is not a defence to the s 63 obligation.
5. For all the pool issues, the tenants have claimed $150 from 15 November 2021 to the hearing date.
6. I have determined that compensation should be awarded at $100 per week from the move in date of 8 June 2021 to 16 June 2022 (35 weeks, 6 days), being $3,585.00.

Gutters

1. The leaking gutters above the entertainment area were raised on 6 December 2021. A related issue of poor drainage around the pool entertainment area had been raised in the ingoing report, as was the issue with vines interfering with the downpipe. I do not accept that the landlords' duty to maintain and clear the gutters is abrogated because of heavy rainfall. The landlords could (and should) have arranged a gutter clean. I find this to be a breach of s 63.
2. I allow compensation of $20 per week from 6 December 2021 to 16 June 2022 (27 weeks and 3 days), being $548.40.

Bath leak/spa bath

1. I accept that there was a leak from the bath which was reported on 15 October 2021 (not on 6 December 2021 as Mr Root asserts) which continued up to 31 January 2022, when a plumber attended to fix it. I consider this three-and-a-half-month delay to be unreasonable. The laundry roof still has holes in it that from the plumber's repairs. The plumber recommended on 31 January 2022 that the holes be made good. This has still not occurred, over six months later.
2. The missing spa plug was raised in the ingoing report, the faulty spa was raised when the bath leak was reported on 15 October 2021 and the faulty spa motor was specifically raised on 6 December 2021. Whist it appears that the spa had been decommissioned prior to the tenancy, the Agent's work order to MR Plumbing of 15 October requested an assessment of the workability of the spa. Thereafter, there was no resolution. The Agent says this repair was ultimately not approved by the landlords.
3. The Premises were advertised as having a spa bath. I consider the failure to provide a functioning spa bath and to thereafter fail to repair the motor upon receiving notice, constitutes a breach of the duty to reasonably maintain this amenity. I accept the evidence of the tenant that it is still not functioning.
4. I award compensation of $50 per week from the move in date of 8 October 2021 to 16 June 2022 (35 weeks and 6 days), being $1,792.50.

Aerial

1. The aerial was reported on 11 October 2021 and an electrician attended on 1 December 2021. I accept that this 6-week delay to amount to a breach of s 63. However, I do not consider this to be a continuing breach as I am not satisfied the tenants have proven further repairs are required in the absence of the tenants eliminating the possibility the poor reception is caused by their faulty equipment. The claim should have been brought by 11 January 2022 and is therefore out of time.

Tiles

1. I allow the claim for the tiles. I accept that loose tiles around a pool edge are a safety issue. In their spreadsheet, the tenants have claimed a reduction from 15 November 2021, when this issue was in fact raised earlier, in the condition report. I will allow the reduction sought of $20 from the move in date of 8 October 2021 to 16 June 2022 (35 weeks and 6 days), which is $717.00.

Laundry water pooling (new issue)

1. I disallow the claim for the laundry as this was not part of the original claim for $12,283. It is not entirely clear but this floor leak appears to be unrelated to the "unidentified" laundry leak in the ingoing report or the leak in the laundry ceiling from the spa bath in the bathroom above, which was reported on 15-18 October 2021 and fixed on 31 January 2022.

Summary - compensation awarded for breach of s 63

1. In the circumstances I allow the following: 1. $200 for air conditioning (based on landlords' admission). 2. $1,792.50 for spa motor/bath leak - $50 per week (5%) from 8 October 2021 to 16 June 2022 (35 weeks and 6 days). 3. $3,585 for pool filter, pool/yard drainage, solar heating and cleaning - $100 per week (10%) from 8 October 2021 to 16 June 2022 (35 weeks, 6 days). 4. $717 for loose pool tiles - $20 per week (2%) from 8 October 2021 to 16 June 2022 (35 weeks and 6 days). 5. $548.40 for gutters - $50 per week (5%) from 6 December 2021 to 16 June 2022 (27 weeks and 3 days). Total: $6,842.90

Compensation for out of pockets repairs - reimbursement

1. I disallow the claim for reimbursement as the receipts (to the extent they have been provided) indicate the costs (and labour) were incurred more than three months prior to the commencement of these proceedings on 25 March 2022, i.e. before 25 December 2021 and are out of time.
2. Items such as shelving, blinds and pool table accessories are not urgent repairs within the definition of s 62.

Compensation for future moving costs

1. I disallow the claim for $5,000 for moving costs. This is a cost that the tenant would have been required to pay in any event. There is no evidence of any loss incurred and I disallow it.

Rent abatement - ss 43/45

1. The tenants seek an order that rent be reduced by $300 per week until all repairs are completed, on grounds the Premises are unusable or uninhabitable. I have already found this claim is out of time.
2. Notwithstanding, based on all of the evidence, I do not find the Premises have become partly uninhabitable since the start of the tenancy. And to the extent they have, I find it was caused by the landlords' failure to maintain the Premises under s 63, so s 45 cannot apply.

Is the rent excessive? - s 44(1)(b)

1. The tenants seek an order that rent is excessive under s 44(1)(b) and that it be reduced by $300 per week.
2. No date period is specified.

Retrospective reduction

1. The issues that have been repaired in the tenants' spreadsheet that I have disallowed for being out of time (gardens, aerial, remote) existed from the beginning of the tenancy. Section 44 does not apply to those repairs as that section concerns reductions or withdrawals of services or facilities i.e., something less than existed at the commencement of the tenancy. I would disallow a rent reduction for these items on this basis.
2. On the above reasoning, s 44(1)(b) would also not apply to the pool, gutters, spa and tiles, which also existed at the start. In any event, I find that the tenant has been sufficiently compensated by damages up to 16 June 2022 for the continuing breaches relating to the pool, gutters, spa and tiles and there would be an overlap if I was to award the repayment of excessive rent.

Future rent/occupation fee

1. In relation to the period from 17 June 2022, I am prepared to allow a reduction in rent to take into account that the pool, spa, gutters and tiles remain broken and have not been fixed. The pool and spa are features which are highly valued by the tenants and the tile and gutters are amenities that have been reduced. I accept that the rent over the period of the tenancy is excessive.
2. I consider $300 reduction the tenants seek to be excessive. I will reduce the rent by $150 per week from the day after the hearing (17 June 2022) until the termination date of 8 August 2022. From 9 August 2022, I have also adjusted the daily occupation fee in my orders accordingly.

Rent paid into Tribunal

1. Given I have made no repair orders, I make no orders under ss 187(1)(f) or 65(5).

            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

Amendments 03 October 2023 - Formatting amendments. 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: 03 October 2023