GLM Developments Pty Ltd v Amouri [2025] NSWCATCD 79;

1. As it was common ground that there was no special condition extending liability for damage to common property of the owners corporation to a tenant under the residential tenancy agreement the preliminary issue for determination is whether a tenant can be so liable.

1. The relationship between tenant and landlord arises upon their entry into a residential tenancy agreement. The parties enjoy the benefits and obligations granted under that contract and by the Act.
2. I only have jurisdiction to determine the matter pursuant to the Act and the contractual tenancy agreement.
3. The tenancy agreement indicated the residential premises included one car space and a storage cage. These were within a parking area for such spaces for all unit holders. This space was accessed by the roller door in question and the entry space to each garage and the entry door was common property.
4. Under clause 16.4 of the agreement the tenant undertook to not "intentionally cause or permit any damage to the residential premises".
5. The agreement contained 'Special Conditions and Terms'. At clause 7.1 for "Outdoor Area Maintenance" the tenant is responsible for maintaining outdoor areas, including lawns, gardens, and swimming pools, as applicable.
6. However, clauses 76 and 77 of 'Additional terms' relating to gardens and swimming pool had been crossed out to be not included in the premises under the agreement.
7. Furthermore, at Clause 83 of 'Additional Terms' the tenant acknowledged:

The tenant acknowledges and agrees that in any event the property includes the use of a garage or car space, said space is provided for the sole purpose of parking a motor vehicle and not for the storage of personal goods and belongings. In the event that the tenant places the goods in this area, the landlord makes no warranty as to the security and / or waterproofing of the area and accepts no responsibility for any damage or theft that may occur to these goods.

1. At clause 84 of 'Additional Terms' for storage the tenant acknowledged:

The tenant acknowledges and agrees that in circumstances where the premises includes a storage room / cage slash area for the tenants use, the landlord makes no warranty as to the area being fit for purpose and accepts no responsibility if the storage room / cage area is not adequately ventilated, secure or watertight.

1. At no point of the tenancy agreement is there any mention of responsibility or liability for tenant damage to common property areas of the strata.

1. The Act sets out the contractual obligations found in clause 16.4 of the agreement.
2. Under s 51 of the Act a tenant must not intentionally or negligently cause or permit any damage to the residential premises [my emphasis]. Section 51(5) makes this obligation a term of every residential tenancy agreement. For the purpose of s 51, "residential premises" includes everything provided with the residential premises for use by the tenant.
3. There is no connection whatsoever to common property being part of the residential premises, only the garage and cage particular to the tenant.
4. Further, and as referred to by the landlord, under s 66 a tenant must not make alterations to premises without landlord consent:

66 TENANT must not make alterations to PREMISES without consent

(1) A tenant must not, without the landlord's written consent or unless the residential tenancy agreement otherwise permits, install or cause to be installed a fixture or make or cause to be made any renovation, alteration or addition to the residential premises.

(2) A landlord must not unreasonably withhold consent to a fixture, or to an alteration, addition or renovation that is of a minor nature.

(2A) The regulations may make provision for or with respect to the following--

(a) the kinds of fixtures, or alterations, additions or renovations that are of a minor nature in relation to which it would be unreasonable for a landlord to withhold consent,

(b) the circumstances in which the giving of consent by the landlord to the fixture, alteration, addition or renovation may be conditional on the fixture only being installed, or the alteration, addition or renovation only being carried out, by a person appropriately qualified to install a fixture, or carry out alterations, additions or renovations, of that kind.

(3) A landlord may withhold consent to any other action by the tenant that is permitted under this section whether or not it is reasonable to do so.

(4) A fixture installed by or on behalf of the tenant, or any renovation, alteration or addition to the residential premises by or on behalf of the tenant, is to be at the cost of the tenant, unless the landlord otherwise agrees.

(5) This section is a term of every residential tenancy agreement.

1. Section 69 provides the remedy for the landlord for breach of s 66. The remedies are:

69 Landlords' remedies for alterations

(1) The Tribunal may, on application by a landlord, make any of the following orders--

(a) an order prohibiting the tenant from removing a fixture,

(b) an order that the tenant compensate the landlord for the cost of rectifying work done by or on behalf of the tenant on the residential premises.

(2) The Tribunal may make an order under subsection (1)(b) only if the Tribunal is satisfied that--

(a) the work was not done to a satisfactory standard, or

(b) the work, if not rectified, is likely to adversely affect the landlord's ability to let the residential premises to other tenants.

(3) The Tribunal may make an order that the tenant compensate the landlord for the cost of rectifying work done by or on behalf of the tenant whether or not the landlord consented to the carrying out of the work.

1. At s 190 of the Act the landlord may also apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations. The application has been made in time.

1. I must be satisfied a tenant duty under the Act and the tenancy agreement was breached. Such a breach must give rise to a liability for compensation, being the loss of the insurance excess for repair to the door at the common property garage entry.
2. None of the residential tenancy clauses extend the duties relating to the premises to a duty for common property which is property of the strata and the owners corporation. None of the specific additional clauses, even ones relating to the garage and storage, refer to anything other than the single garage provided to the tenant and the cage area for the tenant's exclusive use, not use of all strata residents. There is no mention of a duty for common property such as the gate to the strata garage area.
3. Nor do I accept the tenant has breached s 66 giving a rise to a remedy under s 69.
4. The damage to the common property door was not caused by the tenant installing a fixture or making any renovation, alteration or addition to the residential premises. It would be different if the tenant had tried to keep open the door to his own garage or storage cage in such a way.
5. Any reasonable interpretation of the statutory intent of s 66 is that a tenant may install fixtures or make alterations, additions or renovations desired to the residential premises contracted for under the tenancy agreement only with the permission of the landlord. The obligation is to acquire permission of the landlord for changes to items provided in the tenancy agreement for the residential premises. There is no obligation or capacity to seek approval of strata for such changes to common property. That is a collective decision of the owners corporation well outside the scope of a tenancy agreement. It is a nonsense to say that the damage caused to the common property entry was a tenant installation, alteration, addition or renovation to the residential premises sought by the tenant allowing a claim for compensation under s 69 and s 187(1)(d).
6. The obligations of the Act and agreement apply to residential premises. The door to strata garage driveway is not part of the residential premises the subject of the agreement. The agreement specifically defines the residential premises as to include a parking space and a storage cage. The tenant has also not breached s 51 as it specifically limits liability for damage to the residential premises as set out in the tenancy agreement. Clause 16.4 obligations are limited to the residential premises.
7. The landlord's agent was unable to indicate a special or additional clause extending liability to common property. Even if there had been such a clause it would have been void under s 219 of the Act which prevents contracting out as follows:

219 Contracting out prohibited

(1) A term of any residential tenancy agreement, contract or other agreement is void to the extent that it purports to exclude, limit or modify the operation of this Act or the regulations or has the effect of excluding, limiting or modifying the operation of this Act or the regulations.

(2) A person must not enter into any contract or other agreement, with the intention, either directly or indirectly, of defeating, evading or preventing the operation of this Act or the regulations.

1. The tenant did not breach any statutory or contractual obligation in relation to garage entry door incident which occurred on 22 November 2024 resulting in a liability to the landlord of the residential premises for the purpose of making orders pursuant to ss 51, 69 or 187(1)(d).

1. Obiter dictum is a judicial opinion expressed in a determination that is not essential to the decision and carries no weight as a precedent.
2. On the balance of probabilities and evidence put to me, if the matter had been able to proceed because a tenant is liable for damage to common property under the tenancy agreement, I would have found he had acted negligently in use of the door that resulted in the damage alleged.
3. Once liability has been found an applicant bears the onus of proving, on the balance of probabilities, with evidence put to the Tribunal, the loss alleged has been incurred. If the excess sought had been paid there ought to have been more than mere oral evidence of that payment. In the absence of any evidence, it would have been difficult to make the monetary finding sought.

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.