Hendy v Parsons

NCAT Consumer and Commercial|2024-02-05

Introduction

These proceedings arise out of a residential tenancy agreement between the applicant as tenant (the "tenant") and the respondent as landlord (the "landlord") in respect of a residential apartment at Elizabeth Bay Road, Elizabeth Bay NSW (the "premises"), dated 5 June 2023 (the "tenancy agreement"). The tenant continues to occupy the premises under the tenancy agreement, which is managed for the landlord by Ron Danielli Real Estate (the "managing agents").
By the tenancy application that he lodged with the Tribunal on 1 October 2023, the tenant has sought the following orders under the provisions of the Residential Tenancies Act 2010 (NSW) (the "RT Act"): 1. an order under s 65(1)(a), that the landlord carry out certain repairs; 2. an order under s 65(5), that the tenant's rent be paid into the Tribunal until the repairs are carried out; 3. an order under s 44(1)(b), declaring that the tenant's rent is excessive having regard to the reduction or withdrawal by the landlord of goods, services and facilities provided with the tenancy agreement; and 4. an order under s 187(1)(c), that the landlord pay money to the tenant.
The tenant explained the basis of his application in the "Reasons for the Order/s" panel on the tenancy application, writing: "I am seeking tribunal assistance due to ongoing property management issues since moving in on 5/6/2023. The dishwasher, undisclosed until after lease signing, remained unfixed until July 12th. Mould issues on blinds, raised on June 28th, persist as of October 1st. The non-functional air-conditioning, persist as of October 1st, crucial for the apartment's heat issue, has not been repaired, making the space uncomfortable. I pay $855 for a 1-bedroom apartment, which does not reflect its condition. I seek immediate repairs and $200/week compensation until fixed, as false representations of the unit's state would have influenced my lease decision."
The application came before the Tribunal for conciliation and an initial (group list) hearing on 4 December 2023. Conciliation was partly successful, resulting in the Tribunal ordering the landlord to repair the air-conditioning/heating unit at the premises. The Tribunal then adjourned the matter for hearing as a special fixture on a date to be determined by the Registrar. In doing so, the Tribunal made orders for (amongst other things): 1. the special fixture hearing to determine whether any other repair orders should be made and if any compensation/rent reduction should be awarded; 2. the landlord to enter the premises on 11 December 2023, to carry out the work order; and 3. the parties to provide to each other, and to the Tribunal, copies of the documents that they intended to rely upon at the hearing, by certain specified dates.

The hearing

The proceedings have been listed for hearing before me today, with an allocation of 3 hours. The tenant represented himself at the hearing. The landlord was represented by Mr Somorjay, a property manager with the managing agents.
The tenant confirmed at the start of the hearing that he did not seek any further work order in respect of the dishwasher and the air-conditioning unit at the premises as: 1. the dishwasher was repaired in July 2023; 2. the work on the air-conditioning unit that the Tribunal had ordered at the conciliation hearing was completed in December 2023; and 3. the landlord's contractor has undertaken further work repairing the air-conditioning unit in recent days, after the compressor in the air-conditioning unit seized up. He confirmed that he otherwise pressed the balance of the claims made in his application, including: (1) the request for work orders for the replacement of the blinds and the repair of the swimming pool in the common property at the building containing the premises; and (2) for compensation and/or a rent reduction for the landlord's failure to repair all of the above items (including the dishwasher and the air-conditioning unit) promptly over the past 7 months, which he argued should cover the whole of the tenancy agreement to date (continuing until the repairs were complete) at the rate of $200 per week, equal to 23.39% of his weekly rent.
The landlord opposed the tenant's claims in full, arguing (firstly) that the pool issue was an owners' corporation issue for which the landlord was not responsible; (secondly) that the "mould" which the tenant described was on the blinds in the bedroom at the premises was only dirt, which could be cleaned; (thirdly) that the landlord had attended to the tenant's other repair requests as promptly as circumstances allowed; and (fourthly) the issues raised by the tenant did not justify compensation or a rent reduction.

Jurisdiction

I am satisfied on the evidence (identified below) that there is a residential tenancy agreement between the Landlord and the tenant that is regulated by the RT Act, and that the Tribunal has jurisdiction to hear and determine the Applicant's remaining claims in these proceedings. I am also satisfied that the relief claimed by the Applicant is within the Tribunal's jurisdiction under the RT Act.

The applicable law

Section 63 of the RT Act prescribes the landlord's main repair and maintenance obligations under a residential tenancy agreement. The section provides (my underlining): 63 Landlord's general obligation (1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. (2) A landlord's obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises. (3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant's breach of this Part. (4) This section is a term of every residential tenancy agreement.
Section 65 then sets out the specific powers that the Tribunal may exercise in respect of a failure by a landlord to repair rented premises as required by s 63 (my underlining): 65 Tenants' remedies for repairs--Tribunal orders (1) Orders for which tenant may apply The Tribunal may, on application by a tenant, make any of the following orders-- (a) an order that the landlord carry out specified repairs, (b) an order that the landlord reimburse the tenant an amount for urgent repairs carried out by the tenant, (c) an order that the landlord reimburse the tenant an amount for repairs to a smoke alarm carried out by the tenant under section 64A(3). (2) Orders for repairs The Tribunal may make an order that the landlord carry out specified repairs only if it determines that the landlord has breached the obligation under this Act to maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. (3) In deciding whether to make an order under this section, the Tribunal-- (a) must take into consideration the regulations, if any, made under subsection (6), and (b) may take into consideration whether the landlord failed to act with reasonable diligence to have the repair carried out. (3A) The Tribunal must not determine that a landlord has breached the obligation unless it is satisfied that the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair. (4) Reimbursement for urgent repairs The Tribunal may order that the landlord reimburse the tenant an amount for urgent repairs carried out by the tenant if it is satisfied that the landlord has failed to reimburse the tenant for the costs in accordance with this Division. (5) Payment of rent into Tribunal The Tribunal may order that all or part of the rent payable under a residential tenancy agreement be paid into the Tribunal until an order under this section has been complied with. (6) Guidelines relating to reasonable time for repairs The regulations may provide for guidelines relating to reasonable times within which repairs to, and maintenance of, residential premises required to be carried out by the landlord under the residential tenancy agreement, this Act or any other Act or law should be carried out.
"Residential premises" is defined in s 3 of the RT Act to mean: "… any premises or part of premises (including any land occupied with the premises) used or intended to be used as a residence." The expression is given an expanded meaning in s 62 of the RT Act for the purposes of ss 63-65 of the Act, which is Part 3, Division 5 of the Act (my underlining): "In this Division-- "residential premises" includes everything provided with the premises (whether under the residential tenancy agreement or not) for use by the tenant." As such, it includes all of the landlord's fixtures, fittings and good that are provided to a tenant with the rented premises, for the tenant's use, even though they may not be specifically identified in the relevant residential tenancy agreement.
Section 44 of the RT Act gives a tenant the right to apply to the Tribunal for an order declaring the rent to be excessive on the ground that the landlord has withdrawn or reduced goods, services and facilities provided with a tenancy agreement. The section provides (relevantly): 44 Tenant's remedies for excessive rent (1) Excessive rent orders The 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 services A 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 rent For 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 … 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 order An 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.
As noted there, an application can only be brought under s 44(1)(b) during the period of the tenant's tenancy: s 44(3). Further, the maximum period that an excessive rent order can cover is 12 months: s 44(6)(a).
Lastly, the Tribunal's general powers are listed in s 187 of the RT Act, and include: 187 Orders that may be made by Tribunal (1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders-- … (b) an order that requires an action in performance of a residential tenancy agreement, (c) an order for the payment of an amount of money, (d) an order as to compensation, (e) an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement, (f) an order that requires payment of part or all of the rent payable under a residential tenancy agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined, (g) an order that requires rent paid to the Tribunal to be paid towards the cost of remedying a breach of the residential tenancy agreement or towards the amount of any compensation, (h) an order directing a landlord, landlord's agent or tenant to comply with a requirement of this Act or the regulations, … (2) Without limiting the Tribunal's power to make an order as to compensation, the Tribunal may order compensation to be paid for the following-- (a) loss of rent, (b) any other breach of a residential tenancy agreement, (c) … (3) An order under subsection (1)(a) or (b) may be made even though it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which such a remedy would not otherwise be available. (4) The Tribunal must not make an order for-- (a) the payment of an amount that exceeds the amount (if any) prescribed by the regulations for the purposes of this section, or (b) the performance of work or the taking of steps the cost of which is likely to or will exceed the amount (if any) prescribed by the regulations for the purposes of this section. The amount prescribed for the purposes of s 187(4) is $15,000 (save for rental bonds).
Also relevant to this case are ss 106, 226 and 232 of the Strata Schemes Management Act 2015 (NSW), which: 1. require the owners corporation for a strata scheme to properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation, unless excluded under that section: s 106(1); 2. require an owners corporation to renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation: s 106(2); 3. define a person having an estate or interest in a lot or an occupier of a lot in a strata scheme (which includes a tenant) as an "interested person" for the purpose of s 232 of that Act; and 4. enable an "interested person" - including a tenant, as defined - to make an application to the Tribunal to settle a complaint or dispute about (amongst other things): (i) the operation, administration or management of a strata scheme under that Act; (ii) an exercise of, or failure to exercise, by the owners' corporation, of a function conferred or imposed by or under that Act or the by-laws of a strata scheme; and/or (iii) an exercise of, or failure to exercise, by the owners' corporation, of a function conferred or imposed on an owners corporation under any other Act. Those provisions are separate from, and in addition to, the tenant's rights under a residential tenancy agreement and the RT Act.
I have considered the applicant's claim in accordance with these principles. I have also considered the applicable caselaw affecting these provisions, as I set out below.

(a) The tenant's evidence

The tenant relied on the bundle of documents that he provided to the landlord and lodged with the Tribunal on 18 December 2023, which I marked as exhibit T1. Those documents included: 1. a 1-page case summary prepared by the tenant, which I have taken to be his unsworn witness statement; 2. an annotated extract from a web page containing part of an online advertisement listing for the premises, dated 1 June 2023; 3. the front page of the tenancy agreement; 4. a bundle of copies of emails between the tenant and the managing agents concerning the air-conditioning, bedroom blinds, swimming pool and dishwasher issues raised by the tenant, dated variously; 5. a separate bundle of copies or screenshots of telephone calls and text messages concerning those issues. The landlord did not object to any of those documents being used as evidence in the proceedings.
The tenant also gave sworn oral testimony to the Tribunal in support of his application.

(b) The landlord's evidence

The landlord relied on 2 bundles of documents, both of which were provided to the tenant and lodged with the Tribunal in advance of the hearing, on 4 January and 18 January 2024 respectively (which I have marked as exhibits L1 and L2). Those documents included: 1. separate chronologies of events in respect of the dishwasher, air-conditioning, and bedroom blind issues raised by the tenant, which I have taken collectively to be Mr Somorjay's unsworn witness statement in respect of those issues; 2. a full copy of the tenancy agreement; 3. the managing agent's agency agreement concerning the premises; 4. a bundle of email correspondence and text messages exchanged between the managing agents and (variously) the tenant, the landlord and the tradesmen engaged by the managing agents in respect of the air-conditioning, dishwasher and blind issues raised by the tenant; 5. a service report from Palm Tree Enterprise Australia ("Palm Tree") in respect of the air-conditioning unit at the premises, dated 28 September 2023; and 6. an inspection report and quote from Jim's Express Services Pty Ltd, dated 2 October 2023, concerning the bedroom blinds in the premises. Mr Somorjay also gave sworn oral testimony in response to the application.

Findings of Fact

I have carefully reviewed and considered all of the evidence produced by both parties - much of which was not the subject of any controversy. The evidence satisfies me on the balance of probabilities that the background facts of the matter are as follows.

The background facts

The premises is a one-bedroom strata titled apartment in an apartment building on Elizabeth Bay Road, Elizabeth Bay NSW. The premises included (amongst other things) ducted air-conditioning, a dishwasher in the kitchen and 4 beige-coloured roller blinds in the bedroom. The common areas of the building vested in the owners Corporation for the relevant strata scheme included a swimming pool.
On or about 1 June 2023, the managing agents advertise the premises online as being available to rent. Mr Somorjay was listed as the advertising agent for the premises. The "Listing Description" panel on the advertisement described the premises as follows: Great 1 bedroom unit with built in robes in prestigious building. Magnificent harbour & city views, large lounge room with balconies & views modern granite gas kitchen with dishwasher, upmarket marble bathroom with huge shower, internal laundry. Undercover security parking, 3 balconies, air conditioning, concierge, gym. Please contact our leasing department on…
That advertisement clearly marketed the premises as containing a dishwasher and air-conditioning, and access to a swimming pool.
On 5 June 2023, the landlord and the tenant entered into the tenancy agreement contained in exhibit L1. The tenancy agreement was generally in the form of the standard form residential tenancy agreement prescribed under the Residential Tenancies Regulation 2019 (NSW), with additional terms. The terms of the tenancy agreement included: 1. The managing agents were the landlord's agent for the tenancy agreement. 2. The initial term of the agreement was 12 months starting on 5 June 2023 and ending on 4 June 2024. 3. Rent was payable by the tenant at $855 per week, payable in advance from 5 June 2023. 4. The Strata Schemes Management Act 2015, and there were strata or community scheme bylaws applicable to the premises. 5. The landlord agrees that the tenant would have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title to that of the landlord, and that the landlord or his agent would not interfere with, or cause or permit any interference with, the tenant's reasonable peace, comfort or privacy in using the premises (clauses 15.1 and 15.2). 6. The landlord further agreed: 1. to make sure that the premises were reasonably clean and fit to live in (clause 19.1); 2. to keep the premises in a reasonable state of repair, considering the age of, the rent paid for and the respective life of the premises (clause 19.3); 3. the parties further agreed that the landlord, his agent or any person authorised in writing by him, could only enter the premises in specified circumstances during the currency of the tenancy agreement, including to carry out repairs if the tenant was given at least 2 days' notice each time (clause 24; 24.6), and the tenant agreed to give access to the premises to any of them if they were exercising a right to enter the premises in accordance with the tenancy agreement (clause 27); 1. the rules of law relating to mitigation of loss or damage on breach of contract applied to a breach of the tenancy agreement (clause 40); 2. the tenant agreed to observe and comply with all applicable strata bi-laws and/or management statements and any applicable law where the premises were subject to (amongst other things) the Strata Schemes Management Act 2015 (clause 66.2); 3. the tenant acknowledged and agreed that all non-urgent repairs were to be submitted to the managing agency in writing and were to be carried out between the hours of 9:00 - 5:00 PM Monday to Friday (additional clause 3).
The tenant moved into the premises the same day. Also on the same day, the tenant signed an acknowledgement form in which he acknowledged receipt of (amongst other things) an inspection condition report dated 5 June 2023. Neither party has sought to produce that condition report in evidence in the proceedings, either in its original form or as completed by the tenant under s 29 of the RT Act. In those circumstances, I make no findings about the state or condition of the air-conditioning unit, the dishwasher and the bedroom blinds at the start of the tenancy agreement.
No evidence has been produced to the Tribunal to establish either the age of the premises or the prospective life of the premises. The evidence establishes that the unit was let on an arms-length basis through a commercial property manager. In those circumstances I am satisfied that the rent payable by the tenant was a market rent for the premises that was not reduced for any reason. I therefore conclude that none of these factors (the age of the premises, the rent paid or the prospective life of the premises) diminished or abrogated the landlord's duty to provide or maintain the premises and the fixtures and fittings contained in the premises in a reasonable state of repair under the tenancy agreement.
I now turn to the facts concerning the specific issues raised by the tenant.

The dishwasher issue

On 12 June 2023 the tenant telephoned Mr Somorjay and advised him that there was an issue with the dishwasher that required repair. Mr Somorjay asked the tenant to confirm and follow-up the repair request by email, although it appears the tenant sent no such email in the days following that call.
On 16 June 2023, Mr Somorjay contacted an appliance repairer and asked them to attend to the repair of the dishwasher. The repairer acknowledged the work order the same day.
After contacting the tenant, the repairer attended the premises on 20 June 2023, finding that the dishwasher was beyond repair is the appliance's wiring had been destroyed by cockroaches.
Eight days later, at 12:55 AM on 28 June, the tenant wrote to the managing agents on 28 June 2023, seeking an "update" on the dishwasher, arguing: "The issue should have been properly disclosed / fixed before I signed the lease. Not when I signed the lease. By next Monday it will be a month without dishwasher - I will be seeking historical and ongoing rent reduction until resolved." The same day (8 June 2023) the repairer gave Mr Somorjay a quote to source and replace the dishwasher which Mr Somorjay provided to the landlord, the landlord approved and the managing agents ordered, all on the same day.
The repairer received the new dishwasher and, on 5 July 2023, arranged a time with the tenant for the dishwasher to be installed. At the same time, a pest controller arranged by the managing agents also requested access to the premises, for the purpose of treating the premises for cockroaches.
The tenant ultimately gave the pest controller and the dishwasher repairer access to the premises on 12 July 2023, at which time the premises were sprayed for cockroaches and the new dishwasher was installed.

The swimming pool issue

On 30 June 2023, which was just over 3 weeks after the tenant moved into the premises, the building manager for the apartment building posted a sign In the pool and spa area of the building, stating that the spa was out of order and that a technician had been advised.
On 24 October, the building manager sent an email to the residents of the building, including the tenant, under the subject line "Swimming pool & spa leak investigation", stating relevantly: "Dear residents, As planned, a builder conducted on 17 October the destructive investigations they were engaged for on the swimming pool and spa. Regrettably, the extent of the demolition performed was insufficient to identify the leaking part of the pool shell. Further destructive investigations are therefore required and will be carried out on: Tuesday 31 October 2023 Between 7:00am and 4:00 pm The investigations will require the use of power tools for concrete cutting and jackhammering …"
Subsequently, on 15 December 2023, the building manager sent a further email to the tenant and other residents under the subject line "Decommissioning of the swimming pool and spa", advising that taken over the previous few months in order to identify and repair the swimming pool lake had been unsuccessful and that, while it had been considered putting the swimming pool back into service despite the leak, until the start of the full renovations, which was expected to start in July 2024, advice received was that the risks to the building would outweigh the benefits, and that it had therefore been decided to decommission the pool and spa until the completion of the renovation, "next year". The email also noted that the pool was empty, and that residents should exercise "extreme caution" while walking to and from the sauna (which remained in operation), while children were not permitted anywhere near the pool, spa and sauna until completion of the renovation.
The parties agree, and I accept, that the building manager for the apartment building is overseeing the pool renovation work for the owners corporation.

The bedroom blinds issue

The tenant's email of 12:55 AM on 28 June (referred to above) raised the issue of the bedroom blinds, enclosing a photograph of 1 black-stained blind and writing: "… Also the blinds are filthy and need to be deep cleaned. Not sure if the black is mould."
On 17 August 2023, the tenant wrote again to the managing agents, referring back to the photograph included with the tenant's email of 28 June and asking, "Can we do something about the mould on the blinds pls?".
In an email to Mr Somorjay at 10:57 AM on 30 September 2023, the tenant wrote in part (the underlining and bolding was in the original): "… The blinds are not fixed and the ongoing health issue is still present."
Mr Somorjay replied to the tenant by email the same day, writing in part: "… regarding the blinds Vicki was meant to clean them however as she advised that they can not be fixed we have already arranged for Jim from express blinds and John Clarke Handyman to quote on the replacement asap. Which I did advise you of. I do believe Jim attended Friday or did try and make contact with you/concierge to arrange access into the unit to measure. We do appreciate your patience with all of this especially the ongoing a/c issue."
Jim's Express Services Pty Limited inspected the blinds in the bedroom at about that time, reporting to the managing agents on 2 October 2023 that "All bedroom blinds are dirty". The report quoted on removing and replacing the old dirty blinds (at $1,254), asking the managing agents for instructions on the next step.
On 12 October 2023, the tenant exchanged a series of text messages with the landlord's tradesmen, asking for an update on when the blinds would be installed. The tradesman responded that evening, stating in part: "I haven't received an approval yet, I have exact measurements to send an order to production though. Could you please check with Daniel [Mr Somorjay]?"
I am informed by both parties that no further steps have been taken to clean or replace those blinds in the 4 months since the inspection on 4 October. The tenant has produced a bundle of photographs which he asserts on oath were taken at the premises on 18 December 2023. Those photographs show significant black markings on the internal face of the blinds, consistent with either dirt or mould. I will return to this issue below.
Mr Somorjay asserted in his evidence that the landlord organised another cleaner to attend the premises and clean the blinds in January 2024 and that the tenant refused to give the cleaner access to the premises for that purpose. While the tenant did not refute that assertion, the assertion was put by Mr Somorjay in very general terms and was not substantiated by any contemporaneous documents - such as correspondence or records of telephone conversations. I therefore accept Mr Somorjay's evidence on the point but give it a very low weight in my determination of the issues on this part of the claim.

The air-conditioning issue

The tenant's (Thursday) 17 August email to the managing agents, which was sent at 9:33 PM and not received until the next morning, also raised an issue concerning the air conditioner in the premises - reporting that when the tenant use the air conditioner it presented an "E2" error and asking if this could be fixed.
On Monday, 21 August 2023, the managing agents engaged Palm Tree to inspect the air-conditioning system at the premises. Palm Tree were not able to arrange a mutually convenient time with the tenant for the inspection to occur. From the correspondence produced by the landlord, which I accept, Palm Tree's technician (Jimmy) was unable to contact the tenant for 3 weeks and received no call back from him. Jimmy sought access through the building concierge, but the concierge gave him access to the wrong apartment.
Jimmy returned to the building on 28 September, gaining access to the premises. He conducted a diagnostic assessment of the air-conditioning unit as set out in Palm Tree's HVAC service report dated 28 September 2023 (which I accept as an accurate record of the work he undertook on that occasion, in the absence of evidence to the contrary), confirming an "E2" error. On inspecting the air conditioning unit he diagnosed that the return air filter needed replacement. He tested the unit and found that the air conditioner's compressor was running properly. He test-ran the air-conditioner on cooling and heating cycles, finding that it performed correctly. He reported that the E2 error had been resolved and that the machine's operation was considered to be "fine". There is a photograph in exhibit L1 from this attendance, which shows the control panel for the air-conditioning unit operating normally.
The tenant asserts that the Palm Tree technician removed the air-conditioning filter on this occasion but did not fix the issue. The tenant has not qualified himself as an expert in air-conditioning maintenance. I therefore do not accept those observations as evidence of what the air-conditioning technician did on that occasion.
In a further email to Mr Somorjay at 10:57 AM on 30 September 2023, the tenant complained to Mr Somorjay that the air-conditioning unit was reporting an error code and complaining that the unit was not cooling the room at all - writing in part (the underlining and bolding was in the original): "The Aircon is unusable still: ● The controls do not work when there is an error code on the unit. ● The unit [that is, the premises] already has mould - so running without a filter introducing more dust and dirt into the environment is unacceptable. ● It is not a filter issue, it is not cooling the room at all. The room temperature this morning is 25degrees. ● Why is there still an error code if he removed the filter … I remind you that heating and cooling falls under urgent repair. Please get a new technician ASAP I have less than zero faith in Joseph's ability given how hard it has been to get him to the unit, his daily excuses and mistakes, and his temporary "solution" … These issues have been going on for months as I said - if there weren't fixed by Friday 29th Sept we are going to NCAT. The issues have not been fixed. I am applying for: $200 week credit per week of the tenancy as compensation for the poor Property Management/multitude of unfixed issues. …" He also contacted Palm Tree directly over the next few weeks, reporting that he was having ongoing problems with the air-conditioning unit.
As noted at the start of these reasons, the tenant lodged his application with the Tribunal on 1 October 2023. That same day he sent Mr Somorjay an email showing a photograph of a digital thermometer reading a temperature of 29.4°C and 31% humidity, which he described as "Temperature inside the unit with Josephs aircon fix running". In his response to the tenant later that day (mentioned above in relation to the blinds issue), Mr Somorjay wrote about the air-conditioning issue: "Joseph did advise us that it worked. As you have just advised that it still doesn't work I personally will arrange best repairs right now to attend ASAP being Tuesday and fix the aircon unit as an emergency matter. … We do appreciate your patience with all of this especially the ongoing a/c issue. I can assure you that best repairs A/C will be attending next week to fix it right away and if it can not be repaired in the spot they will organise the parts to fix it asap. If you wish to lodge a ncat application you can however the issues are being fixed asap. I understand we have had a bad run with joseph being delayed and therefore have now engaged best repairs to attend asap to your aircon."
On 4 October, the tenant sent a picture of the air-conditioning control to Palm Tree, suggesting that he was home at the premises that day and could let them in. Palm Tree responded by text message, stating that they would not attend that day and that the owner had cancelled the job and was arranging his own technician.
As noted above, the Tribunal made an order on 4 December 2023, requiring the landlord to fix the air-conditioning unit at the premises on 11 December 2023. Palm Tree attended the tenant's premises on 11 December, reporting to the managing agents that the compressor in the air-conditioning unit was now seized up.
Dissatisfied with Palm Tree's work, the managing agents contacted a second air-conditioning company recommended by the building manager, Cervas Hearing and Cooling ("Cervas"), on 19 December 2023 engaging them to get the air-conditioning unit running correctly as soon as possible.
Cervas attended the premises on 28 December 2023. Cervas's work report/tax invoice dated 28 December 2023 reports the attendance as follows: "Complaint of E2 error on McQuay A/c unit. Checked unit and found to be low on refrigerant. Checked for leaks but could not find any apparent leaks. Topped up refrigerant charge with R22 refrigerant. Reset unit and monitored. Temperature controllers in this building are also known to fail.. If problem returns and the refrigerant charge is ok, The temperature controller will require replacing. If the unit loses its refrigerant charge, then extensive pressure testing would be required." Cervas charged the managing agents $588.50 for that attendance, including $242 for R22 gas. In the absence of evidence to the contrary, I accept that work report/tax invoice of that date as an accurate report of the observations made by the Cervas technician, the work that they conducted and the results of that work.
On Friday 26 January 2024, which was a very hot day in Sydney, the tenant made another complaint to the managing agents about the air-conditioning unit - this time reporting that it was displaying the "E9" error code. At the managing agents' request, Cervas re-attended the premises early in February 2024 and rectified that error report. The parties agree that the air-conditioning unit was operating properly at the time of this hearing.

Other correspondence

In presenting their cases to the Tribunal, the parties have referred to other correspondence that passed between them about the tenant's claims and whether the tenant should bring his claims to the Tribunal. I do not need to address any issues relating to that correspondence in order to determine the tenant's complaints in these proceedings.

Consideration - applying the law to the facts as found

Section 63 requires the landlord to maintain the premises in a "reasonable state of repair", having regard to certain factors. The appeal panel explained the concept of "reasonable" state of repair in Kwok v Tahiri [2015] NSWCATAP 244 at [27], writing (my underlining): "… we agree with the proposition advanced by Mr Kwok that s 63 does not mandate that a landlord must rectify any and all things or services reported by a tenant as requiring repair. Section 63 simply requires the landlord to maintain the premises in a "reasonable state of repair having regard to the age of, rent payable for and prospective life of the premises". Whether the landlord has failed to comply with their obligation to maintain the premises in a "reasonable state of repair" is a question of fact to be objectively assessed. It requires consideration of, among other things, the nature of the thing or service said to require repair and the age of, rent payable for and the prospective life of the subject premises. "
The concept of "reasonable state of repair" primarily addresses the 2 issues of (a) safety and (b) functionality. The second of those issues goes to whether the premises are in a state of repair that is commensurate with the parties' tenancy agreement operating as a contract between them. Consequently, a landlord's failure to repair defective facilities provided with the premises is a failure to maintain the premises in a reasonable state of repair, even though they may not be inherently unsafe. See, for example, Dupont and Rowe v Lawrence [1997] NSWRT 213, where the Tribunal said (my underlining): "A lease is an contract and is governed by the law of contract. It is a fundamental tenet of contract law that a party warrants or guarantees strict performance, subject only to any qualification to be found in the contract or a statute. The only relevant qualifications in the agreement are those imported by [the section] as to reasonableness. In this context the word reasonable functions as an adjective qualifying the words state of repair. It does not bear upon the nature of the landlord's circumstances. For example, it would not avail the landlord anything to argue that financial problems, problems with the builder or other such problems, precluded the repairs being done. The term reasonable does not go to these issues, and deals only with the actual state of repair. It is open to the landlord to argue that the actual state of repair is reasonable having regard to the rent, age and life expectancy of the premises. In this case the rent was commercial in nature and there is no suggestion that the age or life expectancy of the premises entered into the decision making process."
The landlord's obligation must be carried out diligently, with reasonable expedition. Gummow J stated in In Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, at 370-371: "In general, there is no breach of an express covenant by a landlord to keep the demised premises in repair unless two criteria have been met. First the landlord must have information as to the existence of the defect such as would put a reasonable landlord on inquiry as to whether works of repair are needed and, secondly, thereafter the landlord must have failed to carry out the necessary works with reasonable expedition. "
As the cases quoted above indicate, the landlord is not excused by conduct or delay caused by tradesmen or suppliers, or if any delay was due to difficulties such as the time of year, poor availability of tradesmen and the like. See, in addition to the above, Shrestha v Crandell Pty Ltd [2010] NSWCTTT 240; De Chazol v Scala [2010] NSWCTTT 135 and Hanney v McCabe Toshack [2014] NSWCATCD 239 at [49]- [50].
As noted in s 65(2), for the Tribunal to make an order under s 65 Tribunal must first find that the landlord has breached the obligation under s 63 to maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.
With these principles in mind, I now turn to the specific issues pressed by the tenant in these proceedings.

The dishwasher issue

On the facts that I have found, the dishwasher was not in reasonable repair for the period from 12 June 2023 to 12 July 2023. The dishwasher was not repaired or replaced with reasonable expedition during that period, with the result that the dishwasher's facilities were not available under the tenancy agreement as a contract between the parties.
I am satisfied that the tenant suffered inconvenience, loss and damage as a result of the landlord's failure to repair or replace the broken dishwasher in that period. However, the evidence shows that the landlord's dishwasher repairer had received the replacement dishwasher and was ready to install it in the last week of that period (from 5 July onwards), but could not do so until 12 July, which was the date the tenant was available. The tenant could have mitigated his inconvenience, loss and damage (under clause 36 of the tenancy agreement) by arranging for the dishwasher to have been installed earlier than this - as early as 5 July - which was not the landlord's fault. Deducting that period on mitigation grounds leaves a period of 23 days for which the landlord is liable to compensate the tenant for not maintaining the dishwasher in reasonable repair.
Neither party provided any evidence on which I could assess the extent of tenant's inconvenience, loss and damage in not having a dishwasher at the premises. Having looked at other recent cases where dishwashers have not been in reasonable repair, such as Mudford v Hunt [2022] NSWCATCD 199 and Hanney and Smiley v McCabe and Toshack [2014] NSWCATCD 239, I am satisfied that the tenant's loss should be assessed at a nominal amount equal to 5% of the rent payable for that period. At $855 per week, the tenant's daily rate of rent is $122.14. 5% of that amount ($6.11 per day) over 23 days amounts to $140.53.

The swimming pool issue

On the facts I have found, the swimming pool is common property belonging to the owners' corporation. On the principles examined by the Appeal Panel in Sewell v Zvirblis [2022] NSWCATAP 337 at [27]-[51], the swimming pool was not part of the residential premises provided by the landlord to the tenant under the tenancy agreement and it also was not "provided" by the landlord "with" the residential premises, within the extended definition of "residential premises" contained in s 62 of the RT Act. As the Appeal Panel wrote at [42]-[50]: "42. "(P)rovided with" in s 62 has the sense of being provided by the landlord or provided by someone else with the permission of or tacit acceptance by the landlord, although the words "by the landlord" do not appear in s 62. 43. The tenant's argument was necessarily based on the proposition that if the tenant used any part of common property, then that common property was "provided with" her premises within the meaning of "residential premises" in s 62. But we do not think s 62 is so wide because if the tenant's argument was accepted all common property which the tenant was permitted to access would fall within s 62, and the landlord's obligation to repair under s 63 would extend to all that common property. We do not consider that that was the intention of Parliament. Taken to its extreme the tenant's argument would extend to asserting that the footpath and roadway outside the unit block had been "provided with" the premises for the use of the tenant. 44. In our view it strains the language of "provided with" to say that any part of common property used by the tenant was therefore "provided with" the premises. 45. The word "provided" involves, in its ordinary meaning, the concept of active supply or making available, and in the RTA - which governs the relationship between landlords and tenants - the sense is that the source of the supply or availability is the landlord. In our view "provided" does not extend to the passive and incidental right to use common property which is a necessary incident of a tenancy of a lot in a strata scheme. 46. We note that Parliament provided tenants with rights against body corporates in relation to the maintenance of common property. Parliament enacted the Strata Schemes Management Act 2015 (NSW) (the "SSMA") and its predecessors to govern the relationship between lot owners (including landlords) and body corporates. Under the SSMA body corporates have obligations toward lot owners for the maintenance of common property. But tenants also have rights against body corporates under the SSMA in relation to common property. 47. A person having an estate or interest in a lot (which would include a tenant under a residential tenancy agreement) or an occupier of a lot (which would also include a tenant) is an "interested person" as defined in s 226 of the SSMA. 48. An "interested person" is entitled to commence proceedings against the body corporate in the Tribunal under s 232 of the SSMA and ask the Tribunal to make an order to settle a complaint or dispute about a number of matters including the operation, administration or management of a strata scheme under the SSMA and the exercise of, or failure to exercise, a function conferred or imposed by or under SSMA, either of which would extend to a body corporate's statutory obligation under s 106 of the SSMA to properly maintain and keep in a state of good and serviceable repair the common property. 49. In all of those circumstances we consider that s 62 is confined to things expressly or tacitly provided, supplied or made available by a landlord "with the premises" and for the use of the tenant. An example might be a car space or storage locker which was not included in the residential tenancy agreement, or things like washing machines and dryers, either in the leased premises or perhaps provided for the exclusive use of the tenant by the landlord but located on common property (in a shared laundry room). Common property, in our view, does not fall within the definition of "residential premises" in s 62 of the RTA. 50. Our conclusion is fortified by the fact that, given the definition of "urgent repairs" in s 62 - which excludes work needed to repair premises that are owned by a person other than the landlord or a person having superior title (such as a head landlord) to the landlord - a landlord is not required under s 64 to reimburse a tenant for the reasonable costs of making urgent repairs to, amongst other things, common property. It would seem incongruous to exclude a landlord from liability for urgent repairs to common property and yet include such a liability for landlords in relation to non-urgent repairs in s 63."
The Appeal Panel then went on to consider whether s 44(1)(b) can apply to the withdrawal or reduction of use of parts of the common property by an owners corporation, reasoning at [64]-[70]: "64. The difficulty facing the tenant in relation to this claim is that a tenant is only able to claim a reduction of rent if the reduction or withdrawal of the goods, services or facilities alleged was "by the landlord". 65. Section 44(1)(b) of the RTA says: (1) Excessive rent orders The 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. 66. In short, in our opinion none of the alleged reduction or withdrawal of goods, services or facilities in this case was "by the landlord" and so the tenant's case for a reduction of rent under s 44 cannot succeed. 67. What "by the landlord" means in s 44 is that it must be the landlord, and not a third party, whose act or omission results in the reduction or withdrawal of goods, services or facilities. 68. In Eliezer v Residential Tribunal (2001) 53 NSWLR 657; [2001] NSWSC 1092 McLellan J said the following about s 47 of the Residential Tenancies Act 1987 (NSW) (a similar provision to s 44 of the RTA): "With respect to s 47, I agree with the construction of the Residential Tribunal of the words goods, services or facilities provided. In my opinion, s 47(1) is confined to the physical and other facilities, goods or services, provided within, or as part of, the tenanted property, and only if the landlord reduces or withdraws those facilities does an obligation arise. In circumstances where there has been a reduction in the quality of the amenity to be enjoyed in the tenanted premises by the actions of a third party, a complete stranger to the tenanted property, no breach of s 47(1) can occur." … 69. In Pan v Malveholm [2021] NSWCATAP 101 the Appeal Panel said at [35] that it could see no reason why s 44(1)(b) of the RTA should be interpreted any differently. 70. There is no dispute that the landlord himself, in this case, did not, by his actions, reduce or withdraw any goods, services or facilities. That is, the landlord did not, by his actions, cause the security gate to be in disrepair, or damage the air conditioning so that it did not heat or cause the leak into the garage."
I consider myself bound to apply the principles set out in that decision to this case. That decision was made by an appeal body on a case involving similar circumstances - with the only appreciable difference being that the Sewell case concerned a security gate on the common property that was not working, rather than a swimming pool.
On that basis, ss 44(1)(b), 63 and 65 of the RT Act do not apply to the swimming pool issue. The tenant's claims for repair orders and for compensation or a rent reduction for the swimming pool being closed by the owners' corporation, and not available to the tenant during a period of his tenancy, must therefore fail.

The bedroom blinds issue

As described above, the landlord had an obligation to provide the premises to the tenant "reasonably clean" under clause 19.1 of the tenancy agreement. The landlord was also obligated to provide and maintain the premises in a reasonable state of repair under clause 19.3 and s 63 of the RT Act, described above.
Neither party produced the ingoing condition report or any photographs that reported on or showed the state of the blinds at the start of the tenancy agreement. The earliest available evidence concerning the state of the blinds was the tenant's email of 28 June - just over 3 weeks after the start of the tenancy agreement - described the bedroom blinds as "filthy and need to be deep cleaned". As that email was sent so close to the start of the tenancy agreement, and in the absence of any direct evidence about the condition of the blinds in the bedroom at the start of the tenancy agreement, I infer and find that the blinds were in that state at the start of the tenancy agreement.
The tenant's email on 28 June equivocated on whether the marks on the blinds was mould. Three months later, on 30 September, Mr Somorjay reported to the tenant that the blinds were meant to be cleaned but "can not be fixed" - which I infer meant that whatever was marking the blinds was staining the blinds and could not be removed. Two days later, on 2 October, the landlord's tradesman described the bedroom blinds as "dirty" and quoted on removing and replacing the blinds. Since then, the landlord has not taken any substantial step to either clean the blinds or replace them.
The tenant gives the opinion that it the blinds are stained by mould, while Mr Somorjay asserts that the blinds are merely dirty. The evidence does not establish on the balance of probabilities whether the black markings on the bedroom blinds is ingrained dirt, or mould, however it is clear that the black markings are staining the blinds and cannot be removed by the landlord's cleaner. In those circumstances I find that the blinds have been stained, and therefore damaged, by that dirt or mould since the start of the tenancy agreement.
I am therefore satisfied, on both the evidence and the findings that I have made, that the landlord did not provide the blinds to the tenant (and therefore, the premises themselves) either "reasonably clean" or in a reasonable state of repair at the start of the tenancy agreement, which was a breach of the landlord's obligations in both clauses 19.1 and 19.3 of the tenancy agreement. Those breaches are ongoing: despite the tenant's requests, the landlord has failed to either clean the blinds or replace them over the term of the tenancy agreement thus far.
Consequently, I am satisfied for the purposes of s 65(2) of the RT Act that the landlord has breached his obligation to maintain the premises in a reasonable state of repair having regard to the age of, the rent payable for and the prospective life of the premises. I am also satisfied under s 65(3A) of the RT Act, that the landlord has had notice of the need to repair the blinds since at least 28 June 2023.
I therefore consider it appropriate to make a work order that requires the landlord to replace the 4 blinds in the bedroom with new roller blinds of similar specifications.
I am satisfied that the tenant has suffered inconvenience, loss and damage as a result of that breach by the landlord, including loss of quiet enjoyment of the premises. Consequently, I am satisfied that the landlord is liable to compensate the tenant for those losses. I am also satisfied that it is appropriate to make a work order under s 65 of the RT Act, requiring the landlord to replace the blinds in the bedroom without delay.
As with the above, the parties have not led any specific evidence that enables me to assess the tenant's loss directly,
Consequently, I again consider it appropriate to make a nominal award of compensation on this part of the claim. I consider 3% of the tenant's rent to be an adequate amount of compensation in the circumstances of this case, which I consider should cover the whole period from the start of the tenancy agreement through to the date of this hearing - which amounts to 35 weeks and 1 day, or 246 days. In this case, I am not satisfied that there has been a failure by the tenant to mitigate his losses. Accordingly, there is no need to make any deduction on mitigation grounds.
At 3% of the daily rate of $122.14 specified above (which is $3.66 per day, or $25.65 per week), compensation for 148 days amounts to $542.30.

The air-conditioning issue

The evidence satisfies me that the air-conditioning at the premises was not in a reasonable state of repair from 17 August 2023 (the date of the tenant's first complaint) to 28 September 2023 (when the technician from Palm Tree attended the premises and replaced the air filter) - a period of 43 days, inclusive of both end dates - again from 30 September 2023 (when the tenant complained again to the managing agents) through to 2 February 2024 (when the parties agree that the air conditioning unit was re-gassed and fixed) - a period of 126 days. That amounts to a total period of 169 days.
I am satisfied that the tenant suffered inconvenience, loss and damage as a result of the landlord's failure to repair or replace the broken air-conditioning unit in that period. From that period should be deducted 21 days, when the Palm Tree technician was unable to contact the tenant in late August and early September 2023. I am satisfied that the tenant did not mitigate his inconvenience, loss and damage under clause 36 of the tenancy agreement by being available during that period to facilitate the repair of the air-conditioner. That leaves a balance of 148 days, or 21 weeks and 1 day, in which the landlord was liable to compensate the tenant for not maintaining the air-conditioner in a reasonable state of repair. Given the structural design of the apartment - which had few opening windows or doors - I am satisfied that the tenant could not have mitigated his inconvenience, loss or damage any further over that period.
As with the dishwasher issue, neither party provided any evidence on which I can assess the extent of tenant's inconvenience, loss and damage in not having a working air-conditioner at the premises over that period. Having looked at other recent cases where air-conditioners have not been in reasonable repair, such as Ramjan v Tang; Tang v Ramjan [2022] NDWCATCD 98 Cowling v Tran; Tran v Cowling [2022] NSWCATCD 128, I am satisfied that the tenant's loss should be assessed at a nominal amount equal to 10% of the rent payable for that period. At 10% of the daily rate of $122.14 specified above, compensation for 148 days amounts to $1,807.67.

The clam for a rent reduction under s 44(1)(b)

On the facts that I have found, the landlord has reduced or withdrawn the goods, services and facilities provided by the landlord under or with the tenancy agreement by failing to clean or replace the 4 window blinds in the bedroom at the premises since the start of the tenancy agreement. In particular, I am satisfied that the landlord has reduced or withdrawn the repair services to be provided by the landlord under clause 19 of the tenancy agreement. This has, in turn, withdrawn or reduce the tenant's quiet enjoyment of the tenancy agreement.
Having regard to the compensation that I have decided to award the tenant today, I am not satisfied that it is necessary or appropriate to make any further order reducing the rent under s 44 of the RT Act for the period up to and including the date of this hearing. However I am satisfied that it is appropriate that the tenant's rent should be reduced by approximately 3%, which is the same rate that I have awarded to the tenant in compensation for the landlord's failure to repair or replace those blinds to date, until the blinds are replaced. That reduction should also be subject to the restriction in s 44(6) of the RT Act, which limits the Tribunal's power to specify a maximum amount of rent for a period not exceeding 12 months.
For these reasons, I am satisfied that the tenant's rent from 6 February 2024 onwards, until the date the blinds are replaced or 5 February 2025 (whichever occurs first) should not exceed the rate of $830 per week (rounded up).

Conclusion and Orders

For the reasons set out above, the tenant has been successful on the majority of his claims for compensation in the total sum of $2,490.50, calculated as follows: 1. $140.53 on the dishwasher issue; 2. $542.30 on the bedroom blinds issue; and 3. $1,807.67 on the air-conditioning issue. There should be an order that the landlord pay that amount to the tenant.
I am satisfied that it is appropriate to make an order requiring the landlord to replace the bedroom blinds within 28 days of this hearing.
Further, there should be an order that the rent payable by the tenant is excessive because of the landlord's failure to clean or replace the bedroom blinds, and that the tenant's rent be reduced accordingly so that it does not exceed $830 per week from 6 February 2024 until the date the blinds are repaired or until 5 February 2025, whichever occurs first.
I make the following orders for these reasons: 1. The respondent, Randal Parsons, is to pay the applicant, Jack Hendy, compensation of $2,490.50 immediately. 2. The Tribunal orders the respondent Randal Harper to carry out the following work on or before 11 March 2024 in a proper and workmanlike manner: Details of work order: Replace the 4 dirty/mouldy roller blinds in the bedroom of the premises with new clean roller blinds of similar specification. 1. The applicant, Jack Hendy has liberty to renew these proceedings, on payment of the applicable filing fee, if the respondent does not complete the work specified in the preceding order in accordance with that order. 2. The rent payable by the tenant under the tenancy agreement is excessive and must not exceed the amount of $830 per week from 6 February 2024 until the earlier of: 1. the date the landlord completes the work specified in these orders; or 2. 05 February 2025.
The tenant did not press at hearing his claim for an order under s 65(5), that the tenant's rent be paid into the Tribunal until the repairs are carried out. Nevertheless, I do not consider it necessary or appropriate to make such an order n circumstances where the Tribunal is making a repair order and giving the tenant the benefit of a money order and a rent reduction, together with liberty to renew the proceedings in the event that the landlord does not comply with that repair order. That is an issue that can be revisited if the proceedings are renewed in accordance with the orders made today.

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 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: 23 October 2024

Residential Tenancies Act 1987(NSW)

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Judgment (21 paragraphs)

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Cases Cited (9)