Roberts v Nguyen; Nguyen v Roberts

Roberts v Nguyen; Nguyen v Roberts - [2023] NSWCATCD 88 - NSWCATCD 2023 case summary — Zoe

[5]

Relevant law

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.
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.
Section 115(2) provides the Tribunal may find that a termination notice is a retaliatory notice or that an application is a retaliatory application if it is satisfied that the landlord was wholly or partly motivated to give the notice or make the application for any of the following reasons - 1. the tenant had applied or proposed to apply to the Tribunal for an order, 2. the tenant had taken or proposed to take any other action to enforce a right of the tenant under the residential tenancy agreement, this Act or any other law, 3. an order of the Tribunal was in force in relation to the landlord and tenant. (3) A tenant may make an application to the Tribunal for a declaration under this section before the termination date and within the period prescribed by the regulations after the termination notice is given to the tenant.
In Steinbeck v McDonald [2015] NSWCATAP 90 at [26] the Appeal Panel found the determination as to whether a s 85 notice is retaliatory is 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 two 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.

[11]

Tenants' evidence and submissions

The tenants submitted as follows. Throughout the tenancy they have requested various repairs, including . The main complaint was possums in the roof. They reported possums a few weeks after they moved in, on 14 June 2022. The tenants with the Agent's consent arranged for Possum Busters to inspect in November 2022.
Possum Busters recommended a roofer assess as the roof was in poor repair.
The landlord never did this, instead they blamed Possum Busters for causing roof damage.
On 1 February 2023, they asked for an update on the possums and requested gardening repairs and to fix a cupboard door and flyscreen and reported the ceiling outside the bathroom collapsing.
A week later the Agent told them he would be serving them with a termination notice due to the need for significant roof repairs.
The possums are still present and presented a health risk and a safety concern.
They dispute the premises need to be vacant whilst the landlord carries out repairs. The landlord has never arranged for a qualified tradesman assess the roof.
They have obtained a report from a licensed builder, Mr Robert Maloney of RFM Constructions who assessed the roof for repairs on 25 May 2023. In his opinion, there is no need to vacate whilst the roof repairs are done as they can be carried out externally. This opinion is supported by an email from a licensed carpenter, Mr Jeremy Walsh-Rossi of Fractal Projects.
They submits the landlord is not interested in repairing and would prefer to end the tenancy rather than address the issues and re-let to tenants who are less likely to ask for repairs.
Any repairs carried out were by the landlord himself who is not a qualified builder or tradesman.
A previous tenant of the downstairs house (unit 1), Ms Kerri Butteriss who vacated in November 2022, has given a statement to the effect that the landlord ignored requests for repairs such as the broken hot water system and she was injured on a broken fence the landlord failed to fix. The roof on unit 2 has leaked before the tenants moved in; the owner is aware and has done nothing to fix it.
The tenants believe the termination notice was issued because of their repair requests and is retaliatory.
They have no dependants and both tenants are working. They have been good tenants and have maintained the property and paid rent on time. They just want to have stability.

[13]

Is the end of fixed term Termination Notice retaliatory?

I am satisfied that the circumstances contemplated by s 115(2)(a) or (c) are not engaged. As at 12 April 2023, the tenants 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.
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.
Whilst I accept the tenants in requesting various repairs have taken action to enforce a right under the RTA, I do not find that the landlords in seeking termination of the tenancy are wholly or partly motivated by a desire to avoid these complaints or avoid a liability to the tenants under the Act. This is not to say that the tenants' complaints concerning repairs are unreasonable. I accept the evidence of Mr Nguyen that the landlords wish to retain their property to carry out and complete major repairs to the roof and bathroom ceiling and this is the reason they wish to terminate. I accept there are also safety issues involved. I also find the landlords have to date carried out various other repairs at the tenants' request, so do not demonstrate to me behaviour consistent with avoiding their duty to carry out repairs. I find the Notice is not retaliatory.
If I am wrong on step 1, I would decline to use my discretion to declare that the Termination Notice has no effect. The tenants have given no persuasive reason as to why they wish to stay other than their wish for stability. Whilst I am sympathetic to their wish not to have to move again so soon, they are working and have not attested to any hardship or unique needs and have no dependents.
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. Notwithstanding, the landlords have given a reason.
Balancing the tenants' convenience with the landlords' need to retain their property and carry out repairs, I decline to exercise my discretion.

At a glance

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Judgment (16 paragraphs)

Legislation Cited (1)

Cases Cited (3)