Roberts v Nguyen; Nguyen v Roberts

Tenants' claim

1. In file number RT 23/18650 filed 21 April 2023 the applicants (tenants) seek an order 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 12 April 2023 and expiring on 23 May 2023 (Termination Notice) is retaliatory.

Landlords' claim

1. In file number RT 23/24131 filed 24 May 2023 the landlords seek a termination order under s 84 of the Act.

Background

1. The tenants moved in on or about 23 May 2022.
2. The Premises were managed by Pacific City Real Estate (Agent).
3. The weekly rent was $700.00.
4. The Premises are a two storey house with front and back yard, with the two levels rented separately. The tenants live on the upper floor. There is a granny flat in the back yard which is separately rented.
5. There were three occupants, the tenants and another authorised occupant.

Relevant law

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.
2. 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.
3. 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.
4. 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.
5. 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.

First step

1. Whether a landlord was "wholly or partially motivated" to issue the termination notice or file the termination application by reason of one of the matters set out in s 115 (2) (a)-(c) is a question of fact to be determined objectively based on an assessment of all the relevant evidence.
2. The tenant bears the evidentiary onus of establishing, on the balance of probabilities, that the landlord was "wholly or partially motivated" to issue the termination notice by reason of one or more of the matters in s 115 (2) (a)-(c). The landlord does not have to prove it was not motivated by reason of one of those matters.
3. A landlord can be wholly or partially motivated to issue a Notice to Terminate or file a termination application by reason of one or more of the matters in s 115(2)(a)-(c) without acting in an unreasonable, excessive, vindictive, spiteful or vengeful manner: Hughes v Hume Community Housing Association [2023] NSWCATAP 10 at [106].
4. The landlord's motivation may be proved by evidence sufficient to draw an inference irrespective of whether the landlord gives an explanation of why it issued the notice of termination, as all evidence is to be weighed according to the power of one side to have produced, and in the power of the other side to have contradicted: Hughes at [117].
5. Further, the mere fact that a landlord gives evidence that the landlord was not wholly or partially motivated by reason of one or more of the matters in s 115 (2) (a)-(c) does not mean that, when all of the evidence is considered, the Tribunal cannot be satisfied that the tenant has discharged the onus of proof: Hughes at [118].

Second step

1. Neither party bears an onus in respect of the 'second step.' The Tribunal must simply determine whether it should, or should not, exercise its discretion to invalidate the Notice to Terminate and/or not make a termination order. The discretion is broad. It should weigh up the competing rights and interests of both parties under the RTA and the Act and depending on the circumstances of the case it may consider matters such as substantial hardship to either party, the reasons as to why the landlord wants possession and whether the relationship has broken down between the parties: see Steinbeck and Hughes.

Time to bring applications

1. Section 115(3) provides that the tenant may make such an application to the Tribunal before the termination date (which is 23 May 2023) 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 12 April 2023 and the tenants' application was made to the Tribunal on 21 April 2022.
2. The tenants' application is within time.
3. The landlord must file its s 84 application after the date of vacant possession of the Notice but within 30 days of the date of vacant possession of the Notice: s 83(2)(a). The landlord has complied with each of these requirements.

Procedural

1. The tenants relied on documents filed 26 May 2023 and their oral evidence.
2. The landlords relied on documents handed up at the hearing and the oral evidence of Mr Kevin Nguyen of the Agent's office. The tenants did not object to the late evidence. I note that apart from a statutory declaration of one of the owners, Mr Doan Nguyen, the documents were not controversial.
3. On 13 June 2023, the matter before me was only the tenants' application, with the landlord's application for termination listed for a conciliation hearing on 19 June 2023. The parties agreed that both matters be heard together before me.

Consideration

1. If a Notice to Terminate is issued in respect of a fixed term tenancy under s 84 and: 1. The notice is a valid notice which has been validly served; 2. The notice gives the tenant a minimum of 30 days to vacate the premises; 3. An application is filed in the Tribunal after the date of vacant possession of the Notice but within 30 days of the date of vacant possession of the Notice; and 4. The tenant has not vacated the property, then the Tribunal "must" terminate the tenancy. The Tribunal has a discretion regarding suspending the date of vacant possession. However, if the Notice is a retaliatory notice under s 115, the Tribunal may declare the Notice has no effect and refuse to make the termination order.

Tenants' evidence and submissions

1. 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.
2. Possum Busters recommended a roofer assess as the roof was in poor repair.
3. The landlord never did this, instead they blamed Possum Busters for causing roof damage.
4. 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.
5. A week later the Agent told them he would be serving them with a termination notice due to the need for significant roof repairs.
6. The possums are still present and presented a health risk and a safety concern.
7. 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.
8. 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.
9. 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.
10. Any repairs carried out were by the landlord himself who is not a qualified builder or tradesman.
11. 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.
12. The tenants believe the termination notice was issued because of their repair requests and is retaliatory.
13. 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.

Landlords' evidence and submissions

1. Mr Kevin Nguyen submitted as follows.
2. The premises are old and the rent is well below market.
3. The landlord wishes to carry out renovations, including a roof replacement to prevent wildlife entering the property. The tenants has complained about possums entering the roof.
4. Possum Busters attended in November 2022 and advised the roof needed significant repairs otherwise the possums would continue to nest in the roof. There are large gaps and missing tiles. The repairs require scaffolding and include repointing, re-aligning and replacing tiles and ridge cappings.
5. The owners also intend to install a new kitchen and bathroom as they are old and the ceiling outside the bathroom has collapsed.
6. The landlord attests that estimated cost of renovations is $100,000 and the landlord's builder has advised the period of completion is uncertain and will likely be lengthy.
7. He disputes no repairs have been carried out during the tenancy. The owner has carried out shower repairs, backyard maintenance and various other repairs.
8. He disputes no repairs were done to the downstairs unit as the previous tenant of unit 1, Ms Butteriss states. It has been renovated by the owner himself. It has a new floor. Its bathroom is newer than unit 2 above, so the bathroom repairs to that unit are not as urgent.
9. The landlords have been happy with the tenants, but they needs their property back to carry out the roof and bathroom repairs.
10. The tenants have complained about safety and these works need to be done as soon as possible.

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 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.
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. 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.
4. 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.
5. 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.
6. Balancing the tenants' convenience with the landlords' need to retain their property and carry out repairs, I decline to exercise my discretion.

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. No issue was raised at the hearing that the Notice to Terminate had not been validly served on the tenant pursuant to the provisions of s 223 of the Act. The tenants do not dispute service. The notice was served by email and the tenants expressly consented to electronic service when they signed the RTA and more than 30 days' notice was given. I find the Notice to be valid.
3. I make a termination order accordingly.

Possession

1. I have a discretion under s 114 to suspend the possession order for a period of time, having regard to the relative hardship likely to be caused to the landlord and tenant by the suspension.
2. The tenants identified no specific hardship issues, medical issues, financial issues or anything to indicate that it would be appropriate to suspend the date of vacant possession for an extended period of time.
3. I have considered that the tenants have been on notice since 12 April 2023, which is some four and a half months and well over the required 30 days.
4. I suspend possession for one week from the date of these reasons.

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: 22 September 2023