Staples v Smith [2025] NSWCATCD 215;

1. It is not my purpose in this decision to canvas all the facts and submissions made but refer only to the most relevant.
2. The tenancy began on 22 August 2024. Rent was $1,150 a week for a 3-level 3-bath, 2-bedroom premises. Tenant vacated on 28 October 2025.
3. It was common ground that on 20 March 2025 the tenant received a notice of works to be carried out. Notice advised:

(1) commencement of works on Monday 24 March 2025;

(2) free access required, (and already approved by owners corporation) between 7:30 AM and 4:30 PM Monday to Friday project;

(3) completed works estimated time frame two months;

(4) during these hours workers would enter and exit premises;

(5) the works supervisor would require a key for each unit.

1. Notice was issued only 4 days before the nominated date of works commencing even though works had been planned since the prior annual general meeting and a general meeting of the strata.
2. From 20 March 2023 the tenant and landlord's agent exchanged objections to this notice. The immediate response of the tenant was to seek permission to break the lease in the fixed term with no penalty applied. Landlord affirmed this option. Later on 20 March, a rent reduction to $860.00 per week was also proposed by the tenant based on loss of the upstairs balcony area combined with an estimate of non-economic loss due to breach of quiet enjoyment. Tenants also said they would actively look for alternative accommodation. Tenant objected to providing access to trades before 8:00 AM in the morning.
3. The agent provided evidence of efforts made by the landlord from 28 March to have strata arrange scaffolding at the premises to avoid the need for trades to access the tenants' interior of the tenant's premises at any time. Works were to decking at the top floor of the premises and the scaffolding allowed trades access without going into the tenants' property. The tenant conceded this but said the scaffolding justified a rent reduction. Various further communications occurred between the parties setting out differences about access hours and the length of time works would take place. On 9 April 2025, the landlord offered a rent reduction between 2 March 2025 to 30 March 2025 of $184.00 per week or a total of $736.00. This was calculated at 16% of the ratio space of the entire premises for loss of the upstairs decking area. Another sum of $20 was offered for loss of a spa. There were further ongoing communications about adequacy of the rent reduction offer and times of access. On 3 April the landlord notified need for access to BBQ cupboards for waterproof detailing and asked tenants to empty a cupboard. On 14 April 2025 tenants agreed to a reduction of $184 or per week for the decking and a further $20 per week for the spa. They asked this be backdated until the tenancy began and continue until works were completed.
4. On 25 April 2025 tenants gave notice of another defect at the premises with water leaking through a ceiling. On 28 April landlord sought access to check both waterproofing on the upper deck works and the kitchen ceiling to establish if there was any connection. Various emails were exchanged about access for this work. Tenant said the trade who visited advised other areas in the living area could have problems with leaking including an area over the couch in the living room.
5. On 15 May 2025 (and after problems removing a tenant vehicle around trades work area) tenants observed fresh leaks from down lights in the kitchen. On 16 May tenants were advised repair works were underway. Tenants requested a 50% rent reduction until these works were repaired.
6. On 18 May tenants 2025 woke to leaking in the kitchen and placed items during the day under the leak to catch water to mitigate damage. They incurred various costs to mitigate the water flow and damage to their goods such as a pillow. A handyman that arrived in the evening left saying he needed to obtain supplies. Tenants vacated the premises and went to alternate accommodation. On 20 May a trade attended to commence repair, and the tenants were required to move their dog while repairs took place. Tenants remained in alternate accommodation and at least one tenant was required to frequently attend the premises to arrange access for repairs and was also required to replace / clean damaged tenant goods. Communication also continued with the agent for tenant reimbursement for costs incurred by them.

Issue 1- further rent reduction of $230 per week

1. I have the power to order that rent payable is excessive if the landlord has reduced or withdrawn goods, services or facilities provided with the residential premises. I can further declare that the rent for residential premises must not exceed a specified amount from a specified day. It follows that if rent is reduced to a past date and the tenant had paid the agreed rent since that date that an order is also made for the landlord to reimburse the tenant for overpaid rent since the specified date.
2. The Appeal Panel of the Tribunal has outlined a 4-step test assessing a claim for rent reduction under s 44(1)(b) arising from a failure to repair in Mulcair v Callum [2024] NSWCATAP 30 at [64]- [69].
3. First, I must identify the obligations of the landlord under the tenancy agreement concerning the provision of goods, services and facilities. Secondly, I must identify any breach of a specified obligation. Secondly, any breaches in connection with those obligations are to be identified. Thirdly, I must determine if any defects in the goods services and facilities provided results in its reduction or withdrawal. To establish that I must be satisfied there was loss of use or capacity to enjoy the identified goods, services or facilities. Any inability must arise from the landlord's conduct such as a failure to repair in a timely manner or rectify any breaches causing loss of use or enjoyment. Whether the rent is excessive is then assessed having regard to relevant factors including those specified in s 44(1)(5) of the Act. Finally, while each breach might give rise to a separate rent reduction, when calculating the reduction as a whole, I must take into account whether the overall cumulative assessment of reduced rent might be excessive. In addition, as in this case where there is a separate claim for compensation for breach of quiet enjoyment, I am to take that award, if any, into account when considering the reasonableness of the rent reduction order.
4. I am satisfied that the landlord acted reasonably in incurring costs to have scaffolding erected at the premises for the main purpose of reducing any inconvenience to the tenant. I am satisfied and find the tenant suffered no loss of facility due to the trades needing to access the interior of the property. Nor were tenants required to provide trades with a copy of keys to gain entry as trades had exterior access. For these reasons alone, I am satisfied that the agreed reduction of $184 per week was reasonable for the loss or withdrawal of any facilities at the premises under s 44(1)(b) of the Act.
5. First, the landlord took significant steps to relieve the tenant complaint about access and incurred significant cost in installing scaffolding to avoid the need for trade entry to the premises. Secondly, any withdrawal of goods, services or facilities before the water ingress in the kitchen and lounge was not substantial and does not justify a substantial further reduction beyond that agreed during the tenancy. The tenant complained of dust in a stairwell leading to the upstairs balcony works accessed from the outside by the scaffolding but this would have been easily cleaned, and the facility was still useable. Tenant complained of removal of goods from a BBQ area cupboard, but this was part of the balcony area work as a whole. The tenant would have been, or ought to have been aware of the need to remove goods prior to the minor work being done. Thirdly, after considerable negotiation the tenant accepted the rent reduction given. Having commenced with the indication they would vacate as soon as possible as their first option when notice of works was given, they did not vacate but continued to enjoy the rest of the premises at reduced rent until they vacated in their own goods time and after all works had been finished.
6. Tenants gave evidence that on 3 April 2025 they were notified by strata that trades would need access to barbeque cupboards at the premises for waterproofing works. The tenants inquired as to the date and time of access. Tenants said (in the absence of photographic evidence) that when access was made to the barbeque cupboards some of their items were destroyed, soiled or marked. I do not except that this claim is compensable by way of a further rent reduction, or at all under section s 44(1)(b). The tenant had notice that access would be required. Instead of removing items from those areas tenants cavilled with the agent about a date and time for access. The tenants had long had notice of works being done in the decking area and ought to have removed goods prior to that access.
7. Nor do I accept that any access by trades from after 7:30 as notified by the landlord but before 8:00 AM as contended by the tenants was necessary after scaffolding was put in place. Even if it was sought in this half-hour period it was due to the requirement to attend to works at many premises at this time. While it is true that under s 57 of the Act a landlord or other person such as a trade may enter without consent only between the hours of 8.00 am and 8.00 pm, in this case tenants were given notice and consent was unreasonably withheld by tenants.
8. Neither cupboard repair to access items resulted in a loss of facility to be compensated by a rent reduction particularly one of such magnitude when a tenant has already had the benefit of a reduction for loss of facility due to the upstairs balcony works. Each is not a breach. Neither is to be awarded a further rent increase.
9. But tenants also sought further rent reduction of $230 due to the alleged further water ingress issues at the property that arose after the $184 reduction had already been agreed in relation to the loss or withdrawal of the deck facilities. What of the issues arising from the water ingress? Tenants gave evidence of reported leaks in a ceiling in the living room below the decking area where repair works were being done on 25 April 2025. Tenants said water landed on the floor causing it to swell. They also said some flooring was swollen at the time the tenancy commenced. The meaning of the 25 April email found at page 59 of 143 of the tenants' documents was strongly contested by the parties. This email is worth quoting in full. It states:

... Upon entering the kitchen this morning, we noticed leaking from the ceiling. Please find attached images showing the location of the leak with water leaching through the concrete ceiling and where the water has landed on the wood floor causing swelling of the timber

1. Two small photos were attached neither of which was compelling evidence of damaged floorboards nor a water leak.
2. It was strongly contested by both parties as to whether this leak was in the kitchen only or also occurred in the living/dining area. The email above does not resolve that issue as it makes no mention of the dining area but infers that water was leaking from the kitchen ceiling as only that room is mentioned. In any event, I am satisfied that from the leak there was a repair required, and floorboards were repaired not due to swelling, as contended by the tenant initially, but due to the need to colour match floorboards between different rooms as contended by the landlord. Whatever the case, the tenants' conceded repairs were done during the period when the tenants had to leave the premises for several days around 18 May. The landlord also argued repairs were attended to quickly and relied on documents showing attention to the repairs even though it was a weekend.
3. I am not satisfised the loss of any use of the kitchen (and perhaps the living / dining area, though I am unable to make a finding of any loss of use of that area) justifies a further rent reduction of $230 per week, or any at all beyond that agreed by the parties earlier for $184 per week. The landlord had a duty to repair goods, services and facilities impacted by water ingress. There was no breach of that obligation. The ingress was repaired in less than a week. Any defects in the goods, services and facilities did not result in a reduction or withdrawal as the tenants vacated to another place and the landlord is asked to reimburse that cost. I am not satisfied there was loss of use or capacity to enjoy the kitchen or living area facilities. The landlord's conduct in attending to repairs with alacrity meant repairs were done in in a timely manner. Any breaches causing loss of use or enjoyment were rectified. The rent reduced by agreement by $184 was not excessive. To make a reduction of a further $230 per week would be an excessive overall cumulative assessment for minimal, if any loss of facility.

Issue 2 - breach of quiet enjoyment compensation, non-economic loss

1. However, I do not dismiss the claim for non-economic loss for breach of quiet enjoyment.
2. Under s 50 a tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any contractor acting on behalf of the landlord. Neither landlord or agent is to interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises.
3. Breach of quiet enjoyment is compensable by an award of compensation for non-economic loss. In relation to non-economic loss at residential rental premises, in Young v Chief Executive Officer (Housing) [2023] HCA 31, the High Court of Australia stated at [17]:

17 There is no dispute that the "loss or damage" to which reference is made in s 122(1) can extend to non-economic loss and can include non-economic loss in the form of disappointment or distress suffered by a landlord or a tenant as "a normal, rational reaction of an unimpaired mind"13. There is also no dispute that disappointment or distress of that nature is not "physical injury, pain or suffering" so that an order for compensation in respect of disappointment or distress of that nature is not precluded by s 122(5)(a)14.

1. I fully accept that the tenants' reactions to the tenancy issues were normal, rational reactions of unimpaired minds.
2. I accept the evidence given by the landlord's agent that when the tenancy commenced on 22 August 2024 no meeting of the strata had approved works to be carried out. Nor had any levy been raised for works which were to be done to all premises. Consequently, neither the landlord or agent had a duty to notify the tenants of potential works at the commencement of the tenancy. However, I accept the tenants' position, which was common ground, that the notification of works on 20 March 2025 was without any prior notice and took tenants by surprise. The landlord would have been aware, or ought to have been of the decision taken at an annual general meeting or regular strata meeting authorising works to be done. On such short notice the tenants were given no opportunity to negotiate whether they might vacate in a more orderly fashion being aware that works would occur in the short-term future. This would have caused them inconvenience, distress and disappointment from this point though this was strongly ameliorated by the landlord providing the scaffolding.
3. Indeed, for the water ingress issues the tenants took significant steps to mitigate the landlord's losses over the short period. I also accept that the many actions that had to be taken by tenants in this short period caused disappointment and distress. At least one tenant was caused significant, distress, inconvenience and disappointment in having to communicate with, liaise with and arrange meetings with trades in the period of water ingress. This was borne out by the tenants' timeline of communication and attendances required as detailed in their chronology. This compounded the disappointment and distress they had endured since having to live with loss of the balcony area and the ongoing presence of trades, albeit from the outside through the scaffolding. Water ingress trades had to attend inside the premises.
4. Many other factors contributed to the tenants' loss of quiet enjoyment of the premises over most of 2025 before they vacated in October. They endured a compromised appearance and access to their premises with presence of scaffolding and trades, such as difficulty with car access. They gave evidence that on at least a couple of occasions they would required to give trade access at 0730 instead of 08:00. Having to relocate to temporary accommodation for a few days during the water ingress was more than just a trivial inconvenience. It was a cause of disappointment or distress.
5. Any amount to be awarded for non-economic loss is at the discretion of the Tribunal. The tenants seek $5,000. In Residential Tenancies Law and Practice, 8th Edition, Federation Press, the author, Allan Anforth, provides a table of comparative judgements for non-economic loss. In one case a tenant was awarded $3,700 for non-economic loss when the landlord failed to repair a leaking hot water system and a defective pool pump for nearly a year. Leaks caused carpet damage and mould infestation. In another case an amount of $5,000 in non-economic loss as sought by the tenants in this application was for failure by the landlord over a period of two years to make disabled modifications to the premises, despite promises to do so. Amounts awarded are wildly divergent with many only being nominal amounts up to the higher range as sought by the tenants in this matter. There was also a short period where tenants were issued rent arrears notices as the agreed rent reduction was not properly applied. This would have caused stress but the agent quickly rectified the notices.
6. Apart from the stress and inconvenience caused though factors outlined above, on the other hand, tenants have not suffered water ingress for a long period. The landlord took steps to prevent access to the interior to reduce stress and inconvenience. A rent reduction was actively negotiated and agreed to. The tenants benefited from use of all other facilities for the premises under a reduced rent and chose not to terminate when notified of repairs as they said they would do but remained until they vacated in October.
7. Considering all the circumstances of this case, the amount for non-economic loss awarded is $2,000.

1. Under s 47(4) of the Act, I also may order repayment any amount paid by the tenant that is not required to be paid under this Act.
2. Tenants incurred losses due to water ingress including paying for items to assist the landlord mitigate water damage, having to abandon the premises for several nights and pay for alternate accommodation, and repairs to their damaged goods. Evidence was provided of such losses, being:

(1) damage to lamp shade $60;

(2) towels used to clear water $11;

(3) storage tub for water ingress $20;

(4) washing of towels and bedding $88.00;

(5) day care for dog that could not remain at premises $165;

(6) alternative accommodation at an Airbnb $777.00;

(7) loss of Sealy pillow $319;

(8) replacement bedding $497.55;

1. Total costs were $1937.55.
2. The landlord did not give any evidence showing the tenants had not incurred these costs. Amounts were supported with documentary evidence from the tenants. It is more probable than costs were incurred during water ingress. The costs are payable.
3. Tenants claimed a complete abatement of rent for the nights they were in the alternate accommodation in the sum of $492.84. The landlord had already paid the cost of the Airbnb accommodation which was more than the rent. I am not satisfied rent abatement is payable as the tenants have already received the benefit of the landlord paying the alternate accommodation. To allow a rent abatement would be to allow a double benefit.

1. The landlord is to pay the tenants $2,000 for non-economic loss and $1,937.55 for tenants' costs incurred.
2. I order:

(1) The landlord, Victoria Smith, is to pay the tenants, Katherine Stapels and Leandro Wainfas, the sum of $3,937.55 immediately.

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.