The parties entered into a residential tenancy agreement (the "lease") on 30 October 2010 for a five-bedroom house at Casula, NSW (the "premises").
Sometime before the lease was signed the tenants inspected the property. The first appellant gave evidence that she observed holes in some of the walls, missing door knobs, broken window handles, that the house was filthy, the kitchen stove was broken and the oven was not clean.
The first appellant gave evidence that the property manager at the time of the inspection assured them that the house would be cleaned and ready to move into before they did so (assuming they entered into a lease).
On 26 October 2010, the parties signed the lease.
At that time the Residential Tenancies Act 1987 (NSW) applied. That Act, and its successor Act, the Residential Tenancies Act 2010 (NSW) (the "RTA"), provided that a term of a residential tenancy agreement is void to the extent to which it is inconsistent with any term included in the agreement by those Acts or the regulations. The transitional provisions of the RTA provide that the terms included in a residential tenancy agreement by the RTA are included in any existing residential tenancy agreement on the repeal of the former Act and the RTA applies to any such agreement despite the terms of the agreement - Schedule 2, cl 3 of the RTA. In those circumstances and in this case the relevant provisions are those contained in the RTA and we shall hereafter refer to the provisions of that Act.
On 29 October 2010, the second appellant went to the landlord's agent's premises to pick up the keys for the premises. Whilst there she was asked to, and did, sign a document headed "Special Conditions".
In evidence was a three-page document headed "Special Conditions". The first two pages were dated 26 October 2010 and the third page was dated 29 October 2010. All three tenants signed the first two pages, but only the second appellant signed the third page. We infer the second appellant signed the first two pages on 26 October and the third page on 29 October 2010.
Terms 1-12 of the Special Conditions were on the first page and terms 13-14 were on page two. On the third page of the Special Conditions were two terms numbered 15 and 16. Term 15 is the only term relevant to this appeal and it said:
"The Tenant and Landlord acknowledge that the rear upstairs enclosed area may leak during heavy rain. Any furnishings/belongings placed in this area will be at the tenant's own risk. The tenant acknowledges/agrees that the Landlord will not be held responsible for any damage caused to furnishings/belongings."
This Special Condition is inconsistent with the landlord's obligations found in the RTA and most particularly s 63 (and the equivalent provision in its predecessor) and is therefore void and of no effect. However, this Special Condition is relevant to the question of the landlord's knowledge of the water leak, a matter to which we shall return.
The first appellant gave evidence that the agent's representations made at the time of the inspection were not fulfilled. Nevertheless, the tenants moved in and undertook cleaning of the premises and a number of repairs.
The first appellant's evidence was to the effect that on moving in the tenants had to clean, paint and repair the house themselves. Over the next eleven years the tenants undertook further maintenance and repairs. They were reimbursed for any materials purchased to undertake those tasks but were not compensated for their labour.
The first appellant's evidence was that since moving in the tenants had issues with a leaking roof that never got fixed. She said the cause was from rotten guttering to the upstairs bathroom leaking into the bedroom below. Later, in March 2022, water started entering the downstairs dining and living rooms.
The first appellant gave oral evidence that the fifth bedroom was constantly wet (presumably because it had not had sufficient time to dry out in between water ingress events) and the tenants were constantly having to clean mould from parts of the premises, and they gave up trying to use the fifth bedroom.
The contemporaneous documentary evidence relating to the knowledge of the landlord of the water leaks was as follows.
On 13 February 2012, the first appellant wrote to the managing agent saying that she had gone to their office on 6 June and 27 August 2011 and provided copies of the material receipts for repairs her father did to the roof of the house to stop the rain from entering.
On 29 January 2013, the first appellant wrote to the managing agent and said:
"As per our conversation l am writing to inform you of leaking roof in the 3rd bedroom on lower ground.
On very early Monday morning (28th Jan) the roof started to leak through. It is a constant drop of water in the near centre of the room (video/picture available). There is what looks like a bubble of water where the main leak is, and other small little bubbles that have been shown on previous occasions during House Inspections.
Also as previously mentioned the 3rd bedroom has problems with the roof leaking from the top level down the wall and door frame. if it is not leaking it is constantly wet. (video/pictures also available)"
On 18 August 2014, the first appellant emailed the managing agent and said:
"I am emailing you urgent repairs needed to the roof (at the premises).
On the following dates.
• 30th July 2014 - I emailed the office in regards to repairs needing to be done to the roof. Both to fix it and patch up the hole on the upstairs bedroom.
* 11th August 2014 - after two weeks of no reply I came into the Casula shops office on the Monday asking for an update on what was happening with the roof repairs. …
THESE past few days of heavy rain has the upstairs leaking through the roof and onto our bed.
ALSO the rain has started to leak through the bottom area and a constant drip drop of water can be heard constant through the night hitting the roof. The last time this happened a hole was made by the weight of the water gathering on the roof that eventually leaked through onto the bed downstairs."
(Emphasis original)
On 30 April 2015, the first appellant emailed the managing agent and said that there was another leak in the bottom bedroom, the upstairs roof still leaked and the hole in the roof was getting bigger and bigger.
On 17 July 2015, the first appellant emailed the managing agent and said:
"Just writing this email to advise you that the roof above my head in my room has a constant water drop sound from the rain coming in.
Once again I feel like it's a waste of time even sending you this email as nothing gets done about it. But at least I have proof for future reference showing that that I tried.
It's so annoying and have not been able to go back to sleep since I got up to go bathroom.
Below I have added a recording of the constant drip and have taken new photos to show the water stains on the roof and water damage cause by it.
Please send someone to come have a look at it ASAP, I'm sure the constant dampness caused by leaks all the time is not good for the health."
On 23 July 2015, the managing agent emailed the first appellant to say the landlord was making arrangements for the roof to be replaced.
On 26 August (or perhaps March, the date is not clear) 2015, the first appellant emailed the managing agent and said that her father had repaired and patched up the roof in the upstairs bedroom.
On 26 August (or perhaps March, the date is not clear) 2015 the first appellant emailed the managing agent and said:
"I just got a call from my mum she just went to clean the upstairs bedroom and the rain from the past few days has leaked through the roof again and has washed away the patch work dad had done and rubbish and water was all over the mattress that now needs to be cleaned.
Let the owner know the work that got done by the roof people was not done properly."
On 26 November 2015, the first appellant emailed the managing agent and said that the guttering needed fixing because the water continued to enter the premises, her father fixed the wall but the guttering needed to be fixed.
On 6 January 2016, the first appellant emailed the managing agent and said:
"Just letting you know there is still water leaking through my bedroom roof from the rain.
The reason I say this is because I woke up to water all over my floor this morning and my work clothes."
A few minutes later the first appellant emailed the managing agent and said:
"Also please note as I mentioned to you the water is leaking through the back wall we fixed up and painted and is making the paint and plaster puff up.
I know the owner said the guttering had been redirected but it's not working. ...
Let the owner know the work that got done by the roof people was not done properly."
On 25 August 2016, the first appellant emailed the managing agent and said:
"As mentioned to you on the 1st July the roof upstairs is leaking it had gotten to the point (sic) where it's damaged the bed that cost over $1500 as the wood is swelling from the water constantly hitting it and I'm very very upset and annoyed about it can't be moved as no matter where it's put the water hits it. It's an on going problem with the roof and don't understand, the owner paid the roofer for a job he did not even do properly. Let alone how bad mould is due to the roof being constantly wet and dripping on beds and pillows. Ask the roofer for a refund and bed replacement!!"
On 23 December 2018, the first appellant emailed the managing agent and said:
"Hi there we had hail damage on the roof and tiles are broken, and just as usual the roof is still leaking into the upstairs bedroom with the rain a problem that had yet to be fixed so hopefully the damaged roof tiles don't make it worse."
On 26 February 2019, the first appellant emailed the managing agent and said:
"As mentioned previously the during the inspection days. The constant leaking of roof had caused damage to the bed in the upstairs bedroom.
My mother has also gone in to advise about the damage caused to the bed and is very upset as it's solid wood and expensive $3000 bed before we got it on sale for $1500 cash.
She was advised to mention it to the insurance people when they came to inspect for damage but they said we don't have authorisation to speak or ask about it.
Either way this is not the first time we have mentioned that damage has been done to our property due to the constant leaking of the roof and my mum won't let it go and she and we all feel something need to be done."
On 10 February 2020, the first appellant emailed the managing agent and said:
"Hi spoke on the phone about the roof leaking I've tried calling SES but they have high numbers of calls and can't get through. Here is a pic of the roof leak today."
On 28 April 2020, the first appellant emailed the managing agent and said:
"Thank for your email, no repairs have been made since, when insurance people first came around to record what was wrong with the property after the hail damage we showed what was wrong and they put down everything that was water damaged even damage that had been caused prior to the hail storm that occurred and had nothing to do with it. For which he sent people around saying this will get fixed and this and that and we will take it one room at a time and it will get done, the insurance sent someone to check what needed to be done first and see how and when the repairs would be started and sort out dates to the point that he said he would call to start on the next week or so you can ask Michael the owner as he was there and I remember specifically as my dad was in hospital during that time, then never heard from them and had been told that insurance paid for repairs to be done but the owner was looking for someone else to do it??? Makes me wonder as I'm sure the insurance company thinks all the water damage to the house was caused by the hail? Yet we are living in it and paying high rent for the house and he never does anything to fix nothing. I was actually going to write to advise that winter is around the corner and rain is a common factor of winter."
On 16 September 2020, the first appellant emailed the managing agent and said:
"Also sorry forgot to email you about the lights - in the living room and upstairs.
The lights and fan in the bathroom I think it's just old and needs replacing.
And also all other water damage through the house from prior that still needs attending to. I had been told they would send someone out to clean the leaks and re paint but the walls still need to be fixed. And so on, just mentioning it again so it's kept in your system and covering all bases."
On 10 March 2022, the first appellant emailed the managing agent and said:
"Just had SES come and have a look and they said you guys need to sort it out as there's is nothing they can do to help with the damage of the rotten wood and broken gutter that allowing the water through.
And it's something that needs to be sorted out by the landlord."
Written complaints of water ingress, or water damage or both were also made on 5 June 2014, 25 July 2014 and 15 October 2014.
The Tribunal said that on 8 March 2022 the tenants had complained to the landlord about significant water leaks, and the landlord and the tenants accepted that at least 30% of the property was unusable due to those leaks.
The managing agent said that she conducted an inspection, found that water affected the electricals in the premises, a ceiling was collapsing and advised the landlord that the tenancy should be terminated because the premises were uninhabitable.
The managing agent gave evidence that the landlord had, over the years, sent various tradesmen to undertake repairs, but the landlord had been advised "by roofers and qualified tradesmen" that the roof was a "big job" even after all of the smaller repairs which had been undertaken. The landlord was advised after each smaller repair that the issue had been rectified but that advice turned out to be incorrect. The reasonable inference from that evidence is that repairs were undertaken to fix the roof leak but, because they were not sufficiently extensive, the problem was not fixed.
The Tribunal asked the managing agent whether she had received any reports of water ingress prior to 8 March 2022. The agent replied that one had been received on 14 March 2019.
The first appellant commenced her proceedings in the Tribunal on 19 April 2022.
Vacant possession was provided on 8 June 2022.
[2]
The Tribunal's Decision
The tenants claimed compensation for damage to certain goods. They made claims in relation to a wooden bed, a latex mattress, a lounge suite, a body massage chair, shoes, clothes and a bookcase and TV stand.
The Tribunal said (at [11]) that the time limit for a compensation claim was three months from the time the tenant was aware of the "claim". This was a reference to s 190(1) of the RTA and reg 39 of the Residential Tenancies Regulation 2019 (NSW) which provide that an application to the Tribunal for compensation arising from a breach of a lease must be brought within three months of the tenant becoming aware of the breach.
The Tribunal's decision on the compensation claim was:
"12 I perused the evidence of the tenant. There was not specific evidence of any loss during the last months before the claim except the electronic chair. The tenant stated that the cost of the chair was $179.95. The tenant stated that this chair was damaged due to water infiltration due to the roof water leaks. This damage occurred sometime around May 2022. The landlord admitted that there was water damage at the rear portion of the property but expressed doubt about the date stamps on the property damage.
13 However on account of the electronic chair, on the basis of sworn evidence, l am inclined to accept the version of the tenant that the electronic chair was damaged due to the water infiltration around May of 2022. The water infiltration that happened after March 2022 was due to the failure of the landlord to carry out the repairs. As such I make a finding that the landlord should pay the tenant $179.05 as compensation for the loss of the chair.
14 On the other claims for compensation, l am inclined to accept the position of the landlord. There is no time or date stamp in the photographs. As such, I cannot make a finding on any other claim for compensation as there is a time limit of three months to make a claim."
In relation to the tenants' claim for a rent reduction, the Tribunal's decision was:
"18 The first claim of the tenant is that the house was advertised as a five (5) bedroom house. However, only four bedrooms could be used as there was a leak in the sunroom. The landlord stated that the first time they were aware of the major roof leak was in March 2022.
19 In my view, it is a question of fact whether the landlord was aware of the roof leak from the beginning of the tenancy and failed to carry out the repairs. The tenant had the remedy to come before the tribunal in 2020 to seek repairs if that were the case. In the absence of evidence, I do not make a finding for rent reduction for a period of 12 months for the reduction of use of the sunroom.
20 However, in terms of the notification by the tenant that they lost the utility of 30% of the house due to rain and roof leaks from 8/3/2022, I make a finding that the landlord has breached the residential tenancy agreement by failing to carry out the repairs. The withdrawal of service is the service of property maintenance."
The Tribunal calculated that 30% of the weekly rent ($540) should be allowed for 92 days (92 days being the period between 8 March and vacation of the premises) by way of a rent reduction pursuant to s 44 of the RTA. That amounted to a reduction of $162 per week, The parties had (at the time) agreed on a rent reduction for that period of $100 per week, but the Tribunal allowed an additional $62 per week for the period. Calculated on a daily basis for 92 days the sum awarded was $814.20. There is a slight arithmetical error of a few cents which may be ignored.
[3]
Extension of Time to Appeal
The appeal was filed approximately 3 days out of time (as conceded by the tenant) and so an extension of time is required. That application was opposed by the landlord.
The first appellant submitted that the appeal was filed late because she had had a lot going on and was short of money for a period which proved a hurdle for her in filing the appeal.
The landlord said he would be prejudiced if an extension of time was granted because he did not have the benefit of having the managing agent represent him on the appeal. He submitted that he would have had the managing agent appear for him if the appeal had been filed in time because, had the appeal been filed in time, the managing agent's agreement would not have lapsed.
The managing agent's agreement was not tendered, and we do not accept the landlord's submission. Even had the agreement been operative at the time of the filing of the appeal it would still have lapsed before the hearing of the appeal and the agent would presumably not have appeared. Therefore, we do not accept that the landlord is prejudiced by extending time.
In addition, we do not see that the absence of a managing agent to represent the landlord on the appeal to be prejudicial, it being an appeal and not a hearing where the agent might give some relevant evidence.
Therefore, we see no prejudice to the landlord, the delay is short, we are satisfied with the explanation given by the appellant, and we consider that the balance of justice favours granting an extension of time to appeal.
[4]
Fresh Evidence
The appellants sought to tender fresh evidence on the appeal which had not been tendered to the Tribunal.
The fresh evidence consisted of photos and videos.
The photos were said to have dates showing the damage was caused to property at time of eviction.
The videos were said to show the water damage to the property that the photos provided to the Tribunal could not really show, that the entire property had water damage that had been happening over years.
Fresh evidence may be received on appeal if the appellants may have suffered a substantial miscarriage of justice because this fresh evidence is "significant" and was "not reasonably available" at the time of the Tribunal hearing - cl 12(1)(c) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW).
The first appellant said the fresh evidence had been on her phone which had been broken at the time of the hearing before the Tribunal but had since been repaired. Accordingly, she said, she had not been able to access this material at the time of the hearing before the Tribunal but was able to for the purposes of this appeal.
The legal test to apply to the question whether this fresh evidence was "reasonably available" to the appellants is set out in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]. In short, the test is objective and asks whether the evidence in question was unavailable because no person could have reasonably obtained the evidence.
We are not persuaded the appellants meet that test. We are not persuaded that, objectively speaking, no person could have reasonably obtained the fresh evidence prior to the hearing before the Tribunal.
The proceedings were commenced on 19 April 2022 and were heard on 12 July 2022, almost three months later. Objectively, a reasonable person could have had the phone repaired and the fresh evidence recovered during that time.
For those reasons we do not accept the appellants' fresh evidence on this appeal.
[5]
The Appeal
The appellants' complaint about the decision below was, as is often the case with non-legally trained parties, simply to the effect that it was wrong.
However, an appeal is not a second hearing. Appellants must show that, on the evidence before it, the Tribunal made some type of mistake in its reasoning which meant that it arrived at the wrong decision. Identification of the mistake which resulted in the decision being wrong is critical.
Realising the difficulty facing non-legally trained parties in identifying mistakes of the relevant kind for a successful appeal, the law requires us to examine the Tribunal's decision, and the evidence before it, to see whether the Tribunal made a relevant mistake - Cominos v Di Rico [2016] NSWCATAP 5.
Being the independent umpire ruling on the parties' dispute means that we do not examine those materials as if we were lawyers acting for the appellant, i.e in a partisan way - see, for example, Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21].
Rather, if having read the decision and the evidence it appears to us that a reasonably obvious mistake was made, then we should examine that mistake as if it had been raised by the appellants, subject to fairness being extended to the respondent in terms of addressing that perceived mistake.
In this case, the Tribunal made an obvious mistake in relation to the claim for a reduction in rent but did not do so in relation to the claim for compensation. We shall deal with those two claims in that order.
[6]
The Rent Reduction Claim
The Tribunal's reasons for rejecting the rent reduction claim for any time or period before 8 March 2022 are not clear. We have quoted the Tribunal's reasons at [59] above. The Tribunal seems to have said, at [19] of its decision, that there was no evidence that the landlord was aware of the roof leak at any time from the commencement of the lease until 8 March 2022.
That finding was wrong.
The existence of Special Condition 15 proved that the landlord was aware of the leak at the very commencement of the tenancy. That Special Condition, insisted upon by the landlord, said that the "rear upstairs enclosed area may leak during heavy rain".
In addition, the first appellant complained about the leak (or leaks) in writing to the landlord's agent (and therefore, in law, to the landlord) over many years commencing at least in 2012. We have set out those written complaints above.
It is clear from that evidence that the landlord was aware of the leak or leaks.
That type of mistake by the Tribunal is what lawyers call an error of law and entitles the appellants to appeal. The existence of that mistake means that the Tribunal's decision in relation to the rent reduction claim should be set aside.
As we have all of the evidence which was before the Tribunal, we are in a position to determine that claim ourselves rather than sending it back to the Tribunal for another hearing. We shall do so.
We accept the evidence of the first appellant as we have recounted above. It was not challenged and is consistent with the contemporaneous correspondence to which we have referred. It is also broadly consistent with the managing agent's evidence for the period post 8 March 2022.
We also accept the evidence of the managing agent other than that referred to in [54] (the evidence about first receipt of complaints about a water leak). Self-evidently there were earlier reports of water leaks and the agent's recollection evidence must give way to the contemporaneous correspondence.
To succeed in a rent reduction claim the appellants must prove, as required by s 44 of the RTA, that the landlord reduced or withdrew any of the goods, services or facilities provided with the residential premises. A failure to maintain residential premises in a reasonable state of repair, as required by s 63 of the RTA, may amount to a reduction and withdrawal of services by the landlord - Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [114].
On the evidence which was before the Tribunal (which did not include any evidence from the landlord himself and no evidence of the precise repairs he had carried out) we are satisfied that the landlord did not maintain the premises in a reasonable state of repair, as required by s 63 of the RTA.
The evidence (much of which we have set out above) satisfies us that the leaks were persistent and substantial, the landlord was aware of them, he was advised to undertake more extensive repairs (but failed to do so) and he failed to have the problem rectified. Had he acted diligently, a more extensive repair would and should have been undertaken early in the tenancy.
The question then is how much of a rent reduction is appropriate and for what period. Section 44 of the RTA says that the maximum period for which we could specify a maximum rent is 12 months, keeping in mind the Tribunal awarded a rent reduction for 92 days.
It is clear from the agent's evidence (see [53] above) that the landlord's attempted repairs over the years were unsuccessful. No matter how well-meaning those attempts may have been, the fact is that they were unsuccessful. The obligation to maintain premises in a reasonable state of repair is subject only to the landlord knowing of the need for repair (which he knew in this case from the date the lease was signed) and, arguably, the need to be reasonably diligent. Given the leaks persisted over many years, were substantial and caused substantial interference with the tenant's occupation of the premises, we are satisfied that the landlord did not act reasonably diligently to repair the problem. The landlord does not satisfy his obligation under s 63 by making well intentioned but ineffectual repairs.
The evidence of the periods of inconvenience caused by the water leaks, and the degree of inconvenience, is less than ideal, as is perhaps expected in a case where the tenants valiantly put up with the problem for many years and are not legally trained in how to prepare a case such as this.
Despite that problem, the inference we draw from the evidence is that the events of March 2022 resulted in a marked increase in the disturbance caused to the tenants by the water ingress which occurred at that time (compared to earlier times) and which continued for the balance of their tenancy.
As recounted earlier, the tenants received a total rent reduction for the last 92 days of their tenancy of $162 p/wk, being $100 as agreed by the landlord and a further $62 p/wk (rounded off) being awarded by the Tribunal. We consider that award to be appropriate in the circumstances.
In our opinion the tenants should receive a further rent reduction of $100 p/wk (or $14.29 p/day) for 273 days for the period 9 June 2021 to 8 March 2022. Those dates are slightly different to the Tribunal's dates which contained a minor arithmetical error.
In relation to that period no doubt the degree of loss of amenity would vary over time with the weather, and the length of periods between rainfall events, but a good starting point is the parties' agreement of $100 p/wk for the period after 8 March 2022. Whilst that figure related to the period when the loss of amenity was greater the Tribunal regarded it as insufficient for that period. Therefore, it seems to us an appropriate figure for the pre-8 March 2022 period given that it is slightly less than 20% of the weekly rent.
It seems to us that the evidence justifies the reduction of rent throughout the maximum period in respect of which the Tribunal may make such an order given the degree of interference with the tenants' enjoyment of the premises. That is an additional period of 273 days.
Therefore, we order that the rent payable under the lease was excessive for a period of 12 months:
1. by $14.29 per day for the period 9 June 2021 to 8 March 2022 (inclusive);
2. by $23.14 per day for the period 9 March to 8 June 2022 (inclusive).
It follows from what we have said (and the Tribunal's calculations which took into account the tenants were given a reduction of rent of $14.29 p/day for the period from 8 March 2022) that the tenants should be awarded the following sums to reimburse them for the excessive rent they paid:
1. for the period 9 June 2021 to 8 March 2022, 273 days at $14.29 p/day = $3,901.17;
2. for the period 9 March to 8 June 2022, 92 days at $8.86 p/day (which takes into account the $100 p/wk rent reduction agreed with the landlord) = $815.12;
3. making a total of $4,716.29.
[7]
The Compensation Claim
The Tribunal dismissed the tenants' claims for compensation (other than in relation to the chair). Although not entirely clear, it seems that the Tribunal was not persuaded that the damage to the other items occurred within three months of the claim having been made, the RTA saying that such claims needed to be made within three months of the tenants becoming aware of the "breach".
In a case such as the present, the breach (the failure to maintain the premises in a reasonable state of repair) was a recurring breach, and so the relevant time period was three months from the date of damage (because no action could be brought until damage had occurred). Thus, the Tribunal was not satisfied that the claim in the Tribunal was commenced within three months of the damage being occasioned to the items claimed.
On the evidence before the Tribunal that decision was correct.
The first appellant acknowledged that she did not seek an extension of time to bring those claims for compensation and accepted that there was no evidence the items were damaged within three months of the proceedings having been commenced.
We considered whether we should extend time for the appellants to bring those claims but have decided against it. It would be unfair to the respondent to allow those claims to be brought such a long time after the items were damaged and with no opportunity to investigate the claims (at least in relation to the amounts claimed) based only on the little evidence put forward by the appellants. The purpose of the three-month limitation is to ensure landlords are quickly apprised of such claims so that they may have some reasonable opportunity to investigate them.
For those reasons we dismiss the appeal in relation to the compensation claim and decline to make a different decision to that made by the Tribunal.
[8]
Orders
We make the following orders:
1. Time to appeal is extended up to and including the day the Notice of Appeal was filed.
2. Monica Tamayo and Nicolas Guillermo Gonzalez are joined to the appeal as second and third appellants.
3. Monica Tamayo and Nicolas Guillermo Gonzalez are joined to the proceedings at first instance nunc pro tunc.
4. Appeal upheld.
5. The orders of the Tribunal made on 12 July 2022 are set aside.
6. In substitution thereof:
1. order that the rent under the residential tenancy agreement between the parties was excessive and that:
1. from 9 June 2021 to 8 March 2022 (inclusive) the rent for the residential premises must not exceed $440 per week; and
2. from 9 March 2022 to 8 June 2022 (inclusive) the rent for the residential premises must not exceed $378 per week.
1. order the respondent to pay the appellants $4,716.29 immediately.
[9]
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: 01 November 2022
The second and third appellants were parties to the lease but were not named as parties to the proceedings before the Tribunal nor the appeal when filed. Their non-joinder to the proceedings was an error.
The second appellant has not indicated whether she consents to being joined to the appeal. The third appellant opposes being joined as a party. The respondent has not indicated whether he consents or opposes them being joined.
Because the second and third appellants were parties to the lease the three appellants were jointly liable to pay the rent. That is because prima facie the tenants were jointly liable for rent, and neither the lease nor the governing Act provided that the obligation to pay rent was joint and several or several only. In Chanaa v Zarour [2011] NSWCA 199 Campbell JA, with whom Bathurst CJ and Tobias AJA, said at [23]:
"The correct position is stated in Glanville Williams, Joint Obligations (1949) at 35:
'… a promise is joint when a single promise is made by two or more persons without words indicating that each is to be bound individually as well as jointly. If there are such words, the contract is joint and several. The presumption is that a contract made by two or more persons is joint, express words being necessary to make it joint and several. Just as in the law of property a tenancy by two is presumed to be joint unless there are words of severance, so in the law of contract a promise by two is presumed to be joint unless there are words making it joint and several.'"
What that means is that all three appellants were individually responsible to pay the whole rent. Thus, for example, if two of the appellants did not pay any rent, the third could be sued for the whole rent.
It follows that if the rent is to be reduced by reason of an order for rent reduction by the Tribunal, then, in substance, the appellants' joint liability for that rent is reduced.
It is therefore appropriate that the second and third appellants be added as parties to the appeal so that they may share in the rent reduction allowed by this decision and to which they are prima facie legally entitled to share. It may be that they may choose to confer their rights in that respect on the first appellant who brought the proceedings in the Tribunal, because all appellants are members of the same family, or that she alone actually paid the rent (about which there is no evidence before us) but that is their choice and is to be exercised outside the bounds of this decision. They have declined to participate in the proceedings and the appeal to date and so we infer they do not wish to add anything to the evidence or submissions advanced by the first appellant.
Accordingly, we order that they be joined to the appeal and be joined as parties to the proceedings pursuant to s 44 of the Civil and Administrative Tribunal Act 2013 (NSW) because they are necessary, and alternatively, proper parties to the appeal and the proceedings at first instance - see Commissioner of Police, NSW Police Force v Fine [2014] NSWCA 327 at [38]-[40]; Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 at [104]-[105].
The second and third appellants are joined nunc pro tunc, which is lawyer-speak meaning from the beginning of the proceedings i.e. 19 April 2022.
We note that we are empowered under s 81 of the Civil and Administrative Tribunal Act to make that order as we may exercise all the functions that are conferred or imposed by Civil and Administrative Tribunal Act on the Tribunal at first instance (which includes the power under s 44) as we are making a decision in substitution for the decision under appeal (as set out below).