White v Di Lucca

NCAT Appeal Panel|2023-05-02

Background to appeal

This is an appeal from two decisions of the Consumer and Commercial Division of the Tribunal dated 14 February 2023 involving a residential tenancy agreement.
The parties entered into a residential tenancy agreement concerning premises in Batemans Bay commencing on 4 November 2021. The agreement terminated when the tenants vacated the premises on 17 November 2022.
The landlord commenced proceedings in the Tribunal on 2 December 2022. The landlord sought an order for the payment of $3440 for rent outstanding. The amount outstanding was not challenged by the tenants. They contended that the rent was not payable by reason of breaches of the residential tenancy agreement by the landlord.
The tenants commenced proceedings in the Tribunal on 15 December 2022. The application identified that the tenants were seeking compensation in the sum of $8747 under s 187 of the Residential Tenancies Act 2010 (NSW) (the RT Act). In substance, the tenants' application was for compensation under s 187 of the RT Act due to a loss of quiet enjoyment under s 50 of the RT and for a breach of s 52 of the RT Act denying the tenants access to a continuous hot water supply following installation of a timer. The tenants allege that by reason of the landlord's installation of the timer, they incurred unreasonably large electricity bills which should offset their contractual obligation to pay rent.
The Tribunal dismissed the tenants' application because the Tribunal found the application because the Tribunal was not satisfied that the RT Act or the terms of the residential tenancy agreement require the landlord to provide an instantaneous hot water service and the installation of a timer did not amount to a breach of the agreement.

The Notice of Appeal

We refer to the Notice of Appeal filed on 28 February 2023 and annexures.
The grounds of appeal are set out at page two of the Notice of Appeal and in written submissions.
It is convenient to set out the grounds of appeal in the order in which they were addressed by the appellant, Ms White, during oral submissions: 1. The Tribunal made an error of law as it did not consider the appellants' evidence in relation to the respondent's interference with the water supply. The Tribunal made an error in interpreting "interference" in section 52(2) of the RT Act as meaning causing the water supply to stop working. This is contrary to the Oxford English dictionary definition of "enter into something without right or invitation or intending to hinder or obstruct". 2. In respect of the claim for damages for mould the Tribunal made an error of fact when it found that moisture ingress repairs were carried out months before the mould outbreak. The Tribunal erred when it dismissed the tenant's claim for compensation for $350 for a damaged backpack and shoes. The Tribunal should have made an award of $350 based on the oral evidence of the tenants. 3. The Tribunal made an error of law when it found that section 26 of the RT Act was not breached because it was not an agreed fact that the respondent represented to the appellant prior to signing the tenancy agreement that the hot water system was a solar hot water system and failed to disclose that major repair works were scheduled to take place in the strata scheme during the fixed term of the tenancy agreement. 4. The Tribunal made an error of law by dismissing the tenants' claim for compensation for breach of quiet enjoyment because it interpreted the word 'scheduled' too strictly and contrary to the Oxford English dictionary definition. The Tribunal made a wrong finding of fact when it concluded that the appellants were unable to provide specific dates and numbers of times the disturbances had occurred because it was an agreed fact that the tenants had been disturbed. 5. The Tribunal should not have made an order for rent outstanding by consent because the tenants had not consented to the making of the payment.

Reply to Appeal

In his Reply to Appeal filed on 22 March 2023 the respondent supported the orders made on 14 February 2023.
By way of summary the respondent submits that there was no evidence provided to prove there was a breach of sections 52(1) and 52(2) and no evidence to support a finding of a breach of quiet enjoyment. It was submitted that the Tribunal was measured and thoughtful throughout the three-hour hearing and treated the tenants fairly by allowing an extension of time.

Applicable legal principles governing appeals

Section 80 of the CAT Act provides as follows: "(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances."
Clause 12 of Schedule 4 to CAT Act states: "An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)."
A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as examples of error of law: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]-[79] and [84(2)] as follows: "74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. … 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. 84 The general principles derived from these cases can be summarised as follows: … (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
Even if the appellants establish that they may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the CAT Act, the Appeal Panel has discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Appeal Panel's consideration of whether to exercise that discretion.
In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: "An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."

The tenants' submissions

The tenants were present in person at the appeal hearing. The tenants bring their appeal on the basis of an error on a question of law and on the basis that the findings of the Tribunal were against the weight of evidence, and for these errors the tenants require the leave of the Appeal Panel in order to succeed.

Ground 1

The tenants provided a bundle of documents of some 360 pages in length. Thirty nine pages consisted of written submissions with detailed cross-references to documents and emails tendered at first instance said to have been ignored by the Tribunal. Particular reference was also made to the Appeal references paginated 1 - 73. Not all of the cross-referenced pages can be referred to in these written reasons for decision but all have been considered by the Appeal Panel insofar they were addressed in written and oral submissions. In respect of the first ground of appeal, it is alleged that the Tribunal stated no evidence had been provided, when in the tenants' submissions such evidence had been overlooked.
Critical to the Tribunal's decision is its findings at [17] - [21] of the written reasons, that there was no compensation payable for the increased electricity costs because of an alleged faulty hot water system due to the landlord's breach of s 52 of the RT Act. 17. The tenants chose to turn the water tank into a continuous instantaneous hot water service and were warned that this would increase the electricity bills. 18. The tenants have not proved a breach of section 52(1) and therefore this component of the claim is dismissed. 19. The tenants also submitted that the landlord breached section 52(2) that the landlord interfered with the supply of water to the premises. Interfering with the water supply means causing the water supply to stop working. 20. There is no evidence before the Tribunal that the landlord interfered with the supply of water. Water was available to the tenants through the course of the tenancy. 21. There has been no breach by the landlord and the tenant's claim for compensation is dismissed.

The applicable legislation s52(1A)(f)

Section 52 sets out the landlord's obligation for residential premises and the tenants refer to section 52(1A)(f) that the premises must be connected to a water supply service or infrastructure that supplies water that is able to provide continuous hot and cold water for drinking and ablution and cleaning activities. Landlord's general obligations for residential premises (1) A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant. (1A) Without limiting the circumstances in which residential premises are not fit for habitation, residential premises are not fit for habitation unless the residential premises - … (f) are connected to a water supply service or infrastructure that supplies water (including, but not limited to, a water bore or water tank) that is able to supply to the premises hot and cold water for drinking and ablution and cleaning activities,…
It is the tenants' submission that the landlord was in breach of this obligation as a solar system timer was placed on the water supply "only allowing two hours of hot water per day". Particularly at page 9 paragraph 25 of their submissions the tenants say that the tribunal made errors of law in fact when it failed to appropriately consider and address the fact that there was a material change during the tenancy whereby hot water was initially available from the commencement of the tenancy agreement available 24 hours per day; And subsequently a timer device was fitted which reduced the hot water availability to two hours per day and the tenant removed the timer thus restoring the hot water supply back to 24 hours per day but due to the removal of the timer there was a substantial material increase to the tenants' electricity charges

Consideration:

We have been provided with an outline of submission. The appellants' documents at pages 8 and following address the "interference" issue. The tenants submit that a finding of "interference" does not require the water supply to be "disconnected" or "to stop working", but rather that the landlord's installation of a timer causing the hot water supply to be restricted is sufficient to establish a breach of section 52(1A)(f).
The tenants submit that the Tribunal failed to consider the hot water supply was initially available for 24 hours per day and then was "restricted" to two hours per day. If the tenants used the water outside the two hour time frame dictated by the timer, the tenants incurred an increase in electricity charges. This was brought to the landlord's attention in emails dating from 27 September 2022 and following (pp 38,48 and 49 of the appellant's bundle "AB"). It is submitted that the Tribunal failed to consider the appellants' lengthy submissions concerning breaches of s 63 of the RT Act, made at first instance (AB 24).
We are not of the view that the Tribunal erred in interpreting the statute. The Member concluded that there was a delay in the hot water supply and that hot water reaching the property within one or two minutes, once a timer was installed by the owners corporation of the strata scheme, did not constitute a breach of the residential tenancy agreement or section 52(1A)(f) of the RT Act.
The object of s 52 must be understood considering the general objects of the Act and in particular in the context of all of Part 3 of the Act "Rights and obligations of landlords and tenants". The chapeau to s 52 reads "Landlord's general obligations for residential premises". The objects are clearly multiple objects which reflect that the RT Act seeks to strike a balance between the rights of landlords on the one hand and tenants on the other hand, including to encourage the continued growth and viability of residential tenancies in New South Wales.
In Carr v The State of Western Australia [2007] HCA 138 (23 October 2007) at [5] - [7], (2007) 232 CLR 138, 142 - 143, Gleeson CJ said, relevantly: [5] Another general consideration relevant to statutory construction is one to which I referred in Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 at 207, [8]. It was also discussed, in relation to a similar legislative scheme, in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at 225-232, [22] - [40]. It concerns the matter of purposive construction. In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth) ("the Acts Interpretation Act"). It is also required by corresponding State legislation, including, so far as presently relevant, s 18 of the Interpretation Act 1984 (WA). That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose. [6] To take an example removed from the present case, it may be said that the underlying purpose of an Income Tax Assessment Act is to raise revenue for government. No one would seriously suggest that s 15AA of the Acts Interpretation Act has the result that all federal income tax legislation is to be construed so as to advance that purpose. Interpretation of income tax legislation commonly raises questions as to how far the legislation goes in pursuit of the purpose of raising revenue. In some cases, there may be found in the text, or in relevant extrinsic materials, an indication of a more specific purpose which helps to answer the question. In other cases, there may be no available indication of a more specific purpose. Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling. [7] As explained in Kelly and Nicholls, the general purpose of legislation of the kind here in issue is reasonably clear; but it reflects a political compromise. The competing interests and forces at work in achieving that compromise are well known. The question then is not: what was the purpose or object underlying the legislation? The question is: how far does the legislation go in pursuit of that purpose or object?
In the context of this case we are not persuaded that the objects of the Act prevent a landlord installing a timer that attempts to moderate use of the hot water supply to effect energy savings. In other words, there was no restriction of hot water supply, the hot water supply allowed for instantaneous hot water some of the time, whereas at other times there was a lag before the hot water reached the residential premises. There is no obligation under the RT Act or under the residential tenancy agreement to provide continuous instantaneous hot water.
We are particularly persuaded by the evidence that the system allows adjustment. In the respondent's documents it is stated that the tenants had an opportunity to adjust the system to suit their needs. The hot water system was upgraded in February 2022 pursuant to a resolution of the owners corporation in general meeting. All owners and occupiers in the strata scheme were instructed that there was a window of time of two hours where the water would be instantaneous. Outside the timed window the hot water will take " a little longer". The tenants did not specify how long it took for hot water to reach the residential premises outside the timed window. There is no finding of fact to state exactly how long it takes for water to get hot. The Tribunal found at [13] that the hot water would be available, even while one the timer, it would just take " approximately 1-2 minutes for the hot water to flow through".
The tenants, dissatisfied with this state of affairs selected to turn off the energy saving timer because they stated they had "no" hot water while the timer remained on. There is however no evidence to support the contention that the tenants had "no hot water" nor was there evidence tendered be the tenants how long it took for hot water to reach the tenants if the timer was disabled. We are therefore not persuaded that the Tribunal erred when it reached a finding that the water would take approximately 1-2 minutes to flow through. The tenants gave evidence that it would take 5 to 8 minutes to flow through, but that is not supported anywhere in the evidence that the Appeal Panel was taken to. The conclusion that can be reached is that the tenants, unwilling to wait for 1 to 2 minutes for hot water, elected to have the hot water supply on a 24 hour booster which uses a large amount of electricity causing higher than average bills.
We are not of the view that the finding of fact that the lag was no more than 1 to 2 minutes was made in error. The tenants have not established that there was an "interference" with the water supply that constituted a breach of the RT Act or the residential tenancy agreement. The landlord provided a hot water supply to the property compliant with its obligations under the Act.
We are not of the view that the tenants have established that there is an error on a question of law. Nor is there an error for which the leave of the Appeal Panel is required.

Ground 2

The Tribunal erred when it dismissed the tenants' claim for compensation for $350 for a damaged backpack and shoes.
The tenants' submissions are contained at page 48 and following. In particular the landlord has provided a defence to the allegations. In particular at paragraph 131 of the tenants' submissions at page 25 it is said that the landlord's attention was drawn to the fact that there was moisture ingress into the building and notifying the landlord that the tenants had observed significant mould developing at the property which was materially impacting the tenants' enjoyment of the property and was a health concern. The tenants were said to have notified the landlord of a faulty kitchen extractor fan which posed a safety concern. Other than these submissions there is no evidence to support the contention that the landlords have breached the residential tenancy agreement or that any breach by the landlord resulted in loss and damage to the sum of $350.
The relevant finding is contained at [24] of the written reasons for decision "the tenants refer to a repair conducted by strata regarding the reduction of moisture in the premises however this was months predating the mould and the tenants were unable to provide evidence as to whether this repair was completed before the mould was first reported on 14 September 2022".
We cannot find any error in the Tribunal's finding at [26] that the mere presence of mould does not amount to a breach by the landlord.
In addition, the Tribunal noted that the tenants had failed to provide any evidence of the value of the items that they claimed were impacted by mould damage. We take this to be a finding that the tenants provided no evidence corroborating the value of the items concerned. This oversight was not remedied on appeal. If the Tribunal was given evidence in support of this aspect of their claim, it was not included in the material provided. In the absence of corroborative evidence, it was open to the Tribunal to refuse the tenants' claim for $350. There is no error on a question of law and no error on a question of fact for which the leave of the Appeal Panel is required. This ground of appeal must fail.

Ground 3

The tenants submit that the Tribunal made an error on a question of law by dismissing their claim for compensation for breach of quiet enjoyment because it interpreted the word 'scheduled' too strictly and contrary to the Oxford English dictionary definition. The tenants contend that due to frequent inspections by the landlord or the landlord's agent the tenants ought to be compensated.
The tenants' submissions in this respect is contained at page 48 of their bundle. The tenants have prepared 39 pages of submissions presenting the relevant events in chronological order. We have carefully considered the chronology and there no reference to inspections being notified to the tenants nor is there any mention of entry by trades persons for the purpose of inspections. During the hearing the Appeal Panel asked whether the tenants could identify particular dates when entry to the property was requested. The tenants referred us to pages 20, 23, 192, 194, 195 and 197 of their bundle. We have regard to those documents. They do not prove that access to the property was either requested or granted. There is simply no evidence to arrive at a finding that contractors entered the premises at all let alone frequently.
The relevant findings of the Tribunal in respect of this head of damage are contained at paragraphs [36] and following. "The tenants claim compensation of $2500 due to the landlord's alleged breach of quiet enjoyment." The tenants claim that there is an error in the Tribunal's reasons, but no particulars have been provided.
We are not satisfied that this ground of appeal is established as no evidence has been provided that would lead us to conclude that there was a breach of quiet enjoyment. We are not persuaded that the Tribunal has erred on a question of law or that there was a misapprehension of the evidence provided by the tenants.

Ground 4

The tenants submit that the Tribunal should not have made an order for rent outstanding "by consent" because the tenants had not consented to the making of the payment, they merely agreed that the arithmetic was correct.
We agree that entering the order "by consent" was incorrect. However this is not an error that makes any conceivable difference. The tenants agreed that there was rent owing to in the sum of $3440. They sought an order that they not have to pay $3440 because they had a defence by way of set off as it was their contention that the landlord had breached the residential tenancy agreement and that they were entitled to a rent reduction. The tenants simply unilaterally stopped paying rent after they formed the view a breach had occurred.
In its application RT 22/53560 the landlord sought orders for an award for rent outstanding in the sum of $3440.
The claim arises from the tenants' unilateral decision to withhold $3440 rent "for electricity which was incurred because of the defective solar hot water system." A calculation is provided at page 36 of the tenants' bundle, based on the tenant's argument that they incurred increased electricity charges by reason of the landlord's breach.
The tenants considered that the withholding of rent was justifiable and that their position was that they were legally able to unilaterally reduce their rent. They were so justified because of the landlord's perceived breach.
Turning to the first possible construction of the tenants' ground of appeal, withholding rent is not legally justifiable. It is trite law that the obligation to pay rent is generally independent of the landlord's obligations under a residential tenancy agreement.
As was said in Seymour v Wu [2021] NSWCATAP 289: "44. Be that is it may, as the Tribunal said, correctly in our view, the obligation upon a tenant to pay rent (see clause 3.1 of the 2014 Agreement) is separate from the obligation of the landlord to maintain the premises fit for habitation (RTA s 52) and in a reasonable state of repair (RTA s 63 and s 65), assuming Mr Seymour relies upon those sections. 45. The unilateral withholding of any amount of agreed rent is not a remedy available to a tenant unless the parties have agreed otherwise, there is a statutory abatement of rent, or an authorised deduction or abatement of the rent - Halsbury's Laws of Australia, online edition, at [245-3090]; Chatfield and Another v Elmstone Resthouse Ltd [1975] 2 NZLR 269; Lolly Pops (Harbourside) Pty Ltd v Werncog Pty Ltd, NSWSC, unreported, 1 July 1998; (1998) 9 BPR 16,361. 46. As Mullighan J said in Debonair Nominees Pty Ltd v J & K Berry Nominees Pty Ltd [2000] SASC 244; (2000) 77 SASR 261 at 271: 'Liability to pay rent does not cease merely because the lessor has breached a covenant. The only deductions which can be made by the tenant are those authorised by statute or expressly permitted by the lease …'"
See also Butt P, Land Law, 6th ed., Lawbook Co, 2010 at [15.94]. Put another way, even if the Landlords were in breach of the agreement, the Tenants were still obliged to pay the full rent.
The Tribunal decided that the defence or set off was not made out. Therefore the application by the landlord for payment of rent outstanding was successful and an order for rent outstanding to be paid was entered.
In the landlords' application, RT 22/53560 the Tribunal did make an order for an amount of rent outstanding in accordance with the arithmetic agreed and the as the tenants' defence or set off was not established. There is no error on a question of law and nor error for which leave to appeal should be granted, this ground of appeal is dismissed.
We are not satisfied the Member's decision was against the weight of evidence. We are also not satisfied the decision was not fair and equitable. A basis for leave to appeal under cl. 12 of Sch. 4 of the NCAT Act has not been established by the appellants, and we do not grant leave to appeal in accordance with the principles set out in Collins v Urban.

Ground 5

The tenants seek an order for compensation in the sum of $5632 pursuant to s 26 of the RT Act. The section provides as follows: 26 Disclosure of information to tenants generally (1) False representations A landlord or landlord's agent must not induce a tenant to enter into a residential tenancy agreement by any statement, representation or promise that the landlord or agent knows to be false, misleading or deceptive or by knowingly concealing a material fact of a kind prescribed by the regulations. (2) Disclosure of sale, mortgagee actions A landlord or landlord's agent must disclose the following to the tenant before the tenant enters into the residential tenancy agreement - (a) any proposal to sell the residential premises, if the landlord has prepared a contract for sale of the residential premises, (b) that a mortgagee is taking action for possession of the residential premises, if the mortgagee has commenced proceedings in a court to enforce a mortgage over the premises. (2A) Disclosure or provision of strata scheme information If the residential tenancy agreement relates to residential premises that comprise or include a lot in a strata scheme (within the meaning of the Strata Schemes Management Act 2015) - a landlord or landlord's agent must, before the tenant enters into the residential tenancy agreement - (a) give the tenant a copy of the by-laws for the strata scheme, and (b) if a strata renewal committee is currently established in relation to the strata scheme under the Strata Schemes Development Act 2015, disclose that fact to the tenant. (3) Subsections (2) and (2A)(b) do not apply to a landlord's agent unless the agent is aware of the matters required to be disclosed. (4) Information statement to be given A landlord or landlord's agent must give a tenant an information statement in the approved form before the tenant enters into the residential tenancy agreement. Maximum penalty - 20 penalty units.
The tenants say that they are entitled to compensation by reason of a breach of s 26 of the RT Act and the "landlord admitted the breach". The breach is said to have arisen because the landlord concealed, prior to the parties entering in the residential tenancy agreement, that the owners corporation was conducting major works; the landlord was also said to have been misleading and deceptive because he failed to advise that there is " a difference between the amount of rent the tenant was induced to pay for the property when they believed it benefitted from solar hot water". It is submitted that a "breach" of s 26 gives rise to damages in the sum of $5632 (see page 37 of the tenants' bundle).
We have said earlier in these reasons that this ground of appeal fails because nowhere in the evidence have the tenants established that the landlord or its agents entered the residential premises, either to inspect or to carry out "major repairs". Further no error is established in the Tribunal's finding that there was no breach of s 52(1) of the RT Act because a hot water timer was installed in February 2022. There was no false and misleading statement within the meaning of s 26 of the RT Act and no requirement for the landlord to give the tenants a "statement in the approved form" when they entered the residential tenancy agreement in November 2021.
We would note that s 26 is a penalty provision, breach of which permits proceedings to be commenced under s 202 of the RT Act or an authorised officer to issue a penalty notice under s 203 of the RT Act. However, a failure to comply with the requirements of s 26 does not of itself give rise to a cause of action that enables a tenant to claim damages. The tenants' claim for damages arises under s 190 of the RT Act. If a breach of s 52 had been established, the Tribunal could have awarded damages under s190 of the RT Act. The reference to section 26 does not give rise to an additional cause of action above and beyond the tenants' causes of action for alleged breach of ss 50 and 52 of the RT Act.
This ground of appeal is dismissed.

Orders

The orders that we accordingly make are as follows: 1. Leave to appeal is refused. 2. The appeal is dismissed. 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: 08 August 2023

(NSW), Civil and Administrative Tribunal Rules 2014(NSW)

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