Roberts v Nguyen; Nguyen v Roberts [2023] NSWCATCD 88

Roberts v Nguyen; Nguyen v Roberts [2023] NSWCATCD 88

The tenants had taken action to enforce rights by requesting repairs, but the Tribunal was not satisfied on the balance of probabilities that the landlords were wholly or partly motivated by a desire to avoid the complaints or any liability under the Act. The Tribunal accepted that the landlords wished to recover possession to carry out major roof and bathroom ceiling repairs, including safety-related works, and found their conduct in carrying out other repairs was not consistent with avoiding repair obligations. Because the termination notice was valid, not retaliatory, and the tenants had not vacated, s 84(3) required termination of the tenancy.

Jurisdiction
Australia
Judgment Date
21 August 2023
Procedural Posture
Residential Tenancy Applications Under the Residential Tenancies Act 2010 (nsw) / Final Determination of Tenants' Application Challenging Termination Notice as Retaliatory and Landlords' Application for Termination and Possession
Outcome
Tenants' application dismissed; landlords' application granted; residential tenancy agreement terminated and possession ordered, suspended until 28 August 2023.
Legal Topics
['end of Fixed Term Termination Notice' 'retaliatory Termination Notice' 'termination Order' 'possession Order' 'occupation Fee' 'repairs and Renovations']
['residential Tenancy Law' 'consumer and Commercial Tenancy Disputes'] ['end of Fixed Term Termination Notice' 'retaliatory Termination Notice' 'termination Order' 'possession Order' 'occupation Fee' 'repairs and Renovations']

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Procedural Posture

Residential Tenancy Applications Under the Residential Tenancies Act 2010 (nsw) / Final Determination of Tenants' Application Challenging Termination Notice as Retaliatory and Landlords' Application for Termination and Possession

Legal Issues

  1. 1 ["Whether the landlords' end of fixed term termination notice under s 84 of the Residential Tenancies Act 2010 was retaliatory under s 115." 'Whether the Tribunal was required to make a termination order under s 84(3).' 'Whether and for how long the order for possession should be suspended.']

Ratio Decidendi

The tenants had taken action to enforce rights by requesting repairs, but the Tribunal was not satisfied on the balance of probabilities that the landlords were wholly or partly motivated by a desire to avoid the complaints or any liability under the Act. The Tribunal accepted that the landlords wished to recover possession to carry out major roof and bathroom ceiling repairs, including safety-related works, and found their conduct in carrying out other repairs was not consistent with avoiding repair obligations. Because the termination notice was valid, not retaliatory, and the tenants had not vacated, s 84(3) required termination of the tenancy.

Court Disposition

Tenants' application dismissed; landlords' application granted; residential tenancy agreement terminated and possession ordered, suspended until 28 August 2023.

Orders

  • ['RT 23/18650: The application for an order under s 115 of the Residential Tenancies Act 2010 is dismissed because the Tribunal is not satisfied that the grounds required to make the orders sought have been established.' 'RT 23/24131: The Residential Tenancy Agreement is terminated in accordance with s 84 of the...