Cowling v Tran; Tran v Cowling [2022] NSWCATCD 128

Cowling v Tran; Tran v Cowling [2022] NSWCATCD 128

The Tribunal found the termination notice was valid and not retaliatory because the landlords were not shown to be motivated by revenge or avoidance of tenants' rights, had spent substantial amounts on repairs, and wished to regain possession to carry out repairs. As the notice complied with s 84, termination was mandatory. The landlords breached s 63 by failing to provide and maintain the premises in reasonable repair in relation to ongoing pool issues, gutters, bath/spa, and loose pool tiles, warranting compensation of $6,842.90. However, some claims were out of time, unproven, unauthorised, or would overlap with compensation. Rent was reduced prospectively from 17 June 2022 to 8 August...

Jurisdiction
Australia
Judgment Date
08 August 2022
Procedural Posture
Residential Tenancy Applications Under the Residential Tenancies Act 2010 (nsw) Concerning Termination, Possession, Compensation, Rent Relief and Work Orders / Principal Judgment After Hearing in the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal
Outcome
Residential tenancy agreement terminated; possession ordered with suspension until 5 September 2022; tenants awarded compensation and a rent reduction; balance of the tenants' application dismissed.
Legal Topics
['end of Fixed Term Termination Notice' 'retaliatory Termination Notice' 'termination and Possession Orders' 'failure to Repair and Maintain Residential Premises' 'compensation' 'rent Reduction' 'excessive Rent' 'withdrawal or Reduction of Goods, Services and Facilities']
['landlord and Tenant' 'residential Tenancy' 'consumer and Commercial Law'] ['end of Fixed Term Termination Notice' 'retaliatory Termination Notice' 'termination and Possession Orders' 'failure to Repair and Maintain Residential Premises' 'compensation' 'rent Reduction' 'excessive Rent' 'withdrawal or Reduction of Goods, Services and Facilities']

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Procedural Posture

Residential Tenancy Applications Under the Residential Tenancies Act 2010 (nsw) Concerning Termination, Possession, Compensation, Rent Relief and Work Orders / Principal Judgment After Hearing in the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal

Legal Issues

  1. 1 ['Whether the end of fixed term termination notice was retaliatory under s 115 of the Residential Tenancies Act 2010 (NSW).' 'Whether the landlords were entitled to termination and possession orders under s 84 of the Residential Tenancies Act 2010 (NSW).' 'Whether the landlords breached obligations to provide and maintain the premises in reasonable repair under s 63 of the Residential Tenancies Act 2010 (NSW).' 'Whether the tenants were entitled to compensation for repair issues and out-of-pocket expenses.' 'Whether rent should be abated or reduced because the premises were uninhabitable, excessive, or affected by withdrawal or reduction of goods, services or facilities.' 'Whether work orders should be made.']

Ratio Decidendi

The Tribunal found the termination notice was valid and not retaliatory because the landlords were not shown to be motivated by revenge or avoidance of tenants' rights, had spent substantial amounts on repairs, and wished to regain possession to carry out repairs. As the notice complied with s 84, termination was mandatory. The landlords breached s 63 by failing to provide and maintain the premises in reasonable repair in relation to ongoing pool issues, gutters, bath/spa, and loose pool tiles, warranting compensation of $6,842.90. However, some claims were out of time, unproven, unauthorised, or would overlap with compensation. Rent was reduced prospectively from 17 June 2022 to 8 August...

Court Disposition

Residential tenancy agreement terminated; possession ordered with suspension until 5 September 2022; tenants awarded compensation and a rent reduction; balance of the tenants' application dismissed.

Orders

  • ['The Residential Tenancy Agreement is terminated in accordance with section 84 of the Residential Tenancies Act 2010, as the landlord has served a termination notice for termination at the end of the fixed term.' 'The Residential Tenancy Agreement is terminated immediately and possession is to be given to the...