Morsi v Wang [2023] NSWCATCD 133

Morsi v Wang [2023] NSWCATCD 133

The Tribunal held that during 22 July 2022 to 21 July 2023 the tenants suffered a very significant reduction in use and amenity of the premises, principally because water ingress and mould placed the premises well below the required standard of repair and habitability. The landlord's obligations to provide habitable premises and maintain them in reasonable repair were breached as between landlord and tenants even though the roof-related cause involved common property and the Owners Corporation. The oven was withdrawn until replacement, the blinds' use was reduced, and the cabana's amenity was reduced, but the water ingress and mould alone justified a 30% reduction. Rent was market rent...

Jurisdiction
Australia
Judgment Date
13 December 2023
Procedural Posture
Application Under S 44(1)(b) of the Residential Tenancies Act 2010 (nsw) for Excessive Rent Orders / Principal Judgment After Special Fixture Hearings
Outcome
Application allowed in part; excessive rent order made and liquidated to a money order; application otherwise dismissed.
Legal Topics
['excessive Rent' 'withdrawal or Reduction of Goods, Services and Facilities' 'residential Premises State of Repair' 'water Ingress and Mould' 'residential Tenancy Agreement Termination']
['residential Tenancy Law' 'consumer and Commercial Law'] ['excessive Rent' 'withdrawal or Reduction of Goods, Services and Facilities' 'residential Premises State of Repair' 'water Ingress and Mould' 'residential Tenancy Agreement Termination']

Case Brief

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Procedural Posture

Application Under S 44(1)(b) of the Residential Tenancies Act 2010 (nsw) for Excessive Rent Orders / Principal Judgment After Special Fixture Hearings

Legal Issues

  1. 1 ['Whether the Tribunal had jurisdiction because the application was made before the end of the tenancy.' 'Whether the oven, blinds, cabana, carpets, ceilings and walls were goods and facilities provided with the rented premises.' "Whether the tenants' use of those goods and facilities was withdrawn or reduced by the landlord." "What impact the withdrawal or reduction had on the tenants' use and amenity of the premises." 'Whether the rent payable was market rent during the period 22 July 2022 to 21 July 2023.' 'Whether rent was excessive having regard to the reduction or withdrawal of goods, services or facilities, and the amount of any excessive rent order.']

Ratio Decidendi

The Tribunal held that during 22 July 2022 to 21 July 2023 the tenants suffered a very significant reduction in use and amenity of the premises, principally because water ingress and mould placed the premises well below the required standard of repair and habitability. The landlord's obligations to provide habitable premises and maintain them in reasonable repair were breached as between landlord and tenants even though the roof-related cause involved common property and the Owners Corporation. The oven was withdrawn until replacement, the blinds' use was reduced, and the cabana's amenity was reduced, but the water ingress and mould alone justified a 30% reduction. Rent was market rent...

Court Disposition

Application allowed in part; excessive rent order made and liquidated to a money order; application otherwise dismissed.

Orders

  • ['The rent payable for the premises was excessive from 22 July 2022 to 21 July 2023 and is not to exceed $340.00 for the period 22 July 2022 to 16 February 2023 and $400.00 per week for the period 17 February 2023 to 21 July 2023.' 'Order 1 is liquidated. The landlord, Susan Wang, must pay the tenants Husam Morsi...