Kordas v Ahmed [2024] NSWCATAP 64

Kordas v Ahmed [2024] NSWCATAP 64

The Tribunal erred in law by treating the email method of transmission as making the rent increase notice invalid without considering the legal significance of the tenant's acknowledged receipt of the written notice on 27 September 2023. On the reasoning in Capper v Thorpe and Reiss v Helson, s 223 of the Residential Tenancies Act 2010 (NSW) is facultative rather than exclusive, and the notice was given for the purposes of s 41(1) because the tenant's own evidence showed that the rent increase notice came to his attention within the required 60-day period. Order 9 therefore had to be set aside, and the excessive rent increase issue remitted. The challenges to the rent reduction orders...

Jurisdiction
Australia
Judgment Date
19 April 2024
Procedural Posture
Internal Appeal in Residential Tenancy Proceedings / Appeal Panel Decision on Appeal From Tribunal Orders Made on 12 January 2024
Outcome
Appeal allowed in part; Order 9 set aside; Orders 7 and 8 set aside only to the extent they concerned the period from 1 December 2023 to 12 January 2024 or included a refund for that period; outstanding rent and refund questions remitted to the Tribunal.
Legal Topics
['rent Increase Notice' 'excessive Rent' 'service of Notices by Email' 'appeal on Question of Law' 'rent Reduction for Reduced Goods, Services or Facilities']
['residential Tenancy' 'leases and Tenancies' 'administrative Law'] ['rent Increase Notice' 'excessive Rent' 'service of Notices by Email' 'appeal on Question of Law' 'rent Reduction for Reduced Goods, Services or Facilities']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Internal Appeal in Residential Tenancy Proceedings / Appeal Panel Decision on Appeal From Tribunal Orders Made on 12 January 2024

Legal Issues

  1. 1 ['Whether the Tribunal erred in finding that the rent increase notice dated 27 September 2023 was invalid because it was served by email without the tenant having specified an email address or consented to email service.' "Whether the tenant's acknowledgement that he received the written rent increase notice on 27 September 2023 meant that notice was given in compliance with s 41(1) of the Residential Tenancies Act 2010 (NSW)." 'Whether the Tribunal erred in making rent reduction and refund orders under s 44(1)(b) of the Residential Tenancies Act 2010 (NSW).' 'Whether leave to appeal should be granted on the basis of significant new evidence or that the decision was against the weight of evidence.']

Ratio Decidendi

The Tribunal erred in law by treating the email method of transmission as making the rent increase notice invalid without considering the legal significance of the tenant's acknowledged receipt of the written notice on 27 September 2023. On the reasoning in Capper v Thorpe and Reiss v Helson, s 223 of the Residential Tenancies Act 2010 (NSW) is facultative rather than exclusive, and the notice was given for the purposes of s 41(1) because the tenant's own evidence showed that the rent increase notice came to his attention within the required 60-day period. Order 9 therefore had to be set aside, and the excessive rent increase issue remitted. The challenges to the rent reduction orders...

Court Disposition

Appeal allowed in part; Order 9 set aside; Orders 7 and 8 set aside only to the extent they concerned the period from 1 December 2023 to 12 January 2024 or included a refund for that period; outstanding rent and refund questions remitted to the Tribunal.

Orders

  • ['The appeal is allowed in part.' 'Order 9 made by the Tribunal on 12 January 2024 is set aside.' "The respondent's claim pursuant to s 44 (1) (a) of the Residential Tenancies Act 2010 (NSW) that the rent increase sought by the appellant in the rent increase notice dated 27 September 2023 payable from 1 December...