Moroko v Cojay Holdings Pty Ltd [2022] NSWCATCD 79

Moroko v Cojay Holdings Pty Ltd [2022] NSWCATCD 79

The Tribunal found that essential facilities, including the balcony/roof deck and cabana, were withdrawn or reduced for most of the tenancy due to construction. The loss was substantial, amounting to over half the premises’ area and seriously affecting tenants’ enjoyment and use. The contractual clauses seeking to preclude tenant remedies were void pursuant to the Residential Tenancies Act. Consequently, the rent was excessive by 30% during relevant periods, and the respondents were ordered to pay compensation.

Jurisdiction
Australia
Judgment Date
12 May 2022
Procedural Posture
Application Under Residential Tenancies Act 2010 (nsw) / Final Decision
Outcome
Orders for declaration and compensation in favour of tenants; clauses declared void; rent reduced; compensation ordered.
Legal Topics
['excessive Rent' 'withdrawal or Reduction of Facilities' 'void Contractual Terms' 'prohibited Terms in Tenancy Agreements']
['landlord and Tenant' 'residential Tenancies' 'consumer Law'] ['excessive Rent' 'withdrawal or Reduction of Facilities' 'void Contractual Terms' 'prohibited Terms in Tenancy Agreements']

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Procedural Posture

Application Under Residential Tenancies Act 2010 (nsw) / Final Decision

Legal Issues

  1. 1 ['Whether the reduction or withdrawal of goods, services, or facilities provided with the premises resulted in excessive rent under s 44(1)(b) of the Residential Tenancies Act 2010 (NSW)' "Whether clauses in a variation to the residential tenancy agreement purporting to exclude tenants' rights or landlord liability are void under the Act"]

Ratio Decidendi

The Tribunal found that essential facilities, including the balcony/roof deck and cabana, were withdrawn or reduced for most of the tenancy due to construction. The loss was substantial, amounting to over half the premises’ area and seriously affecting tenants’ enjoyment and use. The contractual clauses seeking to preclude tenant remedies were void pursuant to the Residential Tenancies Act. Consequently, the rent was excessive by 30% during relevant periods, and the respondents were ordered to pay compensation.

Court Disposition

Orders for declaration and compensation in favour of tenants; clauses declared void; rent reduced; compensation ordered.

Orders

  • ['Clauses 2.1(d) and (e) of the variation to the residential tenancy agreement dated 23 June 2021 are void and of no effect.' 'The rent payable for the premises was excessive for the period 6 April 2021 to 1 March 2022 and must not exceed $770.00 during this period.' 'Cojay Holdings Pty Ltd must pay Daniel Moroko...