McCracken v Carbone [2022] NSWCATCD 107

McCracken v Carbone [2022] NSWCATCD 107

The Tribunal was not satisfied that the Second Termination Notice was wholly or partly motivated by any factor in s 115(2) of the Residential Tenancies Act 2010 (NSW). The respondent had already formed an intention to terminate by issuing the First Termination Notice on 16 August 2021, and the Second Termination Notice was inferentially issued to regularise defects in service after the Tribunal found the First Termination Notice had not been served properly. The s 115 application was therefore dismissed. On the rent application, the proposed increase to $450 per week was not justified on the evidence. Taking into account the limited comparable-rent evidence, the premises' amenities and...

Jurisdiction
Australia
Judgment Date
27 June 2022
Procedural Posture
Residential Tenancy Applications / Final Hearing and Determination
Outcome
The application in RT22/04850 was dismissed. In RT22/09776, the rent was ordered not to exceed $350 per week from 13 April 2022 to 13 April 2023.
Legal Topics
['rent Increase' 'excessive Rent' 'fair Rent' 'comparable Premises' 'retaliatory Termination Notice']
['residential Tenancies'] ['rent Increase' 'excessive Rent' 'fair Rent' 'comparable Premises' 'retaliatory Termination Notice']

Case Brief

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Procedural Posture

Residential Tenancy Applications / Final Hearing and Determination

Legal Issues

  1. 1 ['Whether the Second Termination Notice should be declared to have no effect under s 115 of the Residential Tenancies Act 2010 (NSW) because it was a retaliatory notice.' 'Whether the proposed rent increase from $300 per week to $450 per week was excessive under s 44 of the Residential Tenancies Act 2010 (NSW).' 'If the proposed rent increase was excessive, what maximum rent should apply and for what period.']

Ratio Decidendi

The Tribunal was not satisfied that the Second Termination Notice was wholly or partly motivated by any factor in s 115(2) of the Residential Tenancies Act 2010 (NSW). The respondent had already formed an intention to terminate by issuing the First Termination Notice on 16 August 2021, and the Second Termination Notice was inferentially issued to regularise defects in service after the Tribunal found the First Termination Notice had not been served properly. The s 115 application was therefore dismissed. On the rent application, the proposed increase to $450 per week was not justified on the evidence. Taking into account the limited comparable-rent evidence, the premises' amenities and...

Court Disposition

The application in RT22/04850 was dismissed. In RT22/09776, the rent was ordered not to exceed $350 per week from 13 April 2022 to 13 April 2023.

Orders

  • ['The application in RT22/04850 is dismissed.' 'In application RT22/09776, the rent shall not exceed $350 per week from 13 April 2022 to 13 April 2023.']