Evans v Jayandan [2023] NSWCATCD 129

Evans v Jayandan [2023] NSWCATCD 129

The termination notice was retaliatory because there was a causal connection between the Tribunal's 16 March 2023 monetary orders and the notice, and the respondents were motivated at least in part by those orders and a desire to reduce their financial burden by pressuring the applicant to accept a lesser sum in exchange for not requiring vacant possession. Rent was excessive because the failure to complete required painting, the recurrence of mould and incomplete or inadequate repair of the porch awning amounted to a reduction or withdrawal of services or facilities by the landlord. The respondents did not unreasonably withhold consent for a flatmate because the proposed person's...

Jurisdiction
Australia
Judgment Date
30 October 2023
Procedural Posture
Residential Tenancy Application / Consumer and Commercial Division Hearing and Principal Judgment
Outcome
The termination notice was declared retaliatory and of no effect; rent was reduced for a specified period; compensation and repair orders were made; the application was otherwise dismissed.
Legal Topics
['retaliatory Termination Notice' 'excessive Rent' 'withdrawal of Amenities or Facilities' 'repairs and Maintenance' 'quiet Enjoyment' 'consent to Sub Let']
['residential Tenancy Law'] ['retaliatory Termination Notice' 'excessive Rent' 'withdrawal of Amenities or Facilities' 'repairs and Maintenance' 'quiet Enjoyment' 'consent to Sub Let']

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Procedural Posture

Residential Tenancy Application / Consumer and Commercial Division Hearing and Principal Judgment

Legal Issues

  1. 1 ['Whether the notice of termination dated 30 March 2023 was a retaliatory notice under section 115 of the Residential Tenancies Act 2010.' 'Whether rent was excessive having regard to a reduction or withdrawal of goods, services or facilities provided with the premises.' 'Whether the respondents unreasonably withheld consent to the applicant seeking a new flatmate or partial sub-letting.' "Whether the respondents contravened the applicant's right to quiet enjoyment." 'What repair or work orders should be made concerning painting, mould treatment and the porch awning.']

Ratio Decidendi

The termination notice was retaliatory because there was a causal connection between the Tribunal's 16 March 2023 monetary orders and the notice, and the respondents were motivated at least in part by those orders and a desire to reduce their financial burden by pressuring the applicant to accept a lesser sum in exchange for not requiring vacant possession. Rent was excessive because the failure to complete required painting, the recurrence of mould and incomplete or inadequate repair of the porch awning amounted to a reduction or withdrawal of services or facilities by the landlord. The respondents did not unreasonably withhold consent for a flatmate because the proposed person's...

Court Disposition

The termination notice was declared retaliatory and of no effect; rent was reduced for a specified period; compensation and repair orders were made; the application was otherwise dismissed.

Orders

  • ['Declare pursuant to section 115 of the Residential Tenancies Act 2010 that the notice of termination dated 30 March 2023 served on the applicant by or on behalf of the respondents was a retaliatory notice and that it is of no effect.' 'Order pursuant to section 44(1)(b) of the Residential Tenancies Act 2010 that...