Anthony v Mao [2014] NSWCATAP 101

Anthony v Mao [2014] NSWCATAP 101

The appellants did not establish a breach of s 26 because the installation of rainwater tanks was not a prescribed material fact and there was no proven false, misleading or deceptive statement or representation inducing the lease. However, the installation of the tanks after the tenancy commenced materially reduced the appellants' amenity and use of the agreed outdoor patio area and a bedroom, making the rent excessive under s 44(1)(b). A reduction of $350 per month was appropriate. The claims concerning repairs and the outdoor light were not established because the repairs were found to have been completed within a reasonable time, the evidence did not show a reduction or withdrawal...

Jurisdiction
Australia
Judgment Date
10 December 2014
Procedural Posture
Residential Tenancy Internal Appeal / Appeal Panel Determination After Leave to Appeal Was Granted
Outcome
Appeal allowed in part; order 2 of the Tribunal at first instance set aside; first instance decision otherwise affirmed.
Legal Topics
['excessive Rent Orders' 'reduction or Withdrawal of Goods, Services or Facilities' 'disclosure of Information to Tenants' 'landlord Repair Obligations' 'internal Appeals']
['residential Tenancies' 'administrative Law'] ['excessive Rent Orders' 'reduction or Withdrawal of Goods, Services or Facilities' 'disclosure of Information to Tenants' 'landlord Repair Obligations' 'internal Appeals']

Case Brief

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Procedural Posture

Residential Tenancy Internal Appeal / Appeal Panel Determination After Leave to Appeal Was Granted

Legal Issues

  1. 1 ['Whether the respondent breached s 26(1) of the Residential Tenancies Act 2010 by not disclosing the proposed installation of rainwater tanks before the residential tenancy agreement was entered into.' 'Whether installation of rainwater tanks reduced or withdrew goods, services or facilities provided with the residential premises so that the rent was excessive under s 44(1)(b) of the Residential Tenancies Act 2010.' 'Whether delays in repairs to the stove, hall light, hot water, pelmet and wooden flooring justified an excessive rent order.' "Whether the respondent's failure to provide access to or repair an outdoor light established a breach of ss 52 or 63 of the Residential Tenancies Act 2010 or justified repair or excessive rent orders."]

Ratio Decidendi

The appellants did not establish a breach of s 26 because the installation of rainwater tanks was not a prescribed material fact and there was no proven false, misleading or deceptive statement or representation inducing the lease. However, the installation of the tanks after the tenancy commenced materially reduced the appellants' amenity and use of the agreed outdoor patio area and a bedroom, making the rent excessive under s 44(1)(b). A reduction of $350 per month was appropriate. The claims concerning repairs and the outdoor light were not established because the repairs were found to have been completed within a reasonable time, the evidence did not show a reduction or withdrawal...

Court Disposition

Appeal allowed in part; order 2 of the Tribunal at first instance set aside; first instance decision otherwise affirmed.

Orders

  • ['The appeal be allowed in part.' 'Order 2 of the Tribunal at first instance be set aside.' 'Pursuant to subsection 44(1)(b) of the Residential Tenancies Act 2010, the rent payable under the residential tenancy agreement between the parties is excessive from 8 February 2014.' 'The maximum rent that is payable under...