Al-Basry v Maharaj - [2022] NSWCATCD 9

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Al-Basry v Maharaj [2022] NSWCATCD 9
Hearing dates: 4 November 2021 and 29 November 2021
Date of orders: 7 February 2022
Decision date: 07 February 2022
Jurisdiction: Consumer and Commercial Division
Before: B Shipp, Senior Member
Decision:
1 The Tenant is to pay the Landlord $3041.67 on or before 10 March 2022.
2 The Rental Bond Services is to pay the full amount of Rental Bond No. T069713-2 to the Landlord in full.
3 The amount of the rental bond is to be credited against the amount ordered in Order 1.

Catchwords:
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) —Tenant claim for termination and compensation due to alleged asbestos contamination, and failure to disclose — No breach found — Landlord claim for break lease, occupation fee and compensation — Landlord partially successful

Legislation Cited:
Residential Tenancies Act 2010 (NSW)
Residential Tenancies Regulation 2019 (NSW)

Cases Cited:
Bhandari v Laming [2015] NSWCATAP 224
Keith Bannister v David and Mariam Cheung [2014] NSWCATCD 105
Summers v Salford Corporation [1943] AC 283
Gray v Queensland Housing Commission [2004] QSC 276
Hampel v South Australian Housing Trust [2007] SADC 64
McLeish v FT Eastment & Sons Pty Limited [1970] 2 NSWR 282
De Solei v Palmhide Pty Limited [2010] NSWCTTT 464
Abdel-Messih v Marshall [2017] NSWCATAP 136

Texts Cited:
Residential Tenancies Law and Practice New South Wales, 6th Edition by Allan Anforth, Peter Christenson and Sophie Bentwood

Category: Principal judgment
Parties: Zaynab Al-Basry (First Applicant)
Mohammed Al-Basry (Second Applicant)
Krishneel Maharaj (Respondent)
Representation: Applicants (Self-represented)
R Morris (Respondent)

File Number(s): RT 21/37944
RT 21/39622
Publication restriction: Nil

REASONS FOR DECISION

Background, Application and Proceedings

The parties in this matter entered into a 6-month Residential Tenancy Agreement (RTA) commencing on 6 August 2021 at a rent of $380 per week. The Tenants state they sought and were given approval to undertake certain renovations on the property, for which they were given a rental discount. Soon after commencing these renovations, they became aware that the premises contained both asbestos and SMF, to the prior knowledge of the Landlord. They requested the Landlord to undertake some professional testing, including of their belongings, to determine the extent to which they have been contaminated by their actions in renovating the property. The Landlord suggested they undertake their own testing. The did this and it confirmed their suspicions.
On 31 August 2021, the Tenants gave the Landlord a Termination Notice seeking immediate termination (no notice) alleging that the premises had become uninhabitable. They also allege that the Landlord was in breach of Section 26 of the Residential Tenancies Act (“the Act”). Section 26 provides in part:

1) False representations A landlord or landlord's agent must not induce a tenant to enter into a residential tenancy agreement by any statement, representation or promise that the landlord or agent knows to be false, misleading or deceptive or by knowingly concealing a material fact of a kind prescribed by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Al-Basry v Maharaj

Details

AGLC: Al-Basry v Maharaj [2022] NSWCATCD 9
Case: [2022] NSWCATCD 9
Decision Date: 07 February 2022

CaseChat Overview and Summary

In the case of Al-Basry v Maharaj, the dispute involved the Tenant, Mr. Al-Basry, and the Landlord, Mr. Maharaj, under the Residential Tenancies Act 2010 (NSW). Mr. Al-Basry sought to terminate the lease and claim compensation on the grounds of alleged asbestos contamination and failure to disclose by Mr. Maharaj. Conversely, Mr. Maharaj sought a break lease, occupation fee, and compensation. The case was heard in the NSW Civil and Administrative Tribunal.

The legal issues before the court were whether the Tenant's claims for termination and compensation were valid due to the alleged asbestos contamination and failure to disclose, and whether the Landlord was entitled to a break lease, occupation fee, and compensation. The court had to determine the validity of the Tenant's claims and the Landlord's counterclaims, assessing the evidence and applying relevant sections of the Residential Tenancies Act 2010 (NSW).

The Tribunal found no evidence of asbestos contamination and determined that there was no breach of the lease by the Landlord. Therefore, the Tenant's claims were dismissed. However, the Tribunal did find that the Landlord was entitled to a break lease and compensation for the period the property was vacant and not let. The amount of $3041.67 was awarded to the Landlord, to be paid by the Tenant. Additionally, the Tribunal ordered the full amount of the rental bond to be paid to the Landlord, with that amount to be credited against the amount ordered in the first order.

The final orders of the Tribunal were that the Tenant was to pay the Landlord $3041.67 by 10 March 2022, and the Rental Bond Services was to pay the full amount of the rental bond to the Landlord, which was to be credited against the amount ordered in the first order.

Orders

Orders of the court

1 The Tenant is to pay the Landlord $3041.67 on or before 10 March 2022.

2 The Rental Bond Services is to pay the full amount of Rental Bond No. T069713-2 to the Landlord in full.

3 The amount of the rental bond is to be credited against the amount ordered in Order 1.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Al-Basry v Maharaj [2022] NSWCATCD 9
Hearing dates:	4 November 2021 and 29 November 2021
Date of orders:	7 February 2022
Decision date:	07 February 2022
Jurisdiction:	Consumer and Commercial Division
Before:	B Shipp, Senior Member
Decision:	1 The Tenant is to pay the Landlord $3041.67 on or before 10 March 2022. 2 The Rental Bond Services is to pay the full amount of Rental Bond No. T069713-2 to the Landlord in full. 3 The amount of the rental bond is to be credited against the amount ordered in Order 1.
Catchwords:	LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) —Tenant claim for termination and compensation due to alleged asbestos contamination, and failure to disclose — No breach found — Landlord claim for break lease, occupation fee and compensation — Landlord partially successful
Legislation Cited:	Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW)
Cases Cited:	Bhandari v Laming [2015] NSWCATAP 224 Keith Bannister v David and Mariam Cheung [2014] NSWCATCD 105 Summers v Salford Corporation [1943] AC 283 Gray v Queensland Housing Commission [2004] QSC 276 Hampel v South Australian Housing Trust [2007] SADC 64 McLeish v FT Eastment & Sons Pty Limited [1970] 2 NSWR 282 De Solei v Palmhide Pty Limited [2010] NSWCTTT 464 Abdel-Messih v Marshall [2017] NSWCATAP 136
Texts Cited:	Residential Tenancies Law and Practice New South Wales, 6th Edition by Allan Anforth, Peter Christenson and Sophie Bentwood
Category:	Principal judgment
Parties:	Zaynab Al-Basry (First Applicant) Mohammed Al-Basry (Second Applicant) Krishneel Maharaj (Respondent)
Representation:	Applicants (Self-represented) R Morris (Respondent)
File Number(s):	RT 21/37944 RT 21/39622
Publication restriction:	Nil