Anderson v Armitage

NSW Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Anderson v Armitage [2014] NSWCATCD 157
Hearing dates:	8 August 2014
Decision date:	21 August 2014
Jurisdiction:	Consumer and Commercial Division
Before:	B Howe, General Member
Decision:	1 The application is dismissed.
Catchwords:	RESIDENTIAL TENANCY AGREEMENT - breach by landlord - compensation
Legislation Cited:	Residential Tenancies Act 2010 (the Act) Civil and Administrative Tribunal Act 2013 (NCAT Act) Civil Liability Act 2002
Cases Cited:	Baltic Shipping Co v Dillon (1993) 67 ALJR 228 Jarvis v Swan Tours Limited [1973] 1 All ER 71 Flight Centre Limited t/as Infinity Holidays v Janice Louw & anor [2011] NSWSC 32
Texts Cited:	None
Category:	Principal judgment
Parties:	Craig Anthony Anderson (applicant) Duncan Armitage (respondent)
File Number(s):	RT 14/19617
Publication restriction:	None

reasons for decision

1. The applicant leased premises from the respondent. The fixed term of the residential tenancy agreement was for 52 weeks commencing on 14 October 2013 and concluding on 13 October 2014. The rent is $2,900.00 per fortnight.

1. By an application filed on 10 April 2014, the tenant seeks an order, pursuant to section 187(1)(c) and (d) of the Act, for the payment of $14,800.00.

1. Section 187 of the Act sets out the powers of the Tribunal and catalogues the orders that the Tribunal may make. The section does not give rise to any cause of action.

1. During the hearing, it became obvious that the tenant relies on section 63 of the Act which reads -

63 Landlord's general obligation

(1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.

(2) A landlord's obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises.

(3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant's breach of this Part.

(4) This section is a term of every residential tenancy agreement.

1. The basis of the claim revolves around the state of the air conditioning system at the premises. The system appears to have worked intermittently. The property is a two level unit, with the external cladding constructed primarily of glass and metal with a flat roof. The tenant claims that such a method of construction will result in the internal space to be hotter than a typical property and, therefore, air conditioning is essential. He relies on his twenty years of experience working in the property development industry to make such a claim.

1. The tenant claims that the air conditioning system did not work from the start of occupation until fully fixed on 1 April 2014. He admitted that this state of affairs existed, despite the best efforts of the landlord and the…