Bickerton v McSelan Holdings Pty Ltd - [2019] NSWCATCD 9

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Bickerton v McSelan Holdings Pty Ltd [2019] NSWCATCD 9
Hearing dates: 31 October 2018
Date of orders: 30 January 2019
Decision date: 30 January 2019
Jurisdiction: Consumer and Commercial Division
Before: A Nightingale, General Member
Decision:
1 The rent payable under the residential tenancy agreement is excessive and is not to exceed $278 per week from 18 January 2018 to 15 June 2018.

2 The rent payable under the residential tenancy agreement is excessive and is not to exceed $253 per week from 16 June 2018 to 28 August 2018.

3 The rent payable under the residential tenancy agreement is excessive and is not to exceed $278 per week from 29 August 2018 to 17 January 2019.

4 The landlord, McSelan Holdings Pty Ltd is to pay the tenant, Kiley Bickerton and Dustin Lilburne the sum of $1,553.50 within 21 days of the date of publication of these reasons constituted by:
(1) $462.00 in rent paid in excess of that required to be paid under the residential tenancy agreement by operation of order 1.
(2) $493.50 in rent paid in excess of that required to be paid under the residential tenancy agreement by operation of order 2.
(3) $198 in rent paid in excess of that required to be paid under the residential tenancy agreement up to the date of the hearing by operation of order 3.
(4) $400 compensation for damage and loss suffered by the tenants due to the landlord’s breach of the residential tenancy agreement.

5 The landlord, McSelan Holdings Pty Ltd is to have the water tank professionally cleaned within 21 days of the date of publication of these reasons for decision.

Catchwords: RESIDENTIAL TENANCIES –– tenants’ application for order for repairs - tenants’ claim that rent is excessive as a result of withdrawal or reduction of goods, services and facilities provided with the residential premises – tenants claim for compensation arising from the landlords’ failure to maintain the premises in a reasonable state of repair.
Legislation Cited: Civil and Administrative Tribunal Act 2013
Residential Tenancies Act 2010
Residential Tenancies Regulation 2010
Cases Cited: Jones v Bartlett (2000) 205 CLR 165
Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 31.
Sakaua v Williams [2005] NSWCA 405
Texts Cited: Anford, Christensen, Adkins Residential Tenancies Law and Practice (2017) 7th edition
Category: Principal judgment
Parties: Kiley Bickerton and Dustin Lilburne (Applicants)
McSelan Holdings Pty Limited (Respondent)
Representation:
Ms Ryan Verto (Tenants Advocacy Service) (Applicant)
Ms Molnar (Agent) (Respondent)

File Number(s): RT 18/34757
Publication restriction: Nil

reasons for decision

The Application

The Applicants, Ms Bickerton and Mr Lilburne (the tenants) bring an application for a renewal of proceedings RT 18/16022. The Respondent is McSelan Holdings Pty Ltd (the landlord).
The initial proceedings brought by the tenants sought orders from the Tribunal pursuant to s 44(1)(b) of the Residential Tenancies Act 2010 (RT Act) for a rent reduction due to the reduction or withdrawal of goods, services or…

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.

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Details

Case: [2019] NSWCATCD 9
Decision Date: 30 January 2019

CaseChat Overview and Summary

In the case of Bickerton v McSelan Holdings Pty Ltd, the tenants, Kiley Bickerton and Dustin Lilburne, brought an application against their landlord, McSelan Holdings Pty Ltd, under the Residential Tenancies Act 1995. The tenants sought an order for repairs, claiming that the rent was excessive due to the landlord's failure to maintain the premises in a reasonable state of repair. They also sought compensation for damage and loss resulting from the landlord's breach of the residential tenancy agreement.

The legal issues before the court involved determining whether the rent charged by the landlord was excessive and, if so, what the appropriate amount should be. Additionally, the court had to consider whether the landlord's failure to maintain the premises constituted a breach of the residential tenancy agreement and, if so, what compensation, if any, the tenants were entitled to receive.

In its decision, the court found that the rent charged by the landlord was indeed excessive due to the withdrawal or reduction of goods, services, and facilities provided with the residential premises. The court set out specific weekly rental amounts that were deemed reasonable over the periods in question. Furthermore, the court found that the landlord's failure to maintain the premises, particularly in relation to the water tank, constituted a breach of the residential tenancy agreement. Consequently, the court awarded the tenants compensation for the damage and loss they suffered. The landlord was also ordered to have the water tank professionally cleaned within a specified timeframe.

The court made several orders, including setting the maximum weekly rental amounts, directing the landlord to reimburse the tenants for overpaid rent, awarding compensation for damage and loss, and requiring the landlord to clean the water tank. These orders were intended to address the issues raised by the tenants and ensure that the landlord complied with their obligations under the residential tenancy agreement.

Orders

Orders of the court

1 The rent payable under the residential tenancy agreement is excessive and is not to exceed $278 per week from 18 January 2018 to 15 June 2018.

2 The rent payable under the residential tenancy agreement is excessive and is not to exceed $253 per week from 16 June 2018 to 28 August 2018.

3 The rent payable under the residential tenancy agreement is excessive and is not to exceed $278 per week from 29 August 2018 to 17 January 2019.

4 The landlord, McSelan Holdings Pty Ltd is to pay the tenant, Kiley Bickerton and Dustin Lilburne the sum of $1,553.50 within 21 days of the date of publication of these reasons constituted by:

(1) $462.00 in rent paid in excess of that required to be paid under the residential tenancy agreement by operation of order 1.

(2) $493.50 in rent paid in excess of that required to be paid under the residential tenancy agreement by operation of order 2.

(3) $198 in rent paid in excess of that required to be paid under the residential tenancy agreement up to the date of the hearing by operation of order 3.

(4) $400 compensation for damage and loss suffered by the tenants due to the landlord’s breach of the residential tenancy agreement.

5 The landlord, McSelan Holdings Pty Ltd is to have the water tank professionally cleaned within 21 days of the date of publication of these reasons for decision.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bickerton v McSelan Holdings Pty Ltd [2019] NSWCATCD 9
Hearing dates:	31 October 2018
Date of orders:	30 January 2019
Decision date:	30 January 2019
Jurisdiction:	Consumer and Commercial Division
Before:	A Nightingale, General Member
Decision:	1 The rent payable under the residential tenancy agreement is excessive and is not to exceed $278 per week from 18 January 2018 to 15 June 2018. 2 The rent payable under the residential tenancy agreement is excessive and is not to exceed $253 per week from 16 June 2018 to 28 August 2018. 3 The rent payable under the residential tenancy agreement is excessive and is not to exceed $278 per week from 29 August 2018 to 17 January 2019. 4 The landlord, McSelan Holdings Pty Ltd is to pay the tenant, Kiley Bickerton and Dustin Lilburne the sum of $1,553.50 within 21 days of the date of publication of these reasons constituted by: (1) $462.00 in rent paid in excess of that required to be paid under the residential tenancy agreement by operation of order 1. (2) $493.50 in rent paid in excess of that required to be paid under the residential tenancy agreement by operation of order 2. (3) $198 in rent paid in excess of that required to be paid under the residential tenancy agreement up to the date of the hearing by operation of order 3. (4) $400 compensation for damage and loss suffered by the tenants due to the landlord’s breach of the residential tenancy agreement. 5 The landlord, McSelan Holdings Pty Ltd is to have the water tank professionally cleaned within 21 days of the date of publication of these reasons for decision.
Catchwords:	RESIDENTIAL TENANCIES –– tenants’ application for order for repairs - tenants’ claim that rent is excessive as a result of withdrawal or reduction of goods, services and facilities provided with the residential premises – tenants claim for compensation arising from the landlords’ failure to maintain the premises in a reasonable state of repair.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Residential Tenancies Act 2010 Residential Tenancies Regulation 2010
Cases Cited:	Jones v Bartlett (2000) 205 CLR 165 Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 31. Sakaua v Williams [2005] NSWCA 405
Texts Cited:	Anford, Christensen, Adkins Residential Tenancies Law and Practice (2017) 7th edition
Category:	Principal judgment
Parties:	Kiley Bickerton and Dustin Lilburne (Applicants) McSelan Holdings Pty Limited (Respondent)
Representation:	Ms Ryan Verto (Tenants Advocacy Service) (Applicant) Ms Molnar (Agent) (Respondent)
File Number(s):	RT 18/34757
Publication restriction:	Nil