Bulmash v Webster

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Bulmash v Webster [2016] NSWCATCD 23

Hearing dates:

16 December 2015

Decision date:

03 March 2016

Jurisdiction:

Consumer and Commercial Division

Before:

DAC Robertson, Senior Member

Decision:

(1) Pursuant to section 44(1)(b) of the Residential Tenancies Act 2010 (NSW), that the rent payable pursuant to the Residential Tenancy Agreement between the applicant and the respondent dated 6 August 2012 is excessive having regard to the reduction in amenity of the premises arising from the deterioration of paintwork by 15 October 2015 and that from 15 October 2015 to 10 January 2016, the rent must not exceed $525.00 per week.

(2) Pursuant to section 45(2) of the Residential Tenancies Act 2010 (NSW), that the respondent repay to the applicant the sum of $301.71 being the excess rent paid by the applicant from 15 October 2015 to 10 January 2016.

(3) The application is otherwise dismissed.

Catchwords:

Residential Tenancy – Failure to repair – Tenant claims landlord agreed to reimbursement of costs of repainting – No agreement to reimburse costs – Remoteness of damage - no damages established – Rent reduction by reason of reduction in amenity

Legislation Cited:

Residential Tenancies Act 2010 (NSW)
ss 44, 45, 62, 63, 64, 65, 74, 75

Cases Cited:

Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145
Aceti v Burhan Pty Ltd t/as Garlicks Heating and Cooling [2015] NSWCATAP 55

Category:

Principal judgment

Parties:

Jacob Bulmash (Applicant)
Tim Webster (Respondent)

Representation:

Applicant: in person
Respondent: T Tretiak

File Number(s):

RT 15/60163

Publication restriction:

Nil

reasons for decision

1. These proceedings involve a claim by the Applicant for compensation in respect of a residential tenancy agreement. The Application identifies four elements of the claim.

1. Loss of rent in the amount of $1,650.00 arising from the Applicant’s inability to sub-lease the premises for three weeks by reason of mould in the premises.

2. The cost of repainting carried out by the tenant in the amount of $2,000.00, of which $1,123.00 is said to have been out of pocket expenses on materials and labour, and the balance compensation to the Applicant for five days of his own labour.

3. Compensation in respect of a cooktop that did not function for six weeks at the rate of $40.00 per week totalling $240.00; and

4. The sum of $2,860.00 being 10% of one year’s rent for “grief and hassle” experienced by the Applicant by reason of the other matters complained of.

2. Although the application sought orders pursuant to s65(1)(a) of the Residential Tenancies Act 2010 (NSW) (“RTA”), that the landlord carry out repairs, and pursuant to s65(5) of the RTA, that rent be paid to the Tribunal until repairs are carried out, the Applicant did not press for those orders at the hearing.

3. The Applicant, Mr Bulmash, appeared at the hearing in person. The Respondent was represented by Ms T Tretiak, an employee of the Respondent’s managing agents.

Evidence

Documents

4. The Applicant’s evidence consisted of a statutory declaration dated 20…