Bush v Menzies - [2024] NSWCATCD 43

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Bush v Menzies [2024] NSWCATCD 43
Hearing dates: 17 May 2024
Date of orders: 4 June 2024
Decision date: 04 June 2024
Jurisdiction: Consumer and Commercial Division
Before: G Blake AM SC, Senior Member
Decision:
(1) The order made on 17 May 2024 allowing the applicant to seek the orders in the document which is pages 1 and 2 of the bundle of documents filed on 1 March 2024 so far as paragraphs 1, 4 except so far as the cleaning of the oven and flue, 6 to 12, 24 and 25 except for the last two dot points is varied by adding “16 to 18 except for the weeds on the fence and the removal of the fence” after “12”.
(2) The respondent is to carry out the following repairs to the premises the subject of the residential tenancy agreement between the applicant and himself by 4 July 2024:
(a) the floorboards in the loungeroom approximately 1.5 metres from the main bedroom where the previous repair has come away;
(b) the knob of the stove with a detached sleeve;
(c) the oven door seal;
(d) the sliding closet door in the second bedroom.
(3) The applicant may instal safety rails for each of the toilet and shower in the ensuite, the toilet in the laundry, and the bath in the main bathroom of the premises conditional on the safety rails being installed by a licensed builder.
(4) The respondent is to pay the sum of $510.92 to the applicant immediately.
(5) The proceedings are otherwise dismissed.
If you do not receive the money payable to you as directed by this order, you can get a certified copy of this money order from NCAT. You can then register it with the Local or District Court to enforce the order. For more information about enforcing money orders, visit the NCAT website Failure to pay the money owed by this order in the time directed can result in enforcement action being taken in the Local or District Court. If this happens additional costs and interest can be added to the amount payable.

Catchwords:
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord’s duty - whether repairs are required – whether compensation payable for failure to carry out repairs - Alteration of premises by tenant – whether tenant may instal safety rails - Right to quiet enjoyment – no substantial interference

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 29, 38, 45, 58, Sch 4, cl 3
Civil and Administrative Tribunal Rules 2014 (NSW), r 13
Civil Liability Act 2002 (NSW), Pt 2
Residential Tenancies Act 2010 (NSW), ss 29, 44, 50, 52, 65, 68, 187, 190
Residential Tenancies Regulation 2019 (NSW), cll 22, 39, 40

Cases Cited:
Compass Housing Services Co Limited t/as Home in Place v Gower [2023] NSWCATAP 24
Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185
Jeray v Blue…

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: [2024] NSWCATCD 43
Decision Date: 04 June 2024

CaseChat Overview and Summary

In the matter of Bush v Menzies, the applicant, Ms Bush, brought proceedings against her landlord, Mr Menzies, in the New South Wales Civil and Administrative Tribunal (NCAT) under the Residential Tenancies Act 2010 (NSW). Ms Bush sought orders for repairs to the premises, compensation for the landlord's failure to carry out necessary repairs, and permission to install safety rails. The dispute centred around the landlord's alleged failure to maintain the property in a habitable condition and to allow the tenant to make necessary alterations for safety.

The legal issues before the Tribunal included whether the landlord had a duty to carry out specific repairs, whether compensation was payable for the failure to do so, and whether the tenant was entitled to install safety rails without the landlord's consent. The Tribunal had to determine the scope of the landlord's obligations under the Act and whether any actions by the tenant constituted a substantial interference with the landlord's right to quiet enjoyment.

The Tribunal found that the landlord had failed to carry out several necessary repairs, such as fixing the floorboards, the stove knob, the oven door seal, and the sliding closet door. It also determined that the tenant was entitled to install safety rails in certain areas, provided they were installed by a licensed builder. The Tribunal concluded that the landlord's failure to maintain the property warranted compensation of $510.92. The Tribunal further found that the tenant's installation of safety rails did not constitute a substantial interference with the landlord's right to quiet enjoyment.

The Tribunal made orders requiring the landlord to carry out specific repairs by a certain date, allowing the tenant to install safety rails under certain conditions, and directing the landlord to pay compensation to the tenant. The Tribunal dismissed the proceedings in all other respects. Failure to comply with the money order could result in enforcement action in the Local or District Court, with additional costs and interest accruing.

Orders

Orders of the court

(1) The order made on 17 May 2024 allowing the applicant to seek the orders in the document which is pages 1 and 2 of the bundle of documents filed on 1 March 2024 so far as paragraphs 1, 4 except so far as the cleaning of the oven and flue, 6 to 12, 24 and 25 except for the last two dot points is varied by adding “16 to 18 except for the weeds on the fence and the removal of the fence” after “12”.

(2) The respondent is to carry out the following repairs to the premises the subject of the residential tenancy agreement between the applicant and himself by 4 July 2024:

(a) the floorboards in the loungeroom approximately 1.5 metres from the main bedroom where the previous repair has come away;

(b) the knob of the stove with a detached sleeve;

(d) the sliding closet door in the second bedroom.

(3) The applicant may instal safety rails for each of the toilet and shower in the ensuite, the toilet in the laundry, and the bath in the main bathroom of the premises conditional on the safety rails being installed by a licensed builder.

(4) The respondent is to pay the sum of $510.92 to the applicant immediately.

(5) The proceedings are otherwise dismissed.

If you do not receive the money payable to you as directed by this order, you can get a certified copy of this money order from NCAT. You can then register it with the Local or District Court to enforce the order. For more information about enforcing money orders, visit the NCAT website www.ncat.nsw.gov.au.

Note: Failure to pay the money owed by this order in the time directed can result in enforcement action being taken in the Local or District Court. If this happens additional costs and interest can be added to the amount payable.

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:	Bush v Menzies [2024] NSWCATCD 43
Hearing dates:	17 May 2024
Date of orders:	4 June 2024
Decision date:	04 June 2024
Jurisdiction:	Consumer and Commercial Division
Before:	G Blake AM SC, Senior Member
Decision:	(1) The order made on 17 May 2024 allowing the applicant to seek the orders in the document which is pages 1 and 2 of the bundle of documents filed on 1 March 2024 so far as paragraphs 1, 4 except so far as the cleaning of the oven and flue, 6 to 12, 24 and 25 except for the last two dot points is varied by adding “16 to 18 except for the weeds on the fence and the removal of the fence” after “12”. (2) The respondent is to carry out the following repairs to the premises the subject of the residential tenancy agreement between the applicant and himself by 4 July 2024: (a) the floorboards in the loungeroom approximately 1.5 metres from the main bedroom where the previous repair has come away; (b) the knob of the stove with a detached sleeve; (c) the oven door seal; (d) the sliding closet door in the second bedroom. (3) The applicant may instal safety rails for each of the toilet and shower in the ensuite, the toilet in the laundry, and the bath in the main bathroom of the premises conditional on the safety rails being installed by a licensed builder. (4) The respondent is to pay the sum of $510.92 to the applicant immediately. (5) The proceedings are otherwise dismissed. If you do not receive the money payable to you as directed by this order, you can get a certified copy of this money order from NCAT. You can then register it with the Local or District Court to enforce the order. For more information about enforcing money orders, visit the NCAT website Failure to pay the money owed by this order in the time directed can result in enforcement action being taken in the Local or District Court. If this happens additional costs and interest can be added to the amount payable.
Catchwords:	LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord’s duty - whether repairs are required – whether compensation payable for failure to carry out repairs - Alteration of premises by tenant – whether tenant may instal safety rails - Right to quiet enjoyment – no substantial interference
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 29, 38, 45, 58, Sch 4, cl 3 Civil and Administrative Tribunal Rules 2014 (NSW), r 13 Civil Liability Act 2002 (NSW), Pt 2 Residential Tenancies Act 2010 (NSW), ss 29, 44, 50, 52, 65, 68, 187, 190 Residential Tenancies Regulation 2019 (NSW), cll 22, 39, 40
Cases Cited:	Compass Housing Services Co Limited t/as Home in Place v Gower [2023] NSWCATAP 24 Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185 Jeray v Blue…