Du Toit v Buhac - [2014] NSWDC 329

District Court

New South Wales

Medium Neutral Citation: Du Toit v Buhac [2014] NSWDC 329
Hearing dates: 6 June 2014
Date of orders: 10 June 2014
Decision date: 10 June 2014
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1)Allow the appeal by Charmaine du Toit.
(2)Dismiss the claim against Charmaine du Toit.
(3)Dismiss the appeal by Jacques du Toit.
(4)Dismiss Dalibor Buhac’s notice of motion.
(5)Direct that any payment made by Jacques du Toit in discharging his liability to Mr Campbell under the Consumer, Trader and Tenancy Tribunal decision, in excess of a total of $5,500, be a credit to Jacques du Toit against his liability to Dalibor Buhac.
(6)No order as to costs, with the intent that each party bear their own costs.

Catchwords: APPEAL FROM LOCAL COURT – residential lease – monies owed by tenants to landlord – claim for overpaid rent by one tenant from another – terms of agreement – whether lack of jurisdiction - whether procedural unfairness – possible error of law not procedural unfairness – whether tenant’s wife was party to agreement – effect of admission in statement of claim – consequences of future defaults by tenant – costs of self-represented and unrepresented parties
Legislation Cited: Local Court Act 2007, s 39
Uniform Civil Procedure Rules 2005, Pt 40
Cases Cited: Burke v LFOT Pty Ltd (2002) 209 CLR 282
Cachia v Hanes (1994) 179 CLR 403
Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407
Preston v Commissioner for Fair Trading [2011] NSWCA 40
Category: Principal judgment
Parties: Jacques du Toit (first plaintiff)
Charmaine du Toit (second plaintiff)
Dalibor Buhac (defendant)
File Number(s): 2014/36003
Publication restriction: None
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Small Claims Division

Date of Decision:

17 January 2014

Before:

Assessor S Olischlager

File Number(s):

2013/229616

Judgment

Jacques du Toit and Charmaine du Toit appeal from a decision of a Local Court assessor in favour of Dalibor Buhac. Mr and Mrs du Toit were ordered to pay $7,721.22 ($7,371.77 plus interest). They are self‑represented. Mr Buhac does not appear at all.

BACKGROUND

Mr du Toit and Mr Buhac as tenants entered a lease agreement with a landlord, Stewart Campbell, at a rent of $7,821.43 per month ($1,800 a week) for a period ending 15 November 2013. Mr Buhac paid rent until 16 April 2013 although he vacated the premises on 30 March 2013. Mr and Mrs du Toit left the premises on 4 May 2013. Mr Campbell sought compensation in the Consumer, Trader and Tenancy Tribunal for "abandonment of the residential premises" totalling $7,200. The first page of the application to the Tribunal, which was in evidence, indicated that the $7,200 comprised amounts including $4,628.57 for the rent for the 18‑day period from 16 April to 4 May 2013 and $2,132 for "reletting costs as stipulated in the break lease provisions within the lease agreement".
For reasons that are not apparent, the Tribunal, by consent, ordered…

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.

Keep reading for free

Create a free CaseChat account to read Du Toit v Buhac and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NSWDC 329
Decision Date: 10 June 2014

CaseChat Overview and Summary

The appeal before the court involved Charmaine du Toit, Jacques du Toit, and Dalibor Buhac. The dispute centered around a residential lease agreement, specifically concerning monies owed by the tenants to the landlord. Charmaine du Toit claimed that her former co-tenant, Jacques du Toit, owed her money for overpaid rent. Dalibor Buhac, the landlord, had previously been involved in a dispute with the tenants regarding the same property, resulting in a decision by the Consumer, Trader and Tenancy Tribunal. The matter was initially heard in the Local Court, where various claims and counterclaims were made.

The central legal issues before the court were whether the Local Court had jurisdiction to hear the claim, whether there had been procedural unfairness, and whether any errors of law had occurred. Additionally, the court considered whether Charmaine du Toit's wife was a party to the agreement, the effect of admissions made in the statement of claim, and the consequences of any future defaults by Jacques du Toit. The court also needed to determine the appropriate costs for the self-represented and unrepresented parties.

The court found that the Local Court had jurisdiction over the matter and that there had been no procedural unfairness. However, there was an error of law in the original decision. The court determined that Charmaine du Toit's wife was not a party to the agreement, and the admissions made in the statement of claim did not preclude Charmaine du Toit from pursuing her claim. Regarding future defaults by Jacques du Toit, the court clarified that any payment made in excess of $5,500 would be credited against his liability to Dalibor Buhac. The court dismissed the appeals and the notice of motion, and ordered that each party bear their own costs.

Orders

Orders of the court

(1)Allow the appeal by Charmaine du Toit.

(2)Dismiss the claim against Charmaine du Toit.

(3)Dismiss the appeal by Jacques du Toit.

(4)Dismiss Dalibor Buhac’s notice of motion.

(5)Direct that any payment made by Jacques du Toit in discharging his liability to Mr Campbell under the Consumer, Trader and Tenancy Tribunal decision, in excess of a total of $5,500, be a credit to Jacques du Toit against his liability to Dalibor Buhac.

(6)No order as to costs, with the intent that each party bear their own costs.

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:	Du Toit v Buhac [2014] NSWDC 329
Hearing dates:	6 June 2014
Date of orders:	10 June 2014
Decision date:	10 June 2014
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)Allow the appeal by Charmaine du Toit. (2)Dismiss the claim against Charmaine du Toit. (3)Dismiss the appeal by Jacques du Toit. (4)Dismiss Dalibor Buhac’s notice of motion. (5)Direct that any payment made by Jacques du Toit in discharging his liability to Mr Campbell under the Consumer, Trader and Tenancy Tribunal decision, in excess of a total of $5,500, be a credit to Jacques du Toit against his liability to Dalibor Buhac. (6)No order as to costs, with the intent that each party bear their own costs.
Catchwords:	APPEAL FROM LOCAL COURT – residential lease – monies owed by tenants to landlord – claim for overpaid rent by one tenant from another – terms of agreement – whether lack of jurisdiction - whether procedural unfairness – possible error of law not procedural unfairness – whether tenant’s wife was party to agreement – effect of admission in statement of claim – consequences of future defaults by tenant – costs of self-represented and unrepresented parties
Legislation Cited:	Local Court Act 2007, s 39 Uniform Civil Procedure Rules 2005, Pt 40
Cases Cited:	Burke v LFOT Pty Ltd (2002) 209 CLR 282 Cachia v Hanes (1994) 179 CLR 403 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 Preston v Commissioner for Fair Trading [2011] NSWCA 40
Category:	Principal judgment
Parties:	Jacques du Toit (first plaintiff) Charmaine du Toit (second plaintiff) Dalibor Buhac (defendant)
File Number(s):	2014/36003
Publication restriction:	None
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Small Claims Division Date of Decision: 17 January 2014 Before: Assessor S Olischlager File Number(s): 2013/229616