Eliezer v Residential Tribunal - [2001] NSWSC 1092

Reported Decision:
53 NSWLR 657

New South Wales

Supreme Court

CITATION: Eliezer v Residential Tribunal & Ors [2001] NSWSC 1092

CURRENT JURISDICTION: Civil

FILE NUMBER(S): SC 30052/01

HEARING DATE(S): 19 October 2001

JUDGMENT DATE:
19 October 2001

PARTIES :

Supriya Eliezer (Plt)
Residential Tribunal (1D)
Erika & Ingrid Karl (2-3D)

JUDGMENT OF: McClellan J

LOWER COURT
JURISDICTION : Residential Tribunal

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER :

COUNSEL : Plaintiff in person
1D Submitting appearance
2-3D in person

SOLICITORS: Not applicable

CATCHWORDS: Appeal from Residential Tribunal - whether error of law made by Tribunal - meaning of "goods, services or facilities provided" - whether implied term in a residential tenancy agreement obliging the landlord to take steps to control the activities of strangers

LEGISLATION CITED: Residential Tenancies Act 1987 ss 16, 22, 47

CASES CITED: Broad v Parish (1941) 64 CLR 588

DECISION: See para 41

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN J

FRIDAY, 19 OCTOBER 2001

30052/01 - ELIEZER v RESIDENTIAL TRIBUNAL & ORS

Judgment

1 HIS HONOUR: This is an appeal by the tenant from a decision of the Residential Tribunal in relation to a dispute arising under a residential tenancy agreement which commenced in December of 1998. The tenanted premises are a two bedroom residential flat situated in Waterloo Road, Marsfield.

2 The original lease provided a term of six months. Both during the proceedings before the Tribunal and at the present the tenant continues to occupy the premises pursuant to the lease.

3 Difficulties arose because of the activities of the occupier of another flat in the same apartment. I am not aware of the precise physical configuration of the premises, but it would appear the other occupants, probably university students, conducted themselves in a way which created considerable inconvenience. Because of the physical relationship between the access to the flat occupied by the others and the tenanted premises great inconvenience was caused to the tenants.

4 The plaintiff in the proceedings before me, Supriya Eliezer, appears with her husband to submit that the Residential Tribunal made an error of law which this Court should correct. The owners of the property also appear, being Erika and Ingrid Karl. The submissions have been made by Ingrid Karl.

5 I have allowed the proceedings to take a more informal process than might normally occur, but I believe that both sides have had every opportunity to place before me every submission which they wish. The plaintiff has also provided me with a detailed written submission, for which I am grateful.

6 The Residential Tribunal records the fact that five claims were made before it. They all arise from the difficulties experienced by the plaintiff because of the activities of other occupants of the building.

7 The Tribunal member recorded the relevant facts, about which there was no dispute, in these terms:

(1) the applicant entered into a residential tenancy agreement with the respondent pursuant to a residential tenancy agreement executed…

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: [2001] NSWSC 1092
Decision Date: 19 October 2001

CaseChat Overview and Summary

The matter before the court was an appeal by the tenant, Eliezer, against the decision of the Residential Tribunal. The dispute arose from a residential tenancy agreement where the tenant claimed that the landlord failed to control the activities of strangers on the premises, which led to disturbances affecting the tenant's enjoyment of the property. The court was tasked with determining whether the Tribunal erred in its interpretation of the law regarding the landlord's obligations under the Residential Tenancies Act.

The central legal issues involved the interpretation of the phrase "goods, services or facilities provided" within the context of a residential tenancy agreement, and whether there was an implied term obliging the landlord to take steps to control the activities of strangers on the property. The tenant argued that the Tribunal failed to recognise the implied term and, as a result, did not adequately address the landlord's obligations to maintain a peaceful and habitable environment. The landlord contended that the Tribunal correctly interpreted the law and that the tenant's claims did not fall within the scope of the landlord's responsibilities under the Act.

The court found that the Tribunal did not err in its interpretation of the law. It held that the phrase "goods, services or facilities provided" did not encompass an obligation for the landlord to control the activities of strangers. The court reasoned that such an obligation would impose an unreasonable burden on the landlord and was not a necessary implication in the residential tenancy agreement. The court further held that the landlord's duties were limited to maintaining the property in a habitable condition and ensuring that the tenant could enjoy the property without interference. Given this interpretation, the Tribunal's decision was affirmed, and the appeal was dismissed.

No further orders were made by the court beyond affirming the Tribunal's decision and dismissing the appeal. The tenant was left to bear the costs of the appeal.

Orders