Goodwin v Morgan

[2021] NSWCATCD 4

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Goodwin v Morgan [2021] NSWCATCD 4
Hearing dates:	23 February 2021
Date of orders:	7 May 2021
Decision date:	07 May 2021
Jurisdiction:	Consumer and Commercial Division
Before:	S Hanstein, Member
Decision:	The landlord is to pay the tenant the sum of $2,371.45 within 14 days of the date of this decision.
Catchwords:	RESIDENTIAL TENANCIES – Landlord’s obligation – Reasonable state of repair - Breach – Compensation
Legislation Cited:	Residential Tenancies Act 2010
Cases Cited:	Murphy v Pitt [2017] NSWCATCD 44
Texts Cited:	None
Category:	Principal judgment
Parties:	Sharon Goodwin (applicant) Mary Morgan (respondent)
Representation:	Applicant in person, Ms Ekert for the respondent
File Number(s):	RT 20/45819
Publication restriction:	Nil

reasons for decision

1. The applicant and the respondent were, respectively, the tenant and the landlord under a residential tenancy agreement. The first tenancy agreement between the parties commenced in March 2018. Most recently, a new tenancy agreement was entered into between the parties commencing on 2 April 2020, with a fixed term to 31 March 2021. The rental was $480 per week.

2. The tenant lodged this application with the Tribunal on 2 November 2020, claiming compensation for the landlord’s failure to maintain the premises in a reasonable state of repair and a rent reduction or partial rent abatement because the premises were partly uninhabitable following a storm event on 26 October 2020.

3. The tenancy terminated on 9 November 2020, when the tenant vacated the premises. No break fee was claimed by the landlord.

Legislation and legal principles

4. Relevant sections of the Residential Tenancies Act 2010 (“Act”) are as follows.

5. Section 43(2) of the Act provides:

(2) Premises unusable The rent payable under a residential tenancy agreement abates if residential premises under a residential tenancy agreement are—

(a) otherwise than as a result of a breach of an agreement, destroyed or become wholly or partly uninhabitable, or

(b) cease to be lawfully usable as a residence, or

(c) appropriated or acquired by any authority by compulsory process.

6. Section 63(1) of the Act provides:

63 Landlord’s general obligation

(1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.

7. The Tribunal must not determine that a landlord has breached this obligation unless it is satisfied that the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair, and the landlord failed to act with reasonable diligence to have the repair carried out.

8. In Murphy v Pitt [2017] NSWCATCD 44, the Tribunal noted, at [28]:

In determining damages to the tenants, the Tribunal must apply the guiding principle of putting the party in the same position it would have been, as far as money can, as if the contract had been performed, and not in a better or worse position (Commonwealth v Amman Aviation Pty Ltd [1991] HCA 54,