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Hendy v Parsons

Hendy v Parsons

Case [2024] NSWCATCD 25 20 February 2024

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Hendy v Parsons [2024] NSWCATCD 25
Hearing dates: 05 February 2024
Date of orders: 20 February 2024
Decision date: 20 February 2024
Jurisdiction: Consumer and Commercial Division
Before: JA Rose, General Member
Decision:
(1)   The respondent, Randal Parsons, is to pay the applicant, Jack Hendy, compensation of $2,490.50 immediately.
(2)   The Tribunal orders the respondent Randal Harper to carry out the following work on or before 11 March 2024 in a proper and workmanlike manner:
Details of work order:
Replace the 4 dirty/mouldy roller blinds in the bedroom of the premises with new clean roller blinds of similar specification.
(3)   The applicant, Jack Hendy has liberty to renew these proceedings, on payment of the applicable filing fee, if the respondent does not complete the work specified in the preceding order in accordance with that order.
(4)   The rent payable by the tenant under the tenancy agreement is excessive and must not exceed the amount of $$830 per week from 6 February 2024 until the earlier of:
(a)   the date the landlord completes the work specified in these orders; or
(b)   5 February 2025.

Catchwords:
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord’s duty
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent — Rent reductions

Legislation Cited:
Residential Tenancies Act 2010 (NSW)
Residential Tenancies Regulation 2019 (NSW)
Strata Schemes Management Act 2015 (NSW)

Cases Cited:
Cowling v Tran; Tran v Cowling [2022] NSWCATCD 128
De Chazol v Scala [2010] NSWCTTT 135
Dupont and Rowe v Lawrence [1997] NSWRT 213
Hanney and Smiley v McCabe and Toshack [2014] NSWCATCD 239
Hanney v McCabe Toshack [2014] NSWCATCD 239
Kwok v Tahiri [2015] NSWCATAP 244
Mudford v Hunt [2022] NSWCATCD 199
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
Ramjan v Tang; Tang v Ramjan [2022] NDWCATCD 98
Sewell v Zvirblis [2022] NSWCATAP 337
Shrestha v Crandell Pty Ltd [2010] NSWCTTT 240

Texts Cited:
Nil

Category: Principal judgment
Parties: Jack Hendy (Applicant)
Randal Parsons (Respondent)
Representation: J Hendy, in person (Applicant)
D Somorjay, property manager (Respondent)

File Number(s): 2023/366715 (Previously RT 23/51062)
Publication restriction: Nil

REASONS FOR DECISION

Introduction

These proceedings arise out of a residential tenancy agreement between the applicant as tenant (the “tenant”) and the respondent as landlord (the “landlord”) in respect of a residential apartment at Elizabeth Bay Road, Elizabeth Bay NSW (the “premises”), dated 5 June 2023 (the “tenancy agreement”). The tenant continues to occupy the premises under the tenancy agreement, which is managed for the landlord by Ron Danielli Real Estate (the “managing agents”).
By the tenancy application that he lodged with the Tribunal on 1 October 2023, the tenant has sought the following orders under the provisions of the Residential Tenancies Act 2010 (NSW) (the “RT Act”):

an order under s 65(1)(a), that the landlord carry out certain repairs;

an order under s 65(5), that the…

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.

Continue reading Hendy v Parsons

Details

AGLC: Hendy v Parsons [2024] NSWCATCD 25
Case: [2024] NSWCATCD 25
Decision Date: 20 February 2024

CaseChat Overview and Summary

The matter before the Civil and Administrative Tribunal (NCAT) involved a dispute between Jack Hendy, the applicant, and Randal Parsons, the respondent, regarding issues of repairs and rent reductions under the Residential Tenancies Act 2010 (NSW). Hendy, the tenant, alleged that Parsons, the landlord, failed to carry out necessary repairs and that the rent was excessive. The Tribunal was tasked with determining whether the landlord's actions breached the Act and if the rent charged was justifiable.

The legal issues central to this case were whether Parsons failed to fulfill his obligations under the Act by not addressing the repair of mouldy roller blinds and if the rent Hendy was required to pay was excessive. The Tribunal had to consider the landlord's duty to maintain the premises in a habitable condition and the tenant's right to a fair rental amount.

In its decision, the Tribunal found that Parsons did not adequately address the repair of the mouldy roller blinds, which constituted a breach of his duty under the Act. The Tribunal ordered Parsons to replace the blinds and set a deadline for completion. Additionally, the Tribunal determined that the rent Hendy was paying was excessive and directed that it should not exceed $830 per week until the repairs were completed or until a specified future date. The Tribunal also ordered Parsons to pay compensation to Hendy for the breaches identified.

The final orders of the Tribunal were that Parsons must pay Hendy compensation of $2,490.50, replace the mouldy roller blinds by a specified date, and limit the rent to $830 per week until the work was completed or a future date. Hendy was granted the right to renew the proceedings if Parsons failed to comply with the orders.

Orders

Orders of the court

(1) The respondent, Randal Parsons, is to pay the applicant, Jack Hendy, compensation of $2,490.50 immediately.

(2) The Tribunal orders the respondent Randal Harper to carry out the following work on or before 11 March 2024 in a proper and workmanlike manner:

Details of work order:

Replace the 4 dirty/mouldy roller blinds in the bedroom of the premises with new clean roller blinds of similar specification.

(3) The applicant, Jack Hendy has liberty to renew these proceedings, on payment of the applicable filing fee, if the respondent does not complete the work specified in the preceding order in accordance with that order.

(4) The rent payable by the tenant under the tenancy agreement is excessive and must not exceed the amount of $$830 per week from 6 February 2024 until the earlier of:

(a) the date the landlord completes the work specified in these orders; or

(b) 5 February 2025.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Hendy v Parsons [2024] NSWCATCD 25

Most Recent Citation

Kwok v Natarajan [2025] NSWCATCD 80

Cases citing this decision · 1 of 1 shown

Kwok v Natarajan
[2025] NSWCATCD 80 Para 42

…In Hendy v Parsons [2024] NSWCATCD 25, which concerned a common property swimming pool, I considered myself bound to apply the principles set out in Sewell when claims of compensation have arisen in respect of parts of common property that do not form part of the rented premises. I continue to be of that view.…

View all 1 citing cases →

Cases cited in this decision · 9 of 9 shown

Mudford v Hunt
[2022] NSWCATCD 199 Para 67

…ving a dishwasher at the premises. Having looked at other recent cases where dishwashers have not been in reasonable repair, such as Mudford v Hunt [2022] NSWCATCD 199 and Hanney and Smiley v McCabe and Toshack [2014] NSWCATCD 239, I am satisfied that the tenant’s loss should be assessed at a nominal amount equal to 5…
Cowling v Tran; Tran v Cowling
[2022] NSWCATCD 128 Para 83

…s where air-conditioners have not been in reasonable repair, such as Ramjan v Tang; Tang v Ramjan [2022] NDWCATCD 98 Cowling v Tran; Tran v Cowling [2022] NSWCATCD 128, I am satisfied that the tenant’s loss should be assessed at a nominal amount equal to 10% of the rent payable for that period. At 10% of the daily rat…
Matthew Hanney and Belinda Smiley v
[2014] NSWCATCD 239 Para 62

…e.  See, in addition to the above, Shrestha v Crandell Pty Ltd [2010] NSWCTTT 240; De Chazol v Scala [2010] NSWCTTT 135 and Hanney v McCabe Toshack [2014] NSWCATCD 239 at [49]- [50]. …
Eliezer v Residential Tribunal
[2001] NSWSC 1092

…sults in the reduction or withdrawal of goods, services or facilities. 68. In Eliezer v Residential Tribunal (2001) 53 NSWLR 657; [2001] NSWSC 1092 McLellan J said the following about s 47 of the Residential Tenancies Act 1987 (NSW) (a similar provision to s 44 of the RTA): “With respect to s 47, I agree with the co…
Northern Sandblasting Pty Ltd v Harris
[1997] HCA 39

…ck [2014] NSWCATCD 239 Hanney v McCabe Toshack [2014] NSWCATCD 239 Kwok v Tahiri [2015] NSWCATAP 244 Mudford v Hunt [2022] NSWCATCD 199 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 Ramjan v Tang; Tang v Ramjan [2022] NDWCATCD 98 Sewell v Zvirblis [2022] NSWCATAP 337 Shrestha v Crandell Pty Ltd [2010] NSWCTTT 240 Texts Cited: Nil C…
Shrestha v Crandell Pty Ltd
[2010] NSWCTTT 240 Para 62

…to difficulties such as the time of year, poor availability of tradesmen and the like.  See, in addition to the above, Shrestha v Crandell Pty Ltd [2010] NSWCTTT 240; De Chazol v Scala [2010] NSWCTTT 135 and Hanney v McCabe Toshack [2014] NSWCATCD 239 at [49]- [50]. …
Kwok v Tahiri
[2015] NSWCATAP 244 Para 59

…e state of repair”, having regard to certain factors. The appeal panel explained the concept of “reasonable” state of repair in Kwok v Tahiri [2015] NSWCATAP 244 at [27], writing (my underlining): …
Pan v Malveholm
[2021] NSWCATAP 101

…s of a third party, a complete stranger to the tenanted property, no breach of s 47(1) can occur.” … 69. In Pan v Malveholm [2021] NSWCATAP 101 the Appeal Panel said at [35] that it could see no reason why s 44(1)(b) of the RTA should be interpreted any differently. 70. There is no dispute that the landlord himself, i…
Sewell v Zvirblis
[2022] NSWCATAP 337 Para 68

…und, the swimming pool is common property belonging to the owners’ corporation. On the principles examined by the Appeal Panel in Sewell v Zvirblis [2022] NSWCATAP 337 at [27]-[51], the swimming pool was not part of the residential premises provided by the landlord to the tenant under the tenancy agreement and it also…

Legislation cited in this decision · 3

Residential Tenancies Act 1987 (WA)
1 mention
Residential Tenancies Act 2010 (NSW)
1 mention (from Para 2)
Strata Schemes Management Act 2015 (NSW)
1 mention (from Para 16)

Medium Neutral Citation:	Hendy v Parsons [2024] NSWCATCD 25
Hearing dates:	05 February 2024
Date of orders:	20 February 2024
Decision date:	20 February 2024
Jurisdiction:	Consumer and Commercial Division
Before:	JA Rose, General Member
Decision:	(1) The respondent, Randal Parsons, is to pay the applicant, Jack Hendy, compensation of $2,490.50 immediately. (2) The Tribunal orders the respondent Randal Harper to carry out the following work on or before 11 March 2024 in a proper and workmanlike manner: Details of work order: Replace the 4 dirty/mouldy roller blinds in the bedroom of the premises with new clean roller blinds of similar specification. (3) The applicant, Jack Hendy has liberty to renew these proceedings, on payment of the applicable filing fee, if the respondent does not complete the work specified in the preceding order in accordance with that order. (4) The rent payable by the tenant under the tenancy agreement is excessive and must not exceed the amount of $$830 per week from 6 February 2024 until the earlier of: (a) the date the landlord completes the work specified in these orders; or (b) 5 February 2025.
Catchwords:	LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord’s duty LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent — Rent reductions
Legislation Cited:	Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW) Strata Schemes Management Act 2015 (NSW)
Cases Cited:	Cowling v Tran; Tran v Cowling [2022] NSWCATCD 128 De Chazol v Scala [2010] NSWCTTT 135 Dupont and Rowe v Lawrence [1997] NSWRT 213 Hanney and Smiley v McCabe and Toshack [2014] NSWCATCD 239 Hanney v McCabe Toshack [2014] NSWCATCD 239 Kwok v Tahiri [2015] NSWCATAP 244 Mudford v Hunt [2022] NSWCATCD 199 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 Ramjan v Tang; Tang v Ramjan [2022] NDWCATCD 98 Sewell v Zvirblis [2022] NSWCATAP 337 Shrestha v Crandell Pty Ltd [2010] NSWCTTT 240
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Jack Hendy (Applicant) Randal Parsons (Respondent)
Representation:	J Hendy, in person (Applicant) D Somorjay, property manager (Respondent)
File Number(s):	2023/366715 (Previously RT 23/51062)
Publication restriction:	Nil