Makowska v St George Community Housing Ltd

The case of Makowska v St George Community Housing Ltd was heard in the Supreme Court of New South Wales. The plaintiff, Makowska, sought judicial review of a decision made by the Appeal Panel of the New South Wales Civil and Administrative Tribunal (NCAT). The dispute centred on the refusal of the Appeal Panel to set aside the decision of a Tribunal member who found that the landlord had breached their duty to provide a residential tenancy under the Residential Tenancies Act 2010 (NSW). The primary issue was whether the Appeal Panel erred in law when it dismissed the error identified by the Tribunal member as immaterial.

The court was required to determine whether the Appeal Panel's dismissal of the identified error constituted an error of law, and whether the finding of the Appeal Panel was an irrelevant consideration. The court also had to consider if the grounds of the appeal overlapped, specifically whether the reliance on "no evidence" and unreasonableness could be equated to a prohibited consideration. Additionally, the court examined whether the landlord's failure to repair drains, resulting in stormwater impeding access to a car park and causing deterioration of the lawn in a common area, constituted a substantial interference with the tenant's right to quiet enjoyment, which would entitle the tenant to compensation.

The court found that the Appeal Panel's dismissal of the identified error was indeed an error of law. The Appeal Panel had failed to properly consider the relevance of the identified error, and thus, its dismissal was an irrelevant consideration. The court held that the reliance on "no evidence" and unreasonableness could be seen as equivalent to a prohibited consideration, thus constituting an error of law. However, the court held that the landlord's failure to repair the drains did not substantially interfere with the tenant's right to quiet enjoyment, and therefore, the tenant was not entitled to compensation. The court dismissed the application for judicial review, but did not refuse relief on discretionary grounds due to the small value of the claim.