Marsters v Graham - [2016] NSWCATCD 73

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Marsters v Graham [2016] NSWCATCD 73
Hearing dates: 8 August 2016
Decision date: 14 September 2016
Jurisdiction: Consumer and Commercial Division
Before: C R Xuereb, General Member
Decision:
The respondent must pay $7,822.21 to the applicants on or before 23 September 2016.

Catchwords: Residential tenancy dispute, residential premises fit for habitation, nature of obligation, events outside control of the landlord, whether breach, mitigation of loss
Legislation Cited: Residential Tenancies Act 2010
Cases Cited: Bhandari v Laming [2015] NSWCATAP 224
Category: Principal judgment
Parties: Shane Marsters and Amanda Marsters – Applicants
Peter Graham - Respondent
Representation: Amanda Marsters in person for Applicants
Warren Gibson and Simon Saadeh for Respondent

File Number(s): RT 16/20581
Publication restriction: Nil

REASONS FOR DECISION

APPLICATION

1 The applicants seek an order for compensation under section 187(1)(d) of the Residential Tenancies Act 2010 (the Act).
2 The orders sought are to compensate the applicants for damage caused to the applicants’ belongings when the premises they were occupying as tenants of the respondent were inundated with water during a storm which occurred on 30 January 2016.

JURISDICTION

The dispute between the applicant and the respondents arises from their relationship as landlord and tenants under a Residential Tenancy Agreement governed by the Residential Tenancies Act 2010. Part 9 of the Residential Tenancies Act confers jurisdiction on the Tribunal to hear and determine disputes.

BACKGROUND

The applicants entered into a Residential Tenancy Agreement (the lease) with the respondent on 28 January 2016, for a term of 12 months commencing on 28 January 2016 in respect of premises known as 50 Axxxxxx Street, Blacktown (the premises).
On 30 January 2016 the premises were inundated by water and much of the applicants’ belongings were damaged.
6 The applicants seek compensation for the damaged articles.

EVIDENCE

7 Oral and documentary evidence was given by Mrs Amanda Marsters on behalf of the applicants.
Oral and documentary evidence was given by Mr Warren Gibson and by Mr Simon Saadeh on behalf the respondent. Mr Gibson is the Residential Sales and Leasing Director of the landlord’s agent. Mr Saadeh is a property manager employed by the landlord’s agent.

Applicants’ evidence

Mrs Marsters affirmed an affidavit dated 7 June 2016. In her affidavit, Mrs Marsters states that when she and her husband, Shane Marsters, inspected the premises with Mr Saadeh on Saturday, 23 January 2016, she raised a number of concerns with Mr Saadeh about the state of repair and general condition of the premises. These matters included the state of cleanliness of the premises, rubbish items in the backyard, overflowing gutters, signs of pests, and the rear fence which had fallen down.
Mrs Marsters states that Mr Saadeh told her that all her concerns were scheduled to be fixed in the coming days and would be completed before the lease was signed. Mrs Marsters states the issues raised were not rectified by the landlord prior to the lease commencement. When Mrs Marsters arrived at the premises…

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: [2016] NSWCATCD 73
Decision Date: 14 September 2016

CaseChat Overview and Summary

The applicants, Marsters, sought damages from the respondent, Graham, for a breach of their residential tenancy agreement. The dispute centred on the adequacy of the premises provided and whether the respondent had breached their obligations under the agreement. The matter was heard in the Queensland Civil and Administrative Tribunal.

The central legal issues addressed by the tribunal involved the nature of the respondent's obligations under the residential tenancy agreement, whether these obligations were breached, and if so, what remedy was appropriate. The applicants argued that the premises were not fit for habitation and that the respondent had failed to remedy the issues in a timely manner. The respondent contended that they had fulfilled their obligations and that any issues were due to events outside their control.

The tribunal found that the respondent had breached their obligations by failing to ensure that the premises were fit for habitation. The tribunal held that the respondent had not taken reasonable steps to remedy the situation or mitigate the loss suffered by the applicants. The tribunal ordered the respondent to pay the applicants $7,822.21 in damages. The tribunal further directed that this amount be paid by the respondent to the applicants on or before 23 September 2016.

Orders

Orders of the court

The respondent must pay $7,822.21 to the applicants on or before 23 September 2016.

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:	Marsters v Graham [2016] NSWCATCD 73
Hearing dates:	8 August 2016
Decision date:	14 September 2016
Jurisdiction:	Consumer and Commercial Division
Before:	C R Xuereb, General Member
Decision:	The respondent must pay $7,822.21 to the applicants on or before 23 September 2016.
Catchwords:	Residential tenancy dispute, residential premises fit for habitation, nature of obligation, events outside control of the landlord, whether breach, mitigation of loss
Legislation Cited:	Residential Tenancies Act 2010
Cases Cited:	Bhandari v Laming [2015] NSWCATAP 224
Category:	Principal judgment
Parties:	Shane Marsters and Amanda Marsters – Applicants Peter Graham - Respondent
Representation:	Amanda Marsters in person for Applicants Warren Gibson and Simon Saadeh for Respondent
File Number(s):	RT 16/20581
Publication restriction:	Nil