McKinney v Lizza - [2021] NSWCATCD 95

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: McKinney v Lizza [2021] NSWCATCD 95
Hearing dates: 29 July 2021
Date of orders: 06 September 2021
Decision date: 06 September 2021
Jurisdiction: Consumer and Commercial Division
Before: Graham Ellis SC, Senior Member
Decision:
1. The application is dismissed.

Catchwords:
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) —Tenants’ claim for compensation — Whether applicants induced by a false representation to enter a tenancy agreement

Legislation Cited:
Residential Tenancies Act 2010 (NSW)

Cases Cited:
Bhandari v Laming [2015] NSWCATAP 224
TC Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd [1963] HCA 57
Banco de Portugal v Waterlow and Sons [1932] AC 452
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313

Texts Cited:
Nil

Category: Principal judgment
Parties: Danica McKinney (First Applicant)
Ian Edgar (Second Applicant)
Tony Lizza (First Respondent)
Michael Barbarino (Second Respondent)
Steven Bavell (Third Respondent)
Representation: D McKinney (Applicants)
C Maher-Bull (Respondents)

File Number(s): RT 21/19977
Publication restriction: Nil

REASONS FOR DECISION

Outline

The tenants (the applicants) entered into a residential tenancy agreement with the landlords (the respondents) which covered a house in Bangalow, but not the ‘granny flat’ or studio unit (the studio) at the rear of that house. The weekly rent was $500. The applicants entered into a second residential tenancy agreement with the respondents which included the studio unit (the studio). The weekly rent increased, by $450, to $1,000.
The applicants seek compensation of $5,850 based on an allegation that there was a false representation by the now previous real estate agent that they would be able to let the studio using Airbnb, a company which operates an online market for short-term rentals. That claim is based on section 26(1) of the Residential Tenancies Act 2010 (the RTA).
That amount of $5,850 was calculated as thirteen weeks, from 09 May 2021 to 09 August 2021, at $450 per week, being the difference between the rent under the second agreement and the rent under the first agreement. For the reasons indicated below, the Tribunal has determined that the applicants are not entitled to such compensation.

History of the proceedings

On 06 May 2021 the applicants lodged this application which sought an order for either a transfer of the tenancy for the studio or approval to sub-let that studio. After the respondents lodged a cross-application (RT 21/20505) on 11 May 2021, seeking a termination order, the applicants amended their application on 23 July 2021 to only claim compensation.

The hearing

The 29 July 2021 hearing was conducted over the telephone due to the COVID-19 pandemic. Ms McKinney spoke for the applicants and Ms Maher-Bull represented the respondents. As the applicants had agreed to vacate the premises on 09 August 2021, the cross-application was withdrawn. It is thus only necessary to consider the compensation claim.
The documents admitted as evidence during the hearing were those received from the applicants on 02 July (Exhibit A) and 16 July (Exhibit B) plus the respondents’ documents received…

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 McKinney v Lizza

Details

AGLC: McKinney v Lizza [2021] NSWCATCD 95
Case: [2021] NSWCATCD 95
Decision Date: 06 September 2021

CaseChat Overview and Summary

McKinney and Lizza were the parties involved in the dispute. McKinney, the tenant, sought compensation for what he claimed was a false representation made by Lizza, the landlord, which induced him to enter into a tenancy agreement. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether McKinney was induced by a false representation to enter into the tenancy agreement, thereby entitling him to compensation under the Residential Tenancies Act 2010 (NSW). Specifically, the court needed to determine if McKinney could prove that Lizza made a false statement of fact that influenced his decision to enter into the lease.

In delivering the judgment, the court examined the evidence presented by McKinney regarding the alleged false representation. The court found that McKinney failed to establish that Lizza made a false statement of fact that induced him to enter into the tenancy agreement. The court emphasised that for a false representation to be actionable, it must be a statement of fact, not opinion, and must have influenced the decision to enter into the contract. The court concluded that McKinney did not meet this burden of proof, and therefore, dismissed the application for compensation.

Orders

Orders of the court

1. The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	McKinney v Lizza [2021] NSWCATCD 95
Hearing dates:	29 July 2021
Date of orders:	06 September 2021
Decision date:	06 September 2021
Jurisdiction:	Consumer and Commercial Division
Before:	Graham Ellis SC, Senior Member
Decision:	1. The application is dismissed.
Catchwords:	LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) —Tenants’ claim for compensation — Whether applicants induced by a false representation to enter a tenancy agreement
Legislation Cited:	Residential Tenancies Act 2010 (NSW)
Cases Cited:	Bhandari v Laming [2015] NSWCATAP 224 TC Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd [1963] HCA 57 Banco de Portugal v Waterlow and Sons [1932] AC 452 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Danica McKinney (First Applicant) Ian Edgar (Second Applicant) Tony Lizza (First Respondent) Michael Barbarino (Second Respondent) Steven Bavell (Third Respondent)
Representation:	D McKinney (Applicants) C Maher-Bull (Respondents)
File Number(s):	RT 21/19977
Publication restriction:	Nil