Miller v St George Community Housing - [2023] NSWCATCD 28

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Miller v St George Community Housing [2023] NSWCATCD 28
Hearing dates: 16 March 2023
Date of orders: 27 March 2023
Decision date: 27 March 2023
Jurisdiction: Consumer and Commercial Division
Before: K George, General Member
Decision:
1. The landlord is to pay the tenant the amount of $6,650.00 on or before 10 April 2023.
2. The application is otherwise dismissed.

Catchwords:
LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) - Obligation to repair and maintain - Obligation to mitigate loss - Quiet enjoyment - Liability for breach by previous landlord

Legislation Cited:
Civil Liability Act 2002 (NSW)
Residential Tenancies Act 2010 (NSW)

Cases Cited:
Alexander v Cambridge Credit Pty Ltd (1987) 9 NSWLR 310
Andrew Fletcher and Song Fletcher; v Luke Bunbury [2015] NSWCATCD 60
BM & JA Holdings Pty Limited v Clarence Street Developments Pty Limited [2012] NSWSC 1236
British Westinghouse Electric and Manufacturing Company Limited v Underground Electric Railways Company of London Limited [1912] AC 673
Capponi v Bridge Housing Limited [2021] NSWCATCD 17
Fitzgerald v Penn (1954) 91 CLR 268
Hadley v Baxendale [1854] 9 Ex 341
Hyndes v Maddak Pty Ltd [2021] NSWCATAP 302
Kazacos Investments Pty Ltd atf Kazacos Investments Trust v Maher [2021] NSWCATAP 219
Kork v Merheb [2021] NSWCATAP 349 (16 November 2021)
Makowska v St George Community Housing Ltd [2021] NSWCATAP 198
Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd [1976] 2 NSWLR 15
Makowska v St George Community Housing Ltd [2021] NSWSC 287
Northern Sandblasting Pty Ltd v Harris (1997) 146 ALJR 254
O’Brien v Carlo-Stella [2022] NSWCATCD 12
Okazaki v Dickerson [2019] NSWCATCD 64
Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167
Reisner v Bridge Housing Limited [2019] NSWCATAP 109
Rurik v Travers [2020] NSWCATAP 242
Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd (1976) 1 NSWLR 5
Torpey v Stewart [2021] NSWCATAP 248

Texts Cited:
Nil

Category: Principal judgment
Parties: Jean Miller (applicant)
St George Community Housing (respondent)
Representation:
Ms Larosa (applicant)
Ms Cordero (respondent)

File Number(s): SH 22/51327
Publication restriction: Nil

REASONS FOR DECISION

Background

By application SH 22/32189 dated 18 July 2022 the tenant sought orders for repairs to the residential premises and compensation due to the landlord’s failure to repair and maintain the premises in a reasonable condition.
On 17 August 2022 the matter came before the Tribunal for conciliation and, with the consent of the parties, the Tribunal made orders for repairs, including the full renovation of the kitchen; repairs to the roof, ensuring the premises were water proof; remove and treat mould in the interior of the premises and on the balcony and repaint; inspect the balcony for safety and re-render; obtain an arborist report regarding the large tree adjacent to the tenant’s bedroom.
The application came before the Tribunal for final hearing on 25 October 2022. The respondent/landlord did not provide documents as per the orders of 17 August 2022 and did not attend 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.

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Details

Case: [2023] NSWCATCD 28
Decision Date: 27 March 2023

CaseChat Overview and Summary

The matter before the court involved Miller, the tenant, and St George Community Housing, the landlord. Miller sought compensation for various repairs and maintenance issues that arose during the tenancy period, as well as an order for the landlord to pay the costs of the proceeding. The dispute was adjudicated under the Residential Tenancies Act 2010 (NSW) and dealt with issues surrounding the landlord’s obligation to repair and maintain the property, the tenant's obligation to mitigate loss, and the right to quiet enjoyment. Additionally, the matter touched upon the landlord's liability for breaches committed by a previous landlord.

The primary legal issues revolved around the extent of the landlord's duty to repair and maintain the property, whether the tenant had adequately mitigated their losses, and if the landlord was responsible for breaches of the lease by a previous landlord. The court had to interpret statutory obligations and assess the balance between the rights of the tenant to a habitable property and the landlord's duty to repair. Furthermore, the court examined if the landlord could be held accountable for actions of a prior landlord that affected the property's condition.

The court found that the landlord had a duty to maintain the property in a habitable condition, which included addressing the repair and maintenance issues raised by the tenant. However, the court determined that the tenant had not sufficiently mitigated their losses by failing to engage with the landlord to address the issues promptly. Consequently, the landlord's liability for the breaches by the previous landlord was limited to the period from the date the current landlord took over the property. The court held that the landlord was liable for the repairs and maintenance required during their tenure but did not extend to prior breaches. The court awarded the tenant $6,650.00 for the repair and maintenance costs incurred, dismissing the application for costs.

The court ordered that St George Community Housing is to pay Miller $6,650.00 by 10 April 2023. The application for costs was dismissed. The ruling clarified the landlord's obligations under the Act and the importance of tenants taking proactive steps to address maintenance issues to mitigate potential liability.

Orders

Orders of the court

1. The landlord is to pay the tenant the amount of $6,650.00 on or before 10 April 2023.

2. The application is otherwise dismissed.

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:	Miller v St George Community Housing [2023] NSWCATCD 28
Hearing dates:	16 March 2023
Date of orders:	27 March 2023
Decision date:	27 March 2023
Jurisdiction:	Consumer and Commercial Division
Before:	K George, General Member
Decision:	1. The landlord is to pay the tenant the amount of $6,650.00 on or before 10 April 2023. 2. The application is otherwise dismissed.
Catchwords:	LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) - Obligation to repair and maintain - Obligation to mitigate loss - Quiet enjoyment - Liability for breach by previous landlord
Legislation Cited:	Civil Liability Act 2002 (NSW) Residential Tenancies Act 2010 (NSW)
Cases Cited:	Alexander v Cambridge Credit Pty Ltd (1987) 9 NSWLR 310 Andrew Fletcher and Song Fletcher; v Luke Bunbury [2015] NSWCATCD 60 BM & JA Holdings Pty Limited v Clarence Street Developments Pty Limited [2012] NSWSC 1236 British Westinghouse Electric and Manufacturing Company Limited v Underground Electric Railways Company of London Limited [1912] AC 673 Capponi v Bridge Housing Limited [2021] NSWCATCD 17 Fitzgerald v Penn (1954) 91 CLR 268 Hadley v Baxendale [1854] 9 Ex 341 Hyndes v Maddak Pty Ltd [2021] NSWCATAP 302 Kazacos Investments Pty Ltd atf Kazacos Investments Trust v Maher [2021] NSWCATAP 219 Kork v Merheb [2021] NSWCATAP 349 (16 November 2021) Makowska v St George Community Housing Ltd [2021] NSWCATAP 198 Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd [1976] 2 NSWLR 15 Makowska v St George Community Housing Ltd [2021] NSWSC 287 Northern Sandblasting Pty Ltd v Harris (1997) 146 ALJR 254 O’Brien v Carlo-Stella [2022] NSWCATCD 12 Okazaki v Dickerson [2019] NSWCATCD 64 Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167 Reisner v Bridge Housing Limited [2019] NSWCATAP 109 Rurik v Travers [2020] NSWCATAP 242 Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd (1976) 1 NSWLR 5 Torpey v Stewart [2021] NSWCATAP 248
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Jean Miller (applicant) St George Community Housing (respondent)
Representation:	Ms Larosa (applicant) Ms Cordero (respondent)
File Number(s):	SH 22/51327
Publication restriction:	Nil