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
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
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
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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.
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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.
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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…
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- Case
- [2023] NSWCATCD 28
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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