Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361
Hearing dates:
08, 09, 10 and 11 February 2021 Plaintiff’s written submissions: 1 March 2021 Defendant’s written submissions: 17 March 2021 Plaintiff’s written submissions in reply: 26 March 2021 Plaintiff’s supplementary submissions: 8 June 2021 Defendants’ supplementary submissions: 8 June 2021
Date of orders:
11 July 2021
Decision date:
11 July 2021
Jurisdiction:
Civil
Before:
Hatzistergos AM DCJ
Decision:
See [329]
Catchwords:
CONTRACT –– Contractual breaches by reason of sections 52 and 63 of the Residential Tenancies Act 2010 (NSW) established – Requirement of fitness for habitation at the commencement of the tenancy agreement and landlord’s duty to repair – Consideration of whether a breach section 26 of the Residential Tenancies Act 2010 (NSW) can give rise to a claim for breach of statutory duty – Unnecessary to resolve claims under section 26 of the Residential Tenancies Act 2010 (NSW) and section 30 of the Australian Consumer Law
TORT –– Breach of common law duty of care – Breach by landlord to tenant established where the risk of harm of sustaining loss by water damage and mould due to structural defects in the dwelling
EVIDENCE –– Unexplained failure to call witness does not lead to adverse inference where proof otherwise made out – drawing of inferences where witnesses’ evidence not accepted – consideration of Kuligowski v Metrobus
DAMAGES –– Quantification of damages where chattels not remediable – Quantification of damages where remediable repairs have not been carried out
CROSS-CLAIM –– Contractual claim for rental arrears made out – Claim of absence of consideration based on breach of agreement not established – Other potential remedies not advanced.
[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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AGLC
Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361
Case
[2021] NSWDC 361
Decision Date
CaseChat Overview and Summary
In the case of Murphy v Lewkovitz; Lewkovitz v Murphy, the plaintiff sought to establish breaches of contract and common law duty of care by the defendant, who was their landlord. The plaintiff alleged that the property was not fit for habitation at the start of the tenancy, and that the landlord failed to make necessary repairs. The dispute was heard in the Supreme Court of New South Wales. The primary legal issues revolved around the interpretation and application of sections 52 and 63 of the Residential Tenancies Act 2010 (NSW), and whether a breach under section 26 of the Act could give rise to a claim for breach of statutory duty. Additionally, the court had to consider whether the landlord had breached the common law duty of care by failing to address structural defects in the property, which led to water damage and mould.
The court found that the landlord breached their contractual obligations under the Act by not ensuring the property was fit for habitation at the beginning of the tenancy and by failing to carry out necessary repairs. The court also determined that the landlord breached the common law duty of care by not addressing the structural defects. Regarding the cross-claim, the court found that the plaintiff’s claim for rental arrears was valid, but the claim of absence of consideration based on the breach of agreement was not established. The court held that drawing adverse inferences due to the unexplained failure to call a witness was unnecessary, as the proof was made out otherwise. The court also found that it was unnecessary to resolve the claims under section 26 of the Act and section 30 of the Australian Consumer Law.
The court ordered that the landlord be liable for the contractual breaches and the common law duty of care breach, and awarded damages for the unremediable chattels. The court quantified the damages where remediable repairs had not been carried out. The plaintiff’s cross-claim for rental arrears was successful, but other potential remedies were not advanced. The precise quantification of damages and other remedies will be detailed in the final orders of the case.