Murphy v Lewkovitz; Lewkovitz v Murphy

Case [2021] NSWDC 361


District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: 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.

Legislation Cited:

Australian Consumer Law, ss 20, 30, 236

Civil and Administrative Tribunal Act 2013 (NSW), Clause 8 Schedule 4

Civil Liability Act 2002 (NSW), ss 5B, 5C, 90

Evidence Act 1995 (NSW), ss 136, 164

Residential Tenancies Act 2010 (NSW), ss 26, 43, 52, 63

Residential Tenancies Amendment (Review) Act 2018 (NSW), clauses 3, 25

Residential Tenancies Regulation 2019 (NSW), clause 7

Residential Tenancy Act 1995 (SA), s 68

Uniform Civil Procedure Rules 2005 (NSW), rr 31.23, 31.27

Cases Cited:

Ahluwalia & Ors v Robinson [2003] NSWCA 175

Aldred v Stelcad Pty Ltd [2015] NSWCA 201

Bannister v Cheung [2014] NSWCATCD 105

Bartley and Zawiolkowski v Harris Park Holdings Pty Ltd [2010] NSWCTT 592

Bole v Huntsbuild Ltd [2010] All ER (D); [2009] EWCA Civ 1146

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64

D’Ambrosio v Tyler [2009] ACAT 33

Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588

De Solei v Palmhide Pty Limited [2010] NSWCTTT 464

Dennis v Brownlee [1964] NSWR 544; (1963) 9 LGRA 415; [1963] SR (NSW) 719

Doe d Murray, Lord Bishop of Rochester v Bridges (1831) 1 B & Ad 847; (1831)109 ER 1001 at 859 (B & Ad)

Ermel v DuluxGroup (Aust) Pty Ltd (No 2) [2015] FCA 17

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Details
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.

Orders

Orders of the court

See [329]

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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