Murphy v Lewkovitz; Lewkovitz v Murphy

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.