Murphy v Pitt

[2017] NSWCATCD 44

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Murphy v Pitt [2017] NSWCATCD 44
Hearing dates:	9 May 2017
Decision date:	06 June 2017
Jurisdiction:	Consumer and Commercial Division
Before:	G.J. Sarginson, Senior Member
Decision:	1. The respondent (‘the landlord’) is to pay the applicants (‘the tenants’) the amount of $3,490.00 immediately
Catchwords:	Residential tenancies---Premises capable of lawful occupation---Breach of landlord’s obligation---Assessment of damages
Legislation Cited:	Residential Tenancies Act 2010 ss 49, 51, 52, 187 Residential Tenancies Act 1987 s 20 Residential Tenancies Regulation Reg 22 Environmental Planning and Assessment Act 1979 s121B Civil and Administrative Tribunal Act 2013 s 41
Cases Cited:	Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 North v Marra Developments Ltd [1981] HCA 68,(1981) 148 CLR 42 Bygrave v Harris and O’Brien [2012] NSWCTTT 268 Karl Suleman Enterprises Pty Ltd (in liquidation) v Babanour [2004] NSWCA 214 Commonwealth v Amman Aviation Pty Ltd [1991] HCA 54, (1991), 174 CLR 64 Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145 Clark v Macourt [2013] HCA 56, (2013) 304 ALR 220 JLW (Vic) Pty Ltd v Tsiloglau [1994] VicRp 16; (1994) 1 VR 237
Category:	Principal judgment
Parties:	Kieran and Jeanine Murphy (applicants) Janelle Pitt (respondent)
Representation:	Applicants: In person Respondent: In person
File Number(s):	RT 17/10173
Publication restriction:	Nil

REASONS FOR DECISION

1. The matter was listed for hearing at the Tribunal in Sydney on 9 May 2017. The applicants, (‘the tenants’) appeared and gave evidence. The respondent (‘the landlord’) appeared and gave evidence.

2. Proceedings were commenced on 2 March 2017. The matter had been listed for a group list and conciliation hearing at the Tribunal on 4 April 2017. Discussions before a conciliator at the Tribunal did not resolve the dispute, and the matter was set down for a special fixture hearing. Both parties filed and served documentary evidence in accordance with directions of the Tribunal, with the exception of the late service by the landlord of a statutory declaration by Mr Hopkins, agent of the landlord, dated 8 May 2017. The Tribunal granted leave to the landlord to rely upon that document, as its contents did not create any prejudice to the tenants.

3. For reasons discussed below, I am satisfied that the breach occurred on 16 November 2016 when the tenants moved out of the residential premises by reason of a termination notice that the landlord had no lawful right to issue. Under Regulation 22(9) of the Residential Tenancies Regulation 2010, the tenants had 3 months from becoming aware of the breach to commence proceedings in the Tribunal, which in the circumstances of this matter is 16 February 2017.

4. However, under Section 41 of the Civil and Administrative Tribunal Act 2013, the Tribunal may extend limitation periods. The relevant principles are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. The principles to be considered involve the reason for the delay; the length of the delay; any prejudice…