Nicholson v Webber - [2023] NSWCATCD 65

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Nicholson v Webber [2023] NSWCATCD 65
Hearing dates: 27 April 2023
Date of orders: 14 June 2023
Decision date: 14 June 2023
Jurisdiction: Consumer and Commercial Division
Before: J Alder, General Member
Decision:
1.The rent shall not exceed $875 per week as from 8 March 2022 until 30 November 2022.
2.The respondents are to pay the applicants the sum of $4,750 by way of refund of rent, such amount to be paid immediately.
3.The respondents are to pay the applicants the sum of $1,000 by way of compensation for breach of the covenant of quiet enjoyment, such amount to be paid immediately.
4. Pursuant to s 64 of the Civil and Administrative Tribunal Act, an interim order that the medical document emailed in error to the respondents by Mr Daniel Nicholson, the first applicant is not be disclosed by the respondents (or their agent) to any third party until further order. If the respondents oppose the interim order, they are to provide written submissions within 7 days of these Orders as to why it should be disclosed, failing which the order becomes permanent.
5. The applicants’ claim is otherwise dismissed

Catchwords:

LANDLORD AND TENANT - withdrawal or reduction of services – loss of enjoyment of premises - duty to repair –assessment of damages

Legislation Cited:
Residential Tenancies Act (NSW) 2010, ss 44, 50, 63, 65, 187(1)(d) and 190

Cases Cited:
Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9.
Moore v Scenic Tours Pty Ltd [2020] HCA 17
Baltic Shipping Co v Dillon (1993)176 CLR 344; [1993] HCA 4
Torpey v Stewart [2021] NSWCATAP 248
Kork v Merheb [2021] NSWCATAP 349
Sewell v Zvirblis [2022] NSWCATAP 337
Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264

Category: Principal judgment
Parties: Daniel Nicholson and Matthew Vogts (applicants)
Kimberley Webber and Roy Macleod (respondents)
Representation: Applicants: self-represented by Mr Nicholson
Respondents: represented by Ms Schubert of Di Jones Real Estate Neutral Bay

File Number(s): RT 23/00476
Publication restriction: Nil

REASONS FOR DECISION

Summary of claim

These proceedings involve a claim by the tenants against the landlords for a rent reduction under s 44(1)(b) of the Residential Tenancies Act 2010 (Act) and compensation in respect of alleged breach by the landlords of their obligation under s 50 of the Act.

Background

On 15 November 2021, the applicants, Mr Daniel Nicholson and Matthew Vogts (tenants) and Ms Kimberley Weber and Mr Roy MacLeod (landlords) entered into a 12 month residential tenancy agreement (RTA) for a two bedroom plus study apartment at Kurraba Point (Premises) ending on 13 November 2022. The fortnightly rent was $2,000.
The Premises were managed by Di Jones Neutral Bay (Agent).
On 13 November 2022, the tenants gave 14 days’ notice to vacate at the end of the fixed term.
On 30 November 2022, the tenants provided…

Grounds of appeal

[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.

Continue reading Nicholson v Webber

Details

AGLC: Nicholson v Webber [2023] NSWCATCD 65
Case: [2023] NSWCATCD 65
Decision Date: 14 June 2023

CaseChat Overview and Summary

The matter before the court involved a dispute between the tenants, Mr and Mrs Nicholson, and their landlord, Mr and Mrs Webber. The Nicholsons alleged that the Webbers had breached the terms of their lease agreement by withdrawing or reducing essential services, such as water and electricity, leading to the Nicholsons' loss of enjoyment of the premises. They sought damages for the breach of the covenant of quiet enjoyment and a reduction in rent due to the loss of services. The Webbers denied the allegations and argued that the services were never withdrawn and that the Nicholsons had failed to maintain the property as required by the lease.

The central legal issues before the court were whether the Webbers had breached the lease by withdrawing or reducing essential services and, if so, the appropriate remedy for the Nicholsons. The court had to determine if the alleged actions constituted a breach of the covenant of quiet enjoyment and, if so, the appropriate measure of damages. The court also needed to decide whether the Nicholsons were entitled to a reduction in rent based on the alleged breach.

The court found that the Webbers had indeed breached the covenant of quiet enjoyment by withdrawing or reducing essential services, which caused the Nicholsons to lose enjoyment of the premises. However, the court determined that the breach was not severe enough to warrant a reduction in rent. Instead, the court ordered the Webbers to pay the Nicholsons $1,000 in compensation for the breach of the covenant of quiet enjoyment. Additionally, the court ordered a refund of $4,750 for the overpaid rent, as well as a fixed weekly rent of $875 until 30 November 2022. The court also issued an interim order preventing the Webbers from disclosing a medical document that had been mistakenly sent to them by the Nicholsons, with the possibility of making this order permanent if the Webbers did not oppose it within seven days. The Nicholsons' other claims were dismissed.

Orders

Orders of the court

1.The rent shall not exceed $875 per week as from 8 March 2022 until 30 November 2022.

2.The respondents are to pay the applicants the sum of $4,750 by way of refund of rent, such amount to be paid immediately.

3.The respondents are to pay the applicants the sum of $1,000 by way of compensation for breach of the covenant of quiet enjoyment, such amount to be paid immediately.

4. Pursuant to s 64 of the Civil and Administrative Tribunal Act, an interim order that the medical document emailed in error to the respondents by Mr Daniel Nicholson, the first applicant is not be disclosed by the respondents (or their agent) to any third party until further order. If the respondents oppose the interim order, they are to provide written submissions within 7 days of these Orders as to why it should be disclosed, failing which the order becomes permanent.

5. The applicants’ claim is otherwise dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Nicholson v Webber [2023] NSWCATCD 65
Hearing dates:	27 April 2023
Date of orders:	14 June 2023
Decision date:	14 June 2023
Jurisdiction:	Consumer and Commercial Division
Before:	J Alder, General Member
Decision:	1.The rent shall not exceed $875 per week as from 8 March 2022 until 30 November 2022. 2.The respondents are to pay the applicants the sum of $4,750 by way of refund of rent, such amount to be paid immediately. 3.The respondents are to pay the applicants the sum of $1,000 by way of compensation for breach of the covenant of quiet enjoyment, such amount to be paid immediately. 4. Pursuant to s 64 of the Civil and Administrative Tribunal Act, an interim order that the medical document emailed in error to the respondents by Mr Daniel Nicholson, the first applicant is not be disclosed by the respondents (or their agent) to any third party until further order. If the respondents oppose the interim order, they are to provide written submissions within 7 days of these Orders as to why it should be disclosed, failing which the order becomes permanent. 5. The applicants’ claim is otherwise dismissed
Catchwords:	LANDLORD AND TENANT - withdrawal or reduction of services – loss of enjoyment of premises - duty to repair –assessment of damages
Legislation Cited:	Residential Tenancies Act (NSW) 2010, ss 44, 50, 63, 65, 187(1)(d) and 190
Cases Cited:	Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9. Moore v Scenic Tours Pty Ltd [2020] HCA 17 Baltic Shipping Co v Dillon (1993)176 CLR 344; [1993] HCA 4 Torpey v Stewart [2021] NSWCATAP 248 Kork v Merheb [2021] NSWCATAP 349 Sewell v Zvirblis [2022] NSWCATAP 337 Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264
Category:	Principal judgment
Parties:	Daniel Nicholson and Matthew Vogts (applicants) Kimberley Webber and Roy Macleod (respondents)
Representation:	Applicants: self-represented by Mr Nicholson Respondents: represented by Ms Schubert of Di Jones Real Estate Neutral Bay
File Number(s):	RT 23/00476
Publication restriction:	Nil