O'Leary v Srisivalingam

[2023] NSWCATCD 112

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

O’Leary v Srisivalingam [2023] NSWCATCD 112

Hearing dates:

13 September 2023

Date of orders:

19 September 2023

Decision date:

19 September 2023

Jurisdiction:

Consumer and Commercial Division

Before:

K George, General Member

Decision:

1. On or before 2 October 2023, the tenants, Rhys O’Leary and Anne Trayner, are to pay the landlord, Siv Srisivalingam, the amount of $4000.00.

2. The tenants’ application is otherwise dismissed.

Catchwords:

LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – Landlord’s obligation to repair and maintain premises – provide premises fit for habitation - what constitutes an application - extension of time - compensation

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Civil Liability Act 2002 (NSW)

Residential Tenancies Act 2010 (NSW)

Residential Tenancies Regulation 2019 (NSW)

Cases Cited:

Ballard v Multiplex [2012] NSWSC 426

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

Duffey v Tunteveski; Tuntevski v Duffey [2020] NSWCATCD 24

Hadley v Baxendale [1854] 9 Ex 341

In the Matter of Hillsea Pty Limited [2019] NSWSC 1152

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

Northern Sandblasting Pty Ltd v Harris (1997) 146 ALJR 254

Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167

Pollock v NSW Trustee & Guardian [2022] NSWSC 923

Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9

Walker v Northern Beaches Council [2022] NSWCATAD 8

Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Rhys O’Leary and Anne Trayner (applicants)

Siv Srisivalingam (respondent)

Representation:

Rhys O’Leary (self represented applicant)

Bas G Baskaran (respondent)

File Number(s):

RT 23/07849

Publication restriction:

Nil

DECISION

Procedural history

1. The tenants’ application is dated 22 September 2022 in related matter RT 22/42560. They sought payment of the bond in full.

2. On 10 October 2022 the application was listed for conciliation and group list hearing. Both parties attended and the Tribunal made procedural directions for exchange of evidence and adjourned the matter for final hearing.

3. The application was finally heard and determined by the Tribunal on 8 November 2022.

4. In addition to the bond claim, the Tribunal also considered the tenants’ claim for compensation, although it does not appear that the tenants were at any stage of the proceedings given formal leave to amend their application to include a claim for compensation.

5. The Tribunal found partially in favour of the tenants. The only order relevant to the present proceedings was the order that the landlord pay the tenants compensation of $15,000.00 in respect of a leak which the Tribunal found to be sewage.

6. The landlord appealed the Tribunal’s decision.

7. At the callover of the appeal on 9 December 2022, Principal Member Suthers stayed the operation of the order to pay compensation, on the condition that the landlord paid the sum of $5,000.00 to the tenants, in…