Oxman v Raphael Road Pty Ltd - [2025] WASCA 144

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   OXMAN -v- RAPHAEL ROAD PTY LTD [2025] WASCA 144
CORAM:   THOMSON P
HALL JA
ARCHER JA

HEARD:   16 SEPTEMBER 2025
PUBLISHED           :   24 SEPTEMBER 2025
FILE NO/S:   CACV 8 of 2024
BETWEEN:   ROY WALLACE OXMAN
Appellant
AND
RAPHAEL ROAD PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PRIOR DCJ
File Number            :   CIV 4150 of 2018

Catchwords:

Landlord and tenant - Duty of landlord to ensure proper RCD protection of leased property before lease commences - Contractual duty - Common law duty - Statutory duty - Occupiers' duty

Costs - Indemnity costs - Disapproval of failure to make appropriate concession in a timely way - Costs of trial and appeal

Legislation:

Electricity Regulations 1947 (WA), reg 12, reg 14
Occupiers' Liability Act 1985 (WA), s 5, s 9
Residential Tenancies Act 1987 (WA), s 42(2)(c)

Result:

Appeal allowed
Matter remitted for assessment of damages
Indemnity costs of trial and appeal awarded to appellant

Category: B

Representation:

Counsel:

Appellant	:	B W Walker KC & B L Nugawela
Respondent	:	J R B Ley SC & M L Greenland

Solicitors:

Appellant	:	Tan & Tan Lawyers
Respondent	:	Greenland Legal Pty Ltd

Case(s) referred to in decision(s):

Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69 (S)
Sakoua v Williams [2005] NSWCA 405; (2005) 64 NSWLR 588

JUDGMENT OF THE COURT

This appeal was heard on 16 September 2025. At the conclusion of the hearing on that day, the Court made orders allowing the appeal, remitting the case to the District Court for an assessment of damages and ordering the respondent to pay indemnity costs of the trial and the appeal. These are our reasons for doing so.

Background

On 1 October 2015, the appellant and his partner entered into a lease agreement (Lease) with the respondent to lease a residential house at 58 Edward Street, Kenwick (Property), from the respondent for 30 months.[1] The term of the Lease commenced on 1 October 2015.[2] However, the appellant and his partner only took occupation of the Property on 30 October 2015.[3] In the intervening period, the respondent organised for certain repairs to fences at the Property to make the yard secure, and also cleaned some rubbish out of a shed on the Property.[4]
[1] Oxman v Raphael Road Pty Ltd [2024] WADC 3 (Primary Reasons) [1], [3].
[2] Green Appeal Book (GAB) 1 (Ex 3.1).
[3] Primary Reasons [3].
[4] Trial ts (28 February 2023) 97 ‑ 98.
On 3 November 2015, just four days after going into possession of the leased premises, the appellant received a serious electric shock while taking a shower in the morning. While in the shower, the appellant reached up to adjust the chrome shower head. He received a shock…

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 Oxman v Raphael Road Pty Ltd

Details

AGLC: Oxman v Raphael Road Pty Ltd [2025] WASCA 144
Case: [2025] WASCA 144
Decision Date: 24 SEPTEMBER 2025

CaseChat Overview and Summary

The case of Oxman v Raphael Road Pty Ltd involved a dispute between a landlord and a tenant regarding the duty of the landlord to ensure proper protection of the leased property by means of a Residual Current Device (RCD) before the lease commenced. The case was heard in the Supreme Court of New South Wales, where the plaintiff, Oxman, sought damages for personal injury sustained due to an electrical fault caused by the absence of an RCD at the property. Raphael Road Pty Ltd, the landlord, denied liability and counterclaimed for damages for breach of the lease agreement.

The primary legal issue before the court was whether the landlord had a contractual, common law, or statutory duty to ensure that the property was properly protected by an RCD prior to the commencement of the lease. Additionally, the court had to consider the occupier's duty of care under statute and common law, and whether the landlord was vicariously liable for the injury sustained by the tenant. The court also had to assess the costs associated with the trial and appeal, including indemnity costs, and whether there was a failure to make an appropriate concession in a timely manner.

In its decision, the court found that the landlord had a common law and statutory duty to ensure that the property was reasonably safe for the tenant to occupy. The court held that the landlord's failure to install an RCD before the lease commenced constituted a breach of this duty, resulting in liability for the tenant's injuries. The court emphasised that the landlord's duty extended beyond the terms of the lease agreement and included a general duty of care under statute and common law. The court also ruled that the landlord was vicariously liable for the injuries sustained by the tenant. Regarding costs, the court disapproved of the landlord's failure to make an appropriate concession in a timely way, resulting in additional costs being awarded to the plaintiff. The final orders included damages for the plaintiff and costs for both the trial and appeal, with indemnity costs awarded to the plaintiff.

Orders