Peden P/L v Bortolazzo

The appeal before the court involved Peden P/L, the applicant, who leased premises to tenants, and the second respondents, the Bortolazzos, who were the neighbouring property owners. The Bortolazzos alleged that the tenants of the leased premises were causing a nuisance in the form of excessive noise, unruly and drunken behaviour, and smoke from burning off. The Bortolazzos complained to the applicant, who regularly visited the tenants and found no evidence of the alleged nuisance. The applicants sought to dismiss the Bortolazzos' claim, arguing that they were not liable for the alleged nuisance created by the tenants. The court was required to determine whether the applicant was liable for the nuisance by allowing the tenants to remain in possession of the premises and whether the applicant failed to take reasonable steps to terminate the tenancy or ensure that the tenants ceased the nuisance. The court was also required to determine whether the applicant was responsible for the nuisance caused by her tenants which she had neither authorised nor anticipated nor known of despite regular visits to the premises.

The court found that the applicant was not liable for the nuisance created by the tenants. The court held that the general law principle is that a lessor is not ordinarily liable for a nuisance created by a tenant. The court further held that the applicant had taken reasonable steps to address the Bortolazzos' complaints and had no reason to believe that the tenants were causing a nuisance. The court found that the applicant had regularly visited the tenants and found no evidence of the alleged nuisance. The court held that the applicant could not be held responsible for the nuisance caused by her tenants which she had neither authorised nor anticipated nor known of despite regular visits to the premises.

The court allowed the appeal with costs to be assessed. The appeal was allowed because the applicant was not liable for the nuisance created by the tenants. The District Court Appeal No 201 of 2005 from the decision of the Magistrates Court at Innisfail on 5 July 2005 was set aside with costs to be assessed. The applicant was granted leave to appeal, and the appeal was allowed with costs to be assessed.