Pursell v Eversham Close Pty Ltd

[2020] NSWDC 372

District Court

New South Wales

Medium Neutral Citation:

Pursell v Eversham Close Pty Ltd [2020] NSWDC 372

Hearing dates:

9, 10, 11 October 2019
Plaintiff’s Supplementary Submissions – 15 October 2019
Defendant’s response to Supplementary Submissions – 21 October 2019

Date of orders:

13 February 2020

Decision date:

13 February 2020

Jurisdiction:

Civil

Before:

Hatzistergos DCJ

Decision:

Verdict for the Plaintiff (see [224])

Catchwords:

LEASES AND TENANCIES — Strata title — Leasehold strata scheme — Common property — Maintenance and repair of common property — Obligations of owner and occupiers — Continual water damage — Renewal of lease despite water damage

RESIDENTIAL AGREEMENT — Purported breach of lease — Failure to fix damaged property — Whether defendants failed to act reasonably in the circumstances — Whether making an application under s 140 of the SSMA Act 1996 would have been a reasonable step in fixing property

Legislation Cited:

Residential Tenancies Act 2010 (NSW), ss 3, 13, 43(2), 63(2), 65

Residential Tenancies Regulation 2010 (NSW)

Strata Schemes Management Act 1996 (NSW), ss 62, 138, 140, 150

Cases Cited:

Craig Kentell v Oliver Steele; Oliver Steele v Craig Kentell [2014] NSWCATCD 102

Edex International Holdings Pty Ltd v Marmalade Films Pty Ltd [2003] NSWCA 8; (2003) 56 NSWLR 63

Italia Ceramics International Super Ltd and Anor v CM Corporation Pty Ltd [2019] SASCFC54

Lee v Fuzessery [2010] NSWCTTT 205

Matthew Hanney and Belinda Smiley v Lachlan McCabe and Amanda Toshack [2014] NSWCATCD 239

Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; (1997) 146 ALR 572

Reiss v Helson [2001] NSWSC 486

Timms and Simpson v Adams [2012] NSWCTT 53

Wang v Abdel-Messih [2017] NSWCATCD 11

Texts Cited:

Anforth, Allan, Peter Christensen, Christopher Adkins, Residential Tenancies Law and Practice New South Wales (Federation Press, 7th ed, 2017)

Category:

Principal judgment

Parties:

Bruce Alan Pursell (Plaintiff)
Eversham Close Pty Ltd (Defendant)

Representation:

Counsel:
Mr S.J. McMahon (Plaintiff)
Mr J McKenzie (Defendant)

Solicitors:
Laycock Burke Castaldi Lawyers (Plaintiff)
Priest Legal (Defendant)

File Number(s):

17/375351

Publication restriction:

N/A

Judgment

1. The Plaintiff was the tenant of property owned by the Defendant located at 401/22 Mort Street Port Macquarie in a building known as the Icon between February 2013 and December 2016 (the property). By all accounts it was a beautifully positioned apartment which had some appeal to the Plaintiff and his wife, who resided in another unit in the building prior to 2013. [1] Notwithstanding this their occupancy was, from time to time, disturbed principally by water ingress. Following the tenancy coming to an end and having paid all rent otherwise due, the Plaintiff brings these proceedings claiming damages.

   1. Exhibit A, Affidavit of Bruce Pursell at [10] and [52].

2. The Plaintiff in his case gave evidence himself and also called his wife, Ms Lydia Pursell, who resided with him at the premises.

3. The Defendant was the Landlord of the property. In its case it called Mr John Constant, a director of the Defendant, [2] as well as his wife Ms…