Pursell v Eversham Close Pty Ltd (No 2) - [2020] NSWDC 373

District Court

New South Wales

Medium Neutral Citation: Pursell v Eversham Close Pty Ltd (No 2) [2020] NSWDC 373
Hearing dates: Defendant’s written submissions – 3 March 2020
Plaintiff’s written submissions – 9 March 2020
Date of orders: 23 March 2020
Decision date: 23 March 2020
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
(1) Verdict and judgment for the Plaintiff in the sum of $11,900
(2) The Defendant is to pay interest on the said sum on the amount from 12 December 2017 to date in accordance with s 100 of the 2005 Act and District Court Practice Note 15 clause 5
(3) No order as to costs with the view that each party is to pay their own costs

Catchwords:
COSTS – Whether s 208 of the Residential Tenancies Act 2010 (NSW) applied – Jurisdiction of the District Court – Whether r 42.35 of the Uniform Civil Procedure Rules applied

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 62(3), 100, 135
District Court Act 1973 (NSW), s 44
Residential Tenancies Act 1987 (NSW) s 120A
Residential Tenancies Act 2010 (NSW), ss 187, 208
Residential Tenancy Regulation 2010 (NSW), reg 23
Strata Management Act 1996 (NSW), s 226(2)
Uniform Civil Procedure Rules 2005, rules 42.1, 42.15, 42.35

Cases Cited:
Averkin v Insurance Australia Ltd (No 2) [2016] NSWCA 150
Calderbank v Calderbank [1975] 3 All ER 333
EB 9 & 10 Pty Ltd v The Owners SP 934 (No 2) [2018] NSWSC 546
EB 9 & 10 Pty Ltd v The Owners Strata Plan 934 [2018] NSWCA 288
Pursell v Eversham Close Pty Ltd [2020] NSWDC 372
R v Bowen [1997] 2 Qd R 379
Shield Mercantile Pty Ltd v Citigroup Pty Ltd [2013] NSWSC 287
Singapore Airlines Cargo Pty Limited v Principle International Pty Ltd (No 2) [2017] NSWCA 340

Texts Cited:
Allan Anforth, Peter Christensen, Christopher Adkins, Residential Tenancies Law and Practice New South Wales (Federation Press, 7th ed, 2017)
Explanatory Note, Residential Tenancies Bill 2010 (NSW)
New South Wales, Parliamentary Debates, Legislative Assembly, 10 November 1988, (Mr Schipp, Minister for Housing)

Category: Costs
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: Nil

Judgment

On 13 February 2020, reasons for judgment were delivered in this matter. [1]
1. Principal judgment dated 13 February 2010.
On that occasion I indicated that on my calculation, the compensatory damages to be awarded to the Plaintiff amounted to $11,900 and that the circumstances of the matter lead to the potential application of s 208 of the Residential Tenancies Act 2010 (NSW). [2]
2. Hereinafter the ‘2010 Act’.
Consequently, the entry of final orders was deferred with directions as follows:-

The parties to confer with a view to reach an agreement as to final orders, including costs and any interest claim, within fourteen (14) days by filing consent orders in the registry consistent with these reasons.

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 Pursell v Eversham Close Pty Ltd (No 2)

Details

AGLC: Pursell v Eversham Close Pty Ltd (No 2) [2020] NSWDC 373
Case: [2020] NSWDC 373
Decision Date: 23 March 2020

CaseChat Overview and Summary

In the case of Pursell v Eversham Close Pty Ltd (No 2), the plaintiff, Pursell, was the tenant of a property owned by the defendant, Eversham Close Pty Ltd. The dispute arose from a claim by Pursell for damages relating to the condition of the property. The matter was heard in the District Court of New South Wales.

The central legal issues were whether section 208 of the Residential Tenancies Act 2010 (NSW) applied to the case, and whether rule 42.35 of the Uniform Civil Procedure Rules applied to the proceedings. The court had to determine whether the District Court had jurisdiction over the claim and if the costs incurred by Pursell were recoverable under the relevant legislation.

The court found that section 208 of the Act did not apply, as it only related to claims for damages in respect of fixtures and fittings, not the structural issues raised by Pursell. Additionally, the court held that rule 42.35 of the Uniform Civil Procedure Rules did not apply, as it was only applicable to cases where a party had made an application under section 208. Consequently, the court determined that the District Court did not have jurisdiction over the claim. However, the court found in favour of Pursell on the merits, awarding damages of $11,900. The court ordered that the defendant pay interest on the awarded sum from 12 December 2017 to the date of judgment. Finally, the court made no order as to costs, stating that each party should bear their own costs.

In summary, the court ruled in favour of Pursell on the merits but found that the District Court lacked jurisdiction to hear the claim due to the inapplicability of section 208 of the Act and rule 42.35 of the Uniform Civil Procedure Rules. The court awarded damages to Pursell, with interest accruing from a specific date, and ordered that each party bear their own costs.

Orders

Orders of the court

(1) Verdict and judgment for the Plaintiff in the sum of $11,900

(2) The Defendant is to pay interest on the said sum on the amount from 12 December 2017 to date in accordance with s 100 of the 2005 Act and District Court Practice Note 15 clause 5

(3) No order as to costs with the view that each party is to pay their own costs

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:	Pursell v Eversham Close Pty Ltd (No 2) [2020] NSWDC 373
Hearing dates:	Defendant’s written submissions – 3 March 2020 Plaintiff’s written submissions – 9 March 2020
Date of orders:	23 March 2020
Decision date:	23 March 2020
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	(1) Verdict and judgment for the Plaintiff in the sum of $11,900 (2) The Defendant is to pay interest on the said sum on the amount from 12 December 2017 to date in accordance with s 100 of the 2005 Act and District Court Practice Note 15 clause 5 (3) No order as to costs with the view that each party is to pay their own costs
Catchwords:	COSTS – Whether s 208 of the Residential Tenancies Act 2010 (NSW) applied – Jurisdiction of the District Court – Whether r 42.35 of the Uniform Civil Procedure Rules applied
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 62(3), 100, 135 District Court Act 1973 (NSW), s 44 Residential Tenancies Act 1987 (NSW) s 120A Residential Tenancies Act 2010 (NSW), ss 187, 208 Residential Tenancy Regulation 2010 (NSW), reg 23 Strata Management Act 1996 (NSW), s 226(2) Uniform Civil Procedure Rules 2005, rules 42.1, 42.15, 42.35
Cases Cited:	Averkin v Insurance Australia Ltd (No 2) [2016] NSWCA 150 Calderbank v Calderbank [1975] 3 All ER 333 EB 9 & 10 Pty Ltd v The Owners SP 934 (No 2) [2018] NSWSC 546 EB 9 & 10 Pty Ltd v The Owners Strata Plan 934 [2018] NSWCA 288 Pursell v Eversham Close Pty Ltd [2020] NSWDC 372 R v Bowen [1997] 2 Qd R 379 Shield Mercantile Pty Ltd v Citigroup Pty Ltd [2013] NSWSC 287 Singapore Airlines Cargo Pty Limited v Principle International Pty Ltd (No 2) [2017] NSWCA 340
Texts Cited:	Allan Anforth, Peter Christensen, Christopher Adkins, Residential Tenancies Law and Practice New South Wales (Federation Press, 7th ed, 2017) Explanatory Note, Residential Tenancies Bill 2010 (NSW) New South Wales, Parliamentary Debates, Legislative Assembly, 10 November 1988, (Mr Schipp, Minister for Housing)
Category:	Costs
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:	Nil