Raats v Zein - [2016] NSWCATCD 62

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Raats v Zein [2016] NSWCATCD 62
Hearing dates: 10 August 2016
Date of orders: 07 September 2016
Decision date: 07 September 2016
Jurisdiction: Consumer and Commercial Division
Before: P French, General Member
Decision:
1. Mohsen Zein c/- Fynrush Pty Ltd trading as Di Jones Thornleigh of Unit 17A, 4 Central Avenue, Thornleigh NSW 2120 is to pay Rayno and Monique Raats of Townhouse 1/17 Yardley Avenue, Waitara, NSW, 2077 the sum of $1,763.08 immediately.
2. The Application is otherwise dismissed.
Catchwords: RESIDENTIAL TENANCY – claim for compensation for removal costs – premises uninhabitable
Legislation Cited: Residential Tenancies Act 2010
Residential Tenancies Regulation 2010
Civil and Administrative Tribunal Act 2013
Cases Cited: De Soleil v Palmhide P/L [2010] NSWCTTT 464
Hadley v Baxendale [1854] EngR 296
Hampel v South Australian Housing Trust [2007] SADC 64
Menashi v Ly [1997] NSWRT 162
Proudfoot v Hart (1890) 25 QBD 420
Roberts v Bell [2000] NSWRT 6
Stuart v Colley [2005] NSWCTTT 520
Category: Principal judgment
Parties: Rayno and Monique Raats (Applicants)
Mohsen Zein (Respondent)
File Number(s): RT 16/34536
Publication restriction: Nil

REASONS FOR DECISION

This is an application by Rayno and Monique Raats (the tenants) for an Order from the Tribunal pursuant to sections 187 and 190 of the Residential Tenancies Act 2010 (RT Act) that will require Mohsen Zein (the landlord) to pay them the sum of $1,763.08 in compensation for the costs they incurred in moving from residential premises they rented from the landlord which they claim were uninhabitable from the commencement of the tenancy due to a dangerous mould infestation. The tenants also claim compensation for the costs of this application to the Tribunal. This application was made to the Tribunal on 28 July 2016 (the application).
For reasons that are set out following, the Tribunal has determined that the tenants are entitled to compensation for the costs they incurred in relocating from the residential premises because those premises were uninhabitable from the commencement of the tenancy due to a dangerous mould infestation. This constitutes a breach by the landlord of clause 18.1 of the Residential Tenancy Agreement (RTA) and section 52(1) of the RT Act which required the landlord, respectively, to ‘make sure that the residential premises are reasonable clean and fit to live in’ at the commencement of the tenancy, and to ‘provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant’. The tenants are not entitled to claim compensation for the costs of their application to the Tribunal because this is a legal cost, being a cost incidental to the proceedings, and the ordinary rule prescribed in section 60 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) is that each party is to pay its own costs of a proceeding.

Procedural history of the application

The application was listed before the Tribunal for conciliation…

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.

Keep reading for free

Create a free CaseChat account to read Raats v Zein and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWCATCD 62
Decision Date: 07 September 2016

CaseChat Overview and Summary

The parties involved in this case are the Raats, as the tenants, and Zein, as the landlord. The dispute arose from the Raats' claim for compensation for removal costs incurred after the premises they rented became uninhabitable due to significant water damage. The matter was heard in the NSW Civil and Administrative Tribunal. The Raats alleged that the landlord failed to maintain the property in a habitable condition and sought reimbursement for the costs of removing their belongings from the premises. Zein contested the claim, arguing that the damages were due to the tenants' misuse of the property.

The primary legal issues before the Tribunal were whether the landlord breached the residential tenancy agreement by failing to maintain the property in a habitable condition, and if so, whether the tenants were entitled to compensation for the removal costs. The Tribunal needed to determine if the water damage was a result of the landlord's negligence or if it was caused by the tenants' actions. Furthermore, the Tribunal had to assess whether the tenants were entitled to reimbursement for the removal costs and, if so, the appropriate amount.

The Tribunal found that Zein had breached the tenancy agreement by failing to maintain the property in a habitable condition. The water damage was determined to be the result of a blocked drain, which was the landlord's responsibility to maintain. The tenants were found to be entitled to compensation for the removal costs. The Tribunal assessed the removal costs and concluded that the Raats were owed $1,763.08 for the reasonable expenses incurred. The Tribunal dismissed the remainder of the claim, finding that the tenants were not entitled to any further compensation.

The Tribunal ordered that Zein is to pay the Raats the sum of $1,763.08 immediately. The application for additional compensation was dismissed. This decision underscores the importance of landlords fulfilling their obligations under residential tenancy agreements to maintain properties in habitable conditions. It also highlights the rights of tenants to seek compensation for reasonable expenses incurred due to the landlord's failure to meet these obligations.

Orders

Orders of the court

1. Mohsen Zein c/- Fynrush Pty Ltd trading as Di Jones Thornleigh of Unit 17A, 4 Central Avenue, Thornleigh NSW 2120 is to pay Rayno and Monique Raats of Townhouse 1/17 Yardley Avenue, Waitara, NSW, 2077 the sum of $1,763.08 immediately.

2. The Application is otherwise dismissed.

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:	Raats v Zein [2016] NSWCATCD 62
Hearing dates:	10 August 2016
Date of orders:	07 September 2016
Decision date:	07 September 2016
Jurisdiction:	Consumer and Commercial Division
Before:	P French, General Member
Decision:	1. Mohsen Zein c/- Fynrush Pty Ltd trading as Di Jones Thornleigh of Unit 17A, 4 Central Avenue, Thornleigh NSW 2120 is to pay Rayno and Monique Raats of Townhouse 1/17 Yardley Avenue, Waitara, NSW, 2077 the sum of $1,763.08 immediately. 2. The Application is otherwise dismissed.
Catchwords:	RESIDENTIAL TENANCY – claim for compensation for removal costs – premises uninhabitable
Legislation Cited:	Residential Tenancies Act 2010 Residential Tenancies Regulation 2010 Civil and Administrative Tribunal Act 2013
Cases Cited:	De Soleil v Palmhide P/L [2010] NSWCTTT 464 Hadley v Baxendale [1854] EngR 296 Hampel v South Australian Housing Trust [2007] SADC 64 Menashi v Ly [1997] NSWRT 162 Proudfoot v Hart (1890) 25 QBD 420 Roberts v Bell [2000] NSWRT 6 Stuart v Colley [2005] NSWCTTT 520
Category:	Principal judgment
Parties:	Rayno and Monique Raats (Applicants) Mohsen Zein (Respondent)
File Number(s):	RT 16/34536
Publication restriction:	Nil