S & T Twyford v M Denmead

[2015] NSWCATCD 81

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	S & T Twyford v M Denmead [2015] NSWCATCD 81
Hearing dates:	7 July 2015
Date of orders:	07 July 2015
Decision date:	28 July 2015
Jurisdiction:	Consumer and Commercial Division
Before:	G Wilson, General Member
Decision:	1 The application is dismissed because the Tribunal has no jurisdiction to determine the application.
Legislation Cited:	Residential Tenancies Act 2010
Category:	Principal judgment
Parties:	Scott Tywford and Tracy Twyford (applicants) Matthew Denmead (respondent)
File Number(s):	RT 15/39734
Publication restriction:	Nil

REASONS FOR DECISION

1. These written reasons have been prepared at the request of the applicant and are based on the recollections of and notes made by the Member at the hearing.

2. The Tribunal found that the premises were residential premises and accordingly had jurisdiction to hear and determine the dispute under the Residential Tenancies Act 2010 (“Act”).

3. The parties, both being present at the hearing, engaged in conciliation discussions prior to the hearing but informed the Tribunal they were unable to reach an agreement and sought to proceed to a hearing.

4. Section 187 of the Act states the types of orders the Tribunal may make in proceedings under the Residential Tenancies Act, 2010 (“Act”). The specific powers to make those orders are set out elsewhere in the Act.

5. The types of orders that can be made include s 187(1)(e) which states:

(1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders:

…

(e) an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement.

…

In the matter before the Tribunal the landlord was seeking an order for the tenant to carry out repairs of damage to a hot plate cook top which damage was allegedly caused by the tenant.

6. The applicant’s evidence stated that the damage was caused by the tenant’s breach of his obligations under the Act, that is, the damages occurred as a result of the tenant’s actions.

The specific obligations of a tenant are set out in Part 3 Division 3 of the Act where the following responsibilities include:

s 51 (1) A tenant must not do any of the following:

…

(d) intentionally or negligently cause or permit any damage to the residential premises,

…

(2) A tenant must do the following

…

(b) notify the landlord of any damage to the residential premises as soon as practicable after becoming aware of the damage.

7. The specific powers in relation to repair of premises are set out in Part 3 Division 5 of the Act where the general obligations of the landlord are set out in s 63 as follows:

s 63(1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.

…

(3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of repair is caused by the tenant’s breach of this Part.

Section 63 of the Act imposes the obligation on the landlord to effect repairs but qualifies that obligation where the tenant has caused the damage. Accordingly where the tenant causes the damage the landlord has the option to either carry out the repairs or leave his premises in its damaged state. That is a decision to be made by the landlord.

8. The applicant also raised the submission that the landlord is required to reimburse the tenant for the cost of any urgent repairs carried out by the tenant.

9. Urgent repairs are defined in s 62 of the Act as follows:

urgent repairs means any work needed to repair any one or more to the following:

…

(j) a failure or breakdown of any essential service on the residential premises for…cooking…

S 64 (1) of the Act states as follows:

(1) A landlord must, not later than 14 days after being given a written notice from the tenant, reimburse the tenant for the reasonable costs of making urgent repairs to the residential premises.

Where this procedure is followed and the landlord fails to reimburse the tenant the tenant may make application for Orders under s 65 (1) which states:

(1) The Tribunal may, on application by a tenant, make any of the following orders:

(a) an order that the landlord carry out specified repairs,

(b) an order that the landlord reimburse the tenant an amount for urgent repairs carried out by the tenant.

That is not the case in this application which has been made on the application of the landlord (not the tenant) who is seeking rectification not reimbursement.

10. The Tribunal is satisfied there is no specific power in the Act or the residential tenancy agreement empowering a landlord to require a tenant to carry out urgent or general repairs to the residential premises. The Act and the residential tenancy agreement impose the responsibility for repairs solely on the landlord. Accordingly as the Tribunal has no power or jurisdiction to make the Order sought the application was dismissed.

G Wilson

General Member

Civil and Administrative Tribunal of New South Wales

28 July 2015

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 04 September 2015