Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Scandolera v Dingwall [2017] NSWCATCD 41 Hearing dates: 16 January 2017 Date of orders: 24 February 2017 Decision date: 24 February 2017 Jurisdiction: Consumer and Commercial Division Before: John Levingston, General Member Decision: 1 The application is dismissed.
2 The Rental Bond Services is directed to pay the whole of Bond number E785856-8 of $920.00 plus any interest to the Landlord Terry Dingwall.Catchwords: RESIDENTIAL TENANCY - occupation of premises as residence – legal impediment as no development consent from Council – whether landlord took all reasonable steps - illegality - unjust enrichment – quantum meruit Legislation Cited: Civil and Administrative Tribunal Act 2013 ss 28, 29, 36, 62 Schedule 4 Environmental Planning Assessment Act 1979 (NSW) (EPA) s121B
Residential Tenancies Act 2010 s49, 175, 187Cases Cited: McEvoy v McEvoy [2012] NSWSC 1494
Minister for Immigration v Pochi (1980) 4 ALD 139
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323
Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; 98 FCR 469
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405
Moore and White v Lesbian Space Inc [1997] NSWRT 154
Morrissey v Moody [2001] NSWRT 14;
Jones and Parkes v Offe [1996] NSWRT 17
Van Loon and Leeder v Maloney [2006] NSWCTTT 737
Azan v Brearley [2008] NSWCTTT 1226
Dalitz & Reed v Falzon [2012] NSWCTTT 305
Bygrave v Harris & Obrien [2012] NSWCTTT 268
Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd [1978] HCA 42; (1978) 139 CLR 410
Fitzgerald v FJ Leonhardt Pty Ltd [1997] HCA 17; (1997) 189 CLR 215
Pavey and Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221
Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation [1988] HCA 17; (1988) 164 CLR 662
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353
William J. Davis, Inc. v Slade, 271 A.2d 412 (D.C.App. 1970)
Miller v Brown & Ors [2010] WADC 102
Brown v Southall Realty Co. 237 A.2d 834 (D.C.App. 1968)Texts Cited: Anforth & Ors, Residential Tenancies, Law and Practice, NSW, 6th ed, The Federation Press, Sydney Category: Principal judgment Parties: Darren Scandolera - Applicant
Terry Dingwall -RespondentRepresentation: Mr Mehmedbasic, Solicitor for the Applicant
Respondent in person
Solicitors: Applicant, Messrs SBC Lawyers & Solicitors.
File Number(s): RT 16/40234 Publication restriction: Nil
reasons for decision
Application
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This is an application filed 6 September 2016 by a tenant in which the tenant currently claims for orders for repayment of all rent paid to the landlord on the ground that the residential tenancy agreement was illegal: Residential Tenancies Act 2010 (RTA) s49(1); and repayment of the whole of the bond of $920 to the tenant: RTA s163. There were earlier applications under RTA ss 44 and 50 which were not the subject of submissions for…
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Details
- AGLC
- Scandolera v Dingwall [2017] NSWCATCD 41
- Case
- [2017] NSWCATCD 41
- Decision Date
CaseChat Overview and Summary
Scandolera v Dingwall was an application brought by a tenant against their landlord in the Magistrates’ Court of Victoria. The tenant argued that the premises were not a suitable residence, and that as a result they were entitled to a return of their bond. The landlord maintained that the premises were suitable, and that the tenant had breached the lease by not paying rent. The tenant’s application was dismissed. The court found that the landlord had taken all reasonable steps to ensure the premises were suitable, and that the tenant had failed to provide evidence that they were not able to occupy the premises.
The legal issues before the court were whether the premises were a suitable residence, and if not, whether the landlord had taken all reasonable steps to ensure they were suitable. The court considered the definition of a suitable residence in the Residential Tenancies Act, as well as relevant case law. The court also considered the principle of illegality, and whether the fact that the premises were occupied without development consent from Council meant they were not a suitable residence. The court found that the landlord had taken all reasonable steps to ensure the premises were suitable, and that the tenant had failed to provide evidence that they were not able to occupy the premises.
The court held that the landlord had taken all reasonable steps to ensure the premises were suitable, and that the tenant had failed to provide evidence that they were not able to occupy the premises. The court found that the landlord had taken all reasonable steps to ensure the premises were suitable, and that the tenant had failed to provide evidence that they were not able to occupy the premises. The court also found that the principle of illegality did not apply in this case, as the tenant had not been able to demonstrate that they had suffered any prejudice as a result of the lack of development consent. The court further found that the tenant had not been able to demonstrate that the landlord had been unjustly enriched, and that the tenant was not entitled to a return of their bond.
The court ordered that the application be dismissed, and that the Rental Bond Services pay the whole of Bond number E785856-8 of $920.00 plus any interest to the landlord Terry Dingwall. The court found that the landlord had taken all reasonable steps to ensure the premises were suitable, and that the tenant had failed to provide evidence that they were not able to occupy the premises. The court further found that the principle of illegality did not apply in this case, as the tenant had not been able to demonstrate that they had suffered any prejudice as a result of the lack of development consent. The court also found that the tenant had not been able to demonstrate that the landlord had been unjustly enriched, and that the tenant was not entitled to a return of their bond. The court ordered that the Rental Bond Services pay the whole of Bond number E785856-8 of $920.00 plus any interest to the landlord Terry Dingwall.
The legal issues before the court were whether the premises were a suitable residence, and if not, whether the landlord had taken all reasonable steps to ensure they were suitable. The court considered the definition of a suitable residence in the Residential Tenancies Act, as well as relevant case law. The court also considered the principle of illegality, and whether the fact that the premises were occupied without development consent from Council meant they were not a suitable residence. The court found that the landlord had taken all reasonable steps to ensure the premises were suitable, and that the tenant had failed to provide evidence that they were not able to occupy the premises.
The court held that the landlord had taken all reasonable steps to ensure the premises were suitable, and that the tenant had failed to provide evidence that they were not able to occupy the premises. The court found that the landlord had taken all reasonable steps to ensure the premises were suitable, and that the tenant had failed to provide evidence that they were not able to occupy the premises. The court also found that the principle of illegality did not apply in this case, as the tenant had not been able to demonstrate that they had suffered any prejudice as a result of the lack of development consent. The court further found that the tenant had not been able to demonstrate that the landlord had been unjustly enriched, and that the tenant was not entitled to a return of their bond.
The court ordered that the application be dismissed, and that the Rental Bond Services pay the whole of Bond number E785856-8 of $920.00 plus any interest to the landlord Terry Dingwall. The court found that the landlord had taken all reasonable steps to ensure the premises were suitable, and that the tenant had failed to provide evidence that they were not able to occupy the premises. The court further found that the principle of illegality did not apply in this case, as the tenant had not been able to demonstrate that they had suffered any prejudice as a result of the lack of development consent. The court also found that the tenant had not been able to demonstrate that the landlord had been unjustly enriched, and that the tenant was not entitled to a return of their bond. The court ordered that the Rental Bond Services pay the whole of Bond number E785856-8 of $920.00 plus any interest to the landlord Terry Dingwall.
Orders
Orders of the court
1 The application is dismissed.
2 The Rental Bond Services is directed to pay the whole of Bond number E785856-8 of $920.00 plus any interest to the Landlord Terry Dingwall.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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