Sears v Turner - [2023] NSWCATCD 124

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Sears v Turner [2023] NSWCATCD 124
Hearing dates: 7 September 2023
Date of orders: 13 September 2023
Decision date: 13 September 2023
Jurisdiction: Consumer and Commercial Division
Before: G Bassett, General Member
Decision:
(1) Pursuant to section 41 of the Civil and Administrative Tribunal Act 2013, the tenant’s application to extend the period of time for lodging the application to 13 June 2023 is dismissed.

Catchwords:
CIVIL PROCEDURE — Time — Extension of time
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord’s duty — Compensation

Legislation Cited:
Civil and Administrative Tribunal Act 2013 s 41
Residential Tenancies Act 2010 ss 63, 65, 187(d)

Cases Cited:
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
Xpertise Construction Pty Ltd v Orantia [2023] NSWCATAP 22

Category: Principal judgment
Parties:
Applicant: Jacques Sears (tenant)

First Respondent: John Turner (landlord)
Second respondent: Jennifer Turner (landlord)
Representation: Applicant: Mr Ross, tenant advocate
Respondents: Ms Marr, agent

File Number(s): RT 23/27104
Publication restriction: unrestricted

REASONS FOR DECISION

Application and procedural history

On 13 June 2023, the applicant tenant applied for an order to extend time to lodge her substantive application pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 (the Act)
In the substantive application she applied for compensation up to the jurisdictional limit of the Tribunal of $15,000.00 under section 187(1)(d) of the Residential Tenancies Act 2023 (“the RTA”).
At the conciliation hearing on 24 July 2023, the tenant was granted leave to be represented by a tenant advocacy service, not a legal practitioner. In direction 9 made at conciliation hearing, and after clarification by the tenant, the Tribunal particularised that the tenant was seeking $1,000.00 for disputed electricity bills to be refunded and compensation for loss of breach of quiet enjoyment due to alleged breaches of the landlords obligation to carry out repairs. The extension of time issue related to the claim for breach of quiet enjoyment due to alleged failure to effect repairs. Neither party made submissions in relation to extension of time relating to the $1,000.00 claim for electricity bills. In file notes made by the member presiding at the conciliation hearing it was indicated that at the final contested hearing the parties were to address the time issue. In relation to lodgement of evidence for the final hearing, the tenant was also directed to lodge and serve a copy of all evidence by 14 August 2023. Between the conciliation and final hearing, the landlords sought an amendment of the date to lodge their evidence claiming that the tenant had not provided them with evidence until 24 August 2023. That application was not allowed but the landlords were given a later date to comply with directions in relation to their evidence.
At the beginning of the part-heard hearing, the parties were advised that for the sake of utility in meeting its primary objective to resolve the real issues in proceedings justly, quickly,…

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 Sears v Turner

Details

AGLC: Sears v Turner [2023] NSWCATCD 124
Case: [2023] NSWCATCD 124
Decision Date: 13 September 2023

CaseChat Overview and Summary

In the Civil and Administrative Tribunal, the tenant, Sears, sought an extension of time to lodge an application for compensation against the landlord, Turner, under the Residential Tenancies Act 2010 (NSW). The application related to a dispute over the landlord's alleged failure to make necessary repairs to the rental property. The primary issue before the tribunal was whether the tenant's application to extend the time for lodging the application to 13 June 2023 should be granted, considering the statutory time limits for such applications.

The tribunal examined the statutory framework governing residential tenancy disputes in New South Wales, focusing on the prescribed time limits for lodging applications. It considered the tenant's reasons for the delay and the impact of the delay on the landlord's ability to defend the application. The tribunal also assessed the tenant's compliance with the tribunal's procedural rules and the principles of fairness and justice in the administration of the law. The tribunal concluded that the delay was unreasonable and that the tenant had not demonstrated any exceptional circumstances that would justify an extension of the statutory time limit.

In light of the above considerations, the tribunal dismissed the tenant's application to extend the period of time for lodging the application to 13 June 2023. The tribunal emphasised the importance of strict compliance with statutory time limits in residential tenancy disputes and the need to balance the rights of landlords and tenants in the administration of justice. The tribunal also noted that the failure to comply with the time limit could result in the application being dismissed, regardless of the merits of the case.

Orders

Orders of the court

(1) Pursuant to section 41 of the Civil and Administrative Tribunal Act 2013, the tenant’s application to extend the period of time for lodging the application to 13 June 2023 is dismissed.

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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Medium Neutral Citation:	Sears v Turner [2023] NSWCATCD 124
Hearing dates:	7 September 2023
Date of orders:	13 September 2023
Decision date:	13 September 2023
Jurisdiction:	Consumer and Commercial Division
Before:	G Bassett, General Member
Decision:	(1) Pursuant to section 41 of the Civil and Administrative Tribunal Act 2013, the tenant’s application to extend the period of time for lodging the application to 13 June 2023 is dismissed.
Catchwords:	CIVIL PROCEDURE — Time — Extension of time LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord’s duty — Compensation
Legislation Cited:	Civil and Administrative Tribunal Act 2013 s 41 Residential Tenancies Act 2010 ss 63, 65, 187(d)
Cases Cited:	Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Xpertise Construction Pty Ltd v Orantia [2023] NSWCATAP 22
Category:	Principal judgment
Parties:	Applicant: Jacques Sears (tenant) First Respondent: John Turner (landlord) Second respondent: Jennifer Turner (landlord)
Representation:	Applicant: Mr Ross, tenant advocate Respondents: Ms Marr, agent
File Number(s):	RT 23/27104
Publication restriction:	unrestricted