Stambolziovski v Nestorovic (No 2)

District Court

New South Wales

Medium Neutral Citation:	Stambolziovski v Nestorovic (No 2) [2014] NSWDC 292
Hearing dates:	18-22, 25 August; 15-19, 26 September 2014
Decision date:	30 September 2014
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Judgment in favour of the defendants against the plaintiff. (2) Plaintiff to pay the first defendant's costs of the proceedings. (3) Plaintiff to pay the second defendant's costs of the proceedings, those costs not to include any compensation for time spent by Carmelo or Margherita Dimarti in preparing and defending this case. (4) All cross-claims dismissed with no order as to costs. (5) I defer entry of any order in respect of costs for 14 days and thereafter until further order in the event that any party seeks to argue that a different costs order should be made.
Catchwords:	TORT - negligence - landlord - tenant - real estate agent - breach of duty of care - failure to fix leaking toilet - tenant fell
Legislation Cited:	Civil Liability Act 2002, s 5B, s 5D
Cases Cited:	Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 Everett v Neale [2012] NSWDC 73 Mason v Demasi [2009] NSWCA 227
Category:	Principal judgment
Parties:	Blaga Stambolziovski (plaintiff) Lilly Nestorovic (first defendant/cross-claimant to second cross-claim) Camanaro Prestige Properties Pty Limited ACN 101 515 744 t/as Sydneyhome Real Estate Ramsgate Beach (second defendant) Sasha Stambolziovski (cross-defendant to second cross-claim)
Representation:	Counsel: Mr M Daley (plaintiff) Mr S C Ipp (first defendant/cross-claimant to second cross-claim) Solicitors: Brydens Compensation Lawyers (plaintiff) Gadens Lawyers (first defendant/cross-claimant to second cross-claim)
File Number(s):	2011/401832

Judgment

1. INTRODUCTION

1. Blaga Stambolziovski ("Mrs Stambolziovski") slipped and fell in an external laundry connected to her place of residence, "number 47", rented by her son. She fractured her right femur. She attributes the fall to water leaking from an adjacent toilet. This is contested by the defendants, the owner, Lilly Nestorovic, and the real estate agent, Camanaro Prestige Properties Pty Limited, who allege that she fell while she was mopping the laundry floor.

2. THE FACTUAL CONTEST

2. The slip, fall and injury to Mrs Stambolziovski are not in issue. The centre of the dispute is whether the injury occurred in circumstances suggesting negligence. Since Mrs Stambolziovski was alone in the laundry at the moment of the fall, she is the primary witness of how it occurred. Her credit including her subsequent conversations and to a lesser extent conversations of her family members are crucial in determining whether she has discharged the onus of proof resting upon her.

A. Mrs Stambolziovski's account

3. Mrs Stambolziovski testified that she came to use the external toilet, which she had never before used, because she was embarrassed to use one of the two internal toilets in the house whilst a Telstra technician was present in the house installing a new phone line.

4. She exited the house through the rear door, descended two steps and turned 90 degrees to the left to enter a laundry room with the intention…