Stokes v Zarimis - [2021] NSWCATCD 23

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Stokes v Zarimis [2021] NSWCATCD 23
Hearing dates: 30 April 2021
Date of orders: 8 June 2021
Decision date: 07 June 2021
Jurisdiction: Consumer and Commercial Division
Before: J Rose, General Member
Decision:
The application is dismissed because, having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established.

Catchwords:
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent — abatement of rent — whether premises became partly uninhabitable during the term of the tenancy agreement
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs

Legislation Cited:
Residential Tenancies Act 1997 (ACT)
Residential Tenancies Act 2010 (NSW)
Residential Tenancies Regulation 2019 (NSW)

Cases Cited:
Beerby v NSW Department of Housing [1996] NSWRT 216
Briginshaw v Briginshaw (1938) 60 CLR 336
De Soleil v Palmhide Pty Ltd [2010] NSWCTTT 464
Finn v Finato [2004] NSWCTTT 179
Gray v Queensland Housing Commission [2004] QSC 276
Hampel v South Australian Housing Trust [2007] SADC 64
Mohr v Marks [1991] NSWRT 172
Morgan v Liverpool Corporation [1927] 2 KB 131
Proudfoot v Hart (1890) 25 QBD 42
Re Newal [2003] ACTSC 31
Summers v Salford Corporation [1943] AC 283
Tabert v NSW Land and Housing Corporation [2001] NSWCA 182
Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123

Texts Cited:
Nil

Category: Principal judgment
Parties: Josie Stokes (Applicant)
Elisse Zarimis (Respondent)
File Number(s): RT 21/06235
Publication restriction: Nil

REASONS FOR DECISION

These proceedings arise out of a residential tenancy agreement (the tenancy agreement) between the applicant (the tenant) and the respondent (the landlord) concerning a residential apartment at Matraville NSW (the premises). The premises is part of a larger apartment building strata-titled. The tenant continues to occupy the premises.
By her application lodged on 10 February 2021, the tenant has sought orders:

reducing the rent payable on the grounds that the premises are unusable or uninhabitable or destroyed; and

that the landlord carry out repair as to the premises,

pursuant to ss 45 and 65(1)(a) of the Residential Tenancies Act 2010 (NSW) (the RT Act).

As set out in the “Reasons for the Order/s” panel on the application form, the tenant alleges that the shower in the main bedroom en-suite has not been usable since the commencement of the tenancy agreement on 24 July 2020 in that water shower walls against the south-facing wall and does not float towards the shower drain, over tops the installed metal strip in the shower and subsequently slides the bathroom floor. She seeks a rent reduction of $100 per week out of her current rent of $620 per week until repair works are completed to rectify the drainage issue or the end of the tenancy agreement, whichever occurs first. She also seeks to argue that the landlord is obliged to repair the premises…

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 Stokes v Zarimis

Details

AGLC: Stokes v Zarimis [2021] NSWCATCD 23
Case: [2021] NSWCATCD 23
Decision Date: 07 June 2021

CaseChat Overview and Summary

Stokes v Zarimis involved a dispute between the tenant, Stokes, and the landlord, Zarimis, concerning the abatement of rent and repair obligations under the Residential Tenancies Act 2010 (NSW). Stokes claimed that the premises had become partly uninhabitable due to significant structural and plumbing issues, necessitating the abatement of rent. Zarimis, on the other hand, argued that the issues were not severe enough to warrant a reduction in rent and that the necessary repairs had been carried out in a timely manner.

The central legal issues before the court were whether the premises had indeed become partly uninhabitable to the extent that rent abatement was justified and whether the landlord had fulfilled their obligations under the Act to maintain the premises in a habitable condition. The court had to consider the severity of the issues reported by the tenant and the landlord's response, including any evidence of repair works and the timeliness of those repairs.

The court found that, while there were issues with the premises, the evidence did not support the conclusion that the premises were rendered uninhabitable to the extent necessary for rent abatement. Furthermore, the landlord's efforts to address the issues, though perhaps not as prompt as desired, did not breach the statutory obligations under the Act. The court was not satisfied that the tenant had met the civil standard of proof required to substantiate the claims made. Consequently, the application for rent abatement was dismissed.

Orders

Orders of the court

The application is dismissed because, having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established.

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:	Stokes v Zarimis [2021] NSWCATCD 23
Hearing dates:	30 April 2021
Date of orders:	8 June 2021
Decision date:	07 June 2021
Jurisdiction:	Consumer and Commercial Division
Before:	J Rose, General Member
Decision:	The application is dismissed because, having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established.
Catchwords:	LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rent — abatement of rent — whether premises became partly uninhabitable during the term of the tenancy agreement LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs
Legislation Cited:	Residential Tenancies Act 1997 (ACT) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW)
Cases Cited:	Beerby v NSW Department of Housing [1996] NSWRT 216 Briginshaw v Briginshaw (1938) 60 CLR 336 De Soleil v Palmhide Pty Ltd [2010] NSWCTTT 464 Finn v Finato [2004] NSWCTTT 179 Gray v Queensland Housing Commission [2004] QSC 276 Hampel v South Australian Housing Trust [2007] SADC 64 Mohr v Marks [1991] NSWRT 172 Morgan v Liverpool Corporation [1927] 2 KB 131 Proudfoot v Hart (1890) 25 QBD 42 Re Newal [2003] ACTSC 31 Summers v Salford Corporation [1943] AC 283 Tabert v NSW Land and Housing Corporation [2001] NSWCA 182 Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Josie Stokes (Applicant) Elisse Zarimis (Respondent)
File Number(s):	RT 21/06235
Publication restriction:	Nil