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Taylor v Reilly

Taylor v Reilly

Case [2021] NSWCATCD 74 9 June 2021

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Civil and Administrative Tribunal

New South Wales

Case Name:	Taylor v Reilly
Medium Neutral Citation:	[2021] NSWCATCD 74
Hearing Date(s):	16 April 2021
Date of Orders:	09 June 2021 [amended 11 June 2021]
Decision Date:	9 June 2021
Jurisdiction:	Consumer and Commercial Division
Before:	J Rose, General Member
Decision:	The decision issued on 9 June 2021 is amended pursuant to section 63 of the Civil and Administrative Tribunal Act 2013 and should read as follows: (amendments are shown in bold type) (1) The respondent landlord must pay to the applicant tenant the net amount of $393.65 immediately. (2) The Rental Bond Service is directed to pay the whole of rental bond number XXX to the applicant tenant.
Catchwords:	LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Disclosure of information to the tenant — Neighbours — Construction noise — abatement of rent — Whether premises rendered uninhabitable — Quiet enjoyment — Vacant possession — Non-payment of rent — Rental bonds — Payment and release
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Protection of the Environment Operations (Noise Control) Regulation 2000 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2010 (NSW) Residential Tenancies Regulation 2019 (NSW)
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336 Chen v Baxter [2014] NSWCATAP 50 De Soleil v Palmhide Pty Ltd [2010] NSWCTTT 464 Finn v Finato [2004] NSWCTTT 179 Gallo v Dawson [1990] HCA 30; [1990] 93 ALR 479 Gray v Queensland Housing Commission [2004] QSC 276 Hampel v South Australian Housing Trust [2007] SADC 64 Hector v Payne [1997] NSWRT 87 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Lewer v Smith [2016] NSWCATAP 76 Morgan v Liverpool Corporation [1927] 2 KB 131 NSW Land & Housing Corporation v Quinn (No 2) [2018] NSWDC 161 Phoenix v Guangyue Chen [2020] NSWCATAP 255 Proudfoot v Hart (1890) 25 QBD 42 Stuart v Leonardo [2021] NSWCATAP 111 Summers v Salford Corporation [1943] AC 283 Thomas v Metropolitan Housing Corporation Ltd [1936] 1 All ER 210 Tomko v Palasty (No 2) [2007] NSWCA 369 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:	Nadine Taylor (Applicant) Paul Reilly (Respondent)
File Number(s):	RT 20/50692
Publication Restriction:	Nil

REASONS FOR DECISION

INTRODUCTION

These proceedings arise out of a residential tenancy agreement (the tenancy agreement) between the Applicant (the tenant) and the Respondent (the landlord) in respect of a residential apartment at XXX, Queens Park NSW (the premises).
The tenant filed her application in these proceedings on 4 December 2020. She then vacated the premises on 18 December 2020, bringing the tenancy agreement to an end on that date.
The application filed by the tenant sought orders for:
(1)the landlord to pay the tenant compensation totalling $4000 under s 187(1)(d) of the Residential Tenancies Act 2010 (NSW) (the RT Act); and
(2)the rent to be reduced…

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 Taylor v Reilly

Details

AGLC: Taylor v Reilly [2021] NSWCATCD 74
Case: [2021] NSWCATCD 74
Decision Date: 9 June 2021

CaseChat Overview and Summary

The case of Taylor v Reilly involved a dispute between the tenant, Taylor, and the landlord, Reilly. The tenant sought relief under the Residential Tenancies Act 2010 (NSW) concerning various issues, including the abatement of rent, the non-payment of rent, and the release of a rental bond. The matter was heard and determined by the Civil and Administrative Tribunal (CAT) in New South Wales.

The legal issues before the Tribunal were whether the premises had been rendered uninhabitable due to construction noise from neighbouring properties, whether the landlord had breached the tenant's right to quiet enjoyment, and whether the tenant was justified in withholding rent. Additionally, the Tribunal had to consider whether the tenant was entitled to the abatement of rent, the return of the rental bond, and whether the landlord was entitled to payment of outstanding rent.

The Tribunal found that the construction noise from neighbouring properties did render the premises uninhabitable to some extent, which justified the tenant's abatement of rent. The Tribunal also found that the landlord had breached the tenant's right to quiet enjoyment. Consequently, the Tribunal ordered the landlord to pay the tenant the net amount of $393.65 and directed the Rental Bond Service to release the rental bond to the tenant. The Tribunal also amended the initial decision to include the aforementioned orders.

The final orders of the Tribunal were that the landlord must pay the tenant the net amount of $393.65 immediately and that the Rental Bond Service is directed to pay the whole of the rental bond number XXX to the tenant. The Tribunal's decision addressed the tenant's claims regarding the uninhabitable premises, the breach of quiet enjoyment, and the release of the rental bond.

Orders

Orders of the court

The decision issued on 9 June 2021 is amended pursuant to section 63 of the Civil and Administrative Tribunal Act 2013 and should read as follows: (amendments are shown in bold type)

(1) The respondent landlord must pay to the applicant tenant the net amount of $393.65 immediately.

(2) The Rental Bond Service is directed to pay the whole of rental bond number XXX to the applicant tenant.

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.

Citations

AGLC Citation

Taylor v Reilly [2021] NSWCATCD 74

Most Recent Citation

NSW Land and Housing Corporation v Boyd [2022] NSWCATCD 11

Cases citing this decision · 2 of 2 shown

Stewart v Wang
[2024] NSWCATCD 70 Para 33

…e breach relied upon in the Termination Email in fact occurred on the present application, the Tribunal prefers the view expressed in Taylor v Reilly [2021] NSWCATCD 74 at [14] that “each party also has the burden of proving any affirmative defence that he or she raises to the other party’s claims” to the civil stand…
NSW Land and Housing Corporation v Boyd
[2022] NSWCATCD 11 Para 21

…it should not be lightly found by the Tribunal that premises are not fit for habitation: Stokes v Zarimis [2021] NSWCATCD 23 at [51]; Taylor v Reilly [2021] NSWCATCD 74 at [84].…

View all 2 citing cases →

Cases cited in this decision · 16 of 16 shown

NSW Land & Housing Corporation v Quinn (No 2)
[2018] NSWDC 161 Para 4

…relation to a residential tenancy governed by the [RT Act], by P Taylor SC DCJ in NSW Land & Housing Corporation v Quinn (No 2) [2018] NSWDC 161. His Honour held that, in circumstances where a tenant had not returned the keys and there was no evidence of the date when he had vacated the premises, the tenant was lia…
Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2)
[2011] FCA 1123 Para 3

…nite testimony or indirect inferences: Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 at [48], per Emmett J, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2.…
Tomko v Palasty (No 2)
[2007] NSWCA 369 Para 13

…s usually whether the applicant has a fairly arguable case; and (4)The extent of any prejudice suffered by the respondent: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [55] (per Basten JA); Jackson at [22].…
Hampel v South Australian Housing Trust
[2007] SADC 64 Para 18

…by whom and for the sort of purpose for which, they were to be occupied”. Similarly, Milsteed J stated in Hampel v South Australian Housing Trust [2007] SADC 64 at [63]: "In my opinion, a house is unfit for human habitation if an occupier could be expected to suffer physical injury or injury to health from the or…
Gray v Queensland Housing Commission
[2004] QSC 276 Para 17

…on [1943] AC 283 at 292. In more recent times, the Queensland Supreme Court concluded in Gray v Queensland Housing Commission [2004] QSC 276 that “if the state of repair is such that injury is to be expected, or will naturally occur, from the ordinary use of the premises, they cannot be regarded as fit for human…
Gallo v Dawson
[1990] HCA 30 Para 12

…he nature of the litigation, and the consequences for the parties of the grant or refusal of the application for an extension of time: Gallo v Dawson [1990] HCA 30; [1990] 93 ALR 479 at [2], per McHugh J.…
Briginshaw v Briginshaw
[1938] HCA 36 Para 3

…v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 at [48], per Emmett J, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2.…
Briginshaw v Briginshaw
[1938] HCA 34 Para 3

…Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 at [48], per Emmett J, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2.…
[2014] NSWCATAP 50
[2014] NSWCATAP 50 Para 11

…ice between the parties. The object is to ensure that the rules which fix times for doing acts don’t become instruments of injustice: Chen v Baxter [2014] NSWCATAP 50 at [34]-[35]. This means that the discretion can only be exercised in favour of an applicant on proof that strict compliance with the rules will work a…
Lewer v Smith
[2016] NSWCATAP 76 Para 5

…As noted by the Appeal Panel in Lewer v Smith [2016] NSWCATAP 76 at [23], the factual matters which the Tribunal is required to address when determining whether the landlord had breached s 26(1) of the RT Act through the making of a statement, representation or promise, are that: (1)the landlord or landlord’s agent i…
The Appeal Panel also referred to Phoenix v Guangyue Chen
[2020] NSWCATAP 255 Para 4

…The Appeal Panel also referred to Phoenix v Guangyue Chen [2020] NSWCATAP 255, a decision of the Appeal Panel (differently constituted) in December 2020, where it was said at [72]-[77]: 72 The significance of the delivery of keys in the context of the giving of possession was considered by the English Court of Appeal…
Separately, in Stuart v Leonardo
[2021] NSWCATAP 111 Para 3

…Separately, in Stuart v Leonardo [2021] NSWCATAP 111 (which was decided on 3 May 2021) the Appeal Panel recently said the following in relation to ending the tenancy and returning the keys (at [60]): “The tenancy ends when possession is given up to a landlord. This is a question of fact. Matters relevant to determinin…
[1927] 2 KB 131
[1927] 2 KB 131 Para 17

…le where that the state of the premises does not represent a threat to life, limb or health of the tenant: Morgan v Liverpool Corporation [1927] 2 KB 131 at 145. Elsewhere, it was held that the term habitable “[imported] some reference to what we call humanity or humaneness” and is of “wide and elastic” meaning to…
Proudfoot v Hart
(1896) 25 QBD 42 Para 17

…for habitation” or “habitable” are terms that have been used in leases and tenancy agreements for over 150 years. For example, it was said in Proudfoot v Hart (1890) 25 QBD 42 that “The habitability standard would be concerned with the minimum safety standards echoed in the above cases [not reproduced here], going to both…
[1943] AC 283
[1943] AC 283 Para 17

…aning to take account “the needs and circumstances of poor people living in confined quarters”: Summers v Salford Corporation [1943] AC 283 at 292. In more recent times, the Queensland Supreme Court concluded in Gray v Queensland Housing Commission [2004] QSC 276 that “if the state of repair is such that injury…
Proudfoot v Hart
(1890) 25 QBD 42 Para 17

…r “habitable” are terms that have been used in leases and tenancy agreements for over 150 years. For example, it was said in Proudfoot v Hart (1890) 25 QBD 42 that “The habitability standard would be concerned with the minimum safety standards echoed in the above cases [not reproduced here], going to both structura…

Legislation cited in this decision · 3

Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 9)
Civil and Administrative Tribunal Rules 2014 (NSW)
1 mention (from Para 4)
Residential Tenancies Act 2010 (NSW)
1 mention (from Para 3)