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Tuckwell v Ientile

Tuckwell v Ientile

Case [2022] NSWCATCD 124 29 July 2022

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Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Tuckwell v Ientile [2022] NSWCATCD 124
Hearing dates: 28 June 2022
Date of orders: 29 July 2022
Decision date: 29 July 2022
Jurisdiction: Consumer and Commercial Division
Before: G Sarginson, Senior Member
Decision:
(1) The Notice to Terminate dated 31 March 2022 issued pursuant to s 85 of the Residential Tenancies Act 2010 (NSW) is declared as having no effect on the basis that it is a retaliatory notice under s 115 of the Residential Tenancies Act 2010 (NSW).
(2) By 31 August 2022, the respondent is to conduct the following works to the residential premises the subject of the residential tenancy agreement between the parties:
(a) Repair or replace all missing; non-operative and damaged window shutters.
(b) Repair or replace all missing; non-operative and damaged blinds.
(c) Repair or replace sliding door so that it is in good working order.
(d) Repair or replace clothesline so that it is in good working order.
(3) By 31 August 2022 the respondent is to give the applicants a rent credit in the amount of $1,280 and the tenancy ledger is amended accordingly.
(4) The applicants are to give reasonable access to the residential premises to the landlord; the landlord’s agent; any representative of the landlord; and any tradesperson engaged by the landlord so that the works in Order 1 can be performed.
(5) All other claims by the applicants are dismissed.

Catchwords:
LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---repair of premises---breach---remedies---assessment of compensation
LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---notice to terminate---whether retaliatory under s 115 Residential Tenancies Act 2010---discretion to set aside

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Residential Tenancies Act 2010 (NSW)
Residential Tenancies Regulation 2019 (NSW)

Cases Cited:
Bannister v Cheung [2014] NSWCATCD 105
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
Kork v Merheb [2021] NSWCATAP 349
Mercieca v Fu [2017] NSWCATAP 205
Murarer v Andresson [2016] NSWCATAP 15
Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361
Pan v Malveholm [2021] NSWCATAP 101
Roberts v Aboriginal Housing Office [2017] NSWCATAP 9
Torpey v Stewart [2021] NSWCATAP 248
Williams v Gerringong Aboriginal Housing Corporation [2022] NSWCATAP 144
Worrall v Commissioner for Housing of ACT [2002] FCAFC 127

Texts Cited:
Anforth, Christensen and Adkins, Residential Tenancies Law and Practice NSW (7th ed, 2017)

Category: Principal judgment
Parties:
Leigh Tuckwell (Applicant)
Simon Emerson (Applicant)
Natalie Adams (Applicant)
Rosa Ientile (Respondent)
Representation: Applicants (self-represented)
S Mamone (Respondent)

File Number(s): RT 22/18445
Publication restriction: Nil

REASONS FOR DECISION

This is a residential tenancy dispute where the real issues in dispute involve:

Whether the landlord has breached its obligation to keep the premises in a reasonable state of repair.

Whether a rent reduction under s 44 (1) (b) of the Residential Tenancies Act 2010 (NSW) (‘the RT Act’) should be awarded.

Whether an order should be made the landlord perform repairs.

Whether a 90 day ‘no grounds’ Notice of Termination with a date…

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 Tuckwell v Ientile

Details

AGLC: Tuckwell v Ientile [2022] NSWCATCD 124
Case: [2022] NSWCATCD 124
Decision Date: 29 July 2022

CaseChat Overview and Summary

In the case of Tuckwell v Ientile, the applicants, Tuckwell, sought a declaration that a notice to terminate issued by the respondents, Ientile, was retaliatory and therefore ineffective. The applicants also sought compensation for breaches of the Residential Tenancies Act 2010 (NSW) and a rent credit. The matter was heard in the NSW Civil and Administrative Tribunal (NCAT). The central issue for the Tribunal was whether the notice to terminate issued by the respondents was retaliatory under section 115 of the Residential Tenancies Act 2010 (NSW). Additionally, the Tribunal had to determine whether the applicants were entitled to compensation for breaches of the Act and a rent credit. The Tribunal found that the notice to terminate was retaliatory because it was issued in response to the applicants making a claim for compensation and a rent credit for breaches of the Act. The Tribunal concluded that the notice was invalid under section 115 of the Act. Regarding the applicants' claim for compensation and a rent credit, the Tribunal found that the respondents had breached the Act by failing to repair or replace damaged property, including window shutters, blinds, a sliding door, and a clothesline. The Tribunal ordered the respondents to perform the necessary repairs and provide a rent credit of $1,280 to the applicants. The applicants were also ordered to give reasonable access to the premises for the landlord or their agent to perform the repairs. The Tribunal dismissed all other claims by the applicants.

The Tribunal ordered that the notice to terminate issued by the respondents be declared ineffective due to its retaliatory nature. The respondents were ordered to complete specific repairs to the residential premises and provide a rent credit to the applicants. The applicants were ordered to allow reasonable access to the premises for the landlord or their agent to perform the necessary repairs. All other claims by the applicants were dismissed.

Orders

Orders of the court

(1) The Notice to Terminate dated 31 March 2022 issued pursuant to s 85 of the Residential Tenancies Act 2010 (NSW) is declared as having no effect on the basis that it is a retaliatory notice under s 115 of the Residential Tenancies Act 2010 (NSW).

(2) By 31 August 2022, the respondent is to conduct the following works to the residential premises the subject of the residential tenancy agreement between the parties:

(a) Repair or replace all missing; non-operative and damaged window shutters.

(b) Repair or replace all missing; non-operative and damaged blinds.

(d) Repair or replace clothesline so that it is in good working order.

(3) By 31 August 2022 the respondent is to give the applicants a rent credit in the amount of $1,280 and the tenancy ledger is amended accordingly.

(4) The applicants are to give reasonable access to the residential premises to the landlord; the landlord’s agent; any representative of the landlord; and any tradesperson engaged by the landlord so that the works in Order 1 can be performed.

(5) All other claims by the applicants are dismissed.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Tuckwell v Ientile [2022] NSWCATCD 124

Most Recent Citation

McKerlie v Leeser; Leeser v McKerlie [2023] NSWCATCD 6

Cases citing this decision · 2 of 2 shown

Mishra v SMSF Investment One Pty Ltd
[2023] NSWCATCD 80 Para 39

…As noted in the matter of Tuckwell v Ientile [2022] NSWCATCD 124 at [70]:…
McKerlie v Leeser; Leeser v McKerlie
[2023] NSWCATCD 6 Para 72

…Applicable legal principles were summarised by the Tribunal in Tuckwell v Ientile [2022] NSWCATCD 124 (‘ Tuckwell v Ientile’ ) as follows at paras [63]-[71]:…

View all 2 citing cases →

Cases cited in this decision · 13 of 13 shown

Murphy v Lewkovitz; Lewkovitz v Murphy
[2021] NSWDC 361 Para 71

…afety; structural integrity; and amenity of the premises; and the matters set out in s 52 (1A) of the RT Act ( Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361 at [144]-[147]).…
Bannister v Cheung
[2014] NSWCATCD 105 Para 84

…by water ingress into the premises can constitute a breach of the duty to keep the premises in a reasonable state of repair (e.g. Bannister v Cheung [2014] NSWCATCD 105).…
Molyneux v Chief Commissioner of State Revenue
[2012] NSWADTAP 53 Para 58

…ko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58]–[59].…
Nanschild v Pratt
[2011] NSWCA 85 Para 2

…t strict compliance with the rules will work an injustice upon the appellant — Gallo v Dawson [1990] HCA 30 at 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; … (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the del…
Tomko v Palasty (No 2)
[2007] NSWCA 369

…(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant — Gallo v Dawson [1990] HCA 30 at 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; … (3) Generally, in an application for an exte…
Gallo v Dawson
[1990] HCA 30 Para 2

…be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant — Gallo v Dawson [1990] HCA 30 at 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; … (3) Generally, in an application for an extension of time to appeal the Appeal Panel…
Worrall v Commissioner for Housing for the ACT
[2002] FCAFC 127 Para 96

…8 The legal principles for whether there has been a breach of s 50 of the RT Act are well established (e.g. Worrall v Commissioner for Housing of ACT [2002] FCAFC 127 at [68]-[76]). When assessing compensation or damages for breach of s 50 of the RT Act, the Tribunal must also be careful not to award ‘double compen…
Murarer v Andresson
[2016] NSWCATAP 15 Para 70

…cable to whether or not there has been a breach of s 63 (1) have been considered by the Appeal Panel on many occasions, including Murarer v Andresson [2016] NSWCATAP 15 at [11]-[16] and Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [115]-[121]). The test is objective and once the landlord knew or shoul…
Roberts v NSW Aboriginal Housing Office
[2017] NSWCATAP 9 Para 64

…andlord to conduct repairs during the course of the tenancy in breach of ss 63 and 65 of the RT Act ( Roberts v Aboriginal Housing Office [2017] NSWCATAP 9).…
Pan v Malveholm
[2021] NSWCATAP 101 Para 65

…the course of the tenancy, not items that remained in the same condition (or not provided) at the beginning of the tenancy ( Pan v Malveholm [2021] NSWCATAP 101).…
Torpey v Stewart
[2021] NSWCATAP 248 Para 100

…an, in addition to the compensation or damages awarded for breach of contract, award general damage for distress and inconvenience ( Torpey v Stewart [2021] NSWCATAP 248 at [22]-[31]).…
Kork v Merheb
[2021] NSWCATAP 349 Para 96

…ct, the Tribunal must also be careful not to award ‘double compensation’ for any overlapping breach of ss 52 and/or 63 of the Act ( Kork v Merheb [2021] NSWCATAP 349 at [68]-[69].…
Williams v Gerringong Housing Aboriginal Corporation
[2022] NSWCATAP 144 Para 112

…te a periodic tenancy under s 85 of the RT Act ( Mercieca v Fu [2017] NSWCATAP 205 at [43]-[44]; Williams v Gerringong Aboriginal Housing Corporation [2022] NSWCATAP 144 at [43]-[54]).…

Legislation cited in this decision · 2

Residential Tenancies Act 2010 (NSW)
2 mentions (from Para 2)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 67)

Medium Neutral Citation:	Tuckwell v Ientile [2022] NSWCATCD 124
Hearing dates:	28 June 2022
Date of orders:	29 July 2022
Decision date:	29 July 2022
Jurisdiction:	Consumer and Commercial Division
Before:	G Sarginson, Senior Member
Decision:	(1) The Notice to Terminate dated 31 March 2022 issued pursuant to s 85 of the Residential Tenancies Act 2010 (NSW) is declared as having no effect on the basis that it is a retaliatory notice under s 115 of the Residential Tenancies Act 2010 (NSW). (2) By 31 August 2022, the respondent is to conduct the following works to the residential premises the subject of the residential tenancy agreement between the parties: (a) Repair or replace all missing; non-operative and damaged window shutters. (b) Repair or replace all missing; non-operative and damaged blinds. (c) Repair or replace sliding door so that it is in good working order. (d) Repair or replace clothesline so that it is in good working order. (3) By 31 August 2022 the respondent is to give the applicants a rent credit in the amount of $1,280 and the tenancy ledger is amended accordingly. (4) The applicants are to give reasonable access to the residential premises to the landlord; the landlord’s agent; any representative of the landlord; and any tradesperson engaged by the landlord so that the works in Order 1 can be performed. (5) All other claims by the applicants are dismissed.
Catchwords:	LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---repair of premises---breach---remedies---assessment of compensation LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---notice to terminate---whether retaliatory under s 115 Residential Tenancies Act 2010---discretion to set aside
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2019 (NSW)
Cases Cited:	Bannister v Cheung [2014] NSWCATCD 105 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Kork v Merheb [2021] NSWCATAP 349 Mercieca v Fu [2017] NSWCATAP 205 Murarer v Andresson [2016] NSWCATAP 15 Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361 Pan v Malveholm [2021] NSWCATAP 101 Roberts v Aboriginal Housing Office [2017] NSWCATAP 9 Torpey v Stewart [2021] NSWCATAP 248 Williams v Gerringong Aboriginal Housing Corporation [2022] NSWCATAP 144 Worrall v Commissioner for Housing of ACT [2002] FCAFC 127
Texts Cited:	Anforth, Christensen and Adkins, Residential Tenancies Law and Practice NSW (7th ed, 2017)
Category:	Principal judgment
Parties:	Leigh Tuckwell (Applicant) Simon Emerson (Applicant) Natalie Adams (Applicant) Rosa Ientile (Respondent)
Representation:	Applicants (self-represented) S Mamone (Respondent)
File Number(s):	RT 22/18445
Publication restriction:	Nil