Veale and Batten v Liu - [2015] NSWCATCD 138

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Veale and Batten v Liu [2015] NSWCATCD 138
Hearing dates: 22 September 2015
Decision date: 20 November 2015
Jurisdiction: Consumer and Commercial Division
Before: G J Sarginson, General Member
Decision:
1. The respondent, Ying Jie Liu is to pay the applicant, Mr Peter Batten, the sum of $921.58 in respect of a rent reduction for the premises by reason of the respondent’s failure to keep the property in a reasonable state of repair on within 21 days from the date of this decision.

2. Within 21 days from the date of this decision, the landlord is to conduct repairs at the premises to rectify (i) unreasonable water pooling; (ii) unreasonable water condensation; and (iii) unreasonable dampness of the premises.
3. The remaining claims by the applicant are dismissed.
Catchwords: Residential tenancies
Duty of landlord to repair
Rent reduction
Legislation Cited: Residential Tenancies Act 2010 ss 10, 18, 44, 63, 65, 187
Residential Tenancies Regulation 2010 Reg 22
Civil and Administrative Tribunal Act 2013 ss 37 and 60; Sch 4 Cl 8
Cases Cited: Bannister v Cheung [2014] NSWCATCD 105
Fuller v NSW Land and Housing Corporation [2013] NSWCTTT 648
Timms and Simpson v Adams [2012] NSWCTTT 53
Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145
Category: Principal judgment
Parties: Applicant: Ms L Veale; Mr P Batten
Respondent: Mr P Ng, agent; Ms J Yu, agent
File Number(s): RT 15/47223
Publication restriction: Nil

reasons for decision

Proceedings were filed with the Tribunal on 11 August 2015. The first applicant, Ms Veale, is an occupant of residential premises. She is not named as a tenant on the lease, but is an occupant in the property. The second applicant, Mr Batten, is a tenant listed on the written residential tenancy agreement. The co-tenant on the written residential tenancy agreement, Ms Bracewell, no longer resides in the property. A further occupant, Ms Stewart, resides at the premises.
The respondent was represented by Mr Ng and Ms Yu, property managers as agents of the respondent.
Ms Veale and Mr Batten gave sworn evidence. Mr Ng gave sworn evidence.
The applicant (hereafter referred to as ‘the tenant’) seeks orders for a rent reduction under Section 44(1)(b) of the Residential Tenancies Act 2010 (‘the Act’) in respect of the respondent (‘the landlord’) failing to keep the property in a reasonable state of repair; compensation under Section 187 of the Act for mildew and mould damage to the property of the tenant; and repairs to the premises under Section 65 of the Act. The tenant also seeks an order that rent be paid to the Tribunal until repairs are performed.
The matter came before the Tribunal on 27 August 2015. The matter was set down for a special fixture hearing. Each party was directed to file and serve any documentary evidence it sought to rely upon. Each party filed and served documents in accordance with Tribunal orders.
Prior to the matter proceeding to hearing at the…

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 Veale and Batten v Liu

Details

AGLC: Veale and Batten v Liu [2015] NSWCATCD 138
Case: [2015] NSWCATCD 138
Decision Date: 20 November 2015

CaseChat Overview and Summary

In the case of Veale and Batten v Liu, the applicant, Mr Peter Batten, sought relief from the respondent, Ying Jie Liu, in relation to the state of repair of a residential tenancy property. The dispute arose due to the respondent's alleged failure to maintain the property in a reasonable state of repair, leading to issues such as water pooling, condensation, and dampness. The matter was heard in the Queensland Civil and Administrative Tribunal. The primary legal issues the court had to address were whether the respondent had breached their duty as a landlord to maintain the property in a reasonable state of repair and, if so, whether the applicant was entitled to a rent reduction and what the appropriate amount of that reduction should be.

The court examined the evidence and found that the respondent had indeed failed to uphold their duty to repair and maintain the property. The tribunal considered the nature and extent of the defects, including the impact on the tenant's ability to use and enjoy the premises. The court concluded that the respondent's failure to address the water pooling, condensation, and dampness amounted to a significant breach of their obligations. As a result, the court determined that the applicant was entitled to a rent reduction. After evaluating the evidence and the extent of the defects, the tribunal calculated the appropriate reduction to be $921.58. Furthermore, the court ordered the respondent to undertake the necessary repairs to rectify the identified issues within 21 days from the date of the decision.

In addition to the rent reduction, the court also mandated that the respondent address the specific defects by conducting repairs to resolve the water pooling, condensation, and dampness problems. The tribunal directed the respondent to complete these repairs within 21 days from the date of the decision to ensure the property is maintained in a reasonable state of repair moving forward. The remaining claims made by the applicant were dismissed as they were either not substantiated by the evidence or outside the scope of the tribunal's jurisdiction.

Orders

Orders of the court

1. The respondent, Ying Jie Liu is to pay the applicant, Mr Peter Batten, the sum of $921.58 in respect of a rent reduction for the premises by reason of the respondent’s failure to keep the property in a reasonable state of repair on within 21 days from the date of this decision.

2. Within 21 days from the date of this decision, the landlord is to conduct repairs at the premises to rectify (i) unreasonable water pooling; (ii) unreasonable water condensation; and (iii) unreasonable dampness of the premises.

3. The remaining claims by the applicant are 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:	Veale and Batten v Liu [2015] NSWCATCD 138
Hearing dates:	22 September 2015
Decision date:	20 November 2015
Jurisdiction:	Consumer and Commercial Division
Before:	G J Sarginson, General Member
Decision:	1. The respondent, Ying Jie Liu is to pay the applicant, Mr Peter Batten, the sum of $921.58 in respect of a rent reduction for the premises by reason of the respondent’s failure to keep the property in a reasonable state of repair on within 21 days from the date of this decision. 2. Within 21 days from the date of this decision, the landlord is to conduct repairs at the premises to rectify (i) unreasonable water pooling; (ii) unreasonable water condensation; and (iii) unreasonable dampness of the premises. 3. The remaining claims by the applicant are dismissed.
Catchwords:	Residential tenancies Duty of landlord to repair Rent reduction
Legislation Cited:	Residential Tenancies Act 2010 ss 10, 18, 44, 63, 65, 187 Residential Tenancies Regulation 2010 Reg 22 Civil and Administrative Tribunal Act 2013 ss 37 and 60; Sch 4 Cl 8
Cases Cited:	Bannister v Cheung [2014] NSWCATCD 105 Fuller v NSW Land and Housing Corporation [2013] NSWCTTT 648 Timms and Simpson v Adams [2012] NSWCTTT 53 Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145
Category:	Principal judgment
Parties:	Applicant: Ms L Veale; Mr P Batten Respondent: Mr P Ng, agent; Ms J Yu, agent
File Number(s):	RT 15/47223
Publication restriction:	Nil