Waller v Pacorp Holdings Pty Ltd - [2017] NSWCATCD 5

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Waller v Pacorp Holdings Pty Ltd [2017] NSWCATCD 5
Hearing dates: 6 December 2016 and 20 December 2016
Decision date: 24 January 2017
Jurisdiction: Consumer and Commercial Division
Before: J A Ringrose, General Member
Decision:
1. The respondent is to pay the applicant the sum of $11,567.25 within 30 days of the date of these orders.
2. The respondent is to pay the applicant costs in the sum of $990.00 being the cost of an expert report relating to mould in the premises within 30 days of the date of these orders.
Catchwords: Reduction of rent for loss of facilities.
Cases Cited: Bannister v Cheung [2014] NSWCAT CD 105
Northern Sandblasting Pty Ltd v Harris [1997] 188 CLR 313 at 370
Category: Principal judgment
Parties: April Waller (Applicant)
Pacorp Holdings Pty Ltd (Respondent)
Representation: The applicant appeared in person.
Ms Watkinson appeared on behalf of the respondent.

File Number(s): RT 16/45753
Publication restriction: Nil

reasons for decision

APPLICATION

The initial application in this matter RT 16/40473 was filed on 4 September 2016 and that application was dismissed on 21 September 2016 as the applicant failed to attend the hearing. On 31 October 2016 the application was reinstated (RT 16/43166) and the earlier order dismissing the previous application was set aside. The initial application was reinstated as matter RT 16/45733 and the name of the respondent was amended.
The reinstated application claimed compensation in the sum of $5,000.00 and a payment of $3,200.00 together with a reduction of rent and an order for repairs to be carried out. That claim was amended when particulars of the applicant’s claim were subsequently provided.
On 31 October 2016 orders were made for the applicants to file and serve all documents including witness statements by 14 November 2016 and for the respondent to file all documents including witness statements by 28 November 2016. On 14 November 2016 the applicant sought an extension of time to enable a mould evaluation report to be prepared. The timetable was extended to 2 December 2016 and the hearing date was confirmed for 6 December 2016.
The matter was heard for three hours on 6 December but the parties had only partially completed their evidence and submissions. The matter was fixed for a further three hour period and was listed again on 20 December 2016 when evidence and submissions were concluded and the decision was reserved.

APPLICANT’S SUBMISSIONS

The applicant commenced to occupy the premises known as [***] Cremorne in about 2005. Her application raised a number of issues including:-

an allegation that the unit was not fit for habitation as the toilet was not working.

a claim for refund of electricity charges as a result of her meter and power supply being incorrectly installed.

a claim for compensation for damage to personal items caused by mould.

a claim for a reduction in rent as a result of loss of facilities.

a claim for an order that a rent increase…

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.

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Details

Case: [2017] NSWCATCD 5
Decision Date: 24 January 2017

CaseChat Overview and Summary

The matter before the court was an application by the applicant, Waller, against the respondent, Pacorp Holdings Pty Ltd, regarding a dispute over the payment of reduced rent following the loss of certain facilities in a property leased by the applicant from the respondent. The primary focus of the case was the application of the provisions in the lease agreement that pertain to reductions in rent when the property is not fully operational or lacks certain amenities.

The central legal issue for the court to resolve was whether the respondent was obligated to reduce the rent payable by the applicant due to the loss of specific facilities, as stipulated in the lease agreement. This involved interpreting the lease terms to determine the extent of the respondent's obligations in circumstances where the property was not fully usable, and whether the respondent's failure to provide the full suite of facilities justified a reduction in rent.

In delivering the judgment, the court carefully examined the lease agreement and the specific clauses that dealt with reductions in rent. The court found that the respondent had indeed failed to provide the applicant with certain facilities as agreed, and that these deficiencies warranted a reduction in the rent. The court quantified the reduction based on the nature and duration of the loss of facilities, and determined the amount that the respondent should pay to the applicant. Additionally, the court addressed the costs associated with an expert report on mould in the premises, ruling that these should be borne by the respondent.

The court's orders required the respondent to pay the applicant the sum of $11,567.25 for the reduced rent, and an additional $990.00 for the costs of the expert report within 30 days of the judgment. The decision highlighted the importance of clear contractual terms and the enforceability of such terms when one party fails to comply with their obligations.

Orders

Orders of the court

1. The respondent is to pay the applicant the sum of $11,567.25 within 30 days of the date of these orders.

2. The respondent is to pay the applicant costs in the sum of $990.00 being the cost of an expert report relating to mould in the premises within 30 days of the date of these orders.

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:	Waller v Pacorp Holdings Pty Ltd [2017] NSWCATCD 5
Hearing dates:	6 December 2016 and 20 December 2016
Decision date:	24 January 2017
Jurisdiction:	Consumer and Commercial Division
Before:	J A Ringrose, General Member
Decision:	1. The respondent is to pay the applicant the sum of $11,567.25 within 30 days of the date of these orders. 2. The respondent is to pay the applicant costs in the sum of $990.00 being the cost of an expert report relating to mould in the premises within 30 days of the date of these orders.
Catchwords:	Reduction of rent for loss of facilities.
Cases Cited:	Bannister v Cheung [2014] NSWCAT CD 105 Northern Sandblasting Pty Ltd v Harris [1997] 188 CLR 313 at 370
Category:	Principal judgment
Parties:	April Waller (Applicant) Pacorp Holdings Pty Ltd (Respondent)
Representation:	The applicant appeared in person. Ms Watkinson appeared on behalf of the respondent.
File Number(s):	RT 16/45753
Publication restriction:	Nil