Legal Research
Cases
Withers-Norris v Pastrello

Withers-Norris v Pastrello

Case [2016] ACAT 95 19 August 2016

Breach of Contract

Compensatory Damages

Specific Performance

Residential Tenancies

Type to search within this case.

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WITHERS-NORRIS v PASTRELLO (Residential Tenancies) [2016] ACAT 95

RT 6/2016
Catchwords: RESIDENTIAL TENANCIES – fixed term tenancy agreement – premises in executive apartment complex owned by the lessor – failure of security system and the lift – notice given to managing agent – breach by lessor of standard term to conduct urgent repairs as soon as practicable –– damaged secure storage unit with broken lock at commencement of tenancy – request for repair to managing agent – breach by lessor of standard term to repair damaged storage unit and lock within four weeks of notification or at all – compensation

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48

Residential Tenancies Act 1997 ss. 8, 38, 71, 72, 76, 79, 83; standard terms – 1, 2, 3, 52, 54, 55, 57, 59, 60, 61

Cases cited:But v Baldwin (Residential Tenancies) [2016] ACAT 9
Craigie v Moore [2012] NSWCTTT 444
Kerai v Miller [2011] NSWCTTT 325
Maione v Vescovo [2006] SARTT 2
Salem & Gizgeez and Abeygunasekara & Jeevanthan [2011] ACAT 9
Truswell v Minister for Communication and the Arts(1996) 42 ALD 275
Worrall v Commissioner for Social Housing (2001) ACTSC 7

Tribunal: President E Symons

Date of Orders:  19 August 2016
Date of Reasons for Decision:         19 August 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 6/2016
BETWEEN:
STEPHEN WITHERS-NORRIS
Applicant

AND:
LAURIE PASTRELLO
Respondent

TRIBUNAL: President E Symons

DATE:19 August 2016
ORDER

The Tribunal Orders that:

The lessor pay to the tenant compensation for the lessor’s breaches of the residential tenancy agreement of $2,017.11 and the filing fee of $68.00, totalling $2,085.11.
The compensation and fee in Order 1 is set off against the rent payable by the tenant of $475.00 per week or $67.85 per day commencing from 1 September 2016 for a period of 31 days. The tenant’s rent payable during this period is reduced to $nil.

………………………………..
President E Symons

REASONS FOR DECISION

Summary

This matter is a tenancy dispute between the applicant/tenant (‘the tenant’) and respondent/lessor (‘the lessor’) concerning breaches of a residential tenancy agreement between the parties for a fixed term from 21 October 2015 to 20 October 2016.
The tenant seeks compensation of $3,642.15 for the lessor’s failure to repair the lift, security system, intercom and the security shed and compensation for the lack of cleanliness of the common areas. The tenant also seeks ongoing compensation for the lessor’s continuing failure to repair the damaged security shed. The tenant relies on the lessor’s breaches of clauses 52 (interference with the tenant’s reasonable peace, comfort and privacy), 54 (premises to be in a reasonable state at the start of the tenancy), 55 (lessor to make repairs), 57 (lessor to make non-urgent repairs within four weeks of notification), and 59 (lessor must carry out urgent repairs as soon as necessary) of the ‘Prescribed Terms’ in the residential tenancy agreement.
The Tribunal finds that the lessor breached:
(a)Clause 52 in that the tenant’s…

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 Withers-Norris v Pastrello

Details

AGLC: Withers-Norris v Pastrello [2016] ACAT 95
Case: [2016] ACAT 95
Decision Date: 19 August 2016

CaseChat Overview and Summary

In the case of Withers-Norris v Pastrello, the tenant, Withers-Norris, sought compensation from the lessor, Pastrello, for breaches of the residential tenancy agreement in relation to an executive apartment complex. The disputes centred on the failure of the security system and lift, and the state of a secure storage unit at the beginning of the tenancy. Withers-Norris claimed that Pastrello failed to conduct urgent repairs as soon as practicable and to repair the damaged secure storage unit and lock within four weeks of notification, as stipulated in the residential tenancy agreement. The case was heard and determined by the Residential Tenancies Tribunal of Queensland.

The primary legal issues for the Tribunal to decide were whether Pastrello breached the standard terms of the residential tenancy agreement by not conducting urgent repairs as soon as practicable and by not repairing the damaged secure storage unit and lock within four weeks of notification or at all. The Tribunal needed to assess the evidence provided by both parties and determine if Pastrello's actions constituted breaches of the agreement.

The Tribunal found that Pastrello did breach the residential tenancy agreement by failing to conduct urgent repairs on the security system and lift as soon as practicable and by not repairing the damaged secure storage unit and lock within four weeks of notification or at all. The Tribunal concluded that these breaches entitle Withers-Norris to compensation for the inconvenience and discomfort caused by the lessor's failure to maintain the premises in a reasonable state of repair. The Tribunal ordered Pastrello to pay Withers-Norris compensation of $2,017.11 and a filing fee of $68.00, totalling $2,085.11.

The Tribunal further ordered that the compensation and filing fee be set off against the rent payable by Withers-Norris for the period from 1 September 2016 for 31 days, reducing the tenant's rent payable during this period to $nil. This decision provides a clear outcome for both parties, holding the lessor accountable for breaches of the residential tenancy agreement and providing compensation to the tenant for the inconvenience and discomfort caused.

Orders

Orders of the court

The Tribunal Orders that:

The lessor pay to the tenant compensation for the lessor’s breaches of the residential tenancy agreement of $2,017.11 and the filing fee of $68.00, totalling $2,085.11.

The compensation and fee in Order 1 is set off against the rent payable by the tenant of $475.00 per week or $67.85 per day commencing from 1 September 2016 for a period of 31 days. The tenant’s rent payable during this period is reduced to $nil.

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

Withers-Norris v Pastrello [2016] ACAT 95

Most Recent Citation

Faulder v Tran (Residential Tenancies) [2018] ACAT 2

Cases citing this decision · 5 of 5 shown

Frey v Commissioner for Social Housing (Residential Tenancies)
[2024] ACAT 87 Para 3

…In Brogan at [68], the tribunal said: In Irena Peters v Commissioner for Housing for the ACT [2006] the then Residential Tenancies Tribunal decided that a lessor's obligation to repair under standard residential tenancy terms 54 and 55 is framed in mandatory terms, i.e. the lessor “shall” maintain the premises in…
Bhara & Anor v De Costa & Anor (Residential Tenancies)
[2024] ACAT 62 Para 14

…In Withers-Norris v Pastrello [2016] ACAT 95, [13] the tribunal considered decisions of earlier tribunals in relation to standard term 55: 90. … In Brogan at [68], the tribunal said: In Irena Peters v Commissioner for Housing for the ACT [2006] the then Residential Tenancies Tribunal decided that a lessor's oblig…
Diplome Australia Pty Ltd ACN 106 706 478 v Singh & Anor (Residential Tenancies)
[2021] ACAT 75 Para 10

…In Withers-Norris v Pastrello [2016] ACAT 95, the tribunal considered decisions of earlier tribunals in relation to clause 55 of the Standard Terms in Brogan Prestige Properties v Strand & Black [2010] ACAT 60 ( Brogan) and Saleem & Gizgeez v Abeeygunasekara & Jeevanthan [2011] ACAT 9 ( Saleem & Gizgeez ) and sai…
Halcombe v Hitchman
[2018] ACAT 5

…L (2005) NSWCTT 371 Salem & Gizgeez and Abeygunasekara & Jeevanthan [2011] ACAT 9 Wheatcroft v Dartnell (2010) NSWCTTT 407 Withers-Norris v Pastrello [2016] ACAT 95…
Faulder v Tran
[2018] ACAT 2 Para 4

…hat a lump sum compensation payment under section 83(d) of the RT Act can be considered when a tenancy has terminated. [1] Withers-Norris v Pastrello [2016] ACAT 95 at [48] [2] Salem & Gizgeez and Abeygunasekara & Jeevanthan [2011] ACAT 9 at [8]…

View all 5 citing cases →

Cases cited in this decision · 7 of 7 shown

But v Baldwin
[2016] ACAT 9 Para 12

…In a recent tribunal decision, But v Baldwin (Residential Tenancies) [2016] ACAT 9, President McCarthy considered an application for compensation for, among other repairs, failing to make non urgent repairs within four weeks of notification pursuant to clause 57. He said at [31] and [32] 31. Where the lessor was…
Salem & Gizgeez and Abeygunasekara & Jeevanthan
[2011] ACAT 9 Para 2

…ancy is still in existence and that lump sum compensation payments under section 83(d) ... should be considered where the tenancy has terminated. [2] [2011] ACAT 9 at [8]…
Brogan Prestige Properties v Strand & Black
[2010] ACAT 60 Para 5

…decisions of earlier tribunals in relation clauses 54 and 55 of the Standard Residential Tenancy terms in Brogan Prestige Properties v Strand & Black [2010] ACAT 60 ( Brogan ) and Salem & Gizgeez v Abeygunasekara & Jeevanthan [2011] ACAT 9 ( Salem & Gizgeez ). In Brogan at [68], the tribunal said: In Irena Peters…
Jarasius v Forestry Commission of New South Wales
[1988] NSWLEC 11 Para 5

…The Supreme Court also stated at [42] and following: 42. The importance of the contextual setting was also stressed by Stein J in Drummoyne Municipal Council v Roads and Traffic Authority [1989] NSW LEC 19, who suggested that a significant effect "must be an important or notable affect . . . as comp…
Worrall v Commissioner for Housing
[2000] ACTRTT 12

…ovo [2006] SARTT 2 Salem & Gizgeez and Abeygunasekara & Jeevanthan [2011] ACAT 9 Truswell v Minister for Communication and the Arts (1996) 42 ALD 275 Worrall v Commissioner for Social Housing (2001) ACTSC 7…
HCA 56Kerai v Miller
[2011] NSWCTTT 325 Para 2

…Tribunal notes that the CTTT had evidence from the lessor’s agent in Kerai and the repairs the subject of the hearing were not urgent repairs. [5] [2011] NSWCTTT 325…
The Tribunal has also considered the decision of Craigie v Moore
[2012] NSWCTTT 444 Para 28

…The Tribunal has also considered the decision of Craigie v Moore [2012] NSWCTTT 444 ( Craigie ) which concerned a lift failure for 12 days. In that case the tenant lived on the sixth floor and accessed his flat by using the fire stairs during that period. The Consumer Trader and Tenancy Tribunal said at [20] and [21]…

Legislation cited in this decision · 3

Residential Tenancies Act 1997 (ACT)
38, 71, 72, 76, 79, 8, 83 7 mentions
ACT Civil and Administrative Tribunal Act 2008 (ACT)
48 2 mentions (from Para 2)
Residential Tenancy Act 1997 (TAS)
1 mention (from Para 2)