Eliezer v Residential Tribunal & Ors [2001] NSWSC 1092

Eliezer v Residential Tribunal & Ors [2001] NSWSC 1092

No error of law was shown. Residential Tenancies Act 1987 s 22(1)(b) did not require the landlords to control the conduct of occupants of other strata units because that conduct was outside the landlords' physical and legal control. Residential Tenancies Act 1987 s 47 did not apply because noise caused by third-party occupants was not a withdrawal or reduction by the landlords of goods, services or facilities provided with the premises. Nor was it necessary to imply a contractual term imposing such an obligation on the landlords, because the tenant had the same rights as the landlords to seek assistance from the owners corporation.

Jurisdiction
Australia
Judgment Date
19 October 2001
Procedural Posture
Appeal From Residential Tribunal Concerning a Residential Tenancy Agreement / Supreme Court Determination of Summons
Outcome
Summons dismissed; question of costs reserved.
Legal Topics
['appeal on Error of Law' 'quiet Enjoyment' 'excessive Rent' 'goods, Services or Facilities Provided With Premises' 'implied Terms in Residential Tenancy Agreement' 'noise by Occupants of Other Strata Lots']
['residential Tenancy Law' 'administrative Law' 'contract Law' 'strata Law'] ['appeal on Error of Law' 'quiet Enjoyment' 'excessive Rent' 'goods, Services or Facilities Provided With Premises' 'implied Terms in Residential Tenancy Agreement' 'noise by Occupants of Other Strata Lots']

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Procedural Posture

Appeal From Residential Tribunal Concerning a Residential Tenancy Agreement / Supreme Court Determination of Summons

Legal Issues

  1. 1 ['Whether the Residential Tribunal made an error of law in construing and applying Residential Tenancies Act 1987 s 47 to noise caused by occupants of other strata lots and common property.' 'Whether Residential Tenancies Act 1987 s 22(1)(b) obliged the landlords to take steps to control the activities of occupants of other units in the strata complex.' 'Whether terms should be implied into the residential tenancy agreement requiring the landlords to take steps to control the activities of strangers so the tenant could enjoy the premises.' 'Whether compensation under Residential Tenancies Act 1987 s 16 or relief for excessive rent under s 47 should have been ordered.']

Ratio Decidendi

No error of law was shown. Residential Tenancies Act 1987 s 22(1)(b) did not require the landlords to control the conduct of occupants of other strata units because that conduct was outside the landlords' physical and legal control. Residential Tenancies Act 1987 s 47 did not apply because noise caused by third-party occupants was not a withdrawal or reduction by the landlords of goods, services or facilities provided with the premises. Nor was it necessary to imply a contractual term imposing such an obligation on the landlords, because the tenant had the same rights as the landlords to seek assistance from the owners corporation.

Court Disposition

Summons dismissed; question of costs reserved.

Orders

  • ['The summons is dismissed.' 'The question of costs is reserved.']