White v Di Lucca [2023] NSWCATAP 219

White v Di Lucca [2023] NSWCATAP 219

Leave to appeal was refused and the appeal dismissed because the tenants did not establish error of law, factual error warranting leave, or a substantial miscarriage of justice. The hot water system with a timer still supplied hot water and there was no obligation to provide continuous instantaneous hot water; the mould, quiet enjoyment, and s 26 claims were not supported by evidence establishing breach or compensable loss; and although describing the rent order as made by consent was incorrect, it made no material difference because the tenants accepted the arrears calculation and their set-off defence failed.

Jurisdiction
Australia
Judgment Date
08 August 2023
Procedural Posture
Internal Appeal in a Residential Tenancy Matter / Appeal Panel Hearing From Decisions of the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['compensation Claim' 'outstanding Rent' 'quiet Enjoyment' 'hot Water Supply' 'leave to Appeal' 'error of Law' 'substantial Miscarriage of Justice']
['residential Tenancy' 'administrative Law' 'appeals'] ['compensation Claim' 'outstanding Rent' 'quiet Enjoyment' 'hot Water Supply' 'leave to Appeal' 'error of Law' 'substantial Miscarriage of Justice']

Case Brief

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Procedural Posture

Internal Appeal in a Residential Tenancy Matter / Appeal Panel Hearing From Decisions of the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal

Legal Issues

  1. 1 ['Whether the Tribunal erred in finding that installation of a timer on the hot water system did not breach the Residential Tenancies Act 2010 (NSW) or the residential tenancy agreement.' "Whether the Tribunal erred in dismissing the tenants' claim for $350 for mould-damaged items." "Whether the Tribunal erred in dismissing the tenants' claim for compensation for breach of quiet enjoyment." 'Whether the Tribunal should have made an order for outstanding rent in the sum of $3440 by consent.' 'Whether the tenants established a compensable breach of s 26 of the Residential Tenancies Act 2010 (NSW).' 'Whether leave to appeal should be granted on grounds other than questions of law.']

Ratio Decidendi

Leave to appeal was refused and the appeal dismissed because the tenants did not establish error of law, factual error warranting leave, or a substantial miscarriage of justice. The hot water system with a timer still supplied hot water and there was no obligation to provide continuous instantaneous hot water; the mould, quiet enjoyment, and s 26 claims were not supported by evidence establishing breach or compensable loss; and although describing the rent order as made by consent was incorrect, it made no material difference because the tenants accepted the arrears calculation and their set-off defence failed.

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.']