Bickerton v McSelan Holdings Pty Ltd [2019] NSWCATCD 9

Bickerton v McSelan Holdings Pty Ltd [2019] NSWCATCD 9

The landlord failed to act with reasonable diligence in repairing the oven and cooktop after notice and failed to provide a compliant plain language water report or establish that the water supplied inside the premises was fit for human consumption. The tenants were therefore entitled to rent reductions and compensation, but only in amounts reflecting the proven loss, mitigation issues and the evidence of actual water purchases. The pest inspection report claim was not available on the renewal application because it was not preserved in the full and final settlement and, in any event, was properly characterised as a costs claim for which no special circumstances were established.

Jurisdiction
Australia
Judgment Date
30 January 2019
Procedural Posture
Residential Tenancy Dispute Concerning Rent Reduction, Repairs and Compensation / Renewal Application After Alleged Non Compliance With Conciliated Agreement
Outcome
Application allowed in part; rent found excessive for specified periods, compensation and water tank cleaning ordered, and no order made for reimbursement of the pest inspection report.
Legal Topics
['excessive Rent' 'repairs' 'withdrawal or Reduction of Goods, Services and Facilities' 'water Quality' 'oven and Cooktop Repairs' 'compensation' 'renewal of Proceedings' 'pest Inspection Costs']
['residential Tenancies' 'consumer and Commercial'] ['excessive Rent' 'repairs' 'withdrawal or Reduction of Goods, Services and Facilities' 'water Quality' 'oven and Cooktop Repairs' 'compensation' 'renewal of Proceedings' 'pest Inspection Costs']

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Procedural Posture

Residential Tenancy Dispute Concerning Rent Reduction, Repairs and Compensation / Renewal Application After Alleged Non Compliance With Conciliated Agreement

Legal Issues

  1. 1 ['Has the landlord failed to comply with consent orders made on 8 June 2018?' 'If so, are the tenants entitled to a rent reduction and if so, in what amount?' 'Are the tenants entitled to bring a claim for reimbursement of a pest inspection report when the parties reached an agreement in respect of the dispute in full and final satisfaction of the claim and this was not included in the settlement terms?']

Ratio Decidendi

The landlord failed to act with reasonable diligence in repairing the oven and cooktop after notice and failed to provide a compliant plain language water report or establish that the water supplied inside the premises was fit for human consumption. The tenants were therefore entitled to rent reductions and compensation, but only in amounts reflecting the proven loss, mitigation issues and the evidence of actual water purchases. The pest inspection report claim was not available on the renewal application because it was not preserved in the full and final settlement and, in any event, was properly characterised as a costs claim for which no special circumstances were established.

Court Disposition

Application allowed in part; rent found excessive for specified periods, compensation and water tank cleaning ordered, and no order made for reimbursement of the pest inspection report.

Orders

  • ['The rent payable under the residential tenancy agreement is excessive and is not to exceed $278 per week from 18 January 2018 to 15 June 2018.' 'The rent payable under the residential tenancy agreement is excessive and is not to exceed $253 per week from 16 June 2018 to 28 August 2018.' 'The rent payable under the...