Mulcair v Callum [2024] NSWCATAP 30

Mulcair v Callum [2024] NSWCATAP 30

Section 44(1)(b) of the Residential Tenancies Act 2010 (NSW) can apply to defects or deficiencies existing at the commencement of a tenancy where, measured against the landlord's obligations under the residential tenancy agreement including statutory terms, promised goods, services or facilities are not supplied, are supplied in disrepair or in a limited fashion, or are not corrected. However, the Tribunal's orders could not stand because it did not make or apply the necessary findings linking several alleged defects to contractual or statutory obligations and to a relevant reduction or withdrawal, and because aspects of the decision were not fair and equitable or were against the weight...

Jurisdiction
Australia
Judgment Date
26 February 2024
Procedural Posture
Residential Tenancy Appeal Concerning Excessive Rent Order Under S 44(1)(b) of the Residential Tenancies Act 2010 (nsw) / Appeal From Orders of the Consumer and Commercial Division Made 1 September 2023
Outcome
Leave to appeal granted to the extent necessary; appeal allowed; orders made 1 September 2023 set aside; proceedings remitted for rehearing by a differently constituted Tribunal.
Legal Topics
['excessive Rent' 'reduction or Withdrawal of Goods, Services or Facilities' 'residential Premises Repairs and Habitability' 'procedural Fairness' 'leave to Appeal' 'remittal']
['residential Tenancy Law' 'administrative Law' 'landlord and Tenant'] ['excessive Rent' 'reduction or Withdrawal of Goods, Services or Facilities' 'residential Premises Repairs and Habitability' 'procedural Fairness' 'leave to Appeal' 'remittal']

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Procedural Posture

Residential Tenancy Appeal Concerning Excessive Rent Order Under S 44(1)(b) of the Residential Tenancies Act 2010 (nsw) / Appeal From Orders of the Consumer and Commercial Division Made 1 September 2023

Legal Issues

  1. 1 ['Whether defects or deficiencies existing at the commencement of a residential tenancy can constitute a reduction or withdrawal of goods, services or facilities for the purposes of s 44(1)(b) of the Residential Tenancies Act 2010 (NSW).' 'Whether the Tribunal applied the correct test and made sufficient findings when determining that rent was excessive by reason of alleged defects including fencing, driveway vegetation, garage leakage, water leaks, mould and window coverings.' 'Whether leave to appeal should be granted because the landlords may have suffered a substantial miscarriage of justice.' 'Whether new evidence tendered on appeal should be accepted.']

Ratio Decidendi

Section 44(1)(b) of the Residential Tenancies Act 2010 (NSW) can apply to defects or deficiencies existing at the commencement of a tenancy where, measured against the landlord's obligations under the residential tenancy agreement including statutory terms, promised goods, services or facilities are not supplied, are supplied in disrepair or in a limited fashion, or are not corrected. However, the Tribunal's orders could not stand because it did not make or apply the necessary findings linking several alleged defects to contractual or statutory obligations and to a relevant reduction or withdrawal, and because aspects of the decision were not fair and equitable or were against the weight...

Court Disposition

Leave to appeal granted to the extent necessary; appeal allowed; orders made 1 September 2023 set aside; proceedings remitted for rehearing by a differently constituted Tribunal.

Orders

  • ['To the extent necessary, leave to appeal is granted and the appeal is allowed.' 'The orders made 1 September 2023 are set aside.' 'The proceedings are remitted to the Consumer and Commercial Division for rehearing by a differently constituted Tribunal, the parties being permitted to adduce further evidence and/or...