Davies-Evans v MacCulloch [2018] NSWCATAP 253

Davies-Evans v MacCulloch [2018] NSWCATAP 253

The Tribunal did not err by asking whether the mould was the landlord's fault, because s 44(1)(b) required the tenant to establish that the reduction or withdrawal of services or facilities was by the landlord. The tenant did not prove that the landlord caused or was responsible for the mould, or that the mould rendered the bedrooms unusable, so the rent reduction application was correctly dismissed. Once that finding was made, the Tribunal did not need to determine the alleged reduction in air quality.

Jurisdiction
Australia
Judgment Date
25 October 2018
Procedural Posture
Appeal Concerning Residential Tenancy Rent Reduction Application / Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 2 May 2018
Outcome
The appeal is dismissed.
Legal Topics
['excessive Rent Orders' 'reduction or Withdrawal of Goods, Services or Facilities' 'mould in Residential Premises' 'landlord Responsibility' 'questions of Law on Appeal']
['residential Tenancies' 'administrative Appeals'] ['excessive Rent Orders' 'reduction or Withdrawal of Goods, Services or Facilities' 'mould in Residential Premises' 'landlord Responsibility' 'questions of Law on Appeal']

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Procedural Posture

Appeal Concerning Residential Tenancy Rent Reduction Application / Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 2 May 2018

Legal Issues

  1. 1 ["Whether the Tribunal erred in law by requiring the tenant to prove that the mould was the landlord's fault for the purposes of s 44(1)(b) of the Residential Tenancies Act 2010 (NSW)." 'Whether the Tribunal erred by failing to consider whether services or facilities were reduced, rather than merely withdrawn, including by reduced air quality.']

Ratio Decidendi

The Tribunal did not err by asking whether the mould was the landlord's fault, because s 44(1)(b) required the tenant to establish that the reduction or withdrawal of services or facilities was by the landlord. The tenant did not prove that the landlord caused or was responsible for the mould, or that the mould rendered the bedrooms unusable, so the rent reduction application was correctly dismissed. Once that finding was made, the Tribunal did not need to determine the alleged reduction in air quality.

Court Disposition

The appeal is dismissed.

Orders

  • ['The appeal is dismissed.']