Carter v Divanis [2023] NSWCATCD 45

Carter v Divanis [2023] NSWCATCD 45

The landlord was on notice of serious water ingress and mould from 23 February 2022, attended only once, undertook no repairs and did not make reported electrical faults safe. The uncontroverted evidence, including photographs, receipts, quotations and the Hazmat report, established that the failure to repair caused damage to the tenant's possessions and that the tenant and his partner could not sleep at the premises from 7 April 2022, amounting to interference with quiet enjoyment. The continuing breach lasted until the tenancy ended on 1 June 2022, so no extension of time was required. Although assessed compensation exceeded the Tribunal's jurisdiction, the recoverable order was limited...

Jurisdiction
Australia
Judgment Date
04 April 2023
Procedural Posture
Application by Tenant for Compensation Under the Residential Tenancies Act 2010 / Principal Judgment and Final Orders
Outcome
Application allowed; landlord ordered to pay compensation to the tenant.
Legal Topics
['failure to Repair' 'water Ingress and Mould Damage' 'quiet Enjoyment' 'compensation' 'extension of Time']
['residential Tenancies' 'consumer and Commercial'] ['failure to Repair' 'water Ingress and Mould Damage' 'quiet Enjoyment' 'compensation' 'extension of Time']

Case Brief

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Procedural Posture

Application by Tenant for Compensation Under the Residential Tenancies Act 2010 / Principal Judgment and Final Orders

Legal Issues

  1. 1 ['Whether the tenant required an extension of time to bring the compensation application.' 'Whether the landlord breached repair obligations by failing to address repeated flooding, water ingress and mould.' "Whether the landlord interfered with the tenant's quiet enjoyment of the premises." 'What compensation was payable for damaged possessions, cleaning, repair and replacement costs, and interference with quiet enjoyment.']

Ratio Decidendi

The landlord was on notice of serious water ingress and mould from 23 February 2022, attended only once, undertook no repairs and did not make reported electrical faults safe. The uncontroverted evidence, including photographs, receipts, quotations and the Hazmat report, established that the failure to repair caused damage to the tenant's possessions and that the tenant and his partner could not sleep at the premises from 7 April 2022, amounting to interference with quiet enjoyment. The continuing breach lasted until the tenancy ended on 1 June 2022, so no extension of time was required. Although assessed compensation exceeded the Tribunal's jurisdiction, the recoverable order was limited...

Court Disposition

Application allowed; landlord ordered to pay compensation to the tenant.

Orders

  • ['In accordance with s. 187(1)(d) of the Residential Tenancies Act 2010 the landlord is to pay the tenant compensation in the $15,000 within fourteen days from the date of these orders.']