Lewer v Smith [2016] NSWCATAP 76

Lewer v Smith [2016] NSWCATAP 76

The Appeal Panel held that the landlord could be liable for representations made by the agent because the representations were within the agent's implied authority in obtaining a tenant for the property. However, the Tribunal's compensation decision had to be set aside because it failed to make or adequately explain material findings, including why the tenant's evidence was preferred over the agent's evidence and why compensation equalling the full rent for the period from 4 April 2015 to 27 May 2015 was appropriate. The matter was remitted for reconsideration.

Jurisdiction
Australia
Judgment Date
08 April 2016
Procedural Posture
Appeal in Residential Tenancy Proceedings / Appeal From a Consumer and Commercial Division Decision Ordering Compensation for Breach of a Residential Tenancy Agreement
Outcome
Appeal allowed in part; compensation order set aside and whole case remitted for reconsideration by the Tribunal.
Legal Topics
['false Representations Inducing Entry Into a Residential Tenancy Agreement' 'landlord Liability for Agent Representations' 'adequacy of Reasons' 'material Findings of Fact' 'compensation for Breach of Residential Tenancy Agreement' 'failure to Address a Claim']
['residential Tenancy Law' 'administrative Law' 'civil Procedure'] ['false Representations Inducing Entry Into a Residential Tenancy Agreement' 'landlord Liability for Agent Representations' 'adequacy of Reasons' 'material Findings of Fact' 'compensation for Breach of Residential Tenancy Agreement' 'failure to Address a Claim']

Case Brief

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Procedural Posture

Appeal in Residential Tenancy Proceedings / Appeal From a Consumer and Commercial Division Decision Ordering Compensation for Breach of a Residential Tenancy Agreement

Legal Issues

  1. 1 ['Whether the appeal was lodged within time.' "Whether a landlord is liable for false or misleading statements made by the landlord's agent in inducing a tenant to enter into a residential tenancy agreement." "Whether the Tribunal failed to give adequate reasons for preferring the tenant's evidence over the agent's evidence about the alleged representations." 'Whether the Tribunal failed to give adequate reasons for awarding compensation equal to 100% of the rent paid from 4 April 2015 to 27 May 2015.' "Whether the Tribunal failed to address the tenant's claim that the landlord failed to provide and maintain locks or other security devices necessary to ensure the premises were reasonably secure."]

Ratio Decidendi

The Appeal Panel held that the landlord could be liable for representations made by the agent because the representations were within the agent's implied authority in obtaining a tenant for the property. However, the Tribunal's compensation decision had to be set aside because it failed to make or adequately explain material findings, including why the tenant's evidence was preferred over the agent's evidence and why compensation equalling the full rent for the period from 4 April 2015 to 27 May 2015 was appropriate. The matter was remitted for reconsideration.

Court Disposition

Appeal allowed in part; compensation order set aside and whole case remitted for reconsideration by the Tribunal.

Orders

  • ["The Tribunal's decision that the landlord is to pay the tenant the sum of $2,115.00 on or before 17 July 2015 is set aside." 'The whole case is to be reconsidered by the Tribunal in accordance with these reasons.']