Nunez v Sampson [2022] NSWCATAP 125

Nunez v Sampson [2022] NSWCATAP 125

The Tribunal made an appealable error of law by giving inadequate reasons for its assessment of compensation. That was the only appealable error established. The findings of breaches and the availability of compensation were otherwise open to the Tribunal. The Appeal Panel therefore set aside only the compensation orders and reassessed compensation itself using a notional rent reduction approach, together with the insurance excess and nominal amounts, resulting in compensation of $16,825.00.

Jurisdiction
Australia
Judgment Date
27 April 2022
Procedural Posture
Internal Appeal in a Residential Tenancy Dispute Concerning Compensation and Repair Orders / Appeal Panel of the Civil and Administrative Tribunal of New South Wales From a Consumer and Commercial Division Decision Made on 18 November 2021
Outcome
Appeal allowed in respect of the orders for compensation only; compensation orders set aside and substituted; respondents' costs application dismissed.
Legal Topics
['fitness for Habitation' 'reasonable State of Repair' 'residential Premises Ventilation and Security' 'compensation for Inconvenience, Discomfort and Disappointment' 'adequacy of Reasons' 'leave to Appeal and Error of Law' 'monetary Jurisdiction of the Tribunal']
['residential Tenancies' 'civil Appeals' 'administrative Law'] ['fitness for Habitation' 'reasonable State of Repair' 'residential Premises Ventilation and Security' 'compensation for Inconvenience, Discomfort and Disappointment' 'adequacy of Reasons' 'leave to Appeal and Error of Law' 'monetary Jurisdiction of the Tribunal']

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Procedural Posture

Internal Appeal in a Residential Tenancy Dispute Concerning Compensation and Repair Orders / Appeal Panel of the Civil and Administrative Tribunal of New South Wales From a Consumer and Commercial Division Decision Made on 18 November 2021

Legal Issues

  1. 1 ['Whether the Tribunal gave adequate reasons for its assessment of compensation for breaches of the residential tenancy obligations.' 'Whether the tenant confined his claim for compensation to $600 only.' 'Whether compensation should have been assessed by reference to each breach or only by overall reduction in amenity.' 'Whether the Tribunal applied the wrong tests for fitness for habitation and reasonable state of repair by considering the luxury nature of the premises and the rent payable.' 'Whether the Tribunal erred in finding inadequate ventilation because sliding doors could not be locked open.' 'Whether an order for works was the only available remedy for any ventilation breach.' 'Whether the compensation awarded for lack of adequate ventilation was excessive or unreasonable.' "Whether the Tribunal's decision was against the weight of the evidence."]

Ratio Decidendi

The Tribunal made an appealable error of law by giving inadequate reasons for its assessment of compensation. That was the only appealable error established. The findings of breaches and the availability of compensation were otherwise open to the Tribunal. The Appeal Panel therefore set aside only the compensation orders and reassessed compensation itself using a notional rent reduction approach, together with the insurance excess and nominal amounts, resulting in compensation of $16,825.00.

Court Disposition

Appeal allowed in respect of the orders for compensation only; compensation orders set aside and substituted; respondents' costs application dismissed.

Orders

  • ['The appeal is allowed in respect of the orders for compensation only.' 'Orders 1 and 7 made on 18 November 2021 are set aside.' 'Orders 2, 3 and 4 are set aside but only in so far as orders were made for the payment of compensation.' 'In substitution for the orders in respect of compensation made in Orders 1, 2,...