Dwyer v Department of Justice and Attorney General (NSW) [2017] NSWCATCD 15

Dwyer v Department of Justice and Attorney General (NSW) [2017] NSWCATCD 15

The landlord breached s. 63 of the Residential Tenancies Act 2010 by failing to repair or replace the leaking lounge room air conditioner after having notice of the defect since the commencement of the tenancy and failing to act with reasonable diligence. The leaking air conditioner affected the fitness for habitation but did not render the premises uninhabitable. The tenant was therefore entitled to a repair or replacement order, compensation for loss of amenity, and a limited rent abatement, but not the full rent reductions or general upgrade of air conditioning sought.

Jurisdiction
Australia
Judgment Date
09 December 2009
Procedural Posture
Residential Tenancy Application / Principal Judgment; Written Reasons Following Ex Tempore Decision
Outcome
Application allowed in part.
Legal Topics
['landlord Repair Obligations' 'rent Reduction' 'compensation for Loss of Amenity' 'fitness for Habitation' 'air Conditioning in Residential Premises']
['residential Tenancy Law'] ['landlord Repair Obligations' 'rent Reduction' 'compensation for Loss of Amenity' 'fitness for Habitation' 'air Conditioning in Residential Premises']

Case Brief

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Procedural Posture

Residential Tenancy Application / Principal Judgment; Written Reasons Following Ex Tempore Decision

Legal Issues

  1. 1 ['Whether the landlord was required to repair or replace the leaking lounge room air conditioner.' 'Whether the tenant was entitled to compensation or rent reduction for the unavailability of a serviceable air conditioner in the lounge room.' 'Whether the premises were uninhabitable because the air conditioners were inadequate during hot weather in Bourke.' 'Whether the landlord had reduced or withdrawn goods, services or facilities provided with the residential premises.']

Ratio Decidendi

The landlord breached s. 63 of the Residential Tenancies Act 2010 by failing to repair or replace the leaking lounge room air conditioner after having notice of the defect since the commencement of the tenancy and failing to act with reasonable diligence. The leaking air conditioner affected the fitness for habitation but did not render the premises uninhabitable. The tenant was therefore entitled to a repair or replacement order, compensation for loss of amenity, and a limited rent abatement, but not the full rent reductions or general upgrade of air conditioning sought.

Court Disposition

Application allowed in part.

Orders

  • ['The name of the respondent is amended to: Department of Justice and Attorney General (NSW).' 'The respondent is to repair or replace the air conditioner in the lounge room of the premises by 23 February 2017.' 'The respondent is to pay the tenant the sum of $300.00 on or before 8 March 2017, on account of the...