Shpak v Sarakiniotis [2018] NSWCATAP 36

Shpak v Sarakiniotis [2018] NSWCATAP 36

The Tribunal had power under the Civil and Administrative Tribunal Act 2013 (NSW) and the Residential Tenancies Act 2010 (NSW) to impose conditions facilitating access for agreed repairs, and no basis was shown to interfere with that discretionary condition. However, the Tribunal dismissed the tenants' compensation and rent reduction claims without making necessary findings about the terms of the tenancy, whether items 5.1-5.7 constituted breaches of the agreement or the RT Act, whether loss or a withdrawal of services was proved, or whether a rent reduction or compensation should follow. That failure to give adequate reasons was an error of law requiring those claims to be set aside and...

Jurisdiction
Australia
Judgment Date
02 February 2018
Procedural Posture
Appeal Concerning Residential Tenancy Applications / Appeal Panel Decision
Outcome
Appeal allowed in part; compensation and rent reduction dismissal for items 5.1-5.7 set aside and remitted; appeal otherwise dismissed.
Legal Topics
['landlord Repairs Obligations' 'conditional Orders' 'access to Premises' 'adequacy of Reasons' 'compensation' 'rent Reduction' 'termination for Breach']
['residential Tenancy Law' 'administrative Law'] ['landlord Repairs Obligations' 'conditional Orders' 'access to Premises' 'adequacy of Reasons' 'compensation' 'rent Reduction' 'termination for Breach']

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Procedural Posture

Appeal Concerning Residential Tenancy Applications / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal had power to make a repairs order conditional on the tenants vacating the premises or giving access while repairs were undertaken.' 'Whether the Tribunal failed to make necessary findings about breach of the residential tenancy agreement or Residential Tenancies Act 2010 (NSW) and failed to give adequate reasons for dismissing compensation and rent reduction claims.' 'Whether the Tribunal erred in declining to make a termination order.']

Ratio Decidendi

The Tribunal had power under the Civil and Administrative Tribunal Act 2013 (NSW) and the Residential Tenancies Act 2010 (NSW) to impose conditions facilitating access for agreed repairs, and no basis was shown to interfere with that discretionary condition. However, the Tribunal dismissed the tenants' compensation and rent reduction claims without making necessary findings about the terms of the tenancy, whether items 5.1-5.7 constituted breaches of the agreement or the RT Act, whether loss or a withdrawal of services was proved, or whether a rent reduction or compensation should follow. That failure to give adequate reasons was an error of law requiring those claims to be set aside and...

Court Disposition

Appeal allowed in part; compensation and rent reduction dismissal for items 5.1-5.7 set aside and remitted; appeal otherwise dismissed.

Orders

  • ['The appeal is allowed in part.' 'The decision to dismiss the claim for compensation and an order for rent reduction in connection with items of claim 5.1- 5.7 recorded in paragraph 5 of the reasons dated 8 September 2017 is set aside.' "The proceedings are remitted to the Tribunal to determine, in accordance with...