Kork v Merheb [2021] NSWCATAP 349

Kork v Merheb [2021] NSWCATAP 349

The Appeal Panel held that there was no procedural unfairness or House v The King error in refusing to admit the Landlord's late evidence or refusing an adjournment, and in any event the Oz Wide quotation would not have changed the result because it addressed the oven and cooktop rather than the gas supply defects relied on by the Tribunal. The Tribunal did err in law by awarding $280.00 as urgent repairs because EPS only investigated and reported and did not perform repair work within ss 62 and 64 of the Residential Tenancies Act 2010 (NSW). The challenges to factual findings failed because the sewerage defects were not shown to have been repaired and the Landlord was not prevented from...

Jurisdiction
Australia
Judgment Date
16 November 2021
Procedural Posture
Residential Tenancy Appeal / Appeal Panel Decision From Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 14 July 2021
Outcome
Appeal upheld only in relation to the $280.00 urgent repairs award; balance of appeal dismissed.
Legal Topics
['procedural Fairness' 'late Served Evidence' 'adjournment Application' 'urgent Repairs' 'quiet Enjoyment' 'rent Reduction' 'residential Tenancies Act 2010 (nsw)']
['administrative Law' 'residential Tenancies' 'leases and Tenancies'] ['procedural Fairness' 'late Served Evidence' 'adjournment Application' 'urgent Repairs' 'quiet Enjoyment' 'rent Reduction' 'residential Tenancies Act 2010 (nsw)']

Case Brief

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Procedural Posture

Residential Tenancy Appeal / Appeal Panel Decision From Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 14 July 2021

Legal Issues

  1. 1 ['Whether the Tribunal erred in refusing to admit late served supplementary evidence tendered by the Landlord.' "Whether the Tribunal erred in refusing the Landlord's adjournment application after rejecting the late evidence." 'Whether the Tribunal erred in awarding $280.00 to the Tenants as reimbursement for urgent repairs under ss 62 and 64 of the Residential Tenancies Act 2010 (NSW).' "Whether alleged factual errors about sewerage repairs and the laundry affected the finding that the Tenants' quiet enjoyment was significantly compromised." "Whether the Tribunal's award of $3,342.86 was properly understood as a rent reduction under s 44 or damages for breach of quiet enjoyment."]

Ratio Decidendi

The Appeal Panel held that there was no procedural unfairness or House v The King error in refusing to admit the Landlord's late evidence or refusing an adjournment, and in any event the Oz Wide quotation would not have changed the result because it addressed the oven and cooktop rather than the gas supply defects relied on by the Tribunal. The Tribunal did err in law by awarding $280.00 as urgent repairs because EPS only investigated and reported and did not perform repair work within ss 62 and 64 of the Residential Tenancies Act 2010 (NSW). The challenges to factual findings failed because the sewerage defects were not shown to have been repaired and the Landlord was not prevented from...

Court Disposition

Appeal upheld only in relation to the $280.00 urgent repairs award; balance of appeal dismissed.

Orders

  • ['The appeal in relation to the award of $280.00 to the respondents by the appellant for urgent repairs is upheld.' 'The balance of the appeal is dismissed.' 'Order 1 made by the Tribunal on 14 July 2021 is set aside.' 'Order 2 made by the Tribunal on 14 July 2021 is varied by substituting the sum of $3,342.86 for...