Hill v Green [2022] NSWCATAP 256

Hill v Green [2022] NSWCATAP 256

Although the Tribunal erred in treating the tenant's failure to bring proceedings against the owners corporation as a failure to mitigate, that error did not affect the result because no compensation was otherwise awarded and there was therefore nothing to mitigate. The Tribunal did not err in its treatment of the three month limitation point, and leave was refused on the grounds concerning mould evidence and compensable disappointment or embarrassment because those grounds had no prospects of success. The appeal was dismissed and leave to appeal refused.

Jurisdiction
Australia
Judgment Date
04 August 2022
Procedural Posture
Residential Tenancy Appeal / Appeal Panel Decision From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 21 April 2022
Outcome
Appeal dismissed; leave to appeal refused.
Legal Topics
['quiet Enjoyment' 'obligation to Keep Premises in a Reasonable State of Repair' 'rent Reduction' 'compensation' 'mitigation of Loss' 'double Compensation' 'mould Treatment Works' 'limitation Period']
['residential Tenancies' 'appeals' 'strata'] ['quiet Enjoyment' 'obligation to Keep Premises in a Reasonable State of Repair' 'rent Reduction' 'compensation' 'mitigation of Loss' 'double Compensation' 'mould Treatment Works' 'limitation Period']

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Procedural Posture

Residential Tenancy Appeal / Appeal Panel Decision From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 21 April 2022

Legal Issues

  1. 1 ['Whether the Tribunal erred in concluding that the tenant could only seek compensation for loss arising from damage first identified in the three months before the application was lodged.' 'Whether the Tribunal erred in concluding that the tenant failed to mitigate her loss by not making an application against the owners corporation under the Strata Schemes Management Act.' "Whether the Tribunal's conclusion that there was no substantive evidence of compensable disappointment or embarrassment was against the weight of evidence." "Whether the Tribunal's inference concerning the absence of mould reports or quotes was unfair or inequitable."]

Ratio Decidendi

Although the Tribunal erred in treating the tenant's failure to bring proceedings against the owners corporation as a failure to mitigate, that error did not affect the result because no compensation was otherwise awarded and there was therefore nothing to mitigate. The Tribunal did not err in its treatment of the three month limitation point, and leave was refused on the grounds concerning mould evidence and compensable disappointment or embarrassment because those grounds had no prospects of success. The appeal was dismissed and leave to appeal refused.

Court Disposition

Appeal dismissed; leave to appeal refused.

Orders

  • ['Appeal dismissed.' 'Leave to appeal refused.']