Zerkowsk v Lewis ; Lewis v Zerkowski [2016] NSWCATCD 45

Zerkowsk v Lewis ; Lewis v Zerkowski [2016] NSWCATCD 45

Although the tenant's mother seriously and persistently abused the landlord's agent on 15 December 2015, the Tribunal exercised its discretion not to terminate the tenancy as the mother was a visitor, not a full-time occupant, and there was evidence of subsequent cooperative conduct; however, the landlord breached Section 51(1) by not providing the property in a habitable state (kitchen dismantled) and must compensate the tenant $330.00.

Jurisdiction
Australia
Judgment Date
13 May 2016
Procedural Posture
Residential Tenancy Dispute / Final Determination
Outcome
Landlord's application for termination dismissed; Tenant awarded compensation for breach of Section 51(1)
Legal Topics
['residential Tenancies Act 2010' 'termination of Tenancy' 'compensation for Breach of Cleanliness and Habitability' 'discretion to Terminate Tenancy']
['tenancy' 'consumer Law'] ['residential Tenancies Act 2010' 'termination of Tenancy' 'compensation for Breach of Cleanliness and Habitability' 'discretion to Terminate Tenancy']

Case Brief

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Procedural Posture

Residential Tenancy Dispute / Final Determination

Legal Issues

  1. 1 ['Whether landlord is entitled to termination of tenancy for abuse or intimidation under Section 92 of the Residential Tenancies Act 2010' 'Whether the tenant is entitled to compensation for alleged breach of Section 51(1) of the Act (unclean or uninhabitable premises at commencement)' 'Whether the landlord or agent acted with reasonable diligence in effecting repairs']

Ratio Decidendi

Although the tenant's mother seriously and persistently abused the landlord's agent on 15 December 2015, the Tribunal exercised its discretion not to terminate the tenancy as the mother was a visitor, not a full-time occupant, and there was evidence of subsequent cooperative conduct; however, the landlord breached Section 51(1) by not providing the property in a habitable state (kitchen dismantled) and must compensate the tenant $330.00.

Court Disposition

Landlord's application for termination dismissed; Tenant awarded compensation for breach of Section 51(1)

Orders

  • ["In Matter RT 15/67234, the landlord's claim for termination and possession is dismissed." 'In Matter RT 15/67410, the landlord is to pay the tenant the sum of $330.00 as compensation for breach of Section 51(1) of the Residential Tenancies Act 2010 immediately.']