New South Wales Housing Corporation v Tanious [2016] NSWCATCD 57

New South Wales Housing Corporation v Tanious [2016] NSWCATCD 57

The tenant installed metal shutters on windows and doors without the landlord's prior written consent, thereby breaching s 66 of the Residential Tenancies Act 2010 and cl 25.1 of the residential tenancy agreement. His continuing refusal to remove them was an ongoing breach, so the application was within time; alternatively, any limitation period should be extended because the landlord had pursued the issue, delay was not unreasonable, and there was no prejudice to the tenant. Earlier dismissed termination proceedings did not bar this different rectification application, and the landlord had not waived its rights. Given Council evidence of health and safety risks, non-compliance with...

Jurisdiction
Australia
Judgment Date
10 August 2016
Procedural Posture
Residential Tenancy Social Housing Proceedings Concerning Unauthorised Shutters and an Application for Termination or Rectification Orders. / Special Fixture Hearing; the Landlord Withdrew the Termination Application and the Tribunal Determined the Alternative Application for an Order Under S 187 of the Residential Tenancies Act 2010.
Outcome
The landlord's application for termination and possession was withdrawn and dismissed; the tenant was ordered to remove the shutters within 14 days.
Legal Topics
['unauthorised Fixtures, Alterations or Additions' 'limitation Period' 'extension of Time' 'issue Estoppel and Res Judicata' 'waiver' 'health and Safety Risks in Residential Premises']
['residential Tenancies' 'social Housing' 'civil and Administrative Tribunal Procedure'] ['unauthorised Fixtures, Alterations or Additions' 'limitation Period' 'extension of Time' 'issue Estoppel and Res Judicata' 'waiver' 'health and Safety Risks in Residential Premises']

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Procedural Posture

Residential Tenancy Social Housing Proceedings Concerning Unauthorised Shutters and an Application for Termination or Rectification Orders. / Special Fixture Hearing; the Landlord Withdrew the Termination Application and the Tribunal Determined the Alternative Application for an Order Under S 187 of the Residential Tenancies Act 2010.

Legal Issues

  1. 1 ["Whether the tenant breached s 66 of the Residential Tenancies Act 2010 and cl 25.1 of the residential tenancy agreement by installing metal shutters without the landlord's prior written consent." "Whether the landlord's application for an order requiring removal of the shutters was within the limitation period in reg 22(9) of the Residential Tenancies Regulation 2010, or whether time should be extended under s 41 of the Civil and Administrative Tribunal Act 2013." 'Whether dismissal of earlier termination proceedings prevented the landlord from seeking a rectification order by reason of res judicata, issue estoppel, or the Anshun principle.' 'Whether the landlord had waived its right to seek removal of the shutters.' 'Whether an order should be made under s 187 of the Residential Tenancies Act 2010 requiring the tenant to remove the shutters.']

Ratio Decidendi

The tenant installed metal shutters on windows and doors without the landlord's prior written consent, thereby breaching s 66 of the Residential Tenancies Act 2010 and cl 25.1 of the residential tenancy agreement. His continuing refusal to remove them was an ongoing breach, so the application was within time; alternatively, any limitation period should be extended because the landlord had pursued the issue, delay was not unreasonable, and there was no prejudice to the tenant. Earlier dismissed termination proceedings did not bar this different rectification application, and the landlord had not waived its rights. Given Council evidence of health and safety risks, non-compliance with...

Court Disposition

The landlord's application for termination and possession was withdrawn and dismissed; the tenant was ordered to remove the shutters within 14 days.

Orders

  • ["The landlord's application for termination and possession is withdrawn and accordingly dismissed under Section 55(1)(a) of the Civil and Administrative Tribunal Act 2013." 'The respondent, Mofeed Tanious, is to remove all metal coverings and shutters from the window and door frames of the residential premises in...