Vashisht & Sharma v Edwards [2016] NSWCATCD 86

Vashisht & Sharma v Edwards [2016] NSWCATCD 86

The premises were uninhabitable from 5 June 2016 because water penetration saturated carpets, carpets were removed from the bedrooms, mould appeared, and exposed tack strips with vertical nails made bedroom use unsafe, so the premises could not be occupied with reasonable comfort. Although the tenants did not live there after that date, they retained the benefit of the tenancy by storing possessions there, so rent abated to $50 per week rather than to nil. The application was commenced out of time, but the landlord could not identify prejudice and the required extension was not significant, so time was extended to 21 August 2016 and repayment of excess rent was ordered.

Jurisdiction
Australia
Judgment Date
20 October 2016
Procedural Posture
Application for Reimbursement of Rent and Determination of Rent Payable Under a Residential Tenancy Agreement / Principal Judgment; Written Reasons for Orders Made on 28 September 2016
Outcome
Application allowed; time extended, rent reduced to $50 per week from 5 June 2016, and landlord ordered to repay excess rent.
Legal Topics
['uninhabitable Premises' 'water Penetration' 'abatement of Rent' 'extension of Time' 'repayment of Rent']
['residential Tenancy Law' 'civil and Administrative Procedure'] ['uninhabitable Premises' 'water Penetration' 'abatement of Rent' 'extension of Time' 'repayment of Rent']

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Procedural Posture

Application for Reimbursement of Rent and Determination of Rent Payable Under a Residential Tenancy Agreement / Principal Judgment; Written Reasons for Orders Made on 28 September 2016

Legal Issues

  1. 1 ['Whether the residential premises became wholly or partly uninhabitable from 5 June 2016 within s 43(2) of the Residential Tenancies Act 2010 (NSW).' 'Whether the rent abated wholly or partly, and the amount of rent payable under s 45 of the Residential Tenancies Act 2010 (NSW).' 'Whether the proceedings were commenced out of time and, if so, whether time should be extended under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW).']

Ratio Decidendi

The premises were uninhabitable from 5 June 2016 because water penetration saturated carpets, carpets were removed from the bedrooms, mould appeared, and exposed tack strips with vertical nails made bedroom use unsafe, so the premises could not be occupied with reasonable comfort. Although the tenants did not live there after that date, they retained the benefit of the tenancy by storing possessions there, so rent abated to $50 per week rather than to nil. The application was commenced out of time, but the landlord could not identify prejudice and the required extension was not significant, so time was extended to 21 August 2016 and repayment of excess rent was ordered.

Court Disposition

Application allowed; time extended, rent reduced to $50 per week from 5 June 2016, and landlord ordered to repay excess rent.

Orders

  • ['Pursuant to s41 of the Civil and Administrative Tribunal Act the time within which the applicants may commence these proceedings is extended to 21 August 2016.' 'Order pursuant to s45(2)(a) of the Residential Tenancies Act that the rent for the residential premises must not exceed $50 per week from 5 June 2016.'...