Brown v Shubbian [2024] NSWCATAP 241

Brown v Shubbian [2024] NSWCATAP 241

Mitigation of loss principles apply to rent reduction claims under s 44(1)(b) of the Residential Tenancies Act 2010 (NSW) in cases involving a breach by the landlord. However, the Tribunal erred in reducing the tenant's entitlement for delay in commencing proceedings, as there was no statutory obligation to bring the application earlier and no prejudice to the landlord; thus, the full reduction applies up to 4 February 2024. After that date, the tenant unreasonably failed to mitigate by not inspecting or accepting alternative accommodation.

Parties
Appellant: Andrew Brown; Respondent: Thara Shubbian; Respondent: Arun Marimuthe
Jurisdiction
Australia
Judgment Date
26 November 2024
Procedural Posture
Appeal / Appeal Panel Decision
Outcome
Appeal dismissed in part; allowed in part
Legal Topics
Rent Reduction, Excessive Rent, Mitigation of Loss, Procedural Fairness, Bias
Tenancy Law Contract Law Rent Reduction Excessive Rent Mitigation of Loss Procedural Fairness Bias

Case Brief

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Parties

Andrew Brown

Appellant

Thara Shubbian

Respondent

Arun Marimuthe

Respondent

Procedural Posture

Appeal / Appeal Panel Decision

Legal Issues

  1. 1 Whether mitigation of loss applies to rent reduction claims under s44(1)(b) of the Residential Tenancies Act 2010 (NSW)
  2. 2 Whether the tenant failed to mitigate loss by delay in bringing proceedings
  3. 3 Whether procedural fairness was denied by the late raising of mitigation

Ratio Decidendi

Mitigation of loss principles apply to rent reduction claims under s 44(1)(b) of the Residential Tenancies Act 2010 (NSW) in cases involving a breach by the landlord. However, the Tribunal erred in reducing the tenant's entitlement for delay in commencing proceedings, as there was no statutory obligation to bring the application earlier and no prejudice to the landlord; thus, the full reduction applies up to 4 February 2024. After that date, the tenant unreasonably failed to mitigate by not inspecting or accepting alternative accommodation.

Court Disposition

Appeal dismissed in part; allowed in part

Orders

  • Order 4 set aside and replaced: From 7 June 2023 to 4 February 2024, rent must not exceed $115 per week for 34.28 weeks; rent is reduced by $3,942.20 aggregate.
  • Order 5 set aside only to the extent it reduces by 33%.