Lewis v Matuck [2021] NSWCATAP 214

Lewis v Matuck [2021] NSWCATAP 214

The Tribunal erred in treating the insurer's partial indemnity of the landlord as defeating her remaining claim against the tenant for unpaid rent. The rent ledger proved outstanding rent, and the insurance payment operated as a credit admitted by the landlord, so the landlord was entitled to recover $1,375 for rent arrears after allowing rent only to 17 July 2020. The remaining appeal failed because the landlord did not provide the Appeal Panel with the evidence before the Tribunal, the condition report copy was unsafe to rely on, the proposed higher quality photographs were not significant new evidence, and no question of law or other basis for leave was established in relation to the...

Jurisdiction
Australia
Judgment Date
14 July 2021
Procedural Posture
Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division Decision Concerning Residential Tenancy Claims / Appeal Panel Decision
Outcome
Appeal upheld in part.
Legal Topics
['residential Tenancy Compensation' 'rent Arrears' 'damage to Premises' 'condition Report Evidence' 'subrogation' 'leave to Appeal' 'costs']
['residential Tenancies' 'insurance' 'civil Procedure'] ['residential Tenancy Compensation' 'rent Arrears' 'damage to Premises' 'condition Report Evidence' 'subrogation' 'leave to Appeal' 'costs']

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Procedural Posture

Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division Decision Concerning Residential Tenancy Claims / Appeal Panel Decision

Legal Issues

  1. 1 ["Whether the Tribunal erred in dismissing the landlord's claim for unpaid rent on the basis of insurer subrogation and lack of proof of the insurance payment." "Whether the landlord established error in the Tribunal's dismissal of claims for alleged damage to the premises." 'Whether higher quality photographs should be admitted as significant new evidence on appeal.' 'Whether the landlord established entitlement to lost rent after the tenancy ended.' "Whether complaints about the tenant's use of the premises gave rise to damages."]

Ratio Decidendi

The Tribunal erred in treating the insurer's partial indemnity of the landlord as defeating her remaining claim against the tenant for unpaid rent. The rent ledger proved outstanding rent, and the insurance payment operated as a credit admitted by the landlord, so the landlord was entitled to recover $1,375 for rent arrears after allowing rent only to 17 July 2020. The remaining appeal failed because the landlord did not provide the Appeal Panel with the evidence before the Tribunal, the condition report copy was unsafe to rely on, the proposed higher quality photographs were not significant new evidence, and no question of law or other basis for leave was established in relation to the...

Court Disposition

Appeal upheld in part.

Orders

  • ['Appeal upheld in part.' 'Order 1 made by the Tribunal on 28 April 2021 is confirmed.' 'Order 2 made by the Tribunal on 28 April 2021 is varied to substitute the sum of $125 for the sum of $1,500.' 'Orders 3 and 4 made by the Tribunal on 28 April 2021 are confirmed.' 'If any party desires to make an application for...