Annette Shailer v Camille Serisier [2016] NSWCATAP 131

Annette Shailer v Camille Serisier [2016] NSWCATAP 131

The appeal was allowed because the Member erred in applying the three month breach-claim time limit to the rent reduction claim, which was properly available under section 44(3) and was brought before the end of the tenancy. The Member's refusal to extend time for the loss of quiet enjoyment claim also miscarried, given the continuing pattern of leakage, the respondent's knowledge of the problem, and the overlap between that claim and the in-time rent reduction claim. The appellant was entitled to a 25% rent reduction and compensation calculated over the adjusted period, plus compensation for damaged property and loss of quiet enjoyment.

Jurisdiction
Australia
Judgment Date
17 June 2016
Procedural Posture
Residential Tenancy Appeal / Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 10 February 2016
Outcome
Appeal allowed; original monetary order quashed; time extended for the loss of quiet enjoyment claim; respondent ordered to pay the appellant $4,470.
Legal Topics
['time Limits' 'extension of Time' 'rent Reduction' 'loss of Quiet Enjoyment' 'landlord Repair Obligations' 'compensation' 'reduction or Withdrawal of Facilities']
['residential Tenancy' 'civil Procedure' 'administrative Law'] ['time Limits' 'extension of Time' 'rent Reduction' 'loss of Quiet Enjoyment' 'landlord Repair Obligations' 'compensation' 'reduction or Withdrawal of Facilities']

Case Brief

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Procedural Posture

Residential Tenancy Appeal / Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 10 February 2016

Legal Issues

  1. 1 ["Whether the Tribunal Member erred by applying a three month time limit to the appellant's claim for rent reduction under section 44 of the Residential Tenancies Act, 2010." "Whether the appellant's claim for compensation for loss of quiet enjoyment should be permitted by extending time under section 41 of the Civil and Administrative Tribunal Act, 2013." 'What amount should be awarded for rent reduction, damaged property, and loss of quiet enjoyment arising from repeated water leaks.']

Ratio Decidendi

The appeal was allowed because the Member erred in applying the three month breach-claim time limit to the rent reduction claim, which was properly available under section 44(3) and was brought before the end of the tenancy. The Member's refusal to extend time for the loss of quiet enjoyment claim also miscarried, given the continuing pattern of leakage, the respondent's knowledge of the problem, and the overlap between that claim and the in-time rent reduction claim. The appellant was entitled to a 25% rent reduction and compensation calculated over the adjusted period, plus compensation for damaged property and loss of quiet enjoyment.

Court Disposition

Appeal allowed; original monetary order quashed; time extended for the loss of quiet enjoyment claim; respondent ordered to pay the appellant $4,470.

Orders

  • ['The time for bringing the application for compensation for loss of quiet enjoyment is extended to 1 December 2015' 'The appeal is allowed' 'The order for payment of $2,512.85 in favour of the appellant is quashed' 'The respondent is to pay the appellant the sum of $4,470.']