Elhassan v Ayoub [2018] NSWCATAP 34

Elhassan v Ayoub [2018] NSWCATAP 34

The Tribunal correctly construed "fair wear and tear" as capable of including both the ordinary operation of natural forces and reasonable use of the premises by the tenant. Its findings that the wall marks were minor, arose in the course of normal use, and were not caused by tenant carelessness or negligence were open on the evidence, including photographs, condition and inspection reports, and the handyman's opinion. The proposed USB photographs and paint-lifespan document were available at the Tribunal hearing and did not justify leave as significant new evidence. The landlords did not show a substantial miscarriage of justice, so leave to appeal factual findings was refused and the...

Jurisdiction
Australia
Judgment Date
01 February 2018
Procedural Posture
Residential Tenancy Appeal / Appeal Panel Appeal From the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal
Outcome
Leave refused for the landlords to appeal on grounds other than questions of law; appeal dismissed.
Legal Topics
['fair Wear and Tear' 'tenant Obligation to Leave Premises in Same Condition' 'bond Claim for Repainting' 'appeal on Question of Law' 'leave to Appeal Factual Findings' 'new Evidence on Appeal']
['residential Tenancy Law' 'administrative Law'] ['fair Wear and Tear' 'tenant Obligation to Leave Premises in Same Condition' 'bond Claim for Repainting' 'appeal on Question of Law' 'leave to Appeal Factual Findings' 'new Evidence on Appeal']

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Procedural Posture

Residential Tenancy Appeal / Appeal Panel Appeal From the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal

Legal Issues

  1. 1 ['Whether marks on the apartment walls amounted to "fair wear and tear" under s 51(3) of the Residential Tenancies Act 2010 (NSW).' 'Whether "fair wear and tear" can include actions of the tenant or only deterioration caused naturally.' 'Whether leave should be granted to appeal factual findings on the basis of significant new evidence, weight of evidence, or fairness and equity.']

Ratio Decidendi

The Tribunal correctly construed "fair wear and tear" as capable of including both the ordinary operation of natural forces and reasonable use of the premises by the tenant. Its findings that the wall marks were minor, arose in the course of normal use, and were not caused by tenant carelessness or negligence were open on the evidence, including photographs, condition and inspection reports, and the handyman's opinion. The proposed USB photographs and paint-lifespan document were available at the Tribunal hearing and did not justify leave as significant new evidence. The landlords did not show a substantial miscarriage of justice, so leave to appeal factual findings was refused and the...

Court Disposition

Leave refused for the landlords to appeal on grounds other than questions of law; appeal dismissed.

Orders

  • ['Leave is refused for the landlords to appeal on grounds other than questions of law.' 'The appeal is dismissed.']