Cook v Mintus Properties Pty Ltd [2019] NSWCATAP 179

Cook v Mintus Properties Pty Ltd [2019] NSWCATAP 179

There was no error of law in the Tribunal treating the claim as one under section 63 of the Residential Tenancies Act 2010 because a claim under section 45 would have failed and an application under section 44 was not indicated and would likely have failed. The asbestos material was not significant new evidence that was unavailable with reasonable diligence, and the Tribunal's refusal of the late amendment caused no miscarriage of justice. However, the Tribunal's finding that there was no sufficient evidence that the veranda was unsafe was against the weight of evidence because it failed to take into account an uncontradicted quotation stating that the balconies were in poor condition and...

Jurisdiction
Australia
Judgment Date
17 July 2019
Procedural Posture
Residential Tenancy Appeal / Application for Leave to Appeal and Appeal From Consumer and Commercial Division Decision
Outcome
Leave to appeal granted; appeal allowed; Order 1 made by the Tribunal on 21 February 2019 discharged; respondent ordered to pay the appellant $1,000 within 28 days.
Legal Topics
['rent Reduction and Abatement' 'landlord Repair Obligations' 'leave to Appeal' 'significant New Evidence' 'weight of Evidence' 'compensation for Disrepair']
['residential Tenancy Law' 'administrative Appeals'] ['rent Reduction and Abatement' 'landlord Repair Obligations' 'leave to Appeal' 'significant New Evidence' 'weight of Evidence' 'compensation for Disrepair']

Case Brief

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Procedural Posture

Residential Tenancy Appeal / Application for Leave to Appeal and Appeal From Consumer and Commercial Division Decision

Legal Issues

  1. 1 ["Whether the Tribunal erred by considering Ms Cook's claim under section 63 of the Residential Tenancies Act 2010 rather than under section 45 or section 44." 'Whether significant new evidence had arisen concerning alleged asbestos at the premises.' "Whether the Tribunal's decision concerning the veranda was against the weight of the evidence because it failed to take uncontradicted evidence of a safety risk into account." 'Whether Ms Cook suffered a substantial miscarriage of justice warranting leave to appeal.']

Ratio Decidendi

There was no error of law in the Tribunal treating the claim as one under section 63 of the Residential Tenancies Act 2010 because a claim under section 45 would have failed and an application under section 44 was not indicated and would likely have failed. The asbestos material was not significant new evidence that was unavailable with reasonable diligence, and the Tribunal's refusal of the late amendment caused no miscarriage of justice. However, the Tribunal's finding that there was no sufficient evidence that the veranda was unsafe was against the weight of evidence because it failed to take into account an uncontradicted quotation stating that the balconies were in poor condition and...

Court Disposition

Leave to appeal granted; appeal allowed; Order 1 made by the Tribunal on 21 February 2019 discharged; respondent ordered to pay the appellant $1,000 within 28 days.

Orders

  • ['Grant leave to appeal;' 'Appeal allowed;' 'Order 1 made by the Tribunal on 21 February 2019 is discharged;' 'Order that the respondent Mintus Properties Pty Ltd is to pay the applicant Ms Heather Cook the sum of $1,000 within 28 days of the date of this order.']