Bulmash v Webster [2016] NSWCATCD 23

Bulmash v Webster [2016] NSWCATCD 23

The applicant did not prove that the premises were uninhabitable, that the landlord had failed before 15 October 2015 to maintain them in a reasonable state of repair, that the agent agreed to reimburse repainting costs, or that claimed sub-letting, cooktop, clothing, hassle or other losses were established and recoverable. Painting was not an urgent repair within s 62, so reimbursement under s 65(1)(b) was unavailable. However, by 15 October 2015 the deteriorated paintwork reduced the amenity of the premises, making the rent excessive under s 44(1)(b), warranting a reduction from $550.00 to $525.00 per week until 10 January 2016 and repayment of excess rent of $301.71 under s 45(2).

Jurisdiction
Australia
Judgment Date
03 March 2016
Procedural Posture
Residential Tenancy Compensation and Repairs Application / Principal Judgment
Outcome
Application partly allowed; application otherwise dismissed.
Legal Topics
['failure to Repair' 'urgent Repairs' 'excessive Rent' 'reduction in Amenity' 'mould and Damp' 'repainting Costs' 'sub Letting' 'remoteness of Damage' 'cooktop Malfunction']
['residential Tenancies' 'consumer and Commercial' 'contract Damages'] ['failure to Repair' 'urgent Repairs' 'excessive Rent' 'reduction in Amenity' 'mould and Damp' 'repainting Costs' 'sub Letting' 'remoteness of Damage' 'cooktop Malfunction']

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Procedural Posture

Residential Tenancy Compensation and Repairs Application / Principal Judgment

Legal Issues

  1. 1 ['Whether the landlord failed to maintain the premises in a reasonable state of repair by reason of mould, damp or deteriorated paintwork.' 'Whether the applicant was entitled to reimbursement for repainting costs and his own labour.' 'Whether the applicant established loss arising from inability to sub-let the premises or alleged rent reductions to sub-tenants.' 'Whether the applicant was entitled to compensation for a malfunctioning cooktop.' 'Whether rent was excessive because of a reduction in amenity arising from the state of the paintwork.']

Ratio Decidendi

The applicant did not prove that the premises were uninhabitable, that the landlord had failed before 15 October 2015 to maintain them in a reasonable state of repair, that the agent agreed to reimburse repainting costs, or that claimed sub-letting, cooktop, clothing, hassle or other losses were established and recoverable. Painting was not an urgent repair within s 62, so reimbursement under s 65(1)(b) was unavailable. However, by 15 October 2015 the deteriorated paintwork reduced the amenity of the premises, making the rent excessive under s 44(1)(b), warranting a reduction from $550.00 to $525.00 per week until 10 January 2016 and repayment of excess rent of $301.71 under s 45(2).

Court Disposition

Application partly allowed; application otherwise dismissed.

Orders

  • ['Pursuant to section 44(1)(b) of the Residential Tenancies Act 2010 (NSW), that the rent payable pursuant to the Residential Tenancy Agreement between the applicant and the respondent dated 6 August 2012 is excessive having regard to the reduction in amenity of the premises arising from the deterioration of...