Stokes v Zarimis [2021] NSWCATCD 23

Stokes v Zarimis [2021] NSWCATCD 23

The tenant failed to prove on the balance of probabilities that the premises were habitable at the start of the tenancy and then became wholly or partly uninhabitable during the tenancy, or that water pooling from use of the en-suite shower rendered the en-suite or premises uninhabitable. The evidence showed only mild pooling on tiled flooring which could be managed with a mat or towel, and did not establish inadequate drainage or lack of privacy under s 52. The tenant also failed to prove that installing a shower screen door with a plastic guard was a repair rather than a capital improvement; the landlord was therefore not shown to have breached s 63, and no order under s 65 was...

Jurisdiction
Australia
Judgment Date
07 June 2021
Procedural Posture
Residential Tenancy Application for Rent Reduction and Repair Orders / Final Hearing and Determination
Outcome
Application dismissed.
Legal Topics
['rent Abatement' 'repairs' 'uninhabitability' "landlord's Obligation to Maintain Premises in Reasonable State of Repair"]
['residential Tenancies' 'consumer and Commercial Law'] ['rent Abatement' 'repairs' 'uninhabitability' "landlord's Obligation to Maintain Premises in Reasonable State of Repair"]

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Procedural Posture

Residential Tenancy Application for Rent Reduction and Repair Orders / Final Hearing and Determination

Legal Issues

  1. 1 ['Whether the premises became wholly or partly uninhabitable otherwise than as a result of a breach of an agreement within the meaning of s 43(2) of the Residential Tenancies Act 2010 (NSW).' 'If the premises became wholly or partly uninhabitable, whether the Tribunal should determine a reduced amount of rent payable and in what amount.' 'Whether the landlord breached the obligation under s 63 of the Residential Tenancies Act 2010 (NSW) to maintain the premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.' 'If the landlord breached that obligation, whether the Tribunal should order repairs to the en-suite shower and what repairs should be ordered.']

Ratio Decidendi

The tenant failed to prove on the balance of probabilities that the premises were habitable at the start of the tenancy and then became wholly or partly uninhabitable during the tenancy, or that water pooling from use of the en-suite shower rendered the en-suite or premises uninhabitable. The evidence showed only mild pooling on tiled flooring which could be managed with a mat or towel, and did not establish inadequate drainage or lack of privacy under s 52. The tenant also failed to prove that installing a shower screen door with a plastic guard was a repair rather than a capital improvement; the landlord was therefore not shown to have breached s 63, and no order under s 65 was...

Court Disposition

Application dismissed.

Orders

  • ['The application is dismissed because, having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established.']