Ahearn v Doig [2019] NSWCATAP 7

Ahearn v Doig [2019] NSWCATAP 7

The appeal was dismissed because the landlords did not demonstrate an error of law or a ground under cl 12 of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW). The first instance finding that the landlords breached s 63 of the Residential Tenancies Act, 2010 (NSW) was supported by multiple records showing prior signs of water entry, the landlords' proposed weather reports were not shown to be significant new evidence not reasonably available at the hearing and did not displace the existing evidence, and there was no evidence that the tenants acted unreasonably or could have obtained cheaper emergency accommodation.

Jurisdiction
Australia
Judgment Date
02 January 2019
Procedural Posture
Residential Tenancy Appeal / Appeal Panel Appeal From a Consumer and Commercial Division Decision Dated 5 September 2018
Outcome
Appeal dismissed; stay lifted; first instance Order 1 affirmed.
Legal Topics
['landlord Repair Obligations' 'fresh Evidence on Appeal' 'mitigation of Loss' 'termination After Storm Damage' 'appeal on Question of Law or With Leave']
['residential Tenancies' 'administrative Law' 'civil Procedure' 'evidence'] ['landlord Repair Obligations' 'fresh Evidence on Appeal' 'mitigation of Loss' 'termination After Storm Damage' 'appeal on Question of Law or With Leave']

Case Brief

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Procedural Posture

Residential Tenancy Appeal / Appeal Panel Appeal From a Consumer and Commercial Division Decision Dated 5 September 2018

Legal Issues

  1. 1 ['Whether the Tribunal at first instance erred in finding that the landlords failed to comply with their repair obligations under s 63 of the Residential Tenancies Act, 2010 (NSW).' 'Whether the landlords could rely on fresh evidence in the form of weather reports for December 2017.' 'Whether the tenants failed to mitigate their loss by obtaining allegedly expensive emergency accommodation.' 'Whether the appeal disclosed an error of law or a ground for leave under cl 12 of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW).']

Ratio Decidendi

The appeal was dismissed because the landlords did not demonstrate an error of law or a ground under cl 12 of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW). The first instance finding that the landlords breached s 63 of the Residential Tenancies Act, 2010 (NSW) was supported by multiple records showing prior signs of water entry, the landlords' proposed weather reports were not shown to be significant new evidence not reasonably available at the hearing and did not displace the existing evidence, and there was no evidence that the tenants acted unreasonably or could have obtained cheaper emergency accommodation.

Court Disposition

Appeal dismissed; stay lifted; first instance Order 1 affirmed.

Orders

  • ['The appeal is dismissed.' 'The order staying the operation of Order 1 made on 5 September 2018 in RT 18/12899 is lifted.' 'Order 1 made on 5 September 2018 in RT 18/12899 is affirmed.']