Paul Thomas Kenny and Patricia Leigh Kenny v Leighton Killalea [2015] NSWCATAP 66

Paul Thomas Kenny and Patricia Leigh Kenny v Leighton Killalea [2015] NSWCATAP 66

Because the Tribunal had found a breach of s 63 of the Residential Tenancies Act 2010 (NSW), it was required to consider whether the tenants' emails, read together, effectively gave notice of termination notwithstanding defects. The emails gave the landlord's agent notice that the tenants were vacating because of the crack, more than 14 days' notice when read together, and a specified vacation date, and the respondent could not identify any disadvantage from the non-compliance. The Tribunal erred by rejecting or failing properly to consider s 113 of the Residential Tenancies Act 2010 (NSW) and by not adequately addressing the substantial merits and real issues. The tenants' termination...

Jurisdiction
Australia
Judgment Date
20 April 2015
Procedural Posture
Internal Appeal in a Residential Tenancy Matter / Appeal Panel Decision on Appeal From the Consumer and Commercial Division
Outcome
Appeal allowed; decision made on 2 October 2014 set aside; respondent's application for rent for the period 5 July 2014 to 29 August 2014 dismissed; no order as to costs.
Legal Topics
["landlord's Obligation to Maintain Premises in Reasonable State of Repair" 'termination Notice by Tenant for Landlord Breach' 'defects in Termination Notices' 'internal Appeal' 'substantial Miscarriage of Justice']
['residential Tenancies' 'civil Procedure' 'administrative Law'] ["landlord's Obligation to Maintain Premises in Reasonable State of Repair" 'termination Notice by Tenant for Landlord Breach' 'defects in Termination Notices' 'internal Appeal' 'substantial Miscarriage of Justice']

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Procedural Posture

Internal Appeal in a Residential Tenancy Matter / Appeal Panel Decision on Appeal From the Consumer and Commercial Division

Legal Issues

  1. 1 ['Whether the landlord breached the obligation to provide and maintain the residential premises in a reasonable state of repair under s 63 of the Residential Tenancies Act 2010 (NSW).' 'Whether emails sent by the tenants were effective, despite defects, as notice terminating the tenancy before the end of the fixed term.' 'Whether s 113 of the Residential Tenancies Act 2010 (NSW) should have been considered in relation to defects in the termination notice or service.' "Whether the Tribunal's decision requiring payment of rent after vacation was affected by error of law, was not fair and equitable, or was against the weight of the evidence."]

Ratio Decidendi

Because the Tribunal had found a breach of s 63 of the Residential Tenancies Act 2010 (NSW), it was required to consider whether the tenants' emails, read together, effectively gave notice of termination notwithstanding defects. The emails gave the landlord's agent notice that the tenants were vacating because of the crack, more than 14 days' notice when read together, and a specified vacation date, and the respondent could not identify any disadvantage from the non-compliance. The Tribunal erred by rejecting or failing properly to consider s 113 of the Residential Tenancies Act 2010 (NSW) and by not adequately addressing the substantial merits and real issues. The tenants' termination...

Court Disposition

Appeal allowed; decision made on 2 October 2014 set aside; respondent's application for rent for the period 5 July 2014 to 29 August 2014 dismissed; no order as to costs.

Orders

  • ['Appeal allowed.' 'The decision made on 2 October 2014 be set aside and in substitution the application for rent for the period 5 July 2014 to 29 August 2014 be dismissed.' 'No order as to costs.']