Martin v McCarthy-Nielsen [2019] NSWCATAP 270

Martin v McCarthy-Nielsen [2019] NSWCATAP 270

The Tribunal did not err in assessing compensation as an overall lump sum for breach of quiet enjoyment rather than separate amounts for each breach, as the unauthorized entries were not individually quantifiable and were already addressed in the $300 award. Claims for distress required medical evidence and a threshold test not satisfied by the tenants. Access for open house inspections and preparation of floor plan was authorised by order or consent. No miscarriage of justice or error of law was established.

Jurisdiction
Australia
Judgment Date
11 November 2019
Procedural Posture
Internal Appeal / Appeal Panel Decision
Outcome
Leave to appeal is refused and the appeal is otherwise dismissed.
Legal Topics
['compensation' 'right to Quiet Enjoyment' 'procedural Fairness' 'notice for Access' 'distress Damages']
['residential Tenancy'] ['compensation' 'right to Quiet Enjoyment' 'procedural Fairness' 'notice for Access' 'distress Damages']

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Procedural Posture

Internal Appeal / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal erred in awarding inadequate compensation for breach of the tenancy agreement' "Whether compensation should have been awarded for each individual breach, including unauthorised entries and installation of 'for sale' sign" 'Whether the dismissal of claims for packing, removal costs, and distress was in error']

Ratio Decidendi

The Tribunal did not err in assessing compensation as an overall lump sum for breach of quiet enjoyment rather than separate amounts for each breach, as the unauthorized entries were not individually quantifiable and were already addressed in the $300 award. Claims for distress required medical evidence and a threshold test not satisfied by the tenants. Access for open house inspections and preparation of floor plan was authorised by order or consent. No miscarriage of justice or error of law was established.

Court Disposition

Leave to appeal is refused and the appeal is otherwise dismissed.

Orders

  • ['Leave to appeal is refused and the appeal is otherwise dismissed.']