NSW Land and Housing Corporation v Smith [2015] NSWCATAP 27

NSW Land and Housing Corporation v Smith [2015] NSWCATAP 27

The Tribunal's original orders were made under s44 of the Residential Tenancies Act 2010, which limits relief to a 12-month period; subsequent reasons relying on s187 constituted a fundamental and impermissible change of the decision's basis. The proper quantum of rent reduction is $1,080 for certain months within the 12-month period. There was no evidentiary basis for finding withdrawal of heating services for the remainder of the tenancy following installation of the new unit.

Jurisdiction
Australia
Judgment Date
02 March 2015
Procedural Posture
Appeal / Decision
Outcome
Appeal allowed; lower Tribunal orders 3 and 4 quashed; substituted orders made.
Legal Topics
['rent Reduction' 'landlord and Tenant Remedies' 'tribunal Powers' 'provision of Services' 'compensation Under Residential Tenancy Agreements']
['residential Tenancies' 'administrative Law'] ['rent Reduction' 'landlord and Tenant Remedies' 'tribunal Powers' 'provision of Services' 'compensation Under Residential Tenancy Agreements']

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Procedural Posture

Appeal / Decision

Legal Issues

  1. 1 ['Whether the Tribunal erred in awarding a rent reduction for a period exceeding 12 months under the Residential Tenancies Act 2010 s44' 'Whether the Tribunal erred in granting a 10% ongoing rent reduction beyond statutory limits' 'Whether Tribunal could change the legal basis of decision in its written reasons after oral decision was made']

Ratio Decidendi

The Tribunal's original orders were made under s44 of the Residential Tenancies Act 2010, which limits relief to a 12-month period; subsequent reasons relying on s187 constituted a fundamental and impermissible change of the decision's basis. The proper quantum of rent reduction is $1,080 for certain months within the 12-month period. There was no evidentiary basis for finding withdrawal of heating services for the remainder of the tenancy following installation of the new unit.

Court Disposition

Appeal allowed; lower Tribunal orders 3 and 4 quashed; substituted orders made.

Orders

  • ['Appeal allowed.' 'Orders 3 and 4 made in the Tribunal below quashed.' 'Order that the tenant is entitled to a rent reduction in total of $1080 in respect of the months of May, June, July, and August 2013 and the months of April and May 2014.' 'Order that the tenant is entitled to a rent reduction to the extent...