Taylor v Reilly [2021] NSWCATCD 74

Taylor v Reilly [2021] NSWCATCD 74

Time was extended for the s 45 rent reduction claim because the tenant had a fairly arguable uninhabitability case and no prejudice to the landlord was shown. The uncontroverted evidence established that substantial adjacent construction caused noise and dust that significantly affected the tenant's safety and reasonable comfort, rendering the premises partly uninhabitable for the relevant period; rent was reduced by $1429. Time was not extended for the s 26 disclosure claim or the quiet enjoyment claim because those claims did not have sufficient prospects of success. The tenant remained liable for rent until 29 December 2020 because she retained the keys and did not give vacant...

Jurisdiction
Australia
Judgment Date
09 June 2021
Procedural Posture
Residential Tenancy Application for Compensation, Rent Reduction and Rental Bond Orders / Final Hearing; Amended Principal Judgment and Orders
Outcome
Application allowed in part; tenant awarded net amount and whole rental bond; landlord's bond claims accounted for by set-off.
Legal Topics
['rent Abatement' 'uninhabitable Premises' 'construction Noise and Dust' 'disclosure of Material Facts' 'quiet Enjoyment' 'rental Bond' 'rent Arrears' 'extension of Time']
['residential Tenancy Law' 'consumer and Commercial Law'] ['rent Abatement' 'uninhabitable Premises' 'construction Noise and Dust' 'disclosure of Material Facts' 'quiet Enjoyment' 'rental Bond' 'rent Arrears' 'extension of Time']

Case Brief

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Procedural Posture

Residential Tenancy Application for Compensation, Rent Reduction and Rental Bond Orders / Final Hearing; Amended Principal Judgment and Orders

Legal Issues

  1. 1 ["Whether the tenant's claim for a rent reduction under s 43(2)(a) of the Residential Tenancies Act 2010 (NSW) was out of time and whether time should be extended." 'Whether the premises became wholly or partly uninhabitable as a result of noise and dust from nearby construction works and, if so, the amount of rent abatement.' 'Whether the landlord or managing agent knowingly concealed a prescribed material fact about the construction works in breach of s 26(1) of the Residential Tenancies Act 2010 (NSW).' "Whether there was a compensable breach of the tenant's right to quiet enjoyment." 'Whether the tenant remained liable for rent until the keys were returned on 29 December 2020.' 'How the rental bond should be paid out.']

Ratio Decidendi

Time was extended for the s 45 rent reduction claim because the tenant had a fairly arguable uninhabitability case and no prejudice to the landlord was shown. The uncontroverted evidence established that substantial adjacent construction caused noise and dust that significantly affected the tenant's safety and reasonable comfort, rendering the premises partly uninhabitable for the relevant period; rent was reduced by $1429. Time was not extended for the s 26 disclosure claim or the quiet enjoyment claim because those claims did not have sufficient prospects of success. The tenant remained liable for rent until 29 December 2020 because she retained the keys and did not give vacant...

Court Disposition

Application allowed in part; tenant awarded net amount and whole rental bond; landlord's bond claims accounted for by set-off.

Orders

  • ['The respondent landlord must pay to the applicant tenant the net amount of $393.65 immediately.' 'The Rental Bond Service is directed to pay the whole of rental bond number XXX to the applicant tenant.']