Mercieca v Fu [2017] NSWCATAP 205

Mercieca v Fu [2017] NSWCATAP 205

The Appeal Panel held that the Member erred in law in limiting the period for rent reduction to 2 March 2017; the correct period extended to 6 June 2017, as the tenancy continued while the tenant remained in possession and the premises were partly uninhabitable due to balcony works. The Panel varied the rent reduction order accordingly. The Member's refusal to extend time for a retaliatory notice application was correct and the finding that the termination notice was not retaliatory was open on the evidence, so leave to appeal on those grounds was refused.

Parties
Appellant: Wayne Mercieca; First Respondent: Anita Fu; Second Respondent: Saar Yizhaki
Jurisdiction
Australia
Judgment Date
24 October 2017
Procedural Posture
Appeal / Decision on Internal Appeal From Consumer and Commercial Division of Tribunal
Outcome
Appeal allowed in part (Order 5 varied), other grounds dismissed/leave refused
Legal Topics
Appeals, Retaliatory Eviction, Rent Reduction, Termination Notice, Possession Order
Residential Tenancies Administrative Law Appeals Retaliatory Eviction Rent Reduction Termination Notice Possession Order

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 13 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Wayne Mercieca

Appellant

Anita Fu

First Respondent

Saar Yizhaki

Second Respondent

Procedural Posture

Appeal / Decision on Internal Appeal From Consumer and Commercial Division of Tribunal

Legal Issues

  1. 1 Whether s 115 of the Residential Tenancies Act 2010 applies to a termination notice under s 84
  2. 2 Whether rent reduction continues after date for vacant possession specified in a termination notice and during suspension of a possession order
  3. 3 Whether Member erred in finding no retaliatory eviction

Ratio Decidendi

The Appeal Panel held that the Member erred in law in limiting the period for rent reduction to 2 March 2017; the correct period extended to 6 June 2017, as the tenancy continued while the tenant remained in possession and the premises were partly uninhabitable due to balcony works. The Panel varied the rent reduction order accordingly. The Member's refusal to extend time for a retaliatory notice application was correct and the finding that the termination notice was not retaliatory was open on the evidence, so leave to appeal on those grounds was refused.

Court Disposition

Appeal allowed in part (Order 5 varied), other grounds dismissed/leave refused

Orders

  • The appeal against Order 5 made on 14 June 2017 is upheld.
  • Order 5 varied: Rent payable under residential tenancy agreement shall not exceed $693.50 per week from 1 February 2017 to 6 June 2017. Any rent paid above this is to be refunded within 14 days.