Makowska v St George Community Housing Ltd [2021] NSWSC 287

Supreme Court New South Wales

Medium Neutral Citation: Makowska v St George Community Housing Ltd [2021] NSWSC 287 Hearing dates: 17 March 2021 Decision date: 26 March 2021 Jurisdiction: Common Law Before: Basten J Decision: (1) Dismiss the summons filed by the plaintiff on 2 October 2020. (2) Order that the plaintiff pay the costs of the first defendant in this Court. Catchwords: ADMINISTRATIVE LAW – judicial review – alternative relief by way of appeal not availed of – absence of satisfactory explanation – avoidance of time limit for an appeal – avoidance of need to obtain leave to appeal – value of claim small – whether relief should be refused on discretionary grounds ADMINISTRATIVE LAW – judicial review – decision of Appeal Panel of NCAT – error of law by Tribunal member identified by Appeal Panel – whether Appeal Panel erred in law in dismissing error as immaterial – whether member found breach of duty by landlord entitling tenant to compensation ADMINISTRATIVE LAW – judicial review – grounds – irrelevant consideration – whether finding of Appeal Panel an irrelevant consideration – overlap of grounds – reliance on "no evidence" and unreasonableness as equivalent to a prohibited consideration – whether error of law LEASES AND TENANCIES – residential tenancy – right to quiet enjoyment – failure to repair drains resulting in stormwater impeding access to car park – no substantial interference LEASES AND TENANCIES – residential tenancy – reduction of facilities provided with the residential premises – failure to repair drains resulting in stormwater causing deterioration of lawn in common area – reduction of rent allowed – whether entitlement to compensation Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 34, 80, 83 Civil Liability Act 2002 (NSW), ss 3, 16 Housing Act 2001 (NSW), s 13A Residential Tenancies Act 2010 (NSW), ss 44, 50, 187 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 50.3, Pt 50 Cases Cited: Ackroyd v Whitehouse (Director of National Parks & Wildlife Service) (1985) 2 NSWLR 239 Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264 Allen v TriCare (Hasting) Pty Ltd [2015] NSWSC 416 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185 Makowska v St George Community Housing Ltd (NSWCATCD, 13 February 2020) Moore v Scenic Tours Pty Ltd [2020] HCA 17; 94 ALJR 481 Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501; [2006] WASCA 219 Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 Southwark London Borough Council v Mills [2001] 1 AC 1 Texts Cited: Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Lawbook Co, 2017) Category: Principal judgment Parties: Zofia Makowska (Plaintiff) St George Community Housing Ltd (First Defendant) NSW Civil and Administrative Tribunal (Second Defendant) Representation: Counsel: Plaintiff unrepresented A R Langshaw (First Defendant)