McKinney v Lizza [2021] NSWCATCD 95

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McKinney v Lizza [2021] NSWCATCD 95 Hearing dates: 29 July 2021 Date of orders: 06 September 2021 Decision date: 06 September 2021 Jurisdiction: Consumer and Commercial Division Before: Graham Ellis SC, Senior Member Decision: 1. The application is dismissed. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) —Tenants' claim for compensation — Whether applicants induced by a false representation to enter a tenancy agreement Legislation Cited: Residential Tenancies Act 2010 (NSW) Cases Cited: Bhandari v Laming [2015] NSWCATAP 224 TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd [1963] HCA 57 Banco de Portugal v Waterlow and Sons [1932] AC 452 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 Texts Cited: Nil Category: Principal judgment Parties: Danica McKinney (First Applicant) Ian Edgar (Second Applicant) Tony Lizza (First Respondent) Michael Barbarino (Second Respondent) Steven Bavell (Third Respondent) Representation: D McKinney (Applicants) C Maher-Bull (Respondents) File Number(s): RT 21/19977 Publication restriction: Nil

REASONS FOR DECISION

Outline 1. The tenants (the applicants) entered into a residential tenancy agreement with the landlords (the respondents) which covered a house in Bangalow, but not the 'granny flat' or studio unit (the studio) at the rear of that house. The weekly rent was $500. The applicants entered into a second residential tenancy agreement with the respondents which included the studio unit (the studio). The weekly rent increased, by $450, to $1,000. 2. The applicants seek compensation of $5,850 based on an allegation that there was a false representation by the now previous real estate agent that they would be able to let the studio using Airbnb, a company which operates an online market for short-term rentals. That claim is based on section 26(1) of the Residential Tenancies Act 2010 (the RTA). 3. That amount of $5,850 was calculated as thirteen weeks, from 09 May 2021 to 09 August 2021, at $450 per week, being the difference between the rent under the second agreement and the rent under the first agreement. For the reasons indicated below, the Tribunal has determined that the applicants are not entitled to such compensation.