van Brugge v Foresto [2022] NSWCATAP 109

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: van Brugge v Foresto [2022] NSWCATAP 109 Hearing dates: 21 March 2022 Date of orders: 12 April 2022 Decision date: 12 April 2022 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member A Boxall, Senior Member Decision: (1) The appeal is allowed in part. (2) Order 1 made by the Tribunal on 7 December 2021 is varied so as to omit "which is $1898.60" and to substitute "and minus $1,000.00 (being the agreed value of the tenant's goods) which is $898.60". (3) The first subparagraph of order 2 made by the Tribunal on 7 December 2021 is set aside. (4) The appeal is otherwise dismissed. (5) Leave to appeal is refused. (6) The respondents' application that the appellant should pay two-thirds of their costs of the appeal is dismissed. Catchwords: BAILMENT — Remedies — Under statute — Uncollected Goods Act 1995 (NSW) CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Res judicata, Anschun estoppel and abuse of process COSTS – Whether there are special circumstances warranting an award of costs DAMAGES – General principles – Breach of tenant's covenants – Where landlords have not yet incurred expense in remedying tenant's defaults – Where tenant asserted no actual loss suffered by landlords – Whether damages properly awarded on 'costs of cure' basis rather than nominal damages LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) – Covenants by tenant – As to condition of premises, cleanliness and removal of rubbish on giving vacant possession – Breach of tenant's covenant to leave premises in good condition, clean and remove rubbish Landlords have not yet incurred expense in remedying tenant's defaults – Whether cost of remedying tenant's default is the appropriate measure of damages Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 35, 60, 80, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), rr 25, 38, 38A Residential Tenancies Act 2010 (NSW), ss 51, 84, 85, 87, 115 Residential Tenancies (COVID-19 Pandemic Emergency Response) Amendment Regulation 2021 (NSW) Residential Tenancies Regulation 2019 (NSW) Uncollected Goods Act 1995 (NSW), ss 3, 20, 24, 31B Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Bauer v Farm Cove Investments Pty Ltd [2022] NSWCATAP 14 Brodyn Pty Ltd v Owners Corporation Strata Plan 73019 (No 2) [2016] NSWCATAP 224 Brunsprop Pty Ltd v Joanne Hay & Wes Davies [2015] NSWCATAP 152 Camilleri v Eastlake [2018] NSWCATAP 176 Cominos v Di Rico [2016] NSWCATAP 5 CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 Ellis's Town House Pty Ltd v Botan Pty Ltd [2017] NSWCA 20 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 Mae v Ho and Ors [2021] NSWCATAP 5 Matson v Attorney-General (No 2) [2022] FCA 213 McLean v Power [2013] NSWSC 193 Mercieca v Fu [2017] NSWCATAP 205 Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 196 ALR 257 Powercor Australia Ltd v Thomas (2012) 43 VR 220; [2012] VSCA 87 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Quader v Bell [2017] NSWCATAP 24 Ravenscroft v Skinner [2016] NSWCATAP 107 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Smits v Loel [2014] FCA 1341 Smits v Loel (No 3) [2015] FCA 77 The Owners – Strata Plan 5319 v Price [2020] NSWCATAP 245 Texts Cited: None cited Category: Principal judgment Parties: Chris van Brugge (Appellant) Anthony Foresto (First Respondent) Steve Foresto (Second Respondent) Representation: Appellant (self-represented)