Sewell v Zvirblis [2022] NSWCATAP 337

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sewell v Zvirblis [2022] NSWCATAP 337 Hearing dates: 20 September 2022 Date of orders: 28 October 2022 Decision date: 28 October 2022 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member D Robertson, Senior Member Decision: (1) Time to appeal extended up to and including 8 July 2022. (2) Appeal upheld in part. (3) The appellant's claim for an excessive rent order pursuant to s 44 of the Residential Tenancies Act 2010 (NSW) is dismissed. (4) Leave to appeal otherwise refused. (5) The Tribunal's order of 17 May 2022 dismissing the appellant's claim for compensation is confirmed. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — repairs — landlord's duty – whether common property within definition of "residential premises" in s 62 of the Residential Tenancies Act – held, common property not within the definition of "residential premises" in s 62 of the Residential Tenancies Act LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — rent — excessive rent – whether the need for repairs not caused by the landlord fell within s 44(1)(b) of the Residential Tenancies Act – absent a breach of the landlord's obligation to repair, the need for repairs does not amount to the reduction or withdrawal of goods, services or facilities by the landlord Legislation Cited: Australian Consumer Law, s 18 Residential Tenancies Act 1987 (NSW), s 47 Residential Tenancies Act 2010 (NSW), ss 3, 26, 44(1)(b), 55(2), 62, 63(1), 64, 65(3)(a), 65(3)(b) Strata Schemes Management Act 2015 (NSW), ss 106, 226, 232 Trade Practices Act 1974 (Cth), s 82(1) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Davies-Evans v MacCulloch [2018] NSWCATAP 253 Dimunova v Vega [2017] NSWCATAP 5 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 Eliezer v Residential Tribunal (2001) 53 NSWLR 657; [2001] NSWSC 1092 Pan v Malveholm [2021] NSWCATAP 101 Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514; [1992] HCA 55 Texts Cited: Nil Category: Principal judgment Parties: Samantha Sewell (Appellant) Andrew Zvirblis (Respondent) Representation: M Barker (Tenant Advocate) (Appellant) Respondent (Self-represented) File Number(s): 2022/00211937 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 17 May 2022 Before: P Zammit, General Member File Number(s): RT 22/17050