McCartney v Wood [2023] NSWCATAP 131

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McCartney v Wood [2023] NSWCATAP 131 Hearing dates: 27 February 2023 Date of orders: 15 May 2023 Decision date: 15 May 2023 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member J S Currie, Senior Member Decision: (1) The application of the appellants to amend the notice of appeal is dismissed. (2) The appeal is dismissed so far as grounds 4 to 7 in the notice of appeal raise a question of law and otherwise leave to appeal is refused in respect of these grounds. (3) The appeal is otherwise allowed. (4) Order 1 made by the Tribunal on 14 December 2022 in proceedings RT 22/32769 is set aside. (5) The issues of whether the appellants are entitled to compensation for damage to the motor vehicle of the second named appellant, and if so what compensation, are remitted to the Consumer and Commercial Division of the Tribunal as originally constituted for reconsideration on the basis of the existing evidence and such further evidence as the Tribunal may allow. Catchwords: APPEALS — Point not taken below — Conduct of trial LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord's duty – whether the duty extends to part of the premises which is common property - whether the tenants are entitled to compensation for damage to the motor vehicle in the garage of the premises and if so what compensation Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 62, 80, 81, 83, Sch 4, cl 12, Sch 6, cl 11 Civil and Administrative Tribunal Rules 2014 (NSW), r 25 Residential Tenancies Act 1987 (NSW), ss 22, 25 (repealed) Residential Tenancies Act 2010 (NSW), ss 19, 21, 50, 52, 62, 63, 65 Strata Schemes Management Act 2015 (NSW), ss 106, 226, 232 Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Dimunova v Vega [2017] NSWCATAP 5 Fraser v Sperling [2017] VSCA 53 Funfood Pty Ltd v Centura Global Holdings Pty Ltd [2022] NSWCATAP 189 Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 Hill v Green [2022] NSWCATAP 256 Kolodziej v Ali & Anor (Appeal) [2021] ACAT 123 Lee v Fuzessery (Tenancy) [2010] NSWCTTT 205 Meacham v Commissioner of Police [2020] NSWCATAP 107 McSteen v Architects Registration Board of Victoria [2018] VSCA 96 Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Pursell v Eversham Close Ply Ltd [2020] NSWDC 372 Reiss & Anor v Helson & 2 Ors [2001] NSWSC 486 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Sewell v Zvirblis [2022] NSWCATAP 337 Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Texts Cited: NCAT Policy 2, Publishing Reasons for Decisions Category: Principal judgment Parties: Sophie McCartney and Christopher Lever (Appellants) Mark Wood (Respondent) Representation: Illawarra and South Coast Tenants Advice and Advocacy Service (Appellants) Respondent (self-represented) File Number(s): 2022/00388191 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 14 December 2022 Before: D Barnetson, General Member File Number(s): RT 22/32769