Carter v Divanis [2023] NSWCATCD 45

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Carter v Divanis [2023] NSWCATCD 45 Hearing dates: 16 February 2023 Date of orders: 04 April 2023 Decision date: 04 April 2023 Jurisdiction: Consumer and Commercial Division Before: C Campbell, General Member Decision: 1. In accordance with s.187(1)(d) of the Residential Tenancies Act 2010 the landlord is to pay the tenant compensation in the $15,000 within fourteen days from the date of these orders. Catchwords: Failure to repair – breach of quiet enjoyment Category: Principal judgment Parties: Aaron Carter (Applicant) Peter Divanis (Respondent) Representation: Counsel: N/A

Solicitors: N/A File Number(s): RT 22/36130 Publication restriction: N/A

REASONS FOR DECISION 1. This is an application by the tenant seeking an order for compensation pursuant to s 187 (1)(d) of the Residential Tenancies Act 2010 ("the Act"), on the grounds of breach of the agreement by the landlord for failure to repair the premises and also for breach of the tenant's right to quiet enjoyment pursuant to s 50(2) of the Act. 2. The tenant appeared in person. Mr Stanton appeared as agent for the landlord. 3. The applicant filed and served a bundle of documents which included: 1. The residential tenancy agreement 2. Schedule of damage 3. Requests for repairs 4. Chronology 5. Expert report from Hazmat Removal Solutions 6. Witness statements 7. Photographs 8. Schedule of loss and current value of damaged goods 9. Receipts and quotations 1. The landlord's documents consisted of the evidence he relied in an earlier application RT 22/24453 and a copy of the Ingoing Condition report. The documents served in RT 22/24453 are the residential tenancy agreement, the rent ledger and a Notice of Termination. 2. The earlier application was filed by the landlord and the Tribunal ordered the tenant to pay rent arrears owing up to the end of the tenancy and also an order for the rental bond to be paid to the landlord. 3. By way of background the parties entered into a residential tenancy agreement on the 13 August 2021 and in the abovementioned proceedings the tribunal determined the tenancy ended on the 01June 2022. The rent was $400 per week. 4. The tenant's claim for compensation arises out of the landlord failing to repair after the premises sustained repeated episodes of flooding which resulted in damage to the applicant's goods and possessions. The applicant is a professional photographer and also works in the music industry and his claim for compensation is for damage to his photographic and music equipment, records, catalogue of his work and reference magazines together with clothing and his bed all of which were damaged by the water ingress. 5. The tenant's application for compensation was filed on the10 August 2022. The tenant first notified the landlord of water ingress on the 22 February 2022 when the downstairs of the premises was what he described as "severely flooded." 6. The first question which needed to be determined was whether the tenant needed leave of the Tribunal to extend the time for the bringing of the application.