Sears v Turner [2023] NSWCATCD 124

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sears v Turner [2023] NSWCATCD 124 Hearing dates: 7 September 2023 Date of orders: 13 September 2023 Decision date: 13 September 2023 Jurisdiction: Consumer and Commercial Division Before: G Bassett, General Member Decision: (1) Pursuant to section 41 of the Civil and Administrative Tribunal Act 2013, the tenant's application to extend the period of time for lodging the application to 13 June 2023 is dismissed. Catchwords: CIVIL PROCEDURE — Time — Extension of time LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord's duty — Compensation Legislation Cited: Civil and Administrative Tribunal Act 2013 s 41 Residential Tenancies Act 2010 ss 63, 65, 187(d) Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Xpertise Construction Pty Ltd v Orantia [2023] NSWCATAP 22 Category: Principal judgment Parties: Applicant: Jacques Sears (tenant)

First Respondent: John Turner (landlord)

Second respondent: Jennifer Turner (landlord) Representation: Applicant: Mr Ross, tenant advocate Respondents: Ms Marr, agent File Number(s): RT 23/27104 Publication restriction: unrestricted

REASONS FOR DECISION

Application and procedural history 1. On 13 June 2023, the applicant tenant applied for an order to extend time to lodge her substantive application pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 (the Act) 2. In the substantive application she applied for compensation up to the jurisdictional limit of the Tribunal of $15,000.00 under section 187(1)(d) of the Residential Tenancies Act 2023 ("the RTA"). 3. At the conciliation hearing on 24 July 2023, the tenant was granted leave to be represented by a tenant advocacy service, not a legal practitioner. In direction 9 made at conciliation hearing, and after clarification by the tenant, the Tribunal particularised that the tenant was seeking $1,000.00 for disputed electricity bills to be refunded and compensation for loss of breach of quiet enjoyment due to alleged breaches of the landlords obligation to carry out repairs. The extension of time issue related to the claim for breach of quiet enjoyment due to alleged failure to effect repairs. Neither party made submissions in relation to extension of time relating to the $1,000.00 claim for electricity bills. In file notes made by the member presiding at the conciliation hearing it was indicated that at the final contested hearing the parties were to address the time issue. In relation to lodgement of evidence for the final hearing, the tenant was also directed to lodge and serve a copy of all evidence by 14 August 2023. Between the conciliation and final hearing, the landlords sought an amendment of the date to lodge their evidence claiming that the tenant had not provided them with evidence until 24 August 2023. That application was not allowed but the landlords were given a later date to comply with directions in relation to their evidence. 4. At the beginning of the part-heard hearing, the parties were advised that for the sake of utility in meeting its primary objective to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, the Tribunal would hear submissions on the time issue first and then the substantive claim in case time was extended. By the end of the half-day allocation that had been set for hearing, the extension of time issue had been fully heard. The tenant had only briefly commenced her case on her substantive claim. As the matter was adjourned part-heard, the parties were notified that a decision on the extension of time question would be made prior to any further hearing. Self-evidently, if time to bring the application Is not extended there would be no need for a further hearing.