Mulcair v Callum [2024] NSWCATAP 30

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mulcair v Callum [2024] NSWCATAP 30 Hearing dates: 15 November 2023 Date of orders: 26 February 2024 Decision date: 26 February 2024 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President C Mulvey, Senior Member Decision: 1. To the extent necessary, leave to appeal is granted and the appeal is allowed. 2. The orders made 1 September 2023 are set aside. 3. The proceedings are remitted to the Consumer and Commercial Division for rehearing by a differently constituted Tribunal, the parties being permitted to adduce further evidence and/or the respondents (tenants) being permitted to apply to the Tribunal to amend the claim if thought appropriate. 4. The issue or whether any amendment to the application should be permitted is a matter to be determined by the Tribunal on remittal. Catchwords: LANDLORD AND TENANT – Residential Tenancies Act 2010 (NSW) – reduction or withdrawal of goods, services or facilities – whether failure to repair defects existing at commencement of premises can constitute a relevant withdrawal or reduction – requirements against which reduction or withdrawal are to be judged Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Al Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Becker v Priestley [2022] NSWCACD 167 Collector of Customs v Agfa-Gavaert Ltd [1996] HCA 36; (1996) 186 CLR 389; (1996) 141 ALR 59; (1996) 71 ALJR 123 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Collins v Urban [2014] NSWCATAP 17 Eliezer v Residential Tribunal and Ors [2001] NSWSC 1092 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Makowska v St George Community Housing Ltd [2021] NSWSC 287 Pan v Malveholm [2021] NSWCATAP 101 Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 Texts Cited: Nil Category: Principal judgment Parties: Olga Mulcair (First Appellant) David Mulcair (Second Appellant) Gregory Callum (First Respondent) Natasha Benten (Second Respondent) Representation: Appellants: Self-represented Respondents: Self-represented File Number(s): 2023/00297828 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 1 September 2023 Before: S De Jersey, General Member File Number(s): RT 23/26598