Paul Tony DeBono and Lisa Marie Reviglio v Rebecca Ferguson [2014] NSWCATCD 117

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Paul Tony DeBono and Lisa Marie Reviglio v Rebecca Ferguson [2014] NSWCATCD 117 Hearing dates: 2 June 2014 Decision date: 09 July 2014 Before: G J Sarginson, General Member Decision: 1. The landlord, Rebecca Ferguson, is to pay the tenants, Paul Tony DeBono and Lisa Marie Reviglio the sum of $2,500.00 on or before 30 July 2014. Catchwords: Failure to repair residential premises by landlord Compensation to tenant Legislation Cited: Residential Tenancies Act 2010 Civil and Administrative Tribunal Act 2013 Residential Tenancies Regulation 2010 Cases Cited: Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313 Jones v Bartlett (2000) 205 CLR 166 Sakaua v Williams [2005] NSWCA 405 Texts Cited: Residential Tenancies Law and Practice NSW 5th edition Category: Principal judgment Parties: Paul Tony DeBono and Lisa Marie Reviglio (applicants) Rebecca Ferguson (respondent) File Number(s): RT 14/09533

reasons for decision

BACKGROUND 1The dispute involves the applicants (the tenants') claim for compensation under Section 187 of the Residential Tenancies Act 2010 ('the Act') due to the respondent ('the landlord') allegedly failing to conduct repairs of the property within a reasonable period of time, in breach of Section 63 of the Act. Although it is not clearly set out in the application filed with the Tribunal, a claim was also brought for compensation due to loss of quiet enjoyment under Section 50 of the Act, by reason of the alleged actions of the licensee of the agency, Mr Creighton; and the tenants not being given notice of tradespersons engaged by the landlord attending the property. The tenants also claim loss of quiet enjoyment due to prospective purchasers viewing the property without reasonable notice. 2The parties entered into a written standard form residential tenancy agreement on 4 October 2013 in respect of a house, garage and shed at Tahmoor. The rent was $500.00 per week; the house was 5 bedrooms; and the lease of 6 months duration. Proceedings were filed with the Tribunal on 17 February 2014. The proceedings filed with the Tribunal contained, in addition to the claim for compensation under Section 187 of the Act, claims for a rent reduction under Section 44 of the Act and a claim that the rent for the property be paid to the Tribunal until repairs were conducted. However, the claims under Section 44 of the Act and that rent be paid to the Tribunal became irrelevant, as the tenants gave vacant possession of the property on 5 April 2014, after an end of fixed term notice was served by the landlord. 3The matter was listed before the Tribunal on 10 March 2014 when it was listed for hearing and directions made in respect of the parties filing and serving evidence. Prior to the matter being listed for hearing, the timetable for the filing and serving of evidence by the parties was extended. 4Prior to the matter proceeding to hearing on 2 June 2014, the Tribunal encouraged the parties to resolve the matter, in accordance with its statutory obligations under Section 37 of the Civil and Administrative Tribunal Act 2013. However, it was apparent that there was a significant degree of animosity between the parties, which affected the ability of the parties to think rationally about the issues in dispute. 5The issues in dispute were further clouded by the fact that Mr DeBono and Mr Creighton had been friends when the tenants entered the lease, and the friendship had been fractured in about January 2014 over a dispute involving work Mr DeBono had performed as a tradesman. This dispute had nothing to do with the condition of the residential premises. Prior to this falling out, Mr DeBono stated that he had spoken orally to Mr Creighton about the issue of repairs to the property, rather than contacting the property manager Ms Richards. Further, the landlord's husband, Neil Ferguson, apparently performed handyman activities/repairs to the property, and Mr DeBono stated he contacted the landlord's husband, in respect of issues requiring repairs. No statement or oral evidence to the Tribunal was provided by Mr Ferguson. 6As well, according to Mr DeBono, one of his mobile telephones had been lost, which he claimed contained a number of text messages evidencing complaints about the condition of the property to the landlord. However, Mr DeBono's other telephone, which contained text message exchanges between himself and Mr Creighton, clearly remained in his possession as the Tribunal was provided with copies of such exchanges.