Hills v Djordjevic [2014] NSWCATAP 75

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hills v Djordjevic [2014] NSWCATAP 75 Hearing dates: On the papers Decision date: 31 October 2014 Jurisdiction: Appeal Panel Before: D Patten, Principal Member M Harrowell, Principal Member Decision: That the appeal against the order made on 20 February 2014 in matter RT 13/63639 be dismissed. That the appeal against the order made on 19 June 2014 in matter RT 14/19817 be dismissed. Catchwords: Claim for rent abatement- s45 Claim for return of bond Legislation Cited: Residential Tenancies Act, 2010 Cases Cited: None Texts Cited: None Category: Principal judgment Parties: Appellant: Nardine Jane Hills File Number(s): AP 14/46320 (AP 14/0043) and AP 14/46428 (AP 14/0250) Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-02-20 00:00:00 Before: M Eftimou, General Member B Howe, General Member File Number(s): RT 13/63639 Decision date 20/2/2014, RT 14/19817 Decision date 19/6/2014

reasons for decision 1There are two appeals before the Tribunal, AP 14/0043 and AP 14/0250. Both concern premises 30/500 President Avenue Sutherland which at relevant times were the subject of a residential tenancy agreement between the respondent as landlord and the appellant as tenant. 2The parties provided written submissions and the appellant was also given leave to make oral submissions which the appeal panel has also considered. An order was made for determination of the appeals on the papers. 3Appeal AP 14/0043 concerns orders made by this Tribunal in matters RT 13/63639 on 20 February 2014 and appeal AP 14/0250 is an appeal against an order made by the Tribunal on 19 June 2014 in proceedings RT 14/19817. 4On 20 February 2014 the Tribunal constituted by Ms M Eftimou dismissed the appellant's application for abatement of rent under s45 of the Residential Tenancies Act, 2010 (Act) and the application for reimbursement of the cost of a shower head. 5The appellant challenged the decision on the basis that the Member failed to have regard to evidence filed, in particular in relation to the photographs of mould found to be in the premises. The Tribunal made two findings: (1)That the Tribunal had, in previous proceedings concerning excessive rent, determined the rent payable, including having regard to the mould and had fixed the rent at $365 per week. Accordingly the dispute concerning the mould could not be raised again in application RT 13/63639 as it was the subject of an earlier decision; and (2)Even if it was open to the Tribunal to consider the issue again, having considered the photographs and other evidence, the Tribunal concluded that the mould was caused by a breach of the tenancy agreement by the appellant, rent did not abate because of section 43(2)(a) of the Act and therefore no order could be made under section 45 of the Act. 6The learned Member gave in our view more than concise and adequate reasons for her decision and the grounds of appeal have not been established. 7The Notice of Appeal in relation to the decision on 20 February 2014 does not as it seems to us identify a question of law and none seems to arise on the papers we have seen. However, we detect no flaws in the Tribunal's reasoning processes and see no reason why an appeal on the merits should be allowed. 8Appeal AP 14-0250 relates to a decision by Mr B Howe on 19 June 2014. 9The only issue for determination in the application before Member Howe was whether the appellant was entitled to return of the whole of the bond or whether the landlord was entitled to be paid part of the bond to reimburse the landlord for sheriff fees of $315.00 and locksmith fees of $220.00 incurred by the landlord obtaining possession and issuing a warrant for possession. 10The appellant said she should not have had the fees deducted from the bond and paid to the landlord. However she does not suggest that the landlord had not incurred the fees nor has the appellant provided any reason why the fees should not otherwise be paid. 11While the appellant says she had paid rent prior to 19 June 2014 the appellant has not sought to appeal the order for possession, the only issue before Member Howe being whether, on the application of the tenant, all the bond should be paid to the tenant or whether the landlord was entitled to be paid from the bond the sheriff fees and the locksmith fees totalling $535.00; 12The Member found, on the concession by the landlord, that the rent had been overpaid in the sum of $573.54. The Member accepted that the landlord agreed to separately repay the rent and the Member ordered return of the balance of the bond to the tenant after deduction of the fees. 13No suggestion was made by the appellant in this appeal that the overpaid rent has not in fact been refunded. 14Again in our opinion adequate findings and reasons were given and made by the Tribunal. 15The Notice of Appeal identified no question of law and we see no flaw in the reasons of the Tribunal which would justify a rehearing on the merits. 16Accordingly we order: (1)That the appeal against the order made on 20 February 2014 in matter RT 13/63639 be dismissed. (2)That the appeal against the order made on 19 June 2014 in matter RT 14/19817 be dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar