Kimber v Gallop [2015] NSWCATAP 10

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kimber v Gallop [2015] NSWCATAP 10 Hearing dates: 16 January 2015 Decision date: 10 February 2015 Jurisdiction: Appeal Panel Before: M Chesterman, Principal Member R Titterton, Principal Member Decision: Time for filing the notice of appeal is extended to 4 September 2014. Appeal dismissed Catchwords: Appeal - Civil and Administrative Tribunal (NSW) Legislation Cited: Dundas-Taylor v Moon [2002] NSWCTTT 563 Kelson v Department of Housing [2002] NSWCTTT 715 Osman v Pyliotis [2004] NSWCTTT 214 Category: Principal judgment Parties: Lynda Kimber (Appellant) John Gallop and Robert Gallop (Respondent) Representation: Counsel:Not applicable Solicitors:Not applicable File Number(s): AP 14/46552 Decision under appeal Citation: 29 July 2014 Date of Decision: 29 July 2014 Before: A Anforth File Number(s): RT 13/56329

reasons for decision

Introduction 1. At the hearing of this matter Ms Maybin, South West Tenants Advice, appeared for the appellant/tenant and Ms Kerrie Hannah, agent, appeared for the respondent/landlord. The hearing was conducted by telephone. The appellant had sought to be included in the hearing, but each attempt made by the Appeal Panel to contact her at the time of the hearing was unsuccessful. As she was represented by Ms Maybin, and had filed various documents in support of the appeal, the hearing proceeded in the absence of the appellant. 2. The appellant seeks to appeal from a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) of 21 May 2014. 3. The appellant was the tenant of residential premises in Queanbeyan. We will refer to her as the tenant in these reasons. Her tenancy, in respect of unit 9, commenced on 27 July 2007 and terminated on 2 October 2013. The tenant had previously occupied unit 32 in the same complex from 15 March 2006, but had been forced to move from that unit to unit 9 due to damage from water entering the unit. 4. On 25 October 2013 the tenant commenced proceedings RT 13/56329 in the Tribunal. She sought compensation from the respondent (to whom we will refer as the landlord) for the disturbance to her quiet enjoyment of her strata unit for over 6 years arising from water damage, maintenance, and being locked out of the building by reason of failure of the landlord to provide security keys. By the time of the hearing the tenant claimed 10 separate items as warranting compensation. The Tribunal dismissed her claims for compensation in respect of (a) defective lifts in her buildings impeding her access to her unit and (b) water overflowing onto the balcony from the balcony immediately above. 5. However the appellant claims, correctly, that the Tribunal failed to consider her other eight claims. She claims that this was a denial of natural justice and constitutes an error of law. We agree. At the hearing the parties' representatives agreed that the appropriate course was for the Appeal Panel to determine the outstanding claims on the papers. 6. In the proceedings before the Tribunal the tenant had also sought the return of her bond. The bond had already been released to the landlord on application by him to the Rental Bond Board in satisfaction of a previous decision of the Tribunal of 2 October 2013. The Tribunal therefore decided that there was no bond left to be paid to the tenant, that the tenant's claim was without merit and that her application should be dismissed. While we note the tenant's concerns that she had not received notice of the landlord's claim to the Rental Bond Board, there is no reason to doubt the procedures undertaken by the Board and its decision to release the bond. In the circumstances we decline to make any order in respect of the bond.