Segretti v Mens & Boys Fashions Pty Ltd. [2015] NSWCATCD 70

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Segretti v Mens & Boys Fashions Pty Ltd. [2015] NSWCATCD 70 Hearing dates: 4 June 2015 Decision date: 24 June 2015 Jurisdiction: Consumer and Commercial Division Before: L Williams, General Member Decision: The application is dismissed. Catchwords: Compensation, Breach of Quiet Enjoyment, Rent Reduction, Repairs Legislation Cited: Residential Tenancies Act 2010 Strata Schemes Management Act 1996 Cases Cited: Madigan v NSW Land & Housing (2014) NSWCATD 197 Sheath v Whitely (2014) NSWCATCD44 Category: Principal judgment Parties: Ella Segretti (applicant/tenant) Mens and Boys Fashions Pty Ltd (respondent/landlord) Representation: Applicant appeared in person Respondent was represented by its agent, Julia Fanos of First National Real Estate File Number(s): RT 15 /06736 Publication restriction: Unrestricted

reasons for decision 1. The tenant commenced proceedings on 9 February 2015 seeking numerous orders against the landlord. 2. When the matter came before the Tribunal for hearing on 4 June 2015, the Tribunal spent some time to ascertain exactly what orders the applicant was seeking, and distilled the claim down to four particular orders being sought against the landlord. The first order sought is compensation for breach of quiet enjoyment. The second order is for rent reduction for withdrawal of facilities. Thirdly, the tenant seeks orders that the landlord carry out repairs and finally, orders that the landlord stop smoke and other gases coming into the premises. 3. Both parties appeared at the hearing. The tenant filed lengthy submissions and gave evidence under affirmation. The landlord's agent appeared and gave evidence under oath. A director of the landlord also appeared but did not give evidence. 4. The landlord also filed evidence in support. The landlord's agent sought to have some material brought before the Tribunal on a "confidential" basis. That is, that the tenant would not be provided with a copy of such material or be allowed to see it. The Tribunal refused to allow this material into evidence, on the grounds that it would be a denial of natural justice to allow such material to be admitted into evidence without affording the tenant an opportunity to reply. Accordingly, the documents produced by the landlord claimed to be confidential do not form part of the consideration of this decision. The parties entered into a residential tenancy agreement ("RTA") on 28 November 2014 in respect of premises at Summer Hill. The term of the RTA is 6 months from 29 November 2014 until 28 May 2015. Rent is currently payable at the rate of $360.00 per week. 1. The premises which are the subject of this application are described as a large one bedroom flat on the top floor. The building is a two storey building divided into 4 one bedroom flats. The landlord is the owner of the entire building. 2. At the end of the hearing, the tenant sought to refer to various cases, and due to time constraints, was given leave to file and serve copies of these cases and submissions in regard to them, by 9 June 2015. The landlord was given the opportunity to reply by 16 June 2015.The tenant has filed additional documents with the Tribunal on 11 June 2015. 3. All documentary evidence has been considered in making this decision and providing these reasons. 4. In regard to all of the orders sought, the applicant has the onus of proving her case in order to succeed. The standard of proof required is the civil standard, being more likely than not to have occurred on the balance of probabilities. 5. Much of the evidence given by the tenant was not relevant to these proceedings. The Residential Tenancies Act 2010 sets out the orders that the Tribunal may make. Any other matters raised should be more properly brought in another forum, and this decision is restricted only to the orders that the Tribunal may make under the Act.