Bunbury v Fletcher [2015] NSWCATAP 194

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bunbury v Fletcher [2015] NSWCATAP 194 Hearing dates: 31 July 2015 Date of orders: 09 September 2015 Decision date: 09 September 2015 Jurisdiction: Appeal Panel Before: J Redfern, Principal Member K Rosser, Senior Member Decision: Leave to appeal refused, appeal dismissed Catchwords: APPEAL – residential tenancy agreement – no substantial miscarriage of justice – leave to appeal refused Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Tenancies Act 2010 (NSW) Residential Tenancies Regulation 2010 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: Luke Bunbury, the appellant Andrew Fletcher and Song Fletcher, the respondents Representation: Nil File Number(s): AP 15/31331 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: NA Date of Decision: 14 April 2015 Before: S. Corley, Member File Number(s): RT 14/60601

reasons for decision

Background 1. The appellant, Mr Luke Bunbury, is the owner of a three-bedroom house in Greenwich. The respondents, Mr Andrew Fletcher and Mrs Song Fletcher, entered into a residential tenancy agreement with Mr Bunbury to rent the premises for a two-year period, commencing on 23 March 2013. Mr and Mrs Fletcher commenced proceedings against Mr Bunbury on 24 November 2014 seeking rent abatement. They later commenced further proceedings against Mr Bunbury for compensation for alleged breach of the obligation to maintain the premises in a reasonable state of repair and return of the rental bond. Mr and Mrs Fletcher vacated the premises on 29 November 2014. 2. The proceedings were commenced under the Residential Tenancies Act 2010 (NSW) (the RTA). Under s 44 of the RTA, the Tribunal may order that rent payable under an existing or proposed residential tenancy agreement is excessive and may order, from a specified day, that the rent must not exceed a specified amount (rent abatement). The Tribunal also is also empowered to order compensation under s 187 of the RTA for, amongst other things, breach of a residential tenancy agreement. The monetary limit for compensation is $15,000 (s 187(4)(a) of the RTA and cl 23 of the Residential Tenancies Regulation 2010 (NSW)). Relevantly, s 63 of the RTA sets out a landlord's general obligations and provides that the landlord must maintain the premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. This obligation applies regardless of whether the tenant had notice of the state of disrepair before entering into occupation (s 63(2)). 3. The proceedings were heard on 12 March 2015. Mr and Mrs Fletcher represented themselves and Mr Bunbury was represented by his managing agent. The decision was reserved and on 14 April 2015 the Tribunal made an order for rent abatement for the period 11 April 2014 to 28 November 2014, ordered Mr Bunbury to pay Mr and Mrs Fletcher $15,000 in compensation on before 23 April 2015 and directed that the rental bond be released to Mr and Mrs Fletcher. 4. Mr Bunbury appealed this decision on 27 April 2015 and seek leave to appeal on the basis that the decision was not fair and equitable. We have refused leave and dismissed the appeal. Our reasons follow.