Salisbury v Sonter [2016] NSWCATAP 57

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Salisbury v Sonter [2016] NSWCATAP 57 Hearing dates: 2 December 2015 Date of orders: 08 March 2016 Decision date: 08 March 2016 Jurisdiction: Appeal Panel Before: D Patten, Principal Member R Titterton, Senior Member Decision: Leave to appeal granted Appeal dismissed. Catchwords: Leave to appeal – no question of principle. Operation of s 66 of the Residential Tenancies Act 2010 Legislation Cited: Residential Tenancies Act 2010 Cases Cited: Coulton v Holcombe [1986] HCA 33 Palm Homes Pty Ltd v Kav's Constructions Pty Ltd [2015] NSWCATAP 113 Category: Principal judgment Parties: John Salisbury and Joanne Salisbury (Appellants) Glen Sonter and Pamela Hibbert (Respondents) Representation: Mr Carpenter, Solicitor (Appellants) Ms Shirvington, Tenancy Advocate (Respondents) File Number(s): AP 15/50960 Decision under appeal Court or tribunal: Civil and Administrative Appeal Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 11 August 2015 Before: S Fenwick, General Member File Number(s): RT 15/12406

REASONS FOR DECISION 1. The appellants seek to appeal from a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) of 11 August 2015. 2. For the following reasons, we dismiss the appeal.

Background 1. In proceedings RT 15/12406 the landlords, the present appellants (to whom we will refer as the landlords), sought compensation for damage to their premises by their tenants, the present respondents. The landlords sought compensation for various items including, relevantly for this appeal, $7,150 for repainting the premises. 2. The Tribunal found that the tenants were not liable for the costs of repainting the premises, as the landlords had agreed to allow the tenants to paint the premises. The Tribunal's reasons for decision state (at [17]): There is no dispute that the tenant was given permission to repaint the premises, and the landlord was aware that the tenant would be doing this himself and that he was not a professional painter. There is a dispute as to whether the tenant had to get approval for the colour, or just paint it in a neutral colour. The [landlords have] provided no evidence of the conditions they attached to the tenant undertaking the painting, accepting that it was a verbal agreement. The property manager who is dealt with the tenant is no longer working for the landlord's agent and is unavailable to give evidence. While it is clear that the re-painting was not carried out to a professional standard, nothing was put in place by the [landlords] to ensure the painting was carried out to their satisfaction, approve the colour or ensure a reasonable standard. No evidence was provided of what would be required to make the paintwork more acceptable, short of completely repainting, eg cleaning paint from skirting boards or light switches. There is no evidence of loss provided by the [landlords], for example that they could not let the premises or put it on the market for sale until this work was done. Indeed the work was yet to be done at the date of the hearing. I find that the tenants had permission to paint, and while the work was not up to a professional standard, the landlords have not shown the loss that this has caused them. Consequently the tenants are not liable for the costs of repainting the premises.