Hernady v Raccani [2016] NSWCATAP 67

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hernady v Raccani [2016] NSWCATAP 67 Hearing dates: 22 February 2016 Date of orders: 17 March 2016 Decision date: 17 March 2016 Jurisdiction: Appeal Panel Before: Wright J, President S Thode, Senior Member Decision: (1) The appeal: (a) so far as it related to the period during which the rent should be reduced is upheld; (b) so far as it related to the amount of the rent reduction, being $50 per week, is dismissed; (c) so far as it related to the claims the subject of pars 6, 8, 10, 11, 12, 15, 16, 17 and 18 in the document headed "Amended NCAT Orders — File No: RT15/47006" filed in proceedings RT15/47006, is upheld. (2) The orders made on 12 October 2015 in proceedings RT15/47006 are set aside. (3) In place of the orders referred to in the preceding order 2, orders that: (a) having regard to the reduction or withdrawal of facilities provided with the residential premises the subject of proceedings RT15/47006 on account of dampness and mould, the rent payable under the residential tenancy agreement in respect of those premises was excessive and, from the date and for the period determined by the Consumer and Commercial Division on remittal of these proceedings, the rent for the premises must not exceed $380; (b) the amount (less $300) of any overpayment of rent paid by the appellants to the respondent because of the operation of preceding order 3(a) is to be paid by the respondent to the appellants within such time as the Tribunal hearing these proceedings on remitter determines; (c) the respondent is to pay to the appellants $186 in respect of servicing of the air conditioner. (4) Proceedings RT15/47006 are remitted in part to the Consumer and Commercial Division for the redetermination of: (a) the claim the subject of par 9 in the document headed "Amended NCAT Orders — File No: RT15/47006" filed in proceedings RT15/47006 for reduction of rent, but limited to the questions of the date from which and the period during which the rent should be reduced to $380 per week; (b) the claims the subject of pars 8, 12, 15, 16 and 18 in the document headed "Amended NCAT Orders — File No: RT15/47006"; (c) the claim for increased heating costs because the air conditioning could not be used for heating because of mould in the sum of $358.02 for the May quarter of 2015 and $332.05 for the August quarter of 2015, if the claim is found by the Consumer and Commercial Division to have been properly before the Tribunal at the hearing on 12 October 2015. (5) The appellants have leave, if they contend that the claims the subject of pars 3, 6, 10, 11 and 17 in the document headed "Amended NCAT Orders — File No: RT15/47006" are still relevant, to apply in the Consumer and Commercial Division for permission to pursue those claims in the remitted proceedings. (6) The claims remitted by these orders to the Consumer and Commercial Division are to be redetermined without further evidence, unless the Tribunal otherwise orders. Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – Consumer and Commercial Division – internal appeal – question of law – whether Tribunal gave adequate reasons for its decision – appeal upheld (in part) – issues remitted for redetermination.