Perkins v Barraket [2016] NSWCATCD 54

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Perkins v Barraket [2016] NSWCATCD 54 Hearing dates: 3 June 2016 Decision date: 23 June 2016 Jurisdiction: Consumer and Commercial Division Before: W Priestley, General Member Decision: 1. The respondent is to pay the applicants the amount of $3,766.37 immediately. Catchwords: Assessment of damages, mitigation, apprehended bias Legislation Cited: Residential Tenancies Act 2010 Civil and Administrative Tribunal Act 2013 Cases Cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 288 Bogoevski v Stricklands [2015] NSWCATAP R v Commonwealth Conciliation and Arbitration Commission and Ors; ex parte the Angliss Group (1966) 122 CLR 546 Hadley v Baxendale (1854) 156 ER 145 Karacominakis v Big Country Developments Pty Ltd [2000] NSW CCA 313 at paras 187-188 British Westinghouse Electric Co Ltd v Underground Railways Co Ltd [1912] AC 673 at 689 Texts Cited: Residential Tenancies – Law and Practice, New South Wales, sixth edition - Anforth, Christensen and Bentwood Category: Principal judgment Parties: Christian Perkins & Terrence Perkins (applicants) Elias Barraket (respondent) Representation: Applicants: C Perkins Respondent: C Butler File Number(s): RT 16/14346 Publication restriction: Unrestricted

reasons for decision

Background 1. The applicants and the respondent entered into a six month fixed term residential tenancy agreement on 31 March 2015 ("the agreement"), in relation to residential premises in Tweed Heads West, NSW ("the premises"). The applicants were the tenants and the respondent was the landlord. 2. Shortly after the commencement of the agreement, the applicants notified the landlord of concerns they had about the adequacy of the security locks on the premises, and asked for them to be improved. The landlord declined, and the applicants served a notice of termination on the landlord under section 98 of the Residential Tenancies Act ("the Act"). The landlord did not apply to the Tribunal under section 98(4) of the Act for the notice to be revoked. 3. The applicants handed back possession of the premises to the respondent on the termination date given in the notice. 4. On 8 May 2015, the landlord lodged application numbered RT 15/31899 seeking a six weeks lease break fee of $3,120, and release of the bond of $2,080 to him as part-payment of the compensation sought. 5. On 27 May 2015, the applicants lodged application RT 15/34873 seeking orders that the bond be released to them, and for payment of compensation in respect of the alleged breach of the respondent's obligation under the agreement and the Act, to provide locks or security devices to enable the premises to be reasonably secure. 6. The compensation sought by the applicants on their application is $11,741.88 for economic loss and $3,000 for non-economic loss. This was amended in a schedule of damages lodged by the applicants on 31 July 2015 to $14,201.23 for economic loss, and the claim for non-economic loss of $3,000 was maintained. The claim appears to relate solely to losses incurred by one of the applicants, Mr Christian Perkins, and not to any losses suffered by Mr Terence Perkins. I shall refer to Mr Christian Perkins as Mr Perkins in these reasons. Particulars of the losses claimed were lodged with the Tribunal on 30 July 2015 and are; * temporary accommodation from 4 April 2015 to 26 June 2015 while alternative permanent accommodation was found ($12,953.23), no claim is made in respect of accommodation costs for the nights of 17-19 April, 22 May, 30 May, 1 June, or 5 June; * storage in Nambucca Heads of goods that were not moved to the premises while alternative permanent accommodation was found ($300); * storage in the Gold Coast of goods removed from the premises while alternative permanent accommodation was found ($318); * costs for removal of goods from the premises to storage at the Gold Coast ($330); * removal costs of goods from storage to alternative permanent accommodation ($300). 1. The landlord's application, and the tenants' application, were heard together on 21 August 2015. The Tribunal found the landlord had breached the Act and the agreement, as the locks were not adequate to reasonably secure the premises, and that the tenants had validly terminated the agreement. The Tribunal dismissed the landlord's application for compensation, and ordered the bond to be returned to the tenants. 2. The Tribunal then dismissed the tenants' application for compensation, on the basis they had failed to mitigate their loss that flowed from the landlord's breach of the agreement. The tenants appealed that decision. 3. On 16 March 2016 the Appeal Panel upheld the appeal, insofar as the decision determined the tenants' entitlement to compensation, and the matter was remitted for a rehearing before the Tribunal as previously constituted, for the limited purpose of assessing that entitlement. The rehearing was subsequently listed for 3 June 2016 at Murwillumbah. 4. The applicants advised the Registry they did not wish the Tribunal, as previously constituted, to determine the rehearing, on the basis they believed there was a reasonable apprehension I might be biased. 5. On 24 May I made orders giving the parties leave to lodge and serve any further documents they wished to rely on, by 30 May 2016. No further documents were lodged by either party. 6. On 24 May the parties were also directed to make any application that I be disqualified from hearing the matter, in writing, by 30 May 2016. On 27 May 2016, the applicants lodged an application, supported by written submissions, that I disqualify myself on the grounds of apprehended bias.