Hull v Gibbs [2017] NSWCATAP 32

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hull v Gibbs [2017] NSWCATAP 32 Hearing dates: 12 September 2016 Date of orders: 16 February 2017 Decision date: 16 February 2017 Jurisdiction: Appeal Panel Before: J Harris SC, Senior Member S Thode, Senior Member Decision: (1) Time for filing the appeal is extended to 7 June 2016. (2) Appeal allowed. (3) Application RT 16/12494 is remitted to the Consumer and Commercial Division, differently constituted, for re-determination on the evidence as filed. Catchwords: Breach of Residential Tenancy Agreement. Legislation Cited: Residential Tenancies Act 2010 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22; Pettitt v Dunkley [1971] 1 NSWLR 376, John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. Category: Principal judgment Parties: Guy Hull and Julie Hull (Appellants) Leah Gibbs (Respondent) Representation: Mr Glenn Brunette (Appellants) Ms Leah Gibbs, in person (Respondent) File Number(s): AP 16/27718 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 02 May 2016 Before: A Morris, General Member File Number(s): RT 16/11683; RT 16/12494

REASONS FOR DECISION

Introduction 1. Guy and Julie Hall (the appellants) are the landlords of premises at xx Street, Eden, NSW. On 14 May 2012 the appellants entered into a residential tenancy agreement with Ms Leah Gibbs (the respondent) for a fixed term of 12 months. After the expiration of the fixed term the agreement continued on a periodic basis. The tenancy was terminated by order of the Tribunal and the tenant vacated the premises on 6 June 2016. 2. On 10 March 2016 the respondent lodged an application RT 16/12494 with the Tribunal in the Consumer and Commercial Division (the Tribunal or Tribunal below) seeking damages under sections 44(1)(b), 65(1)(a) 187(1)(d) of the Residential Tenancies Act 2010 (the RT Act). The respondent sought orders that the appellants carry out plumbing repairs in "accordance with regulations in a safe and healthy manner". The tenant also sought orders for a rent reduction or compensation "for duration of bathroom rebuild (sic) after floor partially collapsed under my weight". 3. On 8 March 2016 the appellants lodged an application RT 16/11683 with the Tribunal seeking orders for termination of the tenancy under section 87, as well as orders under s 90 "a termination order where the tenant is causing serious damage or injury". It was alleged that the "non maintenance of the lawns is contributing to the constant plumbing problem with the septic tank." 4. Both applications were heard and reasons were published on 2 May 2016. The Tribunal terminated the tenancy pursuant to s 87 for non-payment of rent, and ordered the appellants to pay $4800 to the respondent for compensation "for failure to repair essential services in a timely manner". 5. On 7 June 2016 the appellants lodged a Notice of Appeal. The appellants are appealing against the money order made in application RT 16/11683, namely that the appellants pay $4800 to the respondent. The parties did not appeal against orders terminating the tenancy, or ancillary orders concerning suspension of possession or the payment of an occupation fee. These matters were finalised in related proceedings RT16/39480. 6. The appeal was heard on 12 September 2016 with the appellants being represented by Mr Brunette appearing as agent. The respondent represented herself. At the conclusion of the hearing, the Appeal Panel reserved its decision. 7. For the reasons set out below the Appeal Panel has allowed the appeal and made orders under sub-sections 81(1)(e) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) setting aside the decision of the Tribunal and remitting the matter for hearing on the question of damages only without further evidence.