Lazarevska v Ozturk [2017] NSWCATCD 21

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lazarevska v Ozturk [2017] NSWCATCD 21 Hearing dates: 30 January 2017 and 9 March 2017 Decision date: 31 March 2017 Jurisdiction: Consumer and Commercial Division Before: P French, General Member Decision: 1. Cetin Ozturk, is to pay Kymberly Lazarevska, the sum of $1,280.00 by 14 April 2016.

2. The Application is otherwise dismissed Catchwords: RESIDENTIAL TENANCIES – section 49 of the Residential Tenancies Act 2010 – where there is a legal impediment to the occupation of residential premises as a residence – secondary dwelling constructed without construction certificate or development consent – whether breach of section 49 is a "fundamental breach" that results in a total failure of consideration entitling the tenant to recover all rent paid – not established as a matter of law – where there was not in a practice or concrete sense a total failure of consideration – where the tenant had the value and tangible benefit of occupation – where the tenant is not entitled to unjust enrichment – where the landlord entitled to fair value of consideration provided in the form of rent - where damages for breach are to be assessed on the ordinary basis – where no loss or damage has been particularised or proved

- section 50 of the Residential Tenancies Act 2010 – where there is breach of the tenant's right to quiet enjoyment – where there is an odour emanating from the drains of the residential premises - where there are other sewerage and drainage problems at the residential premises – where there are multiple and recurring water leaks – where there is a serious mould infestation at the residential premises – tenant entitled to compensation for loss of enjoyment, comfort, amenity, inconvenience and distress