The recent case of Pursell v Eversham Close Pty Ltd [2020] considered whether the defendants failed to act reasonably to fix a damaged property. The Defendant was the owner of a property where the Plaintiffs resided from 2013-2016. The Plaintiffs claimed damages on the basis that their occupancy had been disturbed by water ingress.

The Plaintiff’s gave evidence that within a month into their lease, they noticed some water ingress that required a bucket to be placed under an air conditioner duct in the hallway, and to soak the carpet in some rooms. The Plaintiff said that he had notified the Agent of these problems immediately, and sent several emails to the Agents noting problems. These complaints were forwarded by the Agent to the Strata Professionals.

The water damage got progressively worse over the lease period, and in 2016 the plaintiff claimed $107, 000 worth of damages on the basis that for their lease of 207 weeks, 80% of use of the property had been lost due to the water damage. He maintained that he did not move because he expected that the landlord would rectify the problems, and did not want to move because of his disability.

The Defendant argued that many of the issues were unable to be fixed because they related to Strata, who was contacted by the Agent to fix the problems immediately. The Defendants said that they relied on the Agents to organize the repairs. Overall, the court held that there were significant period where the Agent’s records show an absence of complaints following repairs undertaken, and the Justice did not accept that the property was uninhabitable to the extend claimed by the Plaintiff. Compensatory damages were awarded for a period of 21 weeks based on a 40% loss of use, and totaled $11,900. A key determining factor in this case was that the Plaintiff’s had renewed the lease twice within the last 18 months of their residency.

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