The Court dismissed the landlords' appeal from a Local Court judgment awarding $48,000 for breach of a residential tenancy agreement after electric blinds fell and injured a nanny. The Court held that the landlords' two new arguments on appeal — that Part 1A of the Civil Liability Act 2002 (NSW) applied to the tenant's contractual claim (recharacterising it as negligence), and that s 54 of that Act precluded damages due to the tenant's alleged failure to obtain workers compensation insurance — could not justly be raised for the first time on appeal, as both depended on factual findings not made below and evidence not led, and the workers compensation ground raised mixed questions of fact and law requiring leave under s 40 of the Local Court Act which was neither sought nor warranted. The Court confirmed that a straightforward breach of contract claim based on the landlord's obligation under cl 19.1 of the lease to ensure premises were fit for habitation did not, on the facts as pleaded and litigated, constitute a claim for harm resulting from negligence attracting Part 1A of the Civil Liability Act.
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