ABRAHAMS v MILLAR (Residential Tenancies) - [2019] ACAT 31

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ABRAHAMS v MILLAR (Residential Tenancies) [2019] ACAT 31

RT 802/2018
Catchwords: RESIDENTIAL TENANCIES – no ingoing report – no final inspection report – fair wear and tear – opportunity to remedy – actual loss

Legislation cited: Residential Tenancies Act 1997 ss 29, 30, 30A; standard term 64

Cases cited:Bell & Bell v Boccola, Campbell & Lawrence [2009] ACAT 26
Selleck v Cassin & Anor [2017] ACAT 7
Tankard & Anor v Ogbonna & Anor [2017] ACAT 72

Tribunal:Senior Member J Lennard
Date of Orders:  8 March 2019
Date of Reasons for Decision:     8 March 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 802/2018

BETWEEN:
ANNE CATHERINE ABRAHAMS
Applicant

AND:
FLEUR MILLAR
Respondent

TRIBUNAL:Senior Member J Lennard

DATE:8 March 2019
ORDER

The Tribunal orders that:
1.The tenant is liable to pay to the lessor part of the cost of replacing the carpets and, the amount of $2,100 (being the amount of the rental bond) having been released to the lessor, no further order is made.
2.The application is otherwise dismissed.

………………………………..
Senior Member J Lennard

REASONS FOR DECISION

Facts

1.The parties entered into a residential tenancy agreement in relation to a premises in Narrabundah, Australian Capital Territory. The residential tenancy agreement commenced 12 September 2015, and terminated on 31 July 2017. In March 2018 the applicant (lessor) sold the property.
2.At the commencement of the tenancy the respondent (tenant) paid to the lessor a bond of four weeks rent, plus an extra two weeks rent in advance. The bond was duly lodged with the then Office of Rental Bonds, the two weeks rent in advance was mingled with the lessor’s personal funds and no ingoing condition report was ever supplied or completed by the lessor.
3.The tenant vacated the premises on or about 31 July 2017, pursuant to a notice to terminate based upon the lessor’s intention to sell the premises.
4.On 29 June 2017 the lessor conducted what she described as the ‘final inspection’. It is noted that the tenant had not vacated the premises at that stage, and that the lessor did not provide any formal report of that inspection to the tenant. By agreement between the parties, the whole of the rental bond was released to the lessor.
5.On 16 October 2018 the lessor filed an application seeking $13,485 compensation from the tenant. The claim was for $15,585, minus the bond money of $2,100. The items claimed are listed below:
(a)     carpet and linoleum — $5,000;
(b)     painting — $4,820;
(c)     curtains — $5,215; and
(d)     professional cleaning — $550.

6.The lessor first made a demand for payment of compensation upon the tenant in a letter dated 12 February 2018. The lessor provided the following documents in support of her claim:
(a) various invoices and bank transfers in relation to internal painting of the premises for work undertaken in August and September 2017;
(b) a tax invoice for removal and supply of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read ABRAHAMS v MILLAR (Residential Tenancies) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] ACAT 31
Decision Date: 8 March 2019

CaseChat Overview and Summary

The case of Abrahams v Millar involved a dispute between a tenant and a lessor concerning a claim for damages following the termination of a residential tenancy. The matter was heard and determined by the Residential Tenancies Tribunal of Victoria. The tenant, Abrahams, had occupied a property under a lease agreement with Millar, the lessor. Upon termination of the lease, Millar sought to recover costs for replacing the carpets from the rental bond held by the Tribunal. Abrahams argued that the carpets were worn due to fair wear and tear, and that there was no opportunity to remedy any damage before the lease ended.

The primary legal issue before the Tribunal was whether Millar was entitled to recover the cost of replacing the carpets from Abrahams' rental bond. This hinged on whether the carpets had deteriorated due to fair wear and tear, or if they had been damaged beyond normal wear and tear. The Tribunal had to determine if there was an opportunity for Abrahams to remedy any damage to the carpets before vacating the property, and if the damage was indeed due to fair wear and tear. Additionally, the Tribunal had to assess whether the Tribunal had the authority to order a specific performance, such as requiring the tenant to remedy the damage, or if the only recourse was to order compensation from the bond.

In its decision, the Tribunal found that the carpets had deteriorated due to fair wear and tear. The Tribunal noted that there was no ingoing or final inspection report, which would have provided a baseline for assessing the condition of the carpets at the beginning and end of the tenancy. The Tribunal held that Abrahams had not been given an opportunity to remedy any damage to the carpets before the lease ended, and that the deterioration was a result of normal use and not due to any neglect or misuse by Abrahams. The Tribunal concluded that the cost of replacing the carpets could not be recovered from the bond since it was due to fair wear and tear. However, the Tribunal ordered that Abrahams was liable to pay a portion of the cost of replacing the carpets, given that the total amount of the bond had already been released to Millar.

The Tribunal dismissed the application for any further recovery beyond what had already been released from the bond. It was determined that no further order was necessary as the total bond amount had been returned to Millar, and any additional claim for damages would need to be pursued through the civil courts. The Tribunal's decision was based on the principle that fair wear and tear is expected in residential tenancies and is not compensable from the bond.

Orders

Orders of the court

The Tribunal orders that:

1. The tenant is liable to pay to the lessor part of the cost of replacing the carpets and, the amount of $2,100 (being the amount of the rental bond) having been released to the lessor, no further order is made.

2. The application is otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.