Adelaide Relocation Services P/L v Dowd - [2005] SADC 147

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative Appeals Tribunal: Appeal Under Residential Tenancies Act 1995)
ADELAIDE RELOCATION SERVICES P/L v DOWD
Reasons for Decision of His Honour Judge Millsteed
25 October 2005
ADMINISTRATIVE LAW
Appeal pursuant to s41 of the Residential Tenancies Act (SA) against an order made by the Residential Tenancies Tribunal for payment by the landlord to the tenant for compensation for damage and inconvenience caused by failing to keep premises in a reasonable state of repair - landlord claiming that Tribunal was in breach of the rules of natural justice and procedural fairness by conducting hearing in the absence of the landlord - whether landlord given a reasonable opportunity to present its case - whether landlord liable for compensation - appeal dismissed.
Residential Tenancies Act 1995 s37 and s110(1)(c); Evidence Act 1929 s45A, referred to.
Kioa v West (1985) 159 CLR 550; Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 187 ALR 117; Sullivan v Department of Transport (1978) 20 ALR 323; Timms v South Australian Housing Trust [2003] SASC 60; Twist v Council of the Municipality of Randwick (1976) 51 ALJR 193; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; The King v War Pensions Entitlement Appeal Tribunal: ex parte Bott (1933) 50 CLR 228; R v Deputy Industrial Injuries Commissioner; ex parte Moore [1965] 1 QB 456; Pearce v Button (1986) 8 FCR 408; A and B v Director of Family Services (1996) 132 FLR 172, considered.

ADELAIDE RELOCATION SERVICES P/L v DOWD
[2005] SADC 147
Introduction

Adelaide Relocation Services Pty Ltd (the “appellant”) was a landlord under a residential tenancy agreement with a tenant Professor Peter Dowd (the “respondent”). The appellant has appealed against a decision of the Residential Tenancies Tribunal (the “Tribunal”) made on 8 April 2005 whereby the Tribunal refused to vary or set aside an order made by the Tribunal on 11 March 2005. The earlier order required the appellant to pay the respondent compensation of $760.00 pursuant to s110(1)(c) of the Residential Tenancies Act 1995 (the “Act”) for damage to a limited edition print and inconvenience caused by a leakage of water into a bedroom.
Factual background
The residential tenancy agreement related to premises at unit 3, 11‑18 Pennington Terrace, North Adelaide. The respondent and his wife, Ms Ingrid Gittings, arrived in Adelaide from England on 28 July 2004 and took possession of the unit. After occupying the unit for a period of about 2 weeks, the respondent agreed to rent the premises from the appellant until 1 November 2004. The tenancy agreement was then extended to 13 January 2005. The premises were leased by the appellant from Brock Harcourts and sublet to the respondent.
Hearing on 31 December 2004
On 29 December 2004 the respondent lodged an application with the Tribunal seeking urgent orders for the appellant to rectify the water leak and compensation for the appellant’s failure to maintain the rented premises in a reasonable…

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.

Continue reading Adelaide Relocation Services P/L v Dowd

Details

AGLC: Adelaide Relocation Services P/L v Dowd [2005] SADC 147
Case: [2005] SADC 147
Decision Date: 25 October 2005

CaseChat Overview and Summary

Adelaide Relocation Services Pty Ltd (the "appellant") was a landlord under a residential tenancy agreement with Professor Peter Dowd (the "respondent"). The appellant has appealed against a decision of the Residential Tenancies Tribunal (the "Tribunal") made on 8 April 2005 whereby the Tribunal refused to vary or set aside an order made by the Tribunal on 11 March 2005. The earlier order required the appellant to pay the respondent compensation of $760.00 pursuant to s110(1)(c) of the Residential Tenancies Act 1995 for damage to a limited edition print and inconvenience caused by a leakage of water into a bedroom. The appellant contended that the Tribunal breached the rules of natural justice and procedural fairness by conducting the hearing in the absence of the landlord and that the Tribunal was in error in finding that the respondent was entitled to compensation. The court was required to determine whether procedural fairness was denied to the landlord and whether the Tribunal was correct in granting the respondent compensation. The court found that the Tribunal was entitled to act on the note made by Ms Mardon without requiring sworn evidence from her. The weight to be attached to that note was a matter for the Tribunal. The notice served on the appellant made it clear that the respondent's adjourned application was to be heard on 10 January 2005. The Tribunal had never indicated to the parties that the merits of the respondent's application would not be heard on that day. The appellant was aware that the merits of the respondent's claim were to be dealt with on 10 January 2005, and it cannot be said that the appellant was denied a reasonable opportunity to present its case. The appeal is dismissed and the decision of the Tribunal confirmed.

Orders