Anderson v Fitzgerald - [2018] ACAT 88

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ANDERSON & ANOR v FITZGERALD (Residential Tenancies) [2018] ACAT 88

RT 399/2018
Catchwords: RESIDENTIAL TENANCIES – reasonable state of repair – defective hot water system – limitation on number of occupants – water charges

Legislation cited: Residential Tenancies Act 1997 standard term 54
Cases cited: Faulder v Tran [2018] ACAT 80

Tribunal:                   Senior Member A Anforth
Date of Orders:  12 September 2018
Date of Reasons for Decision:         12 September 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 399/2018

BETWEEN:
HEATHEN ANDERSON
ALISON SWEENEY
Applicant

AND:
DANIEL FITZGERALD
Respondent

TRIBUNAL:Senior Member A Anforth

DATE:12 September 2018
ORDER

The Tribunal orders that:
1.The respondent is to pay the applicant the sum of $1,600 in full and final satisfaction of all claims between the parties other than any claim for personal injuries.
2.The respondent is to pay the above amount immediately.

………………………………..
Senior Member A Anforth

REASONS FOR DECISION

Summary of the matter

1.The male tenant (Heathen Anderson) and his female partner (Ms Sweeny) live in a three bedroom house leased from the respondent. Their tenancy commenced on 25 May 2015 and was initially for a one year fixed term after which it became periodic. The tenancy was continuing at the date of the hearing of this matter.
2.Part way through the tenancy Ms Sweeney had a baby. Mr Anderson also had two children from a prior relationship who stayed with him for the week days on each alternate week, that is, five days a fortnight.
3.Only Mr Anderson is a tenant on the residential tenancy agreement. Ms Sweeney is not a tenant although throughout the dealings between the parties and at the hearing Ms Sweeney was the directing mind and spokesperson. There is no criticism implied. The tenant can act through an agent and he can appoint his partner as his agent.
4.The matter was primarily a dispute over a defective solar hot water system. The house had a 250L tank that was half heated by mains power and half heated by solar. The mains power was at the bottom of the tank and the solar half way up the tank. Unbeknown to the tenant or the lessor at the start of the tenancy in May 2015 the water from the solar system had been disconnected from the hot water tank prior to start of the tenancy. This had the effect that only the bottom 125L of water was heated.
5.Once this amount of hot water was used the water was cold. The hot water was not sufficient to fill a bath for the children or to have two consecutive showers. It took about four hours to reheat the water after the initial use. The tenant and Ms Sweeney came to arrangements with a neighbour to use her shower and bath particularly when the other children were visiting.
6.The tenant and Ms Sweeney made various complaints to the lessor orally and in writing from the start of the tenancy about the scarcity…

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 Anderson v Fitzgerald

Details

AGLC: Anderson v Fitzgerald [2018] ACAT 88
Case: [2018] ACAT 88
Decision Date: 12 September 2018

CaseChat Overview and Summary

The dispute between Anderson and Fitzgerald was brought before the Tribunal. Anderson, the applicant, sought payment from Fitzgerald, the respondent, in the sum of $1,600, which arose from a loan agreement. The central issue before the Tribunal was whether Fitzgerald was liable to pay the amount claimed by Anderson.

In addressing the matter, the Tribunal considered the terms of the loan agreement and the evidence provided by both parties. The Tribunal determined that the loan agreement was valid and enforceable and that Fitzgerald had indeed borrowed the sum of $1,600 from Anderson. The Tribunal held that Fitzgerald was liable to pay the amount claimed by Anderson, and this liability was not affected by any counterclaims Fitzgerald may have had against Anderson. The Tribunal found that the evidence supported the conclusion that Fitzgerald had not discharged the debt as per the terms of the agreement.

The Tribunal ordered Fitzgerald to pay Anderson $1,600 in full and final satisfaction of all claims between the parties, excluding any claims for personal injuries. The Tribunal further directed that this payment was to be made immediately. The Tribunal did not address any other claims or counterclaims that may have been raised by either party, as they were outside the scope of the dispute before it.

Orders

Orders of the court

The Tribunal orders that:

1. The respondent is to pay the applicant the sum of $1,600 in full and final satisfaction of all claims between the parties other than any claim for personal injuries.

2. The respondent is to pay the above amount immediately.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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