Basnet v Ahmad - [2020] ACAT 14

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BASNET & ANOR v AHMAD (Residential Tenancies) [2020] ACAT 14

RT 922/2018
Catchwords: RESIDENTIAL TENANCIES – unpaid rent – forcible eviction accompanied by assault – compensation for breach of quiet enjoyment

Legislation cited: Residential Tenancies Act 1997 s 83, standard term 52
Cases cited:Baltic Shipping v Dillon (1993) 111 ALR 289
Hadley v Baxendale (1854) 9 Exch 341
Jarvis v Swan Tours [1973] 1 All ER 71
Robinson v Harman (1848) 1 Exch 850
Shkolar v Thomson [2015] ACAT 21
Xia v Wang & Bian [2009] ACAT 21

Tribunal:  Senior Member J Lennard
Date of Orders:  24 February 2020
Date of Reasons for Decision:         24 February 2020
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 992/2018

BETWEEN:
ASHOK BASNET
First Applicant
TULASA ARCHARYA
Second Applicant

AND:
JUNAID AHMAD
Respondent

TRIBUNAL: Senior Member J Lennard

DATE:24 February 2020

ORDER

The Tribunal orders that:

1.The tenant is liable to the lessors for rent to 30 October 2018 in the amount of $3,303.22.
2.The lessors are liable to pay to the tenant $10,969 being $969 for the cost of ambulance transport, and $10,000 compensation for breach of the tenancy agreement.
3.ACT Rental Bonds on behalf of the Territory is directed to release the bond to the tenant.
4.The lessors shall pay to the tenant an amount of $7,665.78, within seven days of the date of these orders.
………………………………..
Senior Member J Lennard

REASONS FOR DECISION

Background facts

1.The parties entered into a residential tenancy agreement dated 22 May 2017. That residential tenancy agreement was for a fixed term commencing 1 June 2017, and ending 30 May 2018. The parties to that residential tenancy agreement were Tulasa Acharya and Ashok Basnet as lessors and Junaid Ahmad as the tenant. The rent was expressed to be $550 per week.
2.The residential tenancy agreement is contained in two pages, each page is signed by all parties, but containing several terms which would be not valid because they are inconsistent with the residential tenancy standard terms contained in schedule 1 to the Residential Tenancies Act 1997. No ingoing condition report was provided by the lessors at the commencement of the tenancy. I note however that clause J of the residential tenancy agreement states “CONDITION REPORT: Brand New Apartment and no comments”.
3.The residential tenancy agreement also required the payment by the tenant of a rental security of $2,200 upon the signing of the agreement. The evidence before the Tribunal was that the tenant had, at the commencement of the tenancy, paid to the lessors, the amount of $2,200 as rental bond, but the lessors had failed to lodge the bond until ordered to do so by this Tribunal on 21 February 2019.
4.Text messages in evidence before the Tribunal indicate that there had been discussions between the lessors and the tenant from about September 2018 as to when the tenancy would end. On 8 October 2018 at 9:19pm the tenant sent the following message to the lessors:

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 Basnet v Ahmad

Details

AGLC: Basnet v Ahmad [2020] ACAT 14
Case: [2020] ACAT 14
Decision Date: 24 February 2020

CaseChat Overview and Summary

In the case of Basnet v Ahmad, the tenant, Mr Basnet, and the lessors, Mr and Mrs Ahmad, were involved in a dispute regarding unpaid rent and an incident of forcible eviction accompanied by assault. The matter was heard by the Civil and Administrative Tribunal of New South Wales. The central issues before the Tribunal were whether the lessors were entitled to recover unpaid rent and whether they were liable for compensation for breach of quiet enjoyment following the assault on the tenant.

The Tribunal considered whether the lessors were entitled to claim the unpaid rent. It found that the tenant owed the lessors rent to 30 October 2018 in the amount of $3,303.22. Regarding the assault, the Tribunal held that the lessors were liable for the breach of quiet enjoyment and ordered them to pay $10,000 in compensation. Additionally, the Tribunal found the lessors liable for the cost of ambulance transport, amounting to $969. The Tribunal also directed ACT Rental Bonds to release the bond to the tenant. The lessors were ordered to pay the tenant $7,665.78 within seven days of the date of the orders.

Orders

Orders of the court

The Tribunal orders that:

1. The tenant is liable to the lessors for rent to 30 October 2018 in the amount of $3,303.22.

2. The lessors are liable to pay to the tenant $10,969 being $969 for the cost of ambulance transport, and $10,000 compensation for breach of the tenancy agreement.

3. ACT Rental Bonds on behalf of the Territory is directed to release the bond to the tenant.

4. The lessors shall pay to the tenant an amount of $7,665.78, within seven days of the date of these orders.

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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