Bills v Trustees for Paul Sevier Practice Super - [2016] ACAT 67

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BILLS v TRUSTEES FOR PAUL SEVIER PRACTICE SUPER [2016] ACAT 67

RT 260/2016
Catchwords: RESIDENTIAL TENANCIES – rent reduction – insufficient heating – excessive noise from retail premises below apartment
Legislation cited: Residential Tenancies Act 1997 ss 38, 46, 71, 83, standard term 52

Cases cited: Dangar & Anor v Mansour and Anor [2016] ACAT 61

Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185
Martins Camera Corner v Hotel Mayfair Ltd [1976] 2 NSWLR 15
Segretti v Mens and Boys Fashions Pty Ltd [2015] NSWCATCD 70
Watson v Gaudion [2009] ACAT 15

Texts/Papers
Cited:Anforth, Christensen and Taylor, Residential Tenancies Law and Practice NSW, 5^th ed

Tribunal: Senior Member H Robinson

Date of Orders:  28 June 2016
Date of Reasons for Decision:         28 June 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 260/2016

BETWEEN:
JASON BILLS
Applicant

AND:
TRUSTEES FOR PAUL SEVIER
PRACTICE SUPER
Respondent

TRIBUNAL: Senior Member H Robinson

DATE:28 June 2016
ORDER

The Tribunal orders that:
1.The application is dismissed.

………………………………..
Senior Member H Robinson

REASONS FOR DECISION

Background

On 4 July 2015 the applicant, Mr Jason Bills (Tenant), commenced a residential tenancy agreement (tenancy agreement) to rent a one bedroom, first floor apartment located in a development on Eastlake Parade in the Kingston Foreshore area (apartment).
The tenancy agreement was for a fixed term for the period of six months from 4 July 2015 to 4 January 2016. The rent was $495 a week, to be paid fortnightly in advance.
By way of an application filed 21 March 2016, the Tenant seeks compensation and damages arising from the tenancy as follows:
(a)A rent reduction for failure of heating within the apartment for the period July, August and September (12 weeks) of 65% of the total rent paid for that period, totalling $3,861.00.
(b)A rent reduction for breach of the Tenant’s quiet enjoyment of the property by reason of noise for the period 4 July 2015 to 4 January 2016 (26 weeks, 2 days) of 30% of the total rent paid during that period, totalling $3,903.00.
A third claim arising from the applicant’s inability to use the carpark was settled prior to hearing.

The hearing

The hearing took place on 31 May 2016. The applicant represented himself. The respondent (Lessor) was represented by Ms Ashleigh McGregor and Ms Natisha Denham from McGrath Estate Agents (Agent). Both parties relied on written submissions and documents. The Tenant gave oral evidence and was cross examined.

The first issue - alleged failure of the heating system

The Tenant claims that through the entirety of the tenancy, which included the winter months of June, July and August 2015, the apartment was without adequate heating. The Tenant’s evidence to the Tribunal was that, throughout this period, the apartment was so cold he had to, for example, watch television while huddled on the couch wearing woollens and wrapped in blankets.
The Tenant…

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.

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Details

Case: [2016] ACAT 67
Decision Date: 28 June 2016

CaseChat Overview and Summary

The case of Bills v Trustees for Paul Sevier Practice Super involves a residential tenant, Mr. Bills, who sought a reduction in his rent due to issues with heating and noise from a retail premises located below his apartment. The dispute was heard by the Residential Tenancies Tribunal of Queensland. Mr. Bills argued that the lack of adequate heating in his apartment, coupled with excessive noise from the retail premises, warranted a reduction in the rent he was required to pay to his landlord, the Trustees for Paul Sevier Practice Super.

The legal issues before the Tribunal centred on whether the conditions of the property, specifically the inadequate heating and the noise from the retail premises, constituted a significant reduction in the quality of the residential premises, thereby justifying a reduction in the rent. Additionally, the Tribunal had to consider the extent to which the landlord was responsible for the conditions affecting Mr. Bills' apartment.

The Tribunal found that while the heating issue was problematic, it did not amount to a significant reduction in the quality of the residential premises. The Tribunal noted that the landlord had taken steps to address the heating issue and that the problem was intermittent. Regarding the noise from the retail premises, the Tribunal determined that it was not excessive and did not significantly impact the residential use of the premises. The Tribunal concluded that the conditions did not warrant a reduction in rent, and thus dismissed Mr. Bills' application. The Tribunal further found that the landlord had fulfilled their obligations under the Residential Tenancies Act 2008 (Qld) to provide a habitable living space. The Tribunal's decision was based on the evidence presented and the applicable legal standards regarding residential tenancy conditions and rent adjustments.

Orders

Orders of the court

The Tribunal orders that:

1. The application is dismissed.

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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