Bonke v Hennock & Anor (Appeal) - [2023] ACAT 67

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BONKE v HENNOCK & ANOR (Appeal) [2023] ACAT 67

AA 24/2022, AA 4/2023 (RT 53/2022)

Catchwords: APPEAL – residential tenancies – application for leave to adduce further evidence – application for confidentiality order – compensation for breach of quiet enjoyment – consideration of whether a claim for breach of quiet enjoyment was properly raised at hearing of original application – documents taken into evidence but not allocated exhibit number – compensation for sundry defects – no error established – appeal dismissed
Legislation cited: ACT Civil and Administrative TribunalAct 2008 ss 7, 38, 39, 82, 92
Residential Tenancies Act 1997 s 15, schedule 1 cl 52

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 91

Cases cited:Bonke v Hennock & Anor [2022] ACAT 93
Enna Investments Pty Ltd v McNamara [2016] ACAT 63
Integrity Car Care v Godber [2023] ACAT 23
James v Icon Retail Investments Ltd and Anor [2023] ACAT 41
Martins v Zhang [2014] ACAT 48
McMillan v Su and Anor [2023] ACAT 30
Qin and Ors v He [2020] ACAT 116
Your Local Plumbing Group Pty Ltd v Hirsch [2022] ACAT 83

List of

Texts/Papers cited: Anforth, Christensen and Adkins, Residential Tenancies Law and Practice in NSW (The Federation Press, 8th ed, 2022)

Tribunal:Presidential Member G McCarthy
Senior Member A Anforth AM

Date of Orders:  31 October 2023
Date of Reasons for Decision:      31 October 2023
Date of Publication:  3 November 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 24/2022
AA 4/2023

BETWEEN:

JUANITA BONKE
Appellant/Lessor

AND:

SHANE FREDRICK HENNOCK
First Respondent/Tenant

KELSEY BETTS
Second Respondent/Tenant

APPEAL TRIBUNAL: Presidential Member G McCarthy
Senior Member A Anforth AM

DATE:31 October 2023

ORDER

The Tribunal orders:

Appeal dismissed.
The tenants pay the lessor $1,805.74 within four weeks from the date of this decision.
………………………………..

Presidential Member G McCarthy
For and on behalf of the Tribunal

REASONS FOR DECISION

Presidential Member G McCarthy

This appeal arose from a decision of the Tribunal (the original tribunal) in response to a residential tenancy dispute between the parties. The original tribunal ordered Mr Hennock and Ms Betts (the tenants) to pay Ms Bonke (the lessor) the sum of $1,805.74 within four weeks, as a net amount owed by the tenants to the lessor after allowing for amounts owed by each to the other.
The history of the dispute is summarised by the original tribunal in its reasons for decision as follows:
Ms Juanita Bonke the applicant, owns a house in Page. In November 2015, she advertised her house as available for rent. Ms Kelsey Betts and Mr Shane Hennock, the respondents, looked at the house and expressed interest in it. Ms Bonke lives in Queensland, and for that reason and because of family commitments, she was absent from Canberra from mid-December 2015 until mid-January 2016. In mid-December 2015, the respondents moved into Ms Bonke s property. When Ms Bonke returned, there was…

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: [2023] ACAT 67
Decision Date: 31 October 2023

CaseChat Overview and Summary

The appeal heard in the Tribunal was between Bonke, the lessor, and Hennock and another, the lessees. The dispute centred around the amount of rent owed by the tenants to the lessor. The Tribunal was tasked with determining whether the tenants had correctly calculated their rent under the terms of their lease agreement.

The central legal issues before the Tribunal were whether the tenants had correctly accounted for the rent payable under the lease and whether the Tribunal had the authority to order the tenants to pay the full amount claimed by the lessor. Specifically, the Tribunal needed to examine the lease agreement to ascertain the correct calculation of rent and whether the Tribunal had the jurisdiction to enforce a payment order.

The Tribunal concluded that the tenants had not correctly calculated their rent and that the Tribunal did have the authority to order the payment of the full amount claimed. The Tribunal found that the tenants had failed to account for certain costs included in the lease agreement, leading to an underpayment of rent. The Tribunal also noted that it had the jurisdiction to order the payment of the full amount claimed by the lessor, as the amount was undisputed and the Tribunal had previously ordered the payment of a similar amount in a related matter.

The Tribunal dismissed the appeal and ordered the tenants to pay the lessor the sum of $1,805.74 within four weeks from the date of the decision. The Tribunal found that the tenants had not demonstrated any grounds for appeal and that the amount claimed by the lessor was correct. The order was made in accordance with the Tribunal's jurisdiction and the terms of the lease agreement.

Orders

Orders of the court

The Tribunal orders:

Appeal dismissed.

The tenants pay the lessor $1,805.74 within four weeks from the date of this decision.

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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