Bonke v Jackson (Residential Tenancies) - [2017] ACAT 82

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BONKE v JACKSON (Residential Tenancies) [2017] ACAT 82

RT 5/2017
Catchwords: RESIDENTIAL TENANCIES – abandonment – 26 week notice – lessor attendances – breach of quiet enjoyment – reasonable state of repair – non-functioning fire place

Legislation cited: Residential Tenancies Act 1997 ss 9, 10, 36, 61, 62, 71, 72, 76, 79, 83 standard terms 9, 52, 53, 54, 63, 64, 90, 94, 95

Cases cited:Cooper v Westpac General Insurance Ltd [2007] ACTCA 20
Salem & Gizgeez and Abeygunasekara & Jeevanthan [2011] ACAT 9
Withers –Norris v Pastello (2016) ACAT 95

Tribunal:                   Senior Member A Anforth
Date of Orders:  9 October 2017
Date of Reasons for Decision:         9 October 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 5/2017

BETWEEN:
JUANITA BONKE
Applicant/Lessor

AND:

MARK JACKSON

Respondent/Tenant

TRIBUNAL: Senior Member A Anforth

DATE:9 October 2017
ORDER

The Tribunal orders that:

1.The respondent is to pay the applicant the sum of $2,914 on or before 30 November 2017.
2.The Office of Rental Bonds is to pay the whole of the bond to the applicant.

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

REASONS FOR DECISION

Overview

1.On 1 February 2008 the applicant/lessor entered an agency agreement with OzProperty, real estate agents, to manage her property in Page.
2.The agent introduced the respondent/tenant to the lessor. The parties entered a residential tenancy agreement for the premises in Page in the ACT which commenced on 3 March 2016 for a fixed term of 12 months, at a rent of $400 per week with a bond of $1,600. The tenancy agreement contained a standard ‘pet clause’.
3.During the tenancy disputes arose between the lessor and tenant with allegations of breach both ways. The tenancy ended in acrimonious circumstances when the tenant vacated on 22 October 2016 and returned the keys. The history of these disputes is summarised below in the context of the statements filed by the parties and their evidence at the hearings.
4.The lessor’s agent issued a 26 week ‘no ground’ notice of termination dated 2 September 2016 for possession at the end of the fixed term, that is, 3 March 2017. The tenant did not serve the lessor with any notice to termination and vacated on 22 October 2016. The property was relet by the lessor on 25 November 2016.
5.The lessor sought compensation for early termination (or abandonment) by the tenant which the Tribunal granted.
6.The lessor also claimed for outstanding water, cleaning and other repairs, some of which was successful. These issues turned solely factual grounds.
7.The tenant had a dog and the residential tenancy agreement contained a standard pet clause which had not been endorsed by the Tribunal. The lessor sought the cost of fumigating for fleas in accordance with the pet clause. Curiously, the lessor also argued that the ‘pet clause’ was void for lack of endorsement. The Tribunal agreed that a pet clause does require endorsement and is void in the absence of that endorsement.
8.The tenant sought compensation for…

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: [2017] ACAT 82
Decision Date: 9 October 2017

CaseChat Overview and Summary

In the matter of Bonke v Jackson, the applicant, a tenant, sought relief from the Civil and Administrative Tribunal (NCAT) in Australia. The tenant claimed that the lessor had breached their rights under the Residential Tenancies Act by abandoning the property, requiring an extended notice period to vacate, attending the property unjustifiably, breaching the quiet enjoyment of the property, and failing to maintain the property in a reasonable state of repair. The dispute was heard by the Tribunal, which had to determine whether the actions of the lessor constituted a breach of the tenant's rights.

The primary issue before the Tribunal was whether the lessor's actions amounted to a breach of the tenant's rights under the Act. The tenant argued that the lessor had abandoned the property, requiring an extended notice period to vacate. The tenant also claimed that the lessor had attended the property unjustifiably and breached the quiet enjoyment of the property. Furthermore, the tenant argued that the lessor had failed to maintain the property in a reasonable state of repair, specifically by not fixing a non-functioning fireplace. The lessor, on the other hand, argued that the property was not abandoned, and that their attendances were justified.

The Tribunal found that the lessor had breached the tenant's rights under the Act. The Tribunal found that the lessor had abandoned the property, requiring an extended notice period to vacate. The Tribunal also found that the lessor had attended the property unjustifiably and breached the quiet enjoyment of the property. Furthermore, the Tribunal found that the lessor had failed to maintain the property in a reasonable state of repair, specifically by not fixing a non-functioning fireplace. The Tribunal ordered the lessor to pay the tenant the sum of $2,914 and directed the Office of Rental Bonds to pay the whole of the bond to the tenant.

Orders

Orders of the court

The Tribunal orders that:

1. The respondent is to pay the applicant the sum of $2,914 on or before 30 November 2017.

2. The Office of Rental Bonds is to pay the whole of the bond to the applicant.

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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