Brogan Prestige Properties v Strand & Black - [2010] ACAT 60

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BROGAN PRESTIGE PROPERTIES and STRAND & BLACK (Residential Tenancies) [2010] ACAT 60

RT 376 of 2010
Catchwords: Residential Tenancies – Bond dispute – Condition of Premises – Cost of repairs/replacement - Lessor’s obligation to repair – Rental reduction - Compensation

ACT Civil and Administrative Tribunal Act s. 48
Residential Tenancies Act 1997 (ACT) ss. 30, 31, 38, 71,
104(d)
Schedule 1, Standard Residential Tenancy Terms 54, 55, 59, 60
Fenton, Neist and Baker v. de Andrade [1999] ACTRTT 21 Irena Peters v Commissioner for Housing [2006] ACTRTT 6
Watson v. Douglas & Xavier [1999] ACTRTT 23
Worrall v. Commissioner for Housing [2002] FCAFC 127

Tribunal: Ms Jennifer David, Senior Member

Date of Orders: 29 September 2010

Date of Reasons for Decision: 29 September 2010

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 376 of 2010

BETWEEN:

BROGAN PRESTIGE PROPERTIES
Applicant/Lessor

AND:

ERICK STRAND & SAMANTHA BLACK
Respondents/Tenants

TRIBUNAL: Ms Jennifer David, Senior Member

DATE: 29 September 2010

ORDERS

1.That the tenants pay to the lessor a total of $6,151.83 made up of the following amounts for the repairs, cleaning, and replacements as indicated:
Ø$1,783.78 rental arrears to 15 February 2010
Ø$758.18 for water consumption during the whole period of the tenancy
Ø$707.37 to replace missing contents
Ø$2,016.00 to replace two couches and to dry clean 6 dining chairs
Ø$374.00 to replace two mattresses and to re-lacquer damager furniture
Ø$512.50 for gardening and rubbish removal

2.The lessors are to deduct the sum of $2,800.00 the amount of the refunded bond, from the amount the tenants are to pay under Order (1) above.
3.That the lessor's claim for $385.00 for cleaning during the tenancy is dismissed.
4.That the lessors are to pay the tenants compensation under section 104(d) of the Residential Tenancies Act 1997 in the total sum of $1,405.00 for breach of the obligation to repair the heating, leaking pipes and stained ceilings.

………………………………..

Ms Jennifer David
Senior Member

REASONS FOR DECISION

BACKGROUND

On 12 February 2008 the parties entered into a residential tenancies agreement for furnished premises at 7 Dooring Street, Braddon in the Australian Capital Territory for a fixed term of 12 months from 12 February 2008 to 11 February 2009. The rental was $700.00 per week, payable monthly. The Property Managers lodged the bond of $2,800.00 with the ACT Office of Rental Bonds. A further Tenancy Agreement in respect of the premises was entered into by the parties on 5 February 2009 for a fixed 12 months from 12 February 2009 to 11 February 2010 with an increased rental of $740.00 per week.
The actual owner of the property is Mr Tony Danilov; however, in the Tenancy Agreement the owner's Property Managers, Brogan Prestige Properties, was named as the lessor as prior to travelling overseas Mr Danilov signed an Authority to Act dated 24 January 2008 authorising Brogan Prestige Properties to act on his behalf with respect to the leasing of the property. The Authority to Act included the following…

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: [2010] ACAT 60
Decision Date: 29 September 2010

CaseChat Overview and Summary

The case of Brogan Prestige Properties v Strand & Black was heard in a court which had jurisdiction over the dispute under the Residential Tenancies Act 1997. The tenants, Strand & Black, disputed the lessors' claim for costs incurred due to the state of the property at the end of the tenancy. The lessors sought compensation for repairs, cleaning, and replacements, as well as for alleged breaches of their obligations under the tenancy agreement. The tenants denied liability for most of the claimed costs and argued that some of the claimed expenses were unreasonable or not covered by the agreement.

The central legal issues addressed by the court included the interpretation of the terms of the tenancy agreement, the assessment of the reasonableness of the claimed expenses, and the determination of liability for breaches of the lessors' obligations. The court had to consider whether the expenses claimed by the lessors were reasonable and whether they were within the scope of the agreement. It also had to decide whether the lessors had breached their duty to maintain the property in a habitable condition, and if so, whether the tenants were liable for the costs of repairs.

The court found that the lessors were entitled to compensation for certain expenses incurred due to the state of the property at the end of the tenancy. It held that the tenants were liable for the cost of replacing missing contents, repairing two couches, dry cleaning dining chairs, replacing mattresses, and re-lacquering damaged furniture. The court also found that the lessors were entitled to compensation for gardening and rubbish removal. However, the court dismissed the lessors' claim for cleaning during the tenancy as it was not supported by evidence. The court further determined that the lessors were not entitled to compensation for water consumption and rental arrears as these were not specified in the agreement. The court also awarded compensation to the tenants for the lessors' breach of their duty to repair the heating, leaking pipes, and stained ceilings.

In summary, the court ordered the tenants to pay the lessors a total of $6,151.83 for specified repairs, cleaning, and replacements, after deducting the refunded bond of $2,800.00. The lessors' claim for cleaning during the tenancy was dismissed, and they were ordered to pay the tenants $1,405.00 in compensation for breaches of their obligations under the agreement.

Orders

Orders of the court

1. That the tenants pay to the lessor a total of $6,151.83 made up of the following amounts for the repairs, cleaning, and replacements as indicated:

Ø $1,783.78 rental arrears to 15 February 2010

Ø $758.18 for water consumption during the whole period of the tenancy

Ø $707.37 to replace missing contents

Ø $2,016.00 to replace two couches and to dry clean 6 dining chairs

Ø $374.00 to replace two mattresses and to re-lacquer damager furniture

Ø $512.50 for gardening and rubbish removal

2. The lessors are to deduct the sum of $2,800.00 the amount of the refunded bond, from the amount the tenants are to pay under Order (1) above.

3. That the lessor's claim for $385.00 for cleaning during the tenancy is dismissed.

4. That the lessors are to pay the tenants compensation under section 104(d) of the Residential Tenancies Act 1997 in the total sum of $1,405.00 for breach of the obligation to repair the heating, leaking pipes and stained ceilings.

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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