CLARKE v SCOTT

[2012] SADC 90

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Appeal Under Residential Tenancies Act 1995)

CLARKE v SCOTT

[2012] SADC 90

Judgment of His Honour Judge Cuthbertson

29 June 2012

LANDLORD AND TENANT

RESIDENTIAL TENANCIES ACT - RECOVERY OF DAMAGES - APPEAL AGAINST ORDERS OF TRIBUNAL - WHETHER CERTAIN DAMAGE HAS BEEN CAUSED BY TENANTS

Appeal and cross appeal against findings and orders of the Residential Tenancies Tribunal - An issue was whether certain damage was proved to be the responsibility of the tenant.

Held: Findings of Tribunal affirmed.  Appeal and cross appeal dismissed.

Residential Tenancies Act 1995, referred to.
Timms v South Australian Housing Trust (2003) 226 LSJS 42, considered.

CLARKE v SCOTT
[2012] SADC 90

1. This is an appeal and cross appeal pursuant to s 41 of the Residential Tenancies Act 1995 in relation to a decision of the Residential Tenancies Tribunal made on 28 November 2011.

2. The appellant was tenant and the respondent landlord in relation to premises vacated by the tenant at 49 Worthington Street, Elizabeth Court.

3. There were four issues in dispute before the Tribunal.  The first was whether water accounts had been paid by the tenant as required under the Residential Tenancy Agreement.  In respect of that the Tribunal, having heard evidence, allowed the landlord’s claim for $110.65.

4. There was a further claim for driveway oil stains in respect of which the landlord’s claim was allowed in part for $65. 

5. There was a further claim for additional cleaning for the removal of the odour of dogs.  The claim of the landlord was allowed in part for $400.

6. A further claim was for repair and painting the back door frame and in respect of this the landlord’s claim was not allowed.

7. Finally there was a claim for rubbish removal for rubbish said to have been left by the tenant and this was allowed in part in the sum of $575.

8. The Full Court has held that, on appeals to the District Court from the Residential Tenancies Tribunal, pursuant to s 41 of the Residential Tenancies Act, the role of the Court is to determine whether or not some error by the Tribunal has been established as distinct from hearing the case afresh.  While there is provision in the Act which allows the rehearing of evidence there must be a particular reason for doing so and the mere fact that a party is not happy with the result at first instance is not an appropriate reason.

9. The ultimate issue is whether error has been demonstrated on the part of the Tribunal.    (See Timms v South Australian Housing Trust (2003) 226 LSJS 42)

10. I have heard argument from the appellant and am of the view that there is no reason to rehear the evidence.  I have read the transcript before the Tribunal and note that the issues were canvassed in detail. 

11. The appellant has failed to demonstrate any error on the part of the Tribunal and it is not for this Court, without cause, to simply rehear and make a decision afresh. 

12. The decisions that the Tribunal gave on the evidence made were reasonable and open on the evidence that was heard.  The findings of the Tribunal are affirmed.

13. For those reasons I would dismiss the appeal.

14. The respondent who has cross appealed faces similar problems.  Once again there is a failure to demonstrate any error on the part of the Tribunal; rather a general dissatisfaction is expressed in the result.

15. For that reason, the cross appeal must fail and I dismiss the cross appeal.

16. I make no order as to costs.