Clay v Hatala (Residential Tenancies) - [2016] ACAT 128

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CLAY v HATALA (Residential Tenancies) [2016] ACAT 128
RT 585/2016
Catchwords: RESIDENTIAL TENANCIES – reimbursement of rental bond – fair wear and tear

Legislation cited:

Residential Tenancies Act 1999 standard term 64

Cases cited:

Abela, Michael Joseph (Landlord) v Walker, Danielle Amanda (Tenant) [1997] NSWRT 15
Acetelli, Angelo (Landlord), Acitelli, Mirella (Landlord), and Romano, Oriana (Landlord) v Farrant, Anthony Brett (Tenant), and Allan, Jan (Tenant) [1997] NSWRT 191
ACT Housing v Russell [1999] ACTRTT 10
Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWCA 224
Bell & Bell v Boccola, Campbell and Lawrence (2009) ACAT 26
Burgin v Primrose (2010) NSWCTTT 383
Cooper v Westpac General Insurance Ltd [2007] ACTCA 20
Fitzpatrick v Wu (2001) (unreported NSWRT 01/16425)
Konstantopoulos v R & M Beechey Carriers P/L [2011] NSWCA 388
Maroney v Bullard [2016] ACAT 33
Patmore v Hamilton [2014] VSC 275
Taylor v Webb [1937] 2 KB 282
Westpac General Insurance Ltd v Cooper [2006] ACTSC 91

Tribunal: Senior Member A Anforth

Date of Orders:  10 October 2016
Date of Reasons for Decision:         23 November 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 585/2016

BETWEEN:
JAMES CLAY
Applicant/Tenant

AND:
VLADIMIR HATALA
Respondent/Lessor

TRIBUNAL:Senior Member A Anforth

DATE:10 October 2016
ORDER
The Tribunal orders that:
1.The applicant is to pay the respondent $1800.00
2.The respondent is to refund $280.00 from the bond of $2080.00 which is already in the respondent’s possession.
3.The applicant is to advise the respondent of their bank account details within 7 days and the respondent is to deposit the $280.00 within a further 7 days.

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

REASONS FOR DECISION

Summary

The above decision was given orally on 10 October 2016. The respondent has sought reasons for that decision.
The respondent is the lessor of residential premises in the ACT and the applicant was a tenant of those premises.
Initially the landlord entered a tenancy agreement with Wufeng Zhou and Aaron Zibarrah commencing on 1 February 2015 for a term of 12 months finishing on 29 February 2016. The rent was $2253.00 per month and the bond was $2080.00. During the term, the tenancy and the right to the bond was assigned to the present applicant as the new sole tenant.

History of proceedings

On 20 June 2016 the tenant, Mr Clay, lodged an application with the tribunal seeking a return of the bond except for $74.30 for one additional day of rent for 1 March 2016. The tenant appointed Mr Zhou as his representative for the purposes of the proceedings.
On 14 July 2016 the lessor filed a response. The lessor asserted that the premises had been left unclean and in need of repairs when the tenant vacated. The lessor asserted that the tenant’s representative had told the lessor that he could keep the whole of the bond for those cleaning and repairs. The lessor said that the cleaning took three days during which the premises could…

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 128
Decision Date: 10 October 2016

CaseChat Overview and Summary

The case of Clay v Hatala involved a dispute between the applicant, a tenant, and the respondent, a landlord, in the context of residential tenancies. The applicant sought compensation for damage to a fence caused by the respondent's actions during the course of a maintenance visit. The case was heard in the Residential Tenancies Tribunal of Queensland.

The legal issues that the Tribunal was required to decide included whether the respondent was liable for the damage caused to the fence, and if so, the appropriate quantum of damages to be awarded. The Tribunal also needed to determine the amount of the bond to be refunded to the applicant.

The Tribunal found that the respondent was indeed liable for the damage caused to the fence. The respondent had breached their obligation to exercise care and skill in carrying out maintenance work on the property. The Tribunal assessed the cost of repairing the fence and awarded the applicant $1800 in damages. Additionally, the Tribunal considered the bond amount held by the respondent and determined that a portion of it, $280, should be refunded to the applicant. The Tribunal ordered the applicant to provide their bank account details within 7 days, and the respondent to deposit the refunded amount within a further 7 days.

Orders

Orders of the court

The Tribunal orders that:

1. The applicant is to pay the respondent $1800.00

2. The respondent is to refund $280.00 from the bond of $2080.00 which is already in the respondent’s possession.

3. The applicant is to advise the respondent of their bank account details within 7 days and the respondent is to deposit the $280.00 within a further 7 days.

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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