Conteh v Fan

Case [2011] ACAT 45

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CONTEH & FAN (Residential Tenancies) [2011] ACAT 45

RT 821 OF 2010

Catchwords:             RESIDENTIAL TENANCIES – overcrowding premises with separate multiple tenants – tenancy or occupancy – lessor’s guarantee to provide lawful residence –tenant’s right to quiet enjoyment of premises – is compensation payable for distress and inconvenience in relation to breach of quiet enjoyment? – uninhability arising from the ratio of tenants to basic facilities – compensation payable to tenant – did the tenant’s duty to mitigate loss arise and if so when? – separate electricity metering requested for each tenancy before tenant can be required to pay electricity charges - mistaken payment of electricity charges to the lessor –can the lessor retain the mistaken payment from the tenant? – claim in restitution and claim in quantum meruit – when would the defence to a claim in restitution fail?

List of legislation:     Residential Tenancies Act 1997, ss. 8, 9, 10, 15, 18, 83 and 104, and Schedule 1 (clauses 42, 46, 48, 51- 54, and 86-87)

Residential Tenancies Act 2010, s. 47

List of cases:             Adair and Lauer v Timony (1999) NSWRT 4

Ahmadizadeh v Australian-German Welfare Society (Tenancy) [2006] NSWCTTT 542

Bremer v Jones Family Investment P/L (2002) NSWCTTT 195

Brodziak v Lowrey (1996) NSWRT 14

Bull v Shangri-La Caravan Park (1997) NSWRT 44

Coombe v E Cocco and Sons Investments P/L
(1997) NSWRT 147

Damatre v Donnelly (2005) NSWCTTT 490

David Securities P/L v Commonwealth Bank of Australia (1992) 175 CLR 353

Deleiven v Department of Housing (1999) NSWRT 21

Finn v Finato (2004) NSWCTTT 179

Hogg v George Briffa t/as Ballina Palms Village
(2001) NSWRT 21

Hopkinson v Conaught P/L (1997) NSWRT 142

Jeffrey v Fitzroy Collingwood Rental Housing Association Ltd [1999] VSC 335

Kerr v Czeizler (1998) NSWRT 185

La Rosa v Tulla (1998) NSWRT 163

Moore and White v Lesbian Space Inc (1997) NSWRT 154

O’Donnell v Leppington Pastoral Co P/L
(2001) NSWCTTT 371

Ovidio Carrideo Nominees P/L v The Dog Depot P/L
[2006] VSCA 6

Parisi v Kosac (1996) NSWRT 75

Pavey & Mathews P/L v Paul (1986) 162 CLR 221

Re: John Costello and Citra Constructions Ltd (1990) FCA 9

Rich and Ruthven v Chen (2010) NSWCTTT 25

Roxborough v Rothsman of Pall Mall Australia Ltd


(2001) 208 CLR 516

Schofield v Carroll (1997) NSWRT 138

Simonoski v The Trustees of the Society of St Vincent de Paul (NSW) (Tenancy) [2007] NSWCTTT 395

Van Haren v Cavangh (2000) NSWRT 49

List of texts:              Anforth and Christensen, Residential Tenancies Law and Practice in NSW, (4th ed., 2008), Federation Press.

Tribunal:                  Mr A. Anforth, Senior Member

Date of Orders:  28 June 2011
Date of Reasons for Decision:         28 June 2011

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 821 OF 2010

Yayah CONTEH
  Applicant/Tenant

AND
  Jason FAN
  Respondent/Lessor

TRIBUNAL:            Mr A. Anforth, Senior Member

DATE:  28 June 2011

CORRECTED ORDER

The lessor is to the pay the tenant the sum of $3,830 within…

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AGLC
Conteh v Fan [2011] ACAT 45
Case
[2011] ACAT 45
Decision Date

CaseChat Overview and Summary

The case of Conteh v Fan was heard by the ACT Civil and Administrative Tribunal. The dispute arose from a tenancy agreement between the plaintiff, Conteh, and the defendant, Fan. Conteh alleged that Fan, the lessor, had breached several obligations under the Residential Tenancies Act 1997, including providing an habitable living space and respecting the privacy of the tenant. The central issues before the tribunal were whether the breaches occurred and, if so, the appropriate remedy for the tenant.

The tribunal found that Fan had indeed breached the tenancy agreement by failing to provide an habitable living space and invading Conteh’s privacy. The tribunal reviewed the evidence provided by Conteh, including photographs and witness statements, and found them to be credible. The tribunal also considered the arguments presented by Fan, but found them to be insufficient to rebut the evidence presented by Conteh. As a result, the tribunal held that Fan was liable for the breaches and ordered him to pay Conteh compensation.

The tribunal calculated the compensation owed to Conteh based on the breaches found. For the economic loss arising from the breach of clause 51 of Schedule 1 of the Act, the tribunal awarded Conteh $600. For the non-economic loss for a breach of clauses 51 and 52 of Schedule 1 of the Act, the tribunal awarded Conteh $630. Finally, for the refund of the electricity charges paid by the tenant to the lessor, the tribunal awarded Conteh $2600. The tribunal also ordered Fan to pay Conteh the compensation within 28 days. The order is corrected under section 63 of the ACT Civil and Administrative Tribunal Act 2008.

Orders

Orders of the court

The lessor is to the pay the tenant the sum of $3,830 within 28 days calculated as follows:

(a) for economic loss arising from a breach of clause 51 of Schedule 1 of the Residential Tenancies Act 1997 (the Act) - $600; and,

(b) for non-economic loss for a breach of clauses 51 and 52 of Schedule 1 of the Act - $630; and,

(c) refund of the electricity charges paid by the tenant to the lessor- $2600.

This order is corrected under section 63 of the ACT Civil and Administrative Tribunal Act 2008.

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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