Cope & McEachern v Walker & Walker

[2018] ACAT 65

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COPE & MCEACHERN v WALKER & WALKER (Residential Tenancies) [2018] ACAT 65

RT 1067/2017 and RT 335/2018

Catchwords:             RESIDENTIAL TENANCIES – whether rental premises are ‘not fit for habitation’ – need for tenant notification to engage a lessor’s obligation to repair – compensation to tenant for unusable main bathroom because of mould – onus of proof in making claims for compensation

Legislation cited:      Residential Tenancies Act 1997 s 83; standard terms 55, 56, 57, 60, 63, 82, 86, 87

Cases cited:Bannister v Cheung [2014] NSWCATCD 105

Brogan Prestige Properties v Strand & Black [2010] ACAT 60
Finn v Finato [2004] NSWCTTT 179
Halcombe v Hitchman [2018] ACAT 5
Koesmarno v Mutis [2015] ACAT 89
Mathew & Anor v Barranco [2016] ACAT 102
Tankard and Anor v Ogbonna and Anor [2017] ACAT 72
Timms & Simpson v Adams [2012] NSWCTTT 53
Winder v Grehan [2013] NSWCTTT 247

Tribunal:                  Presidential Member G McCarthy

Date of Orders:  21 June 2018

Date of Reasons for Decision:         21 June 2018

AUSTRALIAN CAPITAL TERRITORY        )

CIVIL & ADMINISTRATIVE TRIBUNAL     )                 RT 1067/2017

RT 355/2018

BETWEEN:

TIMOTHY COPE AND ANDREA MCEACHERN

Applicants/Tenants[1]

[1] In proceeding RT 335/2018 arising from the bond being held in dispute, Timothy Cope and Andrea McEachern are named as the respondents and Crispin Walker and Yvette Walker are named as the applicants. The Tribunal proceeds by reference to the parties named in proceeding RT 1067/2017.

AND:

CRISPIN WALKER AND YVETTE WALKER

Respondents/Lessors

TRIBUNAL:  Presidential Member G McCarthy

DATE:            21 June 2018

ORDER

The Tribunal orders that:

1. The Office of Rental Bonds pay the amount of the bond held in dispute ($2,780) to the applicants/tenants.

   ………………………………..

   Presidential Member G McCarthy

REASONS FOR DECISION

1. On 22 January 2017, the applicants leased a residential property in Macquarie, ACT, from the respondents, for a fixed term of 52 weeks commencing on 22 January 2017 to 21 January 2018. The rent was $695 per week. The applicants paid a bond of $2,780 to the Office of Rental Bonds, the whole of which is now held in dispute.

2. The applicants had been in possession of the property as tenants under an earlier lease with the respondents since 22 January 2016. The applicants’ occupation of the property had continued seamlessly from the former lease to the latter.

3. At all material times, the respondents, Mr and Mrs Walker, lived in the United Kingdom. On the evidence, Mrs Walker took no role regarding the lease and left the management of the property to her husband.

4. Under the former lease, the respondents had engaged a property agent to manage the lease on their behalf. However, for the lease in question Mr Walker decided to manage the property himself despite living in the United Kingdom.

5. During the latter half of 2017, relations between the applicants and Mr Walker deteriorated because of ongoing maintenance issues, delays in rectifying those issues and differences of opinion as to who was responsible for the maintenance.

6. On 21 December 2017, the applicants sent…