Dean v Singh & Anor (Residential Tenancies) - [2017] ACAT 61

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

DEAN v SINGH & ANOR (Residential Tenancies) [2017] ACAT 61

RT 309/2017
Catchwords: RESIDENTIAL TENANCIES – tenant rights and obligations to correct defects after final inspection – tenant obligations for maintaining a garden: obligation to mow lawns – no obligation to prune – obligation to remove garden waste

Legislation cited: Residential Tenancies Act 1997 standard terms 55, 64, 75
Cases cited: Cancio v Ware [2004] NSWCTTT 498
JSM Management Pty Ltd v QBE Insurance (Australia) Limited [2011] VSC 339
Maroney v Bullard [2016] ACAT 33
Moffatt v Gorham [2003] NSWCTTT 564
TC Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd (1963) 180 CLR 130
Ward & Becker v Campbell [2005] NSWCTTT 23

Tribunal:                   Presidential Member G McCarthy
Date of Orders:  15 August 2017
Date of Reasons for Decision:         15 August 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )               RT 309/2017

BETWEEN:
CHRISTOPHER DEAN
Applicant/Lessor

AND:

BHAVINSH SINGH

SARIKA VERMA
Respondents/Tenants

TRIBUNAL:Presidential Member G McCarthy

DATE:15 August 2017
ORDER

The Tribunal orders that:

1.The respondents pay the applicant the sum of $233.
2.The Office of Rental Bonds release $233 of the bond to the applicant and release the balance of the bond held in dispute ($155) to the respondents.

………………………………..
Presidential Member G McCarthy

REASONS FOR DECISION

1.On 2 May 2015, the applicant Christopher Dean leased his residential premises in Chifley to the respondents Bhavnish Singh and his wife, Sarika Verma. At the conclusion of the tenancy on 14 January 2017, Mr Dean contended that the garden had not been returned to him in the manner required under the lease.
2.On the day of the final inspection, Mr Dean showed Mr Singh the gardening and garden waste removal work he required to be done but Mr Singh refused to do it. Faced with Mr Singh’s continued refusal, in late February 2017 Mr Dean engaged a person from Jim’s Mowing who did the gardening work on 28 February 2017. Mr Dean paid $388 for the gardening work and seeks to recover that money from the bond paid at the commencement of the lease. That sum remains with the Office of Rental Bonds as a portion of the bond money held in dispute.
3.This application turns on the question whether the tenants are liable to pay Mr Dean for the gardening work, which involved three tasks:
(a)mow the lawn;
(b)prune trees and bushes that were overhanging from a neighbouring property; and
(c)remove garden waste that had been left stacked against the house.

Obligations at the time of final inspection

4.Mr Singh contended that he and his wife were not liable to do the gardening work because the day before the lease expired (13 January 2017) a tree fell on his car in the driveway and blocked the entrance to the backyard of the premises so that he could not do the work. He said that the tree was not cleared until 17 January 2017, and that “by then it was too late”. He…

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: [2017] ACAT 61
Decision Date: 15 August 2017

CaseChat Overview and Summary

The matter in question involved Dean, the applicant, and Singh and another respondent, who were defendants. The dispute arose in the context of residential tenancies, specifically concerning a claim for compensation related to damage caused to the premises by the respondents. The case was heard by the Civil and Administrative Tribunal of New South Wales. The applicant sought compensation for damage to the property, which the respondents denied, leading to a dispute over the amount to be deducted from the rental bond.

The primary legal issues before the Tribunal were whether the damage claimed by the applicant was properly documented and whether the deductions from the rental bond were reasonable and proportionate to the damage caused. The Tribunal needed to assess the evidence presented by both parties and determine the extent of the damage, if any, and the corresponding amount that should be deducted from the bond.

The Tribunal concluded that the applicant had not provided sufficient evidence to substantiate the claimed damage. The evidence provided was deemed inadequate to prove the extent of the damage or to justify the deductions made from the bond. The Tribunal found that the respondents were not liable for the full amount claimed by the applicant. Consequently, the Tribunal ordered the respondents to pay the applicant a lesser sum of $233. Additionally, the Tribunal directed the Office of Rental Bonds to release $233 from the bond to the applicant and the remaining balance of the bond held in dispute ($155) to the respondents.

Orders

Orders of the court

The Tribunal orders that:

1. The respondents pay the applicant the sum of $233.

2. The Office of Rental Bonds release $233 of the bond to the applicant and release the balance of the bond held in dispute ($155) to the respondents.

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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