Edwards v Izzard (Residential Tenancies) - [2016] ACAT 91

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

EDWARDS v IZZARD (Residential Tenancies) [2016] ACAT 91

RT 1052/2015
Catchwords: RESIDENTIAL TENANCIES – compensation – damage to garden – scratches on window

Legislation cited: Residential Tenancies Act 1997 ss 29, 30, 83, standard terms 63, 64

Cases cited:Hlubucek v Sinodinos; Sinodinos v Hlubucek [2007] ACTRTT 12
Martins v Zhang [2014] ACAT 48
Verscheure & Bradbury v Richards & Retmock [2009] ACAT 11

Tribunal: Senior Member H Robinson

Date of Orders:  16 August 2016
Date of Reasons for Decision:         16 August 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 1052/2015

BETWEEN:
PETER EDWARDS and ROSLYN EDWARDS
Applicant/Lessors

AND:
BRETT IZZARD
Respondent/Tenant

TRIBUNAL: Senior Member H Robinson

DATE: 16 August 2016

ORDER

The Tribunal orders that:

The Tenant is to pay the Lessors the sum of $ 1130.50 comprised of:

(a)Rent arrears of $669.00.
(b)$390.00 for equivalent to six hours labour to restore the garden.
(c)$71.50 being a nominal sum calculated by reference to 10% of the cost of the mulch and the labour to install the mulch on the subsequent day of work.

………………………………..
Senior Member H Robinson

REASONS FOR DECISION

Background

The applicant (Lessor) is the owner of a property in Condor in the ACT (the property).
On or about 10 July 2013, the Lessor entered into a residential tenancy agreement with the respondent (Tenant). The Tenant vacated the property on 13 March 2015.
A final inspection was undertaken on 13 March 2015. The Tenant did not attend.
Following the cessation of the tenancy, the Lessor sought compensation for damages to the Property in the amount of:
(a)$1235 for gardening; and
(b)$3300.00 for a scratched glass door to be replaced.
The Tenant agreed that rent was owed and orders about that were made by consent. Other issues that were identified were also paid through the Lessor’s insurer.

The Hearing

The hearing was conducted on 31 May 2016. At the hearing, the Lessor was represented by Ms Elissa Norris and Ms Danielle Gavin from Peter Blackshaw. The Tenant represented himself.
Both parties filed submissions and evidence prior to the hearing. Following the hearing, the parties were given an opportunity to file further submissions in relation to the issue of the glass door and both parties did so on 2 June 2016.

Legislative Framework

Clause 63 of the Standard Residential Tenancy Terms (Standard Terms), found in Schedule 1 to the Residential Tenancies Act 1997 (ACT) (RT Act) provide that:
63 During the tenancy, the tenant must—
(a)not intentionally or negligently damage the premises or permit such damage; and
(b)notify the lessor of any damage as soon as possible; and
(c)take reasonable care of the premises and their contents, and keep them reasonably clean, having regard to their condition at the time of the commencement of the tenancy and the normal incidents of living.
Under clause 64 of the Standard Terms a tenant must leave the premises:
(a)in substantially the same state of…

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 91
Decision Date: 16 August 2016

CaseChat Overview and Summary

Edwards v Izzard was a residential tenancy matter heard by the Civil and Administrative Tribunal of New South Wales. The dispute arose between the tenants, the Edwards, and their former landlords, the Izzard, concerning compensation for damages to the garden and a scratched window. The landlords sought compensation for the cost of restoring the garden, the replacement of mulch, and the damage to the window. The tenants denied liability for the damages and argued that the cost of repairs was excessive.

The primary legal issue before the Tribunal was whether the tenants were liable for the cost of repairing the garden and replacing the mulch, and if so, to what extent. Additionally, the Tribunal had to determine the appropriate compensation for the scratched window. The tenants argued that the cost of repairing the garden was unreasonable and that the damage to the window was not their fault. The landlords contended that the tenants were responsible for the damages and that the cost of repairs was reasonable.

The Tribunal found that the tenants were liable for the cost of repairing the garden and replacing the mulch. The Tribunal found that the tenants had caused damage to the garden, and that the cost of repairing the garden and replacing the mulch was reasonable. The Tribunal also found that the tenants were liable for the damage to the window, and ordered the tenants to pay a nominal sum for the cost of the repair. The Tribunal ordered the tenants to pay the landlords the sum of $1130.50, which included the cost of rent arrears, the cost of repairing the garden, and a nominal sum for the damage to the window.

The Tribunal made orders for the tenants to pay the landlords the sum of $1130.50, comprised of rent arrears, the cost of repairing the garden, and a nominal sum for the damage to the window. The Tribunal found that the cost of repairing the garden and replacing the mulch was reasonable, and that the tenants were liable for the damage to the window. The tenants were also ordered to pay a nominal sum for the damage to the window.

Orders

Orders of the court

The Tribunal orders that:

The Tenant is to pay the Lessors the sum of $ 1130.50 comprised of:

(a) Rent arrears of $669.00.

(b) $390.00 for equivalent to six hours labour to restore the garden.

(c) $71.50 being a nominal sum calculated by reference to 10% of the cost of the mulch and the labour to install the mulch on the subsequent day of work.

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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