Ericson v Elder & Anor (Residential Tenancies) - [2024] ACAT 20

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ERICSON v ELDER & ANOR (Residential Tenancies) [2024] ACAT 20

RT 443/2023

Catchwords: RESIDENTIAL TENANCIES – failure to make reasonable repairs – use of facilities and parts of the premises – not provided with key to access facilities – not able to use balcony while construction on neighbouring site – request for inspection – whether agent was intimidating or dishonest

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 34
Residential Tenancies Act 1997 ss 71, 83

Cases cited:Briginshaw v Briginshaw [1938] HCA 34
Winter & Anor v Delacy [2023] ACAT 31
Young v Chief Executive Officer (Housing) [2023] HCA 31

Tribunal:Senior Member D Stewart

Date of Orders:  28 February 2024
Date of Reasons for Decision:      28 February 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 443/2023

BETWEEN:

MATTHEW ERICSON
Applicant

AND:

BRUCE ELDER
First Respondent

KIM ELDER
Second Respondent

TRIBUNAL:Senior Member D Stewart

DATE:28 February 2024

ORDER

The Tribunal orders that:

the respondents are to pay the applicant the sum of $2200, comprising of:
(a)$1500 in reduced rent for not having a building key which provided access to facilities including the bin and pool areas;
(b)$200 in compensation for a failure by the respondents to engage in reasonable repairs to the bedroom window seal; and
(c)$500 in reduced rent for loss of use of the balcony.
the respondents are to make reasonable efforts to repair the seal at the bottom of the bedroom window with the same or similar material as used at the top of the window within 28 days.

………………………………..
Senior Member D Stewart

REASONS FOR DECISION

Introduction

Mr Ericson (applicant or tenant) is the tenant of a unit in Braddon, ACT under a residential tenancy agreement with the lessors, Bruce and Kim Elder (respondents or lessors). The tenant has applied for orders for compensation under section 83 of the Residential Tenancies Act 1997, including compensation for alleged breach by the lessors of their obligation to make reasonable repairs and to not interfere with the reasonable peace, comfort or privacy of the tenant in the use of the premises. He also claims a reduction in rent under section 71 for not being able to use various facilities or part of the premises.
In his application of 2 May 2023, the tenant sought final and interim orders relating to the frequency and reliability of inspections of the property by the lessors' agent, not having access to a key to various parts of the building, including the rubbish bins and pool, the failure to repair a broken window seal, faulty oven and cooktop, and reduced amenity due to the construction of the neighbouring Haig Park Community Centre. Interim orders were also sought for facilitation of an independent dispute resolution process. A preliminary conference was held on 5 June 2023 and adjourned to 5 July 2023. An interim application for orders in relation to material provided by the agent for the respondents…

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: [2024] ACAT 20
Decision Date: 28 February 2024

CaseChat Overview and Summary

The matter before the tribunal involved Ericson, the applicant, and Elder, one of the respondents, in a dispute over rental payments and maintenance issues. The case revolved around the applicant's claim that the respondents were withholding certain amounts of rent due to the failure to provide a building key, repair the bedroom window seal, and the loss of use of the balcony. The tribunal was tasked with determining the validity of the applicant's claims and whether the respondents were justified in withholding the rent.

The primary legal issues before the tribunal were whether the respondents were entitled to withhold the rent for the reasons stated, and if not, what compensation the applicant was entitled to receive. The tribunal considered the obligations of both landlords and tenants under the Residential Tenancies Act, including the landlord's duty to provide access to facilities and to carry out reasonable repairs. The applicant argued that the failure to provide a building key and repair the bedroom window seal constituted breaches of the landlord's obligations, justifying a reduction in rent.

The tribunal found that the respondents were not entitled to withhold the rent for the reasons stated. The tribunal held that the failure to provide a building key, which allowed access to essential facilities such as the bin and pool areas, justified a reduction in rent of $1500. Additionally, the tribunal determined that the respondents' failure to repair the bedroom window seal constituted a breach of their obligations, warranting a further reduction in rent of $200. Finally, the tribunal found that the loss of use of the balcony due to the unrepaired window seal resulted in an additional reduction in rent of $500. The tribunal also ordered the respondents to repair the bedroom window seal within 28 days.

The tribunal ordered the respondents to pay the applicant the sum of $2200, comprising of $1500 in reduced rent for not having a building key, $200 in compensation for the failure to repair the bedroom window seal, and $500 for the loss of use of the balcony. Furthermore, the tribunal mandated the respondents to make reasonable efforts to repair the seal at the bottom of the bedroom window using the same or similar material as used at the top of the window within 28 days.

Orders

Orders of the court

The Tribunal orders that:

the respondents are to pay the applicant the sum of $2200, comprising of:

(a) $1500 in reduced rent for not having a building key which provided access to facilities including the bin and pool areas;

(b) $200 in compensation for a failure by the respondents to engage in reasonable repairs to the bedroom window seal; and

the respondents are to make reasonable efforts to repair the seal at the bottom of the bedroom window with the same or similar material as used at the top of the window within 28 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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