Faulder v Tran - [2018] ACAT 2

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

FAULDER v TRAN (Residential Tenancies) [2018] ACAT 2

RT 729/2017
Catchwords: RESIDENTIAL TENANCIES – compensation for delay in carrying out non-urgent repairs – rejection of claim for inconvenience of attending premises for repair work – onus of proof in making claims for compensation

Legislation cited: Residential Tenancies Act 1997 s 83; standard terms 52, 54, 55, 63

Cases cited:Baltic Shipping Co v Dillon (1993) 176 CLR 344
But v Baldwin [2016] ACAT 9
Fawzi El-Saidy v NSW Land and Housing Corporation [2011] NSWSC 820
Strahan v Residential Tenancies Tribunal NSWSC 30008 of 1998
Salem & Gizgeez v Abeygunasekara & Jeevanthan [2011] ACAT 9
Shadid v Australasian College of Dermatologists [2008] FCAFC 72
Withers-Norris v Pastrello [2016] ACAT 95
Woolfe v Albekka [2011] ACAT 22

Texts/Papers cited: Anforth, Christensen and Bentwood, Residential Tenancies Law and Practice New South Wales (6^th edition)

Tribunal: Presidential Member G McCarthy

Date of Orders:  9 January 2018
Date of Reasons for Decision:         9 January 2018
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 729/2017

BETWEEN:
CHARLIE FAULDER
Applicant

AND:
VINCENT TRAN

Respondent

TRIBUNAL: Presidential Member G McCarthy
DATE:9 January 2018
ORDER

The Tribunal orders that:

Within 28 days from the date of this order, the respondent pay the applicant $154.50 comprised of:
(a)     $16.50 for delay in repairing a blind;
(b)     $80.00 for delay in repairing an alarm;
(c)     $38.00 for delay in providing a key; and
(d)     $20.00 for delay in servicing a vacuum cleaner.
………………………………..
Presidential Member G McCarthy

REASONS FOR DECISION

On 31 August 2016, the applicant leased a residential property in Palmerston, ACT, from the respondent for a fixed term of 52 weeks. The rent was set at $420 per week, meaning $60 per day.
On 26 April 2017, the applicant served a notice to remedy on the respondent alleging that the respondent had failed to maintain the premises in a reasonable state of repair regarding the ducted heating, contrary to clause 55 of the Schedule to the Residential Tenancies Act 1997 (the RT Act) and failed to make repairs within the time frame required under clause 57 of the RT Act.
On 5 June 2017, the applicant served a notice of intention to vacate the premises on 20 June 2017 on the ground that the respondent had failed to remedy the alleged breach identified in the notice to remedy. However it was not necessary to determine whether the respondent was in breach, or the applicant was entitled to terminate the lease, because the respondent accepted the applicant’s termination of the lease.
Under the lease, the applicant had permission to keep three cats at the premises. Subsequent to the termination of the lease, the respondent sought to retain $120 from the bond to cover the cost of pest fumigation. The respondent relied on clause 2 of the additional pet clauses in the lease, which provided:
The tenant/s are responsible for the property to be professionally cleaned, pest treated/fumigated internally and…

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.

Continue reading Faulder v Tran

Details

AGLC: Faulder v Tran (Residential Tenancies) [2018] ACAT 2
Case: [2018] ACAT 2
Decision Date: 9 January 2018

CaseChat Overview and Summary

In the case of Faulder v Tran, the applicant, Faulder, brought an action against the respondent, Tran, to recover costs associated with delays in repairs and services related to their rental property. The dispute was heard and determined by the Civil and Administrative Tribunal of New South Wales. The specific issues before the Tribunal included whether the respondent had breached the terms of the lease agreement by not promptly addressing repair requests and whether the applicant was entitled to compensation for these delays.

The Tribunal examined the lease agreement between the parties and the evidence provided regarding the delays in repairs and services. It found that the respondent had indeed failed to address the issues within a reasonable timeframe, as stipulated by the terms of the lease. The Tribunal assessed the evidence provided by the applicant regarding the specific delays and the associated costs, and it determined that the applicant was entitled to compensation for the delays. The Tribunal calculated the compensation based on the evidence and the terms of the lease agreement.

As a result, the Tribunal ordered the respondent to pay the applicant a total of $154.50 for the delays. This amount was broken down into four categories: $16.50 for the delay in repairing a blind, $80.00 for the delay in repairing an alarm, $38.00 for the delay in providing a key, and $20.00 for the delay in servicing a vacuum cleaner. The Tribunal provided a timeframe for the payment, requiring the respondent to pay the amount within 28 days from the date of the order.

Orders

Orders of the court

The Tribunal orders that:

Within 28 days from the date of this order, the respondent pay the applicant $154.50 comprised of:

(a) $16.50 for delay in repairing a blind;

(b) $80.00 for delay in repairing an alarm;

(d) $20.00 for delay in servicing a vacuum cleaner.

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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