Flint v King (Residential Tenancies) - [2020] ACAT 51

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

FLINT v KING (Residential Tenancies) [2020] ACAT 51

RT 322/2019
Catchwords: RESIDENTIAL TENANCIES – effect of notice issued pursuant to section 64 of Residential Tenancies Act 1997 on lessor’s entitlement to rent and obligation to repair – whether section 71 or section 83(d) of Residential Tenancies Act is appropriate basis for compensation after tenancy ended

Legislation cited: Residential Tenancies Act 1997 ss 64 standard terms 57, 59, 60

Cases cited:Salem & Gizgeez and Abeygunasekara & Jeevanthan [2011] ACAT 9
Faulder v Tran [2018] ACAT 80

Tribunal: Senior Member E Ferguson

Date of Orders:  8 July 2020
Date of Reasons for Decision:         8 July 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL           RT 322/2019

BETWEEN:
DENISE FLINT
Applicant

AND:
JOHN KING
Respondent

TRIBUNAL: Senior Member E Ferguson

DATE:8 July 2020

ORDER

The Tribunal orders that:

Mr King is to pay to Ms Flint, if he has not already done so, the sum of $40 for the cost of the coffee plunger.
Ms Flint is to pay to Mr King the sum of $2,628.60 comprised of:
(a)$1,928.60 being refund of rent paid in error for period 26 January 2019 to 14 February 2019 inclusive i.e. 20 days at $96.43 per day;
(b)$700 being compensation for Ms Flint’s breach of obligation to repair tiles in ensuite bathroom.
The amount payable by Mr King at Order 1, unless already paid, is to be offset against the amount payable by Ms Flint at Order 2 and Ms Flint is to pay the balance to Mr King by 5pm on 5 August 2020.
………………………………..
Senior Member E Ferguson

REASONS FOR DECISION

On 22 December 2015 a tenancy commenced between Ms Flint as lessor and Mr King as tenant for a fully furnished apartment at Kingston (the property). Ms Flint has claimed unpaid rent from Mr King as a well as compensation for items he allegedly removed or broke during the tenancy. Mr King counterclaimed for refund of rent paid in error to Ms Flint and compensation for breach of her obligation to repair under the agreement. What distinguished this case from most residential tenancy disputes is the involvement of the lessor’s mortgagee. The facts are briefly as follows.
Ms Flint was in default of a loan from the Bank of Queensland (the bank) secured against the property. On 8 July 2013 the Supreme Court of the ACT issued a judgment in favour of the Bank of Queensland for possession of the property. After the court handed down the judgment several years passed during which the bank deferred enforcement and gave Ms Flint an opportunity to sell the property herself and discharge the loan. It was not until late 2018, Ms Flint having failed to sell the property, that the bank took the next step to recover possession of the property.
The bank’s solicitors, Dentons, sent three letters to the occupiers of the property dated 12 October 2018, 19 December 2018 and 25 January 2019 asking…

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: [2020] ACAT 51
Decision Date: 8 July 2020

CaseChat Overview and Summary

The dispute in Flint v King was heard by the Civil and Administrative Tribunal of New South Wales. The tenant, Ms Flint, sought compensation for the cost of a coffee plunger she purchased and for repairs to a leaking ensuite. Additionally, she sought a refund of rent paid in error. The lessor, Mr King, disputed the claims and counterclaimed for compensation for the tenant’s failure to repair tiles in the ensuite.

The legal issues before the tribunal were whether section 71 or section 83(d) of the Residential Tenancies Act 1997 (NSW) provided the appropriate basis for compensation after the tenancy ended, and whether the lessor was entitled to compensation for the tenant’s failure to repair. The tribunal had to determine the correct application of the relevant sections of the Act and assess the respective claims and counterclaims.

The tribunal found that section 71 of the Act applied to the compensation claim by Ms Flint for the plunger and the refund of rent. Section 83(d) was deemed applicable for the counterclaim by Mr King for the repair of the tiles in the ensuite. The tribunal ordered that Ms Flint was to pay Mr King compensation for the repair of the tiles and a refund of the rent paid in error. The order also required Ms Flint to pay the cost of the plunger to Mr King, to be offset against the amount owed by her.

The final orders of the tribunal were that Mr King was to pay Ms Flint $40 for the plunger if he had not already done so, and that Ms Flint was to pay Mr King a total of $2,628.60. This sum included a refund of $1,928.60 for the period of rent paid in error and $700 for the repair of the tiles in the ensuite. The payment by Ms Flint was to be made by 5pm on 5 August 2020, with the amount payable for the plunger to be offset against the total sum owed.

Orders

Orders of the court

The Tribunal orders that:

Mr King is to pay to Ms Flint, if he has not already done so, the sum of $40 for the cost of the coffee plunger.

Ms Flint is to pay to Mr King the sum of $2,628.60 comprised of:

(a) $1,928.60 being refund of rent paid in error for period 26 January 2019 to 14 February 2019 inclusive i.e. 20 days at $96.43 per day;

(b) $700 being compensation for Ms Flint’s breach of obligation to repair tiles in ensuite bathroom.

The amount payable by Mr King at Order 1, unless already paid, is to be offset against the amount payable by Ms Flint at Order 2 and Ms Flint is to pay the balance to Mr King by 5pm on 5 August 2020.

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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