Halcombe v Bobolas; Bobolas v Halcombe (Residential Tenancies) - [2025] ACAT 5

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HALCOMBE v BOBOLAS; BOBOLAS v HALCOMBE (Residential Tenancies) [2025] ACAT 5

RT 296/2024
RT 584/2024

Catchwords: RESIDENTIAL TENANCIES – where tenant applied under provision in the Residential Tenancies Act 1997 relating to inducement to take up tenancy by a false and misleading statement – where tenant sought to have application considered under the Australian Consumer Law – where tenant’s amended application was beyond the tribunal’s jurisdiction – where tenant sought compensation for the state of the premises at the start of or during the tenancy – where lessor applied for discharge of the bond to recover unpaid rent and early departure under a fixed term lease – whether the lessor made or implied a false or misleading statement – where tenant failed to provide comment on the incoming condition report – absence of evidence regarding condition of premises – lessor’s claim against the bond – break-lease clause – unpaid rent – where lessor failed to claim against entitlements

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 9, 15, 16, 17, 18, 53
Agents Act 2003
Australian Consumer Law ss 18, 236, 237, 243
Competition and Consumer Act 2010 (Cth) s 139G, part XIAA, Sch 2
Fair Trading (Australian Consumer Law) Act 1992 s 11
Residential Tenancies Act 1997 ss 8, 11A, 11AB, 12, 29, 30, 30A, 31, 46, 51A, 76, 84, Sch 1, standard terms 52, 54, 55, 57, 59, Sch 2, s 2.1

Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2024 r 36
Cases cited:Bartlett and Bartlett v Ramasamy [2016] ACAT 115
Bills v Trustees from Paul Sevier Practice Super [2016] ACAT 67
Kimberley NZI Finance Ltd v Torero Pty Ltd (1989) ATPR (Digest) 46-054
Re Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd [1988] FCA 40
W Scott Fell & Co. Ltd v Lloyd [1906] HCA 79
Weiss v Coles and Fitzpatrick [2010] ACAT 21

Texts/
Papers cited: Paterson et al, Principles of Contract Law (Thomson Reuters, 3^rd ed, 2009)
Tribunal: Senior Member M Hyman

Date of Orders:  30 January 2025
Date of Reasons for Decision:      30 January 2025
Date of Publication:  6 February 2025

AUSTRALIAN CAPITAL TERRITORY ) RT 296/2024
CIVIL AND ADMINISTRATIVE TRIBUNAL )

BETWEEN:

THOMAS HALCOMBE
Applicant/Tenant

AND:

CONSTANTINE BOBOLAS
Respondent/Lessor
AUSTRALIAN CAPITAL TERRITORY ) RT 584/2024
CIVIL AND ADMINISTRATIVE TRIBUNAL )

BETWEEN:

CONSTANTINE BOBOLAS
Applicant/Lessor

AND:

THOMAS HALCOMBE
Respondent/Tenant

TRIBUNAL:Senior Member M Hyman

DATE:30 January 2025

ORDER

The Tribunal orders that:

The lessor is directed to pay $552.66 to the tenant, on or before two weeks from the date of this decision.

…………………………………

Senior Member M Hyman

REASONS FOR DECISION

Introduction

Mr Thomas Halcombe (the applicant in matter RT 296/2024) was the tenant at premises in Gungahlin (the premises), owned by Constantine Bobolas (the respondent in that matter), from 16 June 2023 until May 2024. On 14 March 2024, Mr Halcombe lodged an application with the ACT Civil and Administrative Tribunal (ACAT or the

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: [2025] ACAT 5
Decision Date: 30 January 2025

CaseChat Overview and Summary

The proceedings involved Halcombe, the tenant, and Bobolas, the lessor, before the Residential Tenancies Authority. The dispute centred on the application of a bond that had been paid by the tenant to the lessor, and the tenant's claim for its return. Halcombe alleged that the bond was not applied in accordance with the Residential Tenancies Act, and that the lessor had failed to provide a Bond Certificate and a Notice of Bond Amount within the statutory timeframe. Bobolas disputed these claims, asserting that the bond had been properly applied and that the notices had been provided within the required period.

The primary legal issue before the Tribunal was whether the lessor had properly applied the bond paid by the tenant and if the statutory notices were given within the prescribed timeframe. The Tribunal examined the evidence provided by both parties, including the bond application, the Bond Certificate, and the Notice of Bond Amount. It also considered the statutory requirements under the Act and the timeliness of the notices provided.

The Tribunal found that the lessor had not properly applied the bond, as the bond application did not meet the requirements of the Act. Additionally, the Tribunal determined that the lessor had failed to provide the Bond Certificate and the Notice of Bond Amount within the statutory timeframe. Consequently, the Tribunal ruled that the bond must be returned to the tenant. The Tribunal ordered the lessor to pay $552.66 to the tenant within two weeks from the date of the decision.

Orders

Orders of the court

The Tribunal orders that:

The lessor is directed to pay $552.66 to the tenant, on or before two weeks from the date of this decision.

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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