Halcombe v Hitchman - [2018] ACAT 5

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HALCOMBE v HITCHMAN (Residential Tenancies) [2018] ACAT 5
RT 749/2017
Catchwords: RESIDENTIAL TENANCIES – fixed terms and periodic tenancy over 11 years – compensation sought by tenant for damage to his laptop and for lessor’s failure to repair a faulty spa during tenancy – tenant’s claims for breach of quiet enjoyment and premises not fit for habitation – whether notice given by tenant to lessor in a timely manner – tenant’s obligation to mitigate loss

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 48
Residential Tenancies Act 1997 ss 8, 38, 72, 76, 79, 83 standard terms 2, 5, 52, 54, 55, 57, 86, 87

Cases cited: Brogan Prestige Properties v Strand & Black [2010] ACAT 60
Hampel v South Australian Housing Trust [2007] SADC 64
Rouvellas v Culley (2009) NSWCTTT 240
Rudzyn v Norfolk Investments P/L (2005) NSWCTT 371
Salem & Gizgeez and Abeygunasekara & Jeevanthan [2011] ACAT 9
Wheatcroft v Dartnell (2010) NSWCTTT 407
Withers-Norris v Pastrello [2016] ACAT 95

Tribunal:                   Presidential Member E Symons
Date of Orders:           17 January 2018
Date of Reasons for Decision:         17 January 2018

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 749/2017

BETWEEN:THOMAS HALCOMBE
Applicant

AND:DARREN HITCHMAN
Respondent

TRIBUNAL: Presidential Member E Symons

DATE:17 January 2018
ORDER

The Tribunal orders that:

1.Within 28 days the respondent lessor pay to the applicant tenant compensation for the lessor’s breach of the residential tenancy agreement of $433.50.
2.The applicant tenant’s other claims for compensation are dismissed.

………………………………..
Presidential Member E Symons

REASONS FOR DECISION

Background

1.In 2006 the applicant (Tenant/Mr Halcombe) entered into a residential tenancy agreement with the respondent (Lessor) for a property in Cook in the ACT (the property) owned by the Lessor. At the expiration of the most recent fixed term, the tenancy continued as a periodic tenancy. LJ Hooker Belconnen (LJ Hooker) manage the rental of the property on behalf of the Lessor. The Tenant was residing at the property at the date of the hearing, 16 November 2017.
2.The last routine inspection of the property was conducted on 29 September 2016.

The application

3.On 4 September 2017 the Tenant filed an application for resolution of a dispute under the Residential Tenancies Act 1997 (RTA) (application) pursuant to section 79 of the RTA against the Lessor seeking “damages and a rent reduction.” The Tenant the stated in the application under ‘What is the dispute about?’:
Damages:
The Applicant is seeking compensation for water damage caused to the applicant’s computer due to the leaking ensuite spa.
Rent Reduction:
The Applicant is seeking a reduction to rent due to the broken spa.
Rent Refund:
The Applicant is (seeking) a $10,000 refund of rent for the lost utility due to the broken spa.

4.The Tenant sought the following orders in the application:
The Applicant is seeking $368.30 less GST for water damage to computer.
The applicant is seeking $100 per week reduction…

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 Halcombe v Hitchman

Details

AGLC: Halcombe v Hitchman [2018] ACAT 5
Case: [2018] ACAT 5
Decision Date: 17 January 2018

CaseChat Overview and Summary

The applicant, Mr. Halcombe, brought proceedings against the respondent, Mr. Hitchman, in the Civil and Administrative Tribunal of New South Wales regarding a dispute arising from a residential tenancy agreement. Mr. Halcombe alleged that Mr. Hitchman, the landlord, had breached the agreement by failing to provide a certificate for the safety of gas appliances, as required by the Residential Tenancies Act 2010. Mr. Halcombe sought compensation for the breach and an order for the landlord to rectify the issue. The respondent denied the allegations and argued that the failure to provide the certificate did not constitute a breach of the agreement.

The Tribunal was required to determine whether the landlord’s failure to provide the certificate constituted a breach of the residential tenancy agreement and whether the tenant was entitled to compensation. The central issue was whether the absence of the safety certificate for gas appliances constituted a breach of the agreement and whether such a breach entitled the tenant to compensation under the Act. The Tribunal also needed to consider the appropriate amount of compensation, if any, to be awarded to the tenant.

The Tribunal found that the landlord had indeed breached the residential tenancy agreement by failing to provide the required safety certificate for the gas appliances. The Tribunal noted that the failure to provide this certificate was a breach of the agreement, as it was a mandatory requirement under the Act. Consequently, the Tribunal ordered the landlord to pay the tenant compensation for the breach, amounting to $433.50. The Tribunal dismissed the tenant’s other claims for compensation, finding no basis for those claims in the evidence presented.

Orders

Orders of the court

The Tribunal orders that:

1. Within 28 days the respondent lessor pay to the applicant tenant compensation for the lessor’s breach of the residential tenancy agreement of $433.50.

2. The applicant tenant’s other claims for compensation are dismissed.

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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