Hamzah & Chalil v WILLIAMS
[2014] SADC 119
•3 July 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
HAMZAH & CHALIL v WILLIAMS
[2014] SADC 119
Judgment of Her Honour Judge McIntyre
3 July 2014
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION
Tenant sought repayment of bond in the sum of $1900.00. Residential Tenancies Tribunal ordered that the landlords receive $1129 of the bond for early termination of lease, repairs and cleaning and that the balance of $771 be paid to the tenant. The landlords appealed the decision seeking the whole of the bond. The Court granted the landlords an extension of time within which to lodge the appeal and reheard the evidence.
Held:
1. That the decision of the RTT should be affirmed.
2. The application of the respondents should be dismissed.
Residential Tenancies Act 1995 s41, s41(2), referred to.
Antoniou v Locker [2012] SADC 28; Wright v Weston, Raine & Horne [2004] SADC 16, considered.
HAMZAH & CHALIL v WILLIAMS
[2014] SADC 119
This is an Appeal from a decision of the Residential Tenancies Tribunal under s.41 of the Residential Tenancies Act 1995.
The judgment of the Tribunal appealed from is dated 17 December 2013. A notice of appeal was lodged in this court on 22 January 2014. The appellants seek an extension of time within which to lodge the appeal on the basis that they were overseas from 13 December 2013 until 16 January 2014. The respondent did not object to my granting an extension of time and in the circumstances I consider it appropriate to extend the time within which the appeal could be lodged to 22 January 2014.
The judgment under appeal recorded that the respondent and the appellants entered into a residential tenancy under the Act commencing on 11 November 2012 for a period of 12 months at the rate of $330 per week payable fortnightly. A security bond of $1,900 was paid and, following an order by the Residential Tenancies Tribunal on 19 November 2013, the bond was lodged with the Commissioner of Consumer & Business Affairs.
The appellants were the landlords of the premises and the respondent was the tenant.
The respondent applied to the Tribunal seeking repayment of the security bond after he vacated the premises on about 15 July 2013. Following a hearing on 19 November 2013 the Tribunal ordered that the sum of $1,129 was to be paid to the appellants and $771 was to be paid to the respondent. The payment to the appellants was made up as follows:
Rent $660.00
Repairs to door $100.00
Cleaning $300.00
Advertising $ 69.00The appellants take issue with this decision and say that they are entitled to the whole of the bond. The respondent says that he considers that the amount awarded for cleaning to be too high but that he is prepared to abide by the Tribunal’s decision.
The Appeal
The appeal is brought under s.41 of the Act. The powers of this court on appeal are set out in s.41(2) and are as follows:
On appeal the District Court may according to the nature of the case:
(a) rehear evidence taken before the Tribunal; or
(b) take further evidence, confirm vary or quash the Tribunal decision;
(c) make any order that should have been made in the first instance;
(d) make incidental and ancillary orders.The nature and scope of an appeal under s.41 has been considered by DCJ Smith in Antoniou v Locker[1] and DCJ Lunn in Wright v Weston, Raine & Horne.[2]I respectfully adopt their conclusions; specifically that s.41 creates an appeal which is to be determined on the evidence before the Tribunal and any further evidence which the District Court receives in its discretion[3] and that the principles generally applicable to the considerations of appellate courts have guiding application to the exercise by this Court of the powers in s.41[4]
[1] [2012] SADC 28
[2] [2004] SADC 16
[3] Wright at para [22]
[4] Antoniou at para15
The notice of appeal seeks that the order made by the Residential Tenancies Tribunal be set aside and that the whole of the bond in the sum of $1,900 be paid to the appellants. The appellants sought other ancillary orders as set out in their notice of appeal.
The grounds of the appeal are as follows:
1. The member of the Tribunal was biased in accepting the evidence of the respondent in that:
(a) the member of the Tribunal showed hostility to the appellants due to the appellants’ ethnicity and religious background.
(b) the findings of the Tribunal were not consistent with the evidence.
2. The appellants seek to be granted the whole bond sum of $1,900 as the respondent caused damages worth over $5,000. The appellants do have receipts and photos for proof of the respondent’s damages to substantiate their claims.
I detected no hint of hostility towards the appellants in the Tribunal decision nor was there any reference to ethnicity or religious background forming part of the decision making process. However, in view of the fact there is no transcript available for the hearing, and there are credibility issues, I determined that the appropriate course of action was to rehear evidence. Accordingly I heard evidence from both appellants and the respondent. In addition the appellants tendered a number of exhibits that were before the Tribunal as follows:
Exhibit A1 List of claims on security bond dated 31 October 2013 Exhibit A2 Cleaning receipt Exhibit A3 Handyman invoice Exhibit A4 Spotlight receipt Exhibit A5 Painting receipt Exhibit A6 Roller door documents Exhibit A7 Photographs of damage to back door Exhibit A8 Photographs of damage to closet door Exhibit A9 Photographs of damage Exhibit A10 Photographs said to be taken before tenant took possession.
A number of matters were common ground between the parties. Specifically there was no dispute that the tenancy commenced on 11 November 2012 and was terminated by the respondent on or about 15 July 2013. It was also common ground that the appellants took 17 days to re-let the premises and that they did so for an increased rental of $340 per week. The cost of advertising was agreed to be $69.
Claim for Rent and Advertising
The respondent did not dispute that the appellants were entitled to rent for the 17-day period nor did he dispute that they were entitled to the costs of advertising. The amount of rent awarded by the Tribunal was however in dispute. The appellants claimed the sum of $801 for the period 15 July 2013 to 31 July 2013. The Tribunal ordered that the respondent pay the appellants the sum of $660 for rent. The basis of that finding was not made clear in the reasons.
The appellants maintain that they are entitled to $801. That claim is based on 17 days rent at $330 per week. The amount claimed by the appellants however does not make any allowance for the additional rent that they were able to achieve when they re-let the premises. The respondent contends that the amount he ought to pay by way of lost rent should be reduced by the additional amount that the appellants have been able to obtain by way of rent from the date the property was relet on 1 August 2013 to 11 November 2013 the date on which his tenancy agreement was due to conclude. This submission is plainly correct as a matter of law and is no doubt the basis upon which the Tribunal made its decision albeit this was not articulated. Deducting the additional rental obtained from the new tenants results in the respondent being responsible to pay the sum of $651. The amount awarded by the Tribunal was slightly in excess of this – perhaps the figure was rounded up. The respondent does not take issue with the Tribunal’s finding. Accordingly it is my view that the decision of the Tribunal with respect to rent and advertising ought to be affirmed.
Additional Claims
The appellants also claim for the cost of repairs, gardening and cleaning that they say were necessitated by the respondent’s conduct. The respondent says that he left the premises in the same state as at the commencement of the tenancy with the exception of two matters. He conceded that he had damaged the back door and that he had made some scuff marks on the wall in the lounge room.
The Tribunal noted that determination of these issues was rendered difficult because the appellants had not prepared a written report as to the state of the premises at the commencement of the tenancy to be countersigned by the respondent. Further there was no final inspection sheet at the conclusion of the tenancy. In the absence of inspection sheets the appellants relied upon photographs of the premises; some were stated to have been taken before the respondent took possession of the premises[5] and the others are stated to have been taken following the tenant’s departure[6] in order to show the damage that he caused. The tenant conceded that the photographs said to have been taken after he left were an accurate depiction of the state of the premises at that time. He says that these photographs also showed the state of the premises at the time he took possession. He said that the photographs said to have been taken before he took possession of the premises bore no relation to the way in which the premises appeared at that time.
[5] Exhibit A10
[6] Exhibits A7, A7 and A9
The respondent conceded that he ought to pay for the repairs to the back door in the sum of $100. The Tribunal found that the tenant was responsible to pay for repairs to the door in the sum of $100. The cost of the repairs to the door is in line with the invoice provided by the appellants that states that this cost was $97.[7] I affirm that decision.
[7] Exhibit A3
The respondent also offered to pay the sum of $100 to clean scuffmarks off the lounge room wall. The appellants provided a receipt for cleaning of the premises in the sum of $400.[8] The evidence of the appellants makes it clear that this covered more than cleaning scuffmarks. They contend that the state in which the respondent left the house caused the requirement for thorough cleaning. The Tribunal awarded the sum of $300 for cleaning, but does not articulate the basis of that award.
[8] Exhibit A2
The appellants say that the cleaning bill should be paid in full and further that there are other items for which they ought to be compensated. These exceed the balance of the security bond and hence they contend that they ought to be paid the full amount of the bond.
The appellants’ list of claims[9] filed in the Tribunal on 31 October 2013 is as follows:
Gardening $ 90
Three curtains $ 171
Painting 3 rooms $ 600
Temporary roller door repair $ 100
Garden clean-up $ 90
Repairs $ 819
Roller door replacement $1190Painting balance of house $1300[9] Exhibit A1
The amount of $819 for repairs is the total of a tax invoice for repairs less the amount of $90 for weeding the front and back garden.[10] The garden clean up is claimed separately. During the course of the evidence before me that the appellants conceded there was a mistake in that aspect of their claim and that the repairs did not amount to $819. First, it includes the amount of $100 awarded by the Tribunal for repairs to the back door. Second, Mr Hamzah gave evidence that he intended to claim only the items ticked on that invoice which, less the amount awarded for the door, amount to $314.00. This evidence was in the context of my attempting to ascertain when the shed window was broken. This was significant for dating the photographs that were alleged to represent the state of the premises at the commencement of the tenancy. The tenant said that it was broken during the course of his tenancy. Ms Chalil said she could not remember when it was broken but agreed that it formed part of the appellants’ claim against the respondent. Mr Hamzah said it was broken before the tenant moved in and that is why he did not seek to claim the cost of repairs from the respondent. His wife gave evidence that when she prepared the claim she did not appreciate that they were only claiming for the ticked items and she claimed the whole of the amount of the invoice less the garden clean up that she listed separately.
[10] Exhibit A3
Even with these reductions the amount claimed by the appellants exceeds the balance of the bond. If these claims were accepted, then they would be entitled to the balance of the bond.
The appellants were able to provide receipts for all of the additional items claimed and I have no doubt that they incurred that expenditure. They must however satisfy me that this expenditure was necessitated by actions of the respondent. The burden of proof rests with the appellants.
There is a clear factual dispute between the parties as to the state of the premises at the time that the respondent took possession of it. The respondent says he left it in much the same state as he found it. The appellants say that he caused damage over and above the damage he has conceded and that the amounts they claim represents the cost of rectifying that damage and the cost of cleaning. In reaching its decision the Tribunal preferred the evidence of the respondent. Having heard the evidence of both parties and having paid particular attention to the photographs including those showing the shed window, I formed a similar view to that of the Tribunal. I prefer the evidence of the respondent where it conflicts with that of the appellants. I am not therefore satisfied that the appellants have established that the respondent caused them to incur the additional expenditure for which they claim.
Further claim
There is a final issue relating to the bond. The appellants’ claim that the sum of $1,900 included two weeks rent totalling $660 and that they are entitled to that sum. This claim was not raised at the hearing before the Tribunal nor in the list of claims filed with the Tribunal prior to the hearing.[11] The first time it was mentioned was when the appellants paid the bond to the Commissioner in accordance with the orders of the Tribunal made on 19 November 2013.
[11] Exhibit A1
The Tribunal member declined to accept that claim particularly as there was no rent record produced at the hearing. Likewise no rent record was produced at the hearing before me nor was any explanation proffered for the failure to include the claim for two further weeks rent in the original claim filed with the Tribunal. The respondent denied that the bond included two weeks rent. He says that he paid the bond and an additional amount to cover two weeks rent in advance at the commencement of the tenancy. I accept his evidence and reject that claim by the appellants.
Conclusion and Orders
Accordingly, I affirm the orders of the Tribunal made on 17 December 2013 and dismiss the appellants’ application. Costs are not generally awarded in this jurisdiction and I make no order as to costs.
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