Harada v Barnes & Anor

[2021] ACAT 66

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HARADA v BARNES & ANOR (Appeal) [2021] ACAT 66

AA 8/2021 (RT 135/2020)

Catchwords:               APPEAL – residential tenancies – appeal by lessor – whether lessor in breach of clause 54 of the standard residential tenancy terms – whether at the commencement of the tenancy the premises were not reasonably clean, not in a reasonable state of repair and not secure – whether breaches entitled the tenant to terminate the tenancy under clauses 90 and 91 where alternatives to termination were available – appeal dismissed  

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 79, 82

Residential Tenancies Act 1997 s 8, standard terms 54, 60, 61, 90, 91

Cases cited:Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4

Faulder v Tran [2018] ACAT 80
Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275
Tam v Du [2019] ACAT 94
V v Elringtons Pty Ltd [2018] ACAT 23

Tribunal:  Presidential Member G McCarthy
  Senior Member M Orlov

Date of Orders:  19 July 2021

Date of Reasons for Decision:         19 July 2021

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 8/2021

BETWEEN:

LILY HARADA

Appellant/Lessor

AND:

ALLISON BARNES

First Respondent/Tenant

AND:

NATHAN DEAN

Second Respondent/Tenant

APPEAL TRIBUNAL:       Presidential Member G McCarthy

Senior Member M Orlov

DATE:19 July 2021

ORDER

The Tribunal orders that:

1.The application for appeal is dismissed.

………………………………..

Presidential Member G McCarthy

For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

1.This is an application for appeal by the lessor against a decision by a differently constituted tribunal (original tribunal) upholding the tenants’ claim to end the tenancy; upholding their claim for compensation for breaches of the tenancy agreement; and dismissing the lessor’s counterclaim for loss of rent and costs of reletting the premises (original decision).

2.The Tribunal is satisfied that the application for appeal should be dismissed for the following reasons.

The original decision

3.The dispute arose out of a tenancy of premises in Forde, ACT. The parties entered into a residential tenancy agreement on 24 December 2019 for a fixed term of 12 months commencing on 16 January 2020. The tenancy agreement included the standard residential tenancy terms prescribed by section 8 of the Residential Tenancies Act 1997 (RT Act) and set out in Schedule 1 of the RT Act (standard terms). Upon taking possession, the tenants complained about the state of cleanliness and repair of the premises. When the complaints were not resolved to their satisfaction, on 15 April 2020 the tenants issued a notice under clause 91(a) of the standard terms, giving the lessor 14 days to remedy the breaches. On 30 April 2020, consequent upon the lessor’s alleged failure to remedy the breaches, the tenants served a notice of intention to vacate under clause 91(c). They nominated 14 May 2020 as the date on which the tenancy would end. On 1 May 2020, the tenants filed an application for resolution of a tenancy…