Hosseini v Charmoun - [2021] NSWCATCD 3

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Hosseini v Charmoun [2021] NSWCATCD 3
Hearing dates: 15 April 2021
Date of orders: 24 May 2021
Decision date: 20 May 2021
Jurisdiction: Consumer and Commercial Division
Before: J Rose, General Member
Decision:
The respondent landlord must pay to the applicant tenant the sum of $1,285.00 immediately.

Catchwords:
LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rental bond — Repairs and cleaning

Legislation Cited:
Residential Tenancies Act 2010 (NSW)
Residential Tenancy Regulation 2010 (NSW)

Cases Cited:
Abela v Walker [1997] NSWRT 15
Briginshaw v Briginshaw (1938) 60 CLR 336
Byrnes v Jokona Pty Ltd [2002] FCA 41
Commonwealth v Amann Aviation Pty Ltd
(1991) 174 CLR 64
Cooper v Westpac General Insurance Ltd
[2007] ACTCA 20
Fitzpatrick v Wu (unreported, NSWRTT, 2001, 01/16425).
Graham, Caste, Pilonchery v French
[2013] NSWCTTT 15
Kjoller v Tailford [2016] NSWCATAP 4
Lakatoi Universal Pty Ltd v L.A. Walker; Ensile Pty Ltd v Walker Consolidated Investments
[2000] NSWSC 113
Taylor v Webb [1937] 2 KB 283
Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123
Westpac General Insurance Ltd v Cooper
[2006] ACTSC 91
Westpoint Management Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253

Texts Cited:
Residential Tenancies Law and Practice New South Wales, 7th edition (2017)

Category: Principal judgment
Parties: Soghrs Hosseini (Applicant)
Charbel Charmoun (Respondent)
Representation: Soghrs Hosseini (in person) (Applicant)
Christopher Ng (agent) (Respondent)

File Number(s): RT 21/02205
Publication restriction: Nil

REASONS FOR DECISION

INTRODUCTION

These proceedings arise out of a residential tenancy agreement (the “tenancy agreement”) between the Applicant (the “tenant”) and the Respondent (the “landlord”) in respect of a residential apartment at The Esplanade, Guildford, a suburb of Sydney (the “premises”). The tenant vacated the premises on 21 November 2020, bringing the tenancy agreement to an end on that date.
The tenant filed his application in these proceedings on 18 January 2021, claiming an order that the tenants’ bond of $1,680 (the “bond”) be refunded to him under s 175 of the Residential Tenancies Act 2010 (NSW) (the “RT Act”).
The bond was deposited with NSW Rental Bond Services, but it was paid out on 16 December 2020, as follows:

$1,605 was paid to the landlord; and

$75 was paid to the tenant.

Accordingly, the tenant essentially seeks an order that the part of the bond that was paid to the landlord be repaid to her.

The landlord opposes the application and says that he was entitled to receive $1,605 from the bond, which is said to cover:

$340 for the cost of cleaning the premises, on the basis that the landlord says that they were not left reasonably clean by the tenant at the end of the of the tenancy agreement; and

$1,265 for the cost of repairing, painting and restoring the premises to return them to the state required by…

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 Hosseini v Charmoun

Details

AGLC: Hosseini v Charmoun [2021] NSWCATCD 3
Case: [2021] NSWCATCD 3
Decision Date: 20 May 2021

CaseChat Overview and Summary

In the case of Hosseini v Charmoun, the applicant, as a former tenant, sought the return of a rental bond from the respondent, the landlord, under the Residential Tenancies Act 2010 (NSW). The dispute centred on the deductions made by the landlord from the applicant's bond at the conclusion of the lease, specifically in relation to repairs and cleaning. The applicant contested these deductions, arguing that they were not justified or proportionate to the condition of the premises upon vacating.

The central legal issues addressed by the court involved the interpretation of the statutory provisions regarding the return of rental bonds and the permissible grounds for deductions. The court had to determine whether the landlord's actions were in compliance with the Act, particularly with respect to the reasonable conditions of the property and the extent of necessary repairs and cleaning.

The court found that the deductions made by the landlord were not supported by the evidence presented. The condition of the property upon vacating did not justify the level of deductions, and the repairs and cleaning claimed were either not carried out or were not of a standard that would warrant such deductions. Consequently, the court ruled that the landlord's actions were unreasonable and not in accordance with the Act. The court ordered the landlord to repay the sum of $1,285.00 to the applicant tenant immediately, reflecting the over-deduction from the rental bond.

Orders

Orders of the court

The respondent landlord must pay to the applicant tenant the sum of $1,285.00 immediately.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hosseini v Charmoun [2021] NSWCATCD 3
Hearing dates:	15 April 2021
Date of orders:	24 May 2021
Decision date:	20 May 2021
Jurisdiction:	Consumer and Commercial Division
Before:	J Rose, General Member
Decision:	The respondent landlord must pay to the applicant tenant the sum of $1,285.00 immediately.
Catchwords:	LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rental bond — Repairs and cleaning
Legislation Cited:	Residential Tenancies Act 2010 (NSW) Residential Tenancy Regulation 2010 (NSW)
Cases Cited:	Abela v Walker [1997] NSWRT 15 Briginshaw v Briginshaw (1938) 60 CLR 336 Byrnes v Jokona Pty Ltd [2002] FCA 41 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Cooper v Westpac General Insurance Ltd [2007] ACTCA 20 Fitzpatrick v Wu (unreported, NSWRTT, 2001, 01/16425). Graham, Caste, Pilonchery v French [2013] NSWCTTT 15 Kjoller v Tailford [2016] NSWCATAP 4 Lakatoi Universal Pty Ltd v L.A. Walker; Ensile Pty Ltd v Walker Consolidated Investments [2000] NSWSC 113 Taylor v Webb [1937] 2 KB 283 Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 Westpac General Insurance Ltd v Cooper [2006] ACTSC 91 Westpoint Management Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253
Texts Cited:	Residential Tenancies Law and Practice New South Wales, 7th edition (2017)
Category:	Principal judgment
Parties:	Soghrs Hosseini (Applicant) Charbel Charmoun (Respondent)
Representation:	Soghrs Hosseini (in person) (Applicant) Christopher Ng (agent) (Respondent)
File Number(s):	RT 21/02205
Publication restriction:	Nil