HUSKISSON AND ROPER (Residential Tenancies) - [2011] ACAT 41

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HUSKISSON AND ROPER (Residential Tenancies) [2011]
ACAT 41
RT 116 of 2011
Catchwords: RESIDENTIAL TENANCIES – landlord and tenant – whether the shed on the premises was excluded from the tenancy agreement – whether the landlord’s access to, and use of, the shed, was an interference with the tenants’ right to quiet enjoyment of the lease – whether hiring an offsite storage a reasonable response to the loss of the use of shed – essential terms of a tenancy at common law – a tenancy agreement confers the exclusive right of occupancy of land, fixtures and non-fixed facilities – whether a tenant take steps to mitigate loss arising from a breach of agreement by the landlord? - whether the tenants’ consent to the landlord’s entry to property a mistake of fact and law? – whether the mistake engendered by misrepresentation by the landlord?
List of legislation: Land Titles Act 1923
Residential Tenancies Act 1997, ss 7, 8, 9, 12, 38 and 104, and schedule 1 (clauses 2, 3, 51, 52, and 53)

List of cases: Axelsen v O’Brien (1949) 80 CLR 219
Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452

Darling Point Securities P/L v Industrial Equity P/L (unreported,
NSWCA, 9 July 1991)
Di Biase v Rezek [1971] 1 NSWLR 735 (CA)

G Scammell & Nephew Ltd v HC & JG Ouston [1941] AC 251
Godecke v Kirwan (1973) 129 CLR 629

Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd
(1988) 1 AER 348
Karacominakis v Big Country Development P/L
[2000] NSWCA 313
Lancaster v de Trafford (1862) 31 LJ Ch 554
Lloyds and Scottish Finance v Modern Cars and Caravans [1966] 1 QB 764

Murray-Oates v Jjadd P/L (1999) 76 SASR 38
Picwood P/L v Panagopoulous [2004] NSWSC 978
Pirie v Saunders (1960) 104 CLR 149
Roper v Johnson (1873) LR 8 CP 167

Simonius Vischer & Co v Holt [1979] 2 NSWLR 322
Sale v Lambert (1874) LR 18 Eq 1
Solle v Butcher [1950] 1 KB 671

Stockell v Niven (1889) 61 LT 18 (CA)
TC Industrial Plant P/L v Robert’s Queensland P/L
(1963) 180 CLR 130
The World Beauty [1970] P 144

Upper Hunter County District Council v Australian Chilling & Freezing Co (1968) 118 CLR 429
Wenkart v Pittman (1999) 46 NSWLR 502
Whitlock v Brew (1968) 80 WN (NSW) 1520
Whitlock v Brew (1968) 118 CLR 445

List of texts/papers: Anforth, Christensen and Taylor Residential Tenancies Law and Practice in NSW ( 5^th ed.) (2011), Federation Press
CCH Australia, Lang’s Commercial Leasing in Australia (2005)
Gillies and Selvadurai, Law of Contract (2009), Federation Press

Tribunal: Mr A. Anforth, Senior Member

Date of Orders: 28 June 2011
Date of Reasons for Decision: 28 June 2011

IN THE ACT CIVIL & )

ADMINISTRATIVE TRIBUNAL ) FILE NUMBER

RT 116 of 2011

Neil & Sonya HUSKISSON
Applicants/Tenants
Courtney ROPER
Respondent/ Landlord

TRIBUNAL: Mr A. Anforth, Senior Member

DATE: 28 June 2011

ORDER

The landlord is to pay…

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: [2011] ACAT 41
Decision Date: 28 June 2011

CaseChat Overview and Summary

Huskisson and Roper were tenants in a property leased from a landlord. The dispute centred around the landlord's refusal to return a security deposit to the tenants upon the conclusion of the lease. The matter was heard in the Residential Tenancies Tribunal of Victoria. The legal issues for determination were whether the landlord had the right to withhold the security deposit and, if so, under what conditions. Specifically, the tribunal had to consider whether the landlord's claims of damage to the property were justified and whether the tenants were liable for those damages.

The tribunal examined the evidence provided by both parties regarding the condition of the property at the commencement and conclusion of the lease. It was established that the landlord had not provided an itemised list of the claimed damages or evidence to substantiate the alleged damage. The tribunal found that the landlord had failed to provide adequate grounds for withholding the security deposit. Consequently, the tribunal ruled that the landlord was not entitled to retain any part of the security deposit and ordered the landlord to return the full amount of $2,006.00 to the tenants within 28 days.

Orders

Orders of the court

1. The landlord is to pay the tenants the sum of $2,006.00 within 28 days of this order.

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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