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 348Karacominakis v Big Country Development P/L
[2000] NSWCA 313Lancaster 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 130The 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 ( 5th 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/TenantsCourtney ROPER
Respondent/ Landlord
TRIBUNAL: Mr A. Anforth, Senior Member
DATE: 28 June 2011
ORDER
- The landlord is to pay…
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- Case
- [2011] ACAT 41
- Decision Date
CaseChat Overview and Summary
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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