Jodi Anne Brown v Michael Rigoni

[2006] ACTRTT 14

Jodi Anne Brown -v- Michael Rigoni

ACTRTT 14 [2006]

CATCHWORDS

Rental bond money – requirement to lodge

LEGISLATION

Residential Tenancies Act 1997 (ACT)

CASE LAW

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Case Reference Number:     RT 1884 of 2006

RE: Premises at 89 Duffy Street, Ainslie  ACT  2602

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Decision

Member:         J. Lennard
Date:              27 April, 2006

1. That the lessor is to pay an amount of $450.00 to Jodi Anne Brown within seven days of the date of this Order.

STATEMENT OF REASONS

1. This matter is a dispute about Bond refund. The matter was heard by the Tribunal on 15 March 2006. The applicant tenant attended the hearing, the respondent lessor did not. The respondent provided a written statement contesting the application.
2. The Applicant rented “a room” in premises at 89 Duffy St Ainslie owned by the Respondent. The evidence before the tribunal was that the premises were rented as a group house: there were two long term tenants, Mr and Mrs Walsh and two other tenants who rented rooms within the house. It appears that Mr Steven Walsh acted as the lessor’s representative in dealing with the other tenants.
3. Although the evidence was primarily presented by the tenant, the Tribunal notes that the lessor was aware of the matter being heard on 15 March and that he opted not to present the tribunal with any evidence supporting his claim to be entitled to retain Bond money paid by the tenant.
4. The tenant rented the room from 24 June 2005 until 19 November 2005. No lease was ever signed, there was no check-in report provided to the tenant. The tenant paid $450.00 to Mr Steven Walsh; this money was a bond payment. It is not clear to the Tribunal whether this money was lodged at the Office of Rental Bonds, as required by the Residential Tenancies Act 1997. However, there was evidence provided by the lessor of a Transfer of Tenants Form being completed and signed by the tenants. There is no evidence as to the purpose of this form or of the manner in which the applicant’s bond money was to be distributed.
5. The Tribunal staff established via enquiry with the ORB that the Bond had not been transferred.  Further the Tribunal had evidence of an email sent by the lessor to the tenant on 2 February 2006, in which the lessor claims an amount of $298.00 being the cost of repairs to and cleaning of the premises plus water usage. The lessor states: if you would be so kind as to provide your bank details I will transfer the funds to you by EFT immediately.
6. The Tribunal concludes that the lessor has received money by way of bond from the tenant, and that it was not on 2 February lodged at the ORB but in the control of the lessor.
7. The Tribunal received evidence of several attempts by the tenant’s father (acting under her authority) to obtain from the lessor the documents necessary to substantiate his claim to $298.00. The Tribunal notes that the lessor did not supply such documentation to the tenant or her representative and further that in his written submission to the tribunal the respondent lessor stated: I am able to provide evidence consisting if condition reports, photographs, sworn statutory declarations, receipts and tax invoices. However, I am advised that there is no case to answer.
8. Money paid by way of Bond is meant to provide a source of funds against which a lessor may make claims for compensation for loss occurring as a breach by the tenant of the residential tenancy agreement. The bond money is tenant’s money and the lessor must establish the relevant  breach and the actual loss. The lessor has failed to do either. Since it appears to the Tribunal that the lessor has the bond money paid by the tenant within his control, and since there is no proven breach of the residential tenancy agreement by the tenant, the lessor is to return the money held in his control to the tenant. The Tribunal therefore makes the following order:

Jann Lennard
Member
27 April, 2006