Kiternas v Watts

Case [2006] ACTRTT 4

Ranko & Nada Kiternas – v.- R & C Watts  ACTRTT4  [2006]

CATCHWORDS
Rent reductions
Compensation for distress and inconvenience
Failure to carry out repairs by landlord
Mitigation of losses by tenant

ISSUES
Whether the Tribunal may order successive rent reductions pursuant to s71
Whether the Tribunal has the power to award compensation for distress and inconvenience pursuant to s104(1)(d) for a landlords failure to repair
Whether the Tribunal can order rent reductions and compensation pursuant to s104(1)(d)
Whether the tenant has mitigated his losses by unreasonable delay in commencing proceedings in the Tribunal

LEGISLATION
Residential Tenancies Act 1997 (ACT) sections: 38, 71 and 104(1)(d) prescribed terms: 54-57
Legislation Act 2001 : sections 138, 139.

CASES CITED
The Progressive Mailing House P/L v Tabali P/L (1985) 157 CLR 17;
The Estate of Tanya Humphries v The Commissioner for Housing in the ACT [2003] ACTSC 40; Minister for Immigration, Multicultural and Indigenous Affairs v Al Khataji (2004) HCA 38; Robinson v Harman 1848 1 EX 850 at 855,
Commonwealth v Amann Aviation P/L Ltd 1991 174 CLR 64 at 128;
O'Brien v Dunsdon 1965 39 ALJR 78;
Sellars v Adelaide Petroleum N/L 1994 179 CLR 332 at 349;
Hadley v Baxendale 1854 9 Ex 341;
C Czamikow Ltd v Loufos 1969 1 AC 350;
Baltic Shipping Co v Dillon 1993 176 CLR 344;
Simonius Vischer & Co v. Holt [1979] 2 NSWLR 322 at 355–6;
Lloyds and Scottish Finance v. Modern Cars and Caravans [1966] 1 QB 764;
TC Industrial Plant Pty Ltd v. Robert’s Queensland Pty Ltd (1963) 180 CLR 130 at 138; Wenkart v. Pittman (1999) 46 NSWLR 502 at 520–523;
Murray-Oates v. Jadd Pty Ltd (1999) 76 SASR 38 at 48;
Roper v. Johnson (1873) LR 8 CP 167.;
Karacominakis v. Big Country Development Pty Ltd [2000] NSWCA 313;
The World Beauty [1970] P 144;
Payzu Ltd v. Saunders [1919] 2 KB 581;
Banco de Portugal v. Waterlow & Sons Ltd [1932] AC 452;
Karacominakis v. Big Country Developments Pty Ltd [2000] NSWCA 313;
Residential Tenancies Tribunal v Offe (unreported SC of NSW 1/7/97 Abadee J);
Strahan v Residential Tenancies Tribunal (unreported SC NSW Dowd J  1998);
Reiss v Helson [2001] NSWSC 486;
Sonia Jones v Commissioner for Housing for the ACT [2003] ACTSC 52;
Musumeci v Winadell P/L (1994) 34 NSWLR 723;
Spathis v Hanave Investment Co P/L (2002) NSWSC 304;
Worrall v Commissioner for Housing [2002] FCAFC 127;
Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-Stock Corporation (1980) 29 ALR 333;
Smith v The Queen (1994) 181 CLR 338;
Barres v Sun and Xia (2001) NSWRT 168;
Jacques v Santa Rita (1999) NSWRT 40;

Case Reference Number:        RT 986 of 2004

Re: 10 Sulman Place, Swinger Hill  ACT 

Decision

  1. The Respondent, Richard Watts is to pay the tenants the sum of $4160.00 within 28 days.

  1. This order is in addition to the order made on 17 June…

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Details
AGLC
Ranko & Nada Kiternas – v.- R & C Watts [2006] ACTRTT 4
Case
[2006] ACTRTT 4
Decision Date

CaseChat Overview and Summary

Kiternas, the tenant, brought an action against Watts, the landlord, concerning the failure to perform repairs and the right to a rent reduction. The matter was heard in the Magistrates' Court of Victoria. The central dispute was whether the tenants were entitled to a reduction in rent due to the landlord's failure to carry out necessary repairs, and whether they were entitled to compensation for distress and inconvenience. Additionally, the court needed to consider whether the tenants had taken reasonable steps to mitigate their losses.

The court examined the obligations of the landlord under the Residential Tenancies Act 1995 (Vic) and assessed whether the landlord's failure to perform repairs warranted a rent reduction. It also evaluated the tenants' actions to mitigate their losses and the extent to which they were entitled to compensation for distress and inconvenience. The court considered whether the tenants had fulfilled their duty to mitigate their losses and whether they had acted reasonably in the circumstances.

The court found that the landlord was indeed obligated to carry out the necessary repairs and that his failure to do so justified a reduction in rent. The tenants were awarded $4160.00 as compensation for the distress and inconvenience caused by the landlord's failure to perform repairs. The court also found that the tenants had taken reasonable steps to mitigate their losses and were therefore entitled to the full amount of compensation. The decision was made in addition to the order made on 17 June 2005, requiring the landlord to pay the sum of $4160.00 within 28 days.

Orders

Orders of the court

Decision

1. The Respondent, Richard Watts is to pay the tenants the sum of $4160.00 within 28 days.

2. This order is in addition to the order made on 17 June 2005.

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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