Knueppel v Zarpas - [2004] SADC 162

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Under Residential Tenancies Act 1995)
KNUEPPEL v ZARPAS
Judgment of His Honour Acting Judge Kitchen
25 November 2004
LANDLORD AND TENANT
Residential Tenancies Act - apppeal from order of Tribunal dismissing tenant's claim for compensation - whether landlord has notice of those defects which a reasonable inspection before the commencement of the tenancy would have revealed.
Residential Tenancies Act 1995, referred to.
Reliance Permanent Building Society v Harwood-Stamper (1944) 1 Ch. 362; Northern Sand-Blasting Pty Ltd (1996-1997) 188 CLR 313, considered.

KNUEPPEL v ZARPAS
[2004] SADC 162

This is an appeal, pursuant to Section 41 of the Residential Tenancies Act 1995 (the Act), by a tenant against an order made by the Residential Tenancies Tribunal (the Tribunal) dismissing the tenant’s application for orders that the landlord pay compensation to the tenant.
The appellant entered into an oral tenancy agreement to rent a “dugout” house premises at Lot 925 Hallion Street, Coober Pedy commencing on 8^th August 2001 at a rent of $110 per week.
In a letter to the respondent dated 23^rd October 2002 the appellant provided a list of fixtures and fittings in the premises the repair of which she claimed was necessary for the health and safety of the appellant and her young children. The respondent resided in New South Wales. The letter was sent by registered post to the respondent at her address in New South Wales known to the appellant. The appellant did not receive a reply. On 28^th November 2002 the appellant wrote to the Tribunal setting out her complaints concerning the premises and seeking an order that the respondent carry out repairs, and pay compensation for the unsatisfactory condition of the premises. On 29^th November 2002 the appellant’s letter to the respondent was returned to the appellant unclaimed.
On 16^th December 2002 the appellant filed with the Tribunal an application dated 12^th December 2002 seeking orders:
·“Landlord to carry out repairs and maintenance
·Compensation/rent reduction of $20 per week from August 2001 until the repairs are effected
·Landlord to reimburse $100 on each two monthly water bill issued by DCCP from first bill (approximately August 2001-October) until repairs are effected.”
The Tribunal sat in Coober Pedy on 7^th January 2003 to hear the appellant’s application. Both the appellant and the respondent gave evidence before the Tribunal. There is no transcript of the proceedings.
The appellant’s case was that at or soon after the time she entered into the tenancy agreement she spoke to the respondent on the telephone who told her that she should speak to one Jianni Nickalou if she had any difficulties concerning the premises. The appellant claimed that in the period of 12 months preceding October 2002 she had asked Jianni Nickalou to carry out repairs to the premises but he had not done so, and her attempts to contact the respondent by telephone about defects in the premises had been unsuccessful. The appellant then wrote…

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 Knueppel v Zarpas

Details

AGLC: Knueppel v Zarpas [2004] SADC 162
Case: [2004] SADC 162
Decision Date: 25 November 2004

CaseChat Overview and Summary

The District Court of South Australia heard an appeal from a decision of the Residential Tenancies Tribunal concerning a dispute between tenant, the appellant, and landlord, the respondent. The appellant sought compensation from the respondent for defects in the premises at the beginning of the tenancy. The Tribunal dismissed the appellant's claim on the basis that the respondent did not have notice of the defects of which the appellant complained. The appellant appealed on the grounds that the Tribunal Officer erred in not ordering an inspection of the premises, gave undue weight to the testimony of the landlord, and discredited the testimony of the appellant without basis. The court found that the respondent was in breach of the tenancy agreement by reason of defects which were present at the commencement of the tenancy, discoverable upon a reasonable inspection before the commencement of the tenancy, and were not repaired by the respondent. The court assessed compensation in the sum of $440, which is to be set off against the sum of $440 owed by the appellant to the respondent for rent. Each party to bear their own costs of the appeal.

Orders