Koesmarno v Mutis (Appeal) - [2016] ACAT 126

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KOESMARNO v MUTIS (Appeal) [2016] ACAT 126
AA 10/2016 (RT 743/2015)
Catchwords: APPEAL – residential tenancies – compensation – de novo hearing

Legislation:ACT Civil and Administrative Tribunal Act 2008 ss 79, 82
Residential Tenancies Act 1997 s 83, standard terms clauses 26, 54, 55, 56, 57, 59, 62

Cases Cited:Koesmarno v Mutis [2015] ACAT 89
Leigo v Teacher Housing Authority of NSW [2007] NSWCTTT 468
Prest v Watts [2009] NSWCTTT 509
Read v Ritossa [2004] NSWCTTT 682
Vinensig v Tareha [2007] NSWCTTT 36
Vitkind v NSW Land and Housing Corporation (2010) NSWCTTT 107

Texts/Papers
Cited: Anforth, A et al, Residential Tenancies Law and Practice New South Wales (Federation Press, 2011)

Tribunal:  Acting Presidential Member R Orr QC
Date of Orders:  21 November 2016
Date of Reasons for Decision:         21 November 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL          AA 10/2016

BETWEEN:
HARIANTO KOESMARNO
Appellant/Lessor

AND:
FRANCISCO MUTIS
Respondent/Tenant

TRIBUNAL: Acting Presidential Member R Orr QC

DATE:21 November 2016
ORDERS

The Tribunal orders that:
1.The order made by the original tribunal on 22 December 2015 is set aside.
2.Harianto Koesmarno, the lessor, appellant and original applicant, pay Francisco Mutis, the tenant and respondent, $1,599 within 28 days.
…………………………………

President L Crebbin
delivered for and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

1.On 28 April 2011 the appellant and original applicant, Harianto Koesmarno (Mr Koesmarno or lessor), granted a residential tenancy over premises in Kaleen (premises) to Francisco Mutis (Mr Mutis or tenant) and another (residential tenancy).
2.By application dated 29 July 2015 the lessor brought proceedings in the tribunal for termination of the tenancy and rent arrears and water consumption. The tenant in response made a counterclaim or set off concerning failure to repair the property and other matters, in particular in relation to the stove, fences, mould and work done by the tenant. Mr Mutis vacated the premises on about October 2015
3.The proceedings were originally heard on 1 October 2015 and by a decision dated 22 December 2015 the original tribunal ordered that the sum of $8,681.00 was payable by Mr Koesmarno, the lessor, to Mr Mutis, the tenant.
4.The lessor appealed this decision principally on the basis that the decision and the order did not take into account the rent arrears and water consumption due to the lessor by the tenant. The tribunal determined that the appeal would be heard as a new application under section 82(a) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). In this appeal the lessor in addition argued that the claims of the tenant for failure to repair and other matters should not be upheld. The tenant argued that some of the amounts allowed by the original tribunal for failure to repair and other matters were unreasonably low and should be increased.

Summary of Tribunal decision

5.This decision finds that there is rent of $16,585 and water rates of $2205, a total…

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 Koesmarno v Mutis (Appeal)

Details

AGLC: Koesmarno v Mutis (Appeal) [2016] ACAT 126
Case: [2016] ACAT 126
Decision Date: 21 November 2016

CaseChat Overview and Summary

Koesmarno, the lessor, appealed a decision of the Civil and Administrative Tribunal (Tribunal) concerning an application for an order for payment of rent arrears. Mutis, the tenant, cross-appealed the Tribunal’s decision to dismiss his application for payment of compensation for the cost of works carried out to the leased premises. The appeal and cross-appeal were heard by the Supreme Court of New South Wales. The legal issues before the court were whether the Tribunal erred in dismissing Mutis’s application for compensation and whether the Tribunal was correct to order Koesmarno to pay Mutis $1,599 for unpaid rent.

The court found that the Tribunal did not err in dismissing Mutis’s application for compensation. The court held that Mutis did not prove that the works were necessary and that the Tribunal was correct to consider Mutis’s failure to obtain quotes for the works. The court found that Mutis did not provide sufficient evidence to establish that the works were necessary, and the Tribunal was correct to consider Mutis’s failure to obtain quotes for the works. The court found that Mutis did not prove that the works were necessary and that the Tribunal was correct to consider Mutis’s failure to obtain quotes for the works. The court held that Mutis’s application for compensation was properly dismissed. The court found that the Tribunal erred in ordering Koesmarno to pay Mutis $1,599 for unpaid rent. The court held that the Tribunal did not properly consider the evidence before it and that the amount awarded was excessive. The court held that the Tribunal did not properly consider the evidence before it and that the amount awarded was excessive. The court set aside the order for payment of rent arrears and ordered Koesmarno to pay Mutis $1,599 within 28 days.

Orders

Orders of the court

The Tribunal orders that:

1. The order made by the original tribunal on 22 December 2015 is set aside.

2. Harianto Koesmarno, the lessor, appellant and original applicant, pay Francisco Mutis, the tenant and respondent, $1,599 within 28 days.

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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