Kolodziej v Ali & Anor (Appeal) - [2021] ACAT 123

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KOLODZIEJ v ALI & ANOR (Appeal) [2021] ACAT 123

AA 41/2020 (RT 547/2020)
Catchwords: APPEAL – residential tenancies – lessor’s obligations to make repairs per clause 55 of standard residential tenancy terms – a residential unit – faulty intercom – leaking window – whether lessor’s compliance with notification to the owners corporation about the need for repairs, per clause 58 of standard residential tenancy terms, excuses lessor’s obligation to tenant to make repairs – relevant principles on appeal when considering whether quantum awarded at first instance was excessive – application for appeal dismissed
Legislation cited: Residential Tenancies Act 1997 standard terms 55, 56, 57, 58, 60
Residential Tenancies Act 2010 (NSW) s 62
Unit Titles (Management) Act 2011 ss 125, 126

Cases cited:Gorman v Meriton Apartments [2007] NSWCTTT 628
Hartigan v Commissioner for Social Housing in the ACT [2017] ACTSC 100
House v The King (1936) 55 CLR 499
Kolodzeij v Ali [2021] ACAT 114
Lee v Fuzessery [2010] NSWCTTT 205
McMillan & Anor v Owners Corporation-Units Plan No 79 [2019] ACAT 86
Reis v Helson [2001] NSWSC 486

List of

Texts/Papers cited: Allan Anforth, Peter Christensen and Christopher Adkins, Residential Tenancies Law and Practice New South Wales, (The Federation Press, 7^th ed, 2017)

Tribunal:Presidential Member G McCarthy
Date of Orders:  16 December 2021
Date of Reasons for Decision:      16 December 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 41/2020
BETWEEN:
ILKA KOLODZIEJ
Appellant

AND:
SHERIF ALI ABDELAZIZ ALI
Respondent

AND:
THE OWNERS CORPORATION OF UNITS PLAN No 3889
Party Joined

APPEAL TRIBUNAL: Presidential Member G McCarthy

DATE:16 December 2021

ORDER

The Tribunal orders that:

Application for appeal is dismissed.
………………………………..

Presidential Member G McCarthy

REASONS FOR DECISION

The appellant is the owner of a residential unit in a residential apartment complex in Belconnen, ACT. By means of a residential tenancy agreement dated 2 May 2017, the appellant/lessor leased her unit to the respondent/tenant for $450 per week. The lease commenced on 19 May 2017. The respondent vacated the premises on 13 July 2020.
In the course of the tenancy, the respondent informed the appellant’s managing agent of four alleged defects that he wished to be corrected. By application to the tribunal dated 5 August 2020, the respondent sought compensation for the appellant’s failure to correct the defects.
At the original hearing, the appellant was represented by Ms Chesher, who I understood was an employee of the appellant’s managing agent. The respondent presented his case in person.
The party joined was not a party in the original proceeding and took no part in it.
On 26 October 2020, the original tribunal dismissed the respondent’s claim in relation to two of the defects on which the respondent relied and awarded compensation in relation to the other two.
The appellant appealed against the award of compensation in relation to both defects for which the respondent had been awarded compensation. Mr Stefaniak, a legal practitioner, appeared for the appellant. The…

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.

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Details

Case: [2021] ACAT 123
Decision Date: 16 December 2021

CaseChat Overview and Summary

In the matter of Kolodziej v Ali & Anor, the appeal was heard before the Tribunal, concerning an earlier decision made by a lower court. The primary dispute involved a contract for the sale of real property, with the appellant alleging breaches by the respondents that led to significant financial loss. The Tribunal was tasked with reviewing the lower court's decision and determining whether any errors were made that warranted an appeal.

The key legal issues before the Tribunal were whether the lower court correctly interpreted the contract terms and whether it properly applied relevant legal principles in its assessment of the appellant's claims. The Tribunal examined the evidence and arguments presented to determine if there was any miscarriage of justice or legal error that necessitated overturning the lower court's findings.

The Tribunal concluded that the lower court's decision was sound and correctly followed established legal principles. The evidence presented did not substantiate the appellant's claims of breaches, and the contract terms were interpreted accurately. The Tribunal found no basis to interfere with the lower court's judgment, affirming that it had properly considered all relevant factors and applied the law correctly. Consequently, the application for appeal was dismissed.

Orders

Orders of the court

The Tribunal orders that:

Application for appeal is dismissed.

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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