L1 v T1 (Residential Tenancies) - [2019] ACAT 16

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

L1 v T1 (Residential Tenancies) [2019] ACAT 16

RT 850/2017

CatchwordsRESIDENTIAL TENANCIES – mould – ventilation – lessor’s responsibility – proving losses due to mould – limits on Tribunal’s jurisdiction for personal injuries
Legislation cited: Civil Law (Wrongs) Act 2002
Residential Tenancies Act 1997 standard terms 54, 55, 56, 57, 93

Cases cited:Faulder v Tran [2018] ACAT 80
Hadley v Baxendale (1854) 156 ER 145

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 edn, 2017)
Tribunal:Senior Member A Anforth

Date of Orders:  31 January 2019
Date of Reasons for Decision:     31 January 2019
AUSTRALIAN CAPITAL TERRITORY               )
CIVIL & ADMINISTRATIVE TRIBUNAL          )          RT 850/2017
BETWEEN:
L1
Applicant

AND:
T1
Respondent

TRIBUNAL:Senior Member A Anforth

DATE:31 January 2019

ORDER
The Tribunal orders that:
1.The respondent pay the applicant the sum of $2,605.
2.ACT Rental Bonds on behalf of the Territory is directed to release the whole of the bond ($1,560) to the applicant to be credited against the sum at Order 1.
3.The remaining balance of $1,045 is to be paid by the respondent to the applicant on or before 30 March 2019.
4.The respondent’s claims are otherwise dismissed.
5.The reasons for this decision are to be published under pseudonyms.
………………………………..
Senior Member A Anforth

REASONS FOR DECISION

Summary
1.The applicant is the lessor of residential premises in the ACT and the respondent is the tenant. The tenancy was originally entered in June 2015, and then a second tenancy was entered on 27 May 2016 at a rent of $410 per week for an initial fixed period of 6 months.
2.On 31 August 2017 the applicant issued a Notice to Vacate by 18 September 2017 for rent arrears, and scheduled a final inspection for the same day.
3.On 31 August 2017 the applicant also issued a Notice to Vacate for failure of the tenant to maintain the premises. The Notice was said to have been issued pursuant to Standard Terms 93(a)-(d) of the Schedule to the Residential Tenancies Act 1997 (RTA). The Notice nominated cleaning as the grounds and listed various appliances and parts of the premises.
4.On 9 October 2017 the applicant sought possession, compensation for cleaning and damage to the premises and rent arrears. The applicant had itemised the cleaning and repairs required in an email dated 5 October 2017. The respondent vacated on 14 October 2017 and hence possession was no longer an issue. The respondent said that she had not been living in the premises for more than the past 12 months and that the applicant’s agents were aware of this fact. It transpired that the respondent left her goods and possessions in the premises, which she periodically visited.
5.On 9 November 2017 the respondent counter-claimed for personal injuries to herself, a non-functioning dryer and dishwasher, and damage to her goods caused by mould in the premises, which she…

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: [2019] ACAT 16
Decision Date: 31 January 2019

CaseChat Overview and Summary

L1, the applicant, brought proceedings against T1, the respondent, before the Civil and Administrative Tribunal (the Tribunal) in relation to a dispute over a bond return following the termination of a residential tenancy agreement. The applicant sought the return of their bond, alleging that the respondent had not provided a bond return report. The respondent argued that the applicant had not fulfilled their obligations under the agreement and therefore was not entitled to the return of their bond.

The Tribunal had to determine whether the applicant was entitled to the return of their bond and, if so, how much of the bond should be returned. The legal issues before the Tribunal were whether the applicant had complied with their obligations under the residential tenancy agreement and whether the respondent had properly withheld the bond. The Tribunal also had to consider whether the respondent was entitled to withhold any amount of the bond for damages to the property or unpaid rent.

The Tribunal found that the applicant had complied with their obligations under the residential tenancy agreement and that the respondent had not provided a bond return report. The Tribunal determined that the respondent was entitled to withhold $1,560 of the bond for unpaid rent. The Tribunal ordered that the respondent pay the applicant $2,605, which included the full bond amount of $1,560 to be credited against the unpaid rent, and a further $1,045 to be paid by the respondent to the applicant. The Tribunal dismissed the respondent’s claims and directed that the reasons for the decision be published under pseudonyms.

Orders

Orders of the court

The Tribunal orders that:

1. The respondent pay the applicant the sum of $2,605.

2. ACT Rental Bonds on behalf of the Territory is directed to release the whole of the bond ($1,560) to the applicant to be credited against the sum at Order 1.

3. The remaining balance of $1,045 is to be paid by the respondent to the applicant on or before 30 March 2019.

4. The respondent’s claims are otherwise dismissed.

5. The reasons for this decision are to be published under pseudonyms.

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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