LAROSA v Savage - [2007] SADC 105

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Under Residential Tenancies Act 1995)
LAROSA v SAVAGE
[2007] SADC 105
Judgment of His Honour Judge Tilmouth
15 October 2007
LANDLORD AND TENANT
Residential Tenancies Act - appeal from order of Tribunal allowing tenant's claim for compensation - appeal upheld - award moderate as either compensatory or monetary sum.
Residential Tenancies Act ss 41, 68 and 110(c), referred to.
Doherty v Sulley and Suens Judgment No. D3858 3 August 1998; Knueppel v Zarpas [2004] SADC 162, November 2004; Gration v C Gillan Investments Pty Ltd [2005] QCA 184, applied.

LAROSA v SAVAGE
[2007] SADC 105
These proceedings comprise a landlord’s appeal against a decision of the Residential Tenancies Tribunal dated 17 November 2006.

A Residential Tenancy agreement as between the landlord (Appellant) on the one hand and the tenant (Respondent) on the other hand, was executed on 9 July 2006 with respect to the residential premises situated at 68 Swan Street Grange in the state of South Australia. The agreement was endorsed in the handwriting of the respondent, noting a bond of $880.00, rent in advance of $440.00: a total of $1320.00. This was countersigned by the appellant on the same day.
There is no dispute the rent was paid in advance as contemplated or that a further sum of $220.00 was paid by way of rent with respect to the period 18 July to 25 July 2005. Payments of rent were regularly made thereafter until a final transfer of $220.00 on 14 November 2006,[1] thus bringing the period for which rental was duly paid during the course of the agreement to 21 November 2007. Nor is there any disagreement between the parties as to the payment of the bond in accordance with the endorsement, as confirmed by the security bond receipt lodged with the Office of Consumer and Business Affairs on 8 January 2007.
[1] T51 L21
The agreement went on to provide for a term of 24 months commencing from 18 July 2006, at a weekly rental of $220.00 per week, payment to be made on the Tuesday of each week. Otherwise the written agreement was in the standard form save only for three “additional conditions” inserted in hand writing, otherwise immaterial to the present proceedings.
The order in contention is one requiring the landlord to pay to the tenant the sum of $1,300.00, pursuant to s110(c) of the Residential Tenancies Act 1995 (SA) (“the Act”). The components of that were made up of $340.00 compensation for distress and inconvenience for being “left without any hot water in the middle of winter for a period of 16 days”,[2] $100.00 compensation with the respect to “various leaks with taps...[and]...lack of use of laundry cupboard and bathroom cabinet due to damp”,[3] $300.00 “compensation for her discomfort, inconvenience and distress caused” by a toilet blockage and an associated large hole on the back verandah concrete,[4] $85.00 spent by the tenant to fix a window screen and replace a back door screen[5]…

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 LAROSA v Savage

Details

AGLC: Larosa v Savage [2007] SADC 105
Case: [2007] SADC 105
Decision Date: 15 October 2007

CaseChat Overview and Summary

In the case of LaRosa v Savage, the landlord, LaRosa, appealed a decision of the Residential Tenancies Tribunal which found him liable to pay his tenant, Savage, compensation of $1,300.00 for various defects in the residential premises at 68 Swan Street, Grange. The primary dispute concerned whether the landlord had received notice of the defects and whether the compensation awarded was appropriate. The court had to decide whether the Tribunal correctly found the landlord liable for the compensation and if the award was reasonable.

The court found that the landlord was indeed liable for the compensation, as he had failed to act with reasonable diligence to repair defects of which he had notice. The court upheld the Tribunal’s decision on the lack of hot water for 16 days, noting that this constituted undue inconvenience and that the compensation of $340.00 was modest. The court also upheld the compensation for leaking taps, blocked toilets, and the state of the gardens, finding that the landlord was either aware of these defects or should have been, given the objective state of repair required by law. The court concluded that the compensation awarded was reasonable and that there was no cogent reason to vary the Tribunal’s decision.

The court dismissed the landlord’s appeal and affirmed the Tribunal’s orders. However, it made an order that the tenant pay the landlord the balance of $300.00, set off against the compensation awarded. The court also granted leave for the parties to file written submissions on the issue of costs, with deadlines for the submissions set.

Orders