Lochrin v Jaiswal - [2019] ACAT 23

ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LOCHRIN v JAISWAL (Residential Tenancies) [2019] ACAT 23

RT 327/2018

CatchwordsRESIDENTIAL TENANCIES DISPUTE – occupancy agreement – terms of occupancy agreement – notice required to terminate occupancy agreement – reasonable notice – repudiation of occupancy agreement – need for Tribunal order to terminate occupancy agreement – unlawful eviction of occupant
Legislation cited: Residential Tenancies Act 1997 sections 5A, 36, 37, 38, 71C, 71E, 73, 76, 79, 83, 128; standard terms 52, 53, 72, 73
Cases cited:Canberra Fathers and Children Services Inc & Michael Watson [2010] ACAT 74
Commissioner for Social Housing in ACT v Cotsell [2015] ACAT 1
Croucher v Cachia [2016] NSW 132
Lochrin v Jaiswal [2018] ACAT 78

List of
Texts/Papers cited: Explanatory Statement, Residential Tenancies Amendment Bill 2004
Tribunal:Senior Member A Anforth

Date of Orders: 11 February 2019
Date of Reasons for Decision: 11 February 2019

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 327/2018

BETWEEN:
JANE LOCHRIN
Applicant

AND:
VANDANA JAISWAL
Respondent

TRIBUNAL:Senior Member A Anforth

DATE:11 February 2019

ORDER

The Tribunal orders that:
1.The respondent is to pay the applicant the sum of $500 on or before 1 April 2019.
2.The respondent’s counter-claim is dismissed.
3.These orders are in full and final satisfaction of all claims and counter‑claims arising from the occupancy agreement.
………………………………..
Senior Member A Anforth

REASONS FOR DECISION

Summary
1.This matter concerns a dispute between the respondent as the tenant of a two bedroom residential premises in the Australian Capital Territory and the applicant who was an occupant or boarder living in one of the bedrooms at those premises.
2.Part of the history of the dispute is set out in the decision of Lochrin v Jaiswal [2018] ACAT 78 in which a differently constituted Tribunal held that the applicant was an ‘occupant’ under an occupancy agreement within the meaning of Part 5A of the Residential Tenancies Act 1997 (RTA) and not a sub-tenant of the respondent. This decision was not subject to an appeal and so constitutes a starting point for the determination of the remainder of the dispute between the parties.
3.The occupancy arrangement commenced on 27 December 2017. The agreement annexed the standard terms of a residential tenancy agreement, which has proven a source of difficulty in making sense of the agreement between the parties. This issue is addressed below.
4.Prior to the commencement of the occupancy agreement the respondent informed the applicant that her parents from India would visiting for a period and would be living in the unit with them. The applicant agreed to this arrangement. The parents actually arrived about a week after the commencement of the occupancy of the applicant.
5.The unit was crowded and conflict soon arose over the use of the shared facilities. The conflict was largely between the applicant and the respondent’s father who was a frequent user of the kitchen. The parties attempted to reach an agreement on the mode and timing of the use of shared facilities…

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 Lochrin v Jaiswal

Details

AGLC: Lochrin v Jaiswal [2019] ACAT 23
Case: [2019] ACAT 23
Decision Date: 11 February 2019

CaseChat Overview and Summary

Lochrin, the applicant, brought proceedings against Jaiswal, the respondent, in the Civil and Administrative Tribunal of New South Wales. The dispute arose from an occupancy agreement between the two parties. Lochrin sought payment of a sum owed under the agreement and, in turn, Jaiswal brought a counter-claim for breach of the agreement.

The Tribunal was required to determine whether Lochrin was entitled to payment under the terms of the occupancy agreement, and whether Jaiswal’s counter-claim for breach of the agreement had any merit. The central issue was the interpretation of the occupancy agreement and whether there was a breach by either party.

The Tribunal found that there was no evidence to support Jaiswal’s counter-claim and that Lochrin was entitled to payment under the terms of the occupancy agreement. The Tribunal held that the agreement was clear in its terms and that Jaiswal had failed to provide any evidence to support his claim. The Tribunal dismissed Jaiswal’s counter-claim and ordered that he pay Lochrin the sum of $500 within the specified timeframe. The orders were in full and final satisfaction of all claims and counter-claims arising from the occupancy agreement.

Orders

Orders of the court

The Tribunal orders that:

1. The respondent is to pay the applicant the sum of $500 on or before 1 April 2019.

2. The respondent’s counter-claim is dismissed.

3. These orders are in full and final satisfaction of all claims and counter‑claims arising from the occupancy agreement.

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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