Martins v Zhang - [2014] ACAT 48

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MARTINS v ZHANG (Residential Tenancies) [2014] ACAT 48

RT 14/360
Catchwords: RESIDENTIAL TENANCIES – rental bond dispute – claim by lessor for additional week’s rent after termination of lease – time taken for repairs – no new tenants waiting to move in – new tenants not found for a month - lessor not entitled to additional rent
Legislation:Residential Tenancies Act 1997 Standard Terms clause 64
Cases:Hlubucek v Sinodinos [2007] ACTRTT 12

Tribunal: Mr W. G. Stefaniak AM – Presidential Member

Date of Orders and Decision 20 June 2014
Date of Corrected Order: 29 July 2014
Date of Published Reasons for Decision: 29 July 2014

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL RT 14/360
BETWEEN:
DARIA MARTINS
Applicant

AND:
YOU ZHANG
Respondent

TRIBUNAL: Mr W.G. Stefaniak AM – Presidential Member

DATE:29 July 2014
CORRECTED ORDER

The Tribunal Orders that:
1.The application is dismissed
2.The Office of Rental Bonds is directed to release the $715 remaining bond monies held forthwith to the tenant.

………………………………..
Mr W.G. Stefaniak AM
Presidential Member

REASONS FOR DECISION

Mr Zhang and his colleagues were tenants in the subject property. Mr Zhang particularly, according to the applicant, was a good tenant. The applicant was the lessor (the landlord).
The tenancy commenced in November 2011. It finished on 14 March 2014. At that time it was a periodic tenancy. It was a group house. Mr Zhang was responsible for the behaviour of the other members of the group house.
I find nothing startling in the fact that the landlord claimed $1,506.35 out of the bond of $2,860. That is not unusual when the tenants have been in the house a number of years. That’s what bonds are for, and whilst Mr Pasi, who represented the tenant, mentioned there were some issues in relation to whether that was a justifiable claim, the bottom line is, his client agreed to pay it and that amount of the bond was released to the landlord. The balance of the bond of $1,305.65 would usually be due to the tenant. The applicant’s agent however agreed to the Office of Rental Bonds (ORB) releasing all but $715 of the $1,305.65 to the tenants.
The $715 retained by the ORB and in dispute, related to a request for the payment of a further week’s rent by the applicant’s agent. It was common ground that the tenancy finished on 14 March 2014. That was the date of the final inspection. Mr Zhang had some furniture in the premises but it is agreed that the furniture had been moved out by the end of 14 March 2014. The keys had been returned. It is clear the tenancy finished at one minute to midnight on 14 March 2014 and as of one minute past midnight, on 15 March 2014, there was no tenancy.
The landlord did some necessary repairs and advertised the property after the repairs were finished. This was one week after the tenancy finished. A month after the tenancy…

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: [2014] ACAT 48
Decision Date: 29 July 2014

CaseChat Overview and Summary

The case of Martins v Zhang involved a dispute between a lessor and a former tenant over a rental bond. The tenant, Zhang, had vacated the premises and the lessor, Martins, claimed an additional week’s rent, alleging that Zhang had not made the property ready for new tenants within the stipulated time. The dispute was heard by the Residential Tenancies Tribunal of Queensland. The Tribunal was required to determine whether Martins was entitled to the additional week’s rent under the circumstances presented. The key legal issues were whether the property was reasonably ready for new tenants and whether Martins had taken reasonable steps to find new tenants.

The Tribunal found that there was no evidence that the property was not reasonably ready for new tenants. It also found that Martins had not taken reasonable steps to find new tenants, as it took a month to find new occupants. The Tribunal concluded that Martins was not entitled to the additional week’s rent. The Tribunal emphasised that the onus was on the lessor to mitigate the loss caused by a tenant vacating the property, and Martins had failed to do so by not finding new tenants promptly. Consequently, the Tribunal dismissed the lessor’s application and directed that the remaining bond monies be released to the tenant.

Orders

Orders of the court

The Tribunal Orders that:

1. The application is dismissed

2. The Office of Rental Bonds is directed to release the $715 remaining bond monies held forthwith to the tenant.

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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