MCMULLAN v CAROLAN

[2014] SADC 113

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Appeal Under Residential Tenancies Act 1995)

MCMULLAN v CAROLAN

[2014] SADC 113

Judgment of His Honour Judge Tilmouth

26 June 2014

LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION - GENERALLY

Decision of the Residential Tenancies Tribunal varied in one minor respect - appeal otherwise dismissed.

Residential Tenancies Act 1995 (SA) s 110(1)(i), referred to.

MCMULLAN v CAROLAN
[2014] SADC 113

1. This is an appeal from the decision of the Residential Tenancies Tribunal dated 20 January 2014, by which it ordered the appellant (tenant) to pay the respondents (landlords) the sum of $326.62.

2. There are three bases on which the appeal is mounted.  The first is against an order for the payment of $76.86 for two days of unpaid rent.  The Tribunal made favourable findings of fact to the tenant in relation to that matter.  As it transpires he probably remained in possession for at least a day longer than the Tribunal understood, so that if anything the order of the Tribunal was unduly favourable to him.  The judgment against him of $76.86 must therefore stand on any view of the facts.

3. The second item in question was for rubbish removal of two broken chairs.  For this the landlord charged a mere $10.00.  The complaint was that they could have been easily disposed of in a rubbish bin, but one was not made available.  Photographs produced by the landlords demonstrate there were a number of bins available for that purpose.

4. The landlords simply took the opportunity to clear the subject premises.  They trailered an amount of rubbish together with some of their own to the Lonsdale dump, where they were charged $48.00.  As the subject property is in Hallett Cove, adding the costs for petrol, would have cost appreciably more than the dump fees, quite apart from time taken, so that this minor award was more than reasonable and quite favourable to the tenant in the circumstances.

5. The third and most significant disputed item was for electricity costs.  The leased apartment is separate from the adjoining and much larger home occupied owned by the landlords.  They tendered before the Tribunal photographs of the meters, and calculations showing how the charge for electricity was calculated.  The Tribunal accepted those records.  The tenant paid a set amount per week towards electricity costs as agreed from time to time.  According to him this increased from about $40 per week initially, to about $70.00 per week towards the latter stages of the tenancy.

6. The original residential tenancy agreement provided in the additional conditions, ‘weekly contributions to power at $31.00 per week, balance calculated every two months’.  At first this might have been seen as an agreement to charge a fixed sum, but on reflection it appears to set a base amount, with any additional amounts to be calculated every two months according to actual usage.

7. Previously those amounts were advised orally, and the tenant had accepted them.  However matters came to a head around 16 August 2013 when the tenant gave oral notice of his intention to quit the premises, a fact the Tribunal found in his favour.  A reason for giving notice was because of his dissatisfaction with the rising electricity charges.

8. The Tribunal made an order that he pay $239.76 on account of electricity usage based on a ‘power record’ submitted to the Tribunal in spreadsheet format.  This shows $31.00 per week was paid towards the beginning of the tenancy (which commenced on 26 October 2012) and that it had risen to $41 per week towards the end.  A final sum of $61.00 was charged on 18 August 2013.  By that time the disagreement over electricity charges was evident.  As there was no consensus as to what was payable, the default position in the original lease applied, so that absent agreement, the proper charge should only have been $31.00.

9. That being so, the order of the Tribunal will be varied to the limited extent of reducing the order with respect to electricity costs by $30.00 to $209.76.  The total amount payable therefore will be reduced to $296.62.

10. In keeping with the order of the Tribunal, there will be an order pursuant to s 110(1)(i) of the Residential Tenancies Act, that the security bond of $1,614.00 held by the Commissioner (bond number 3835593-3) be paid in the sum of $296.62 to the landlords and in the sum of $1,287.38 to the South Australian Housing Trust.  There will be no order as to costs.