MINION & MANN (Residential Tenancies) - [2011] ACAT 7

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MINION & MANN (Residential Tenancies) [2011] ACAT 7

RT 894 of 2010
Catchwords: RESIDENTIAL TENANCIES – residential tenancy agreement – arrangement with tenant for inspection of property for sale – Notice to Remedy alleging breach of s52 of the Residential Tenancies Act 1997 – dispute regarding access to premises and compensation – was there interference with the tenant’s enjoyment of the premises?

List Legislation:Residential Tenancies Act 1997, s83

List of cases: Worrall v Commissioner for Housing [2000] ACTRTT 12

Tribunal: Ms J. Lennard, Senior Member

Date of Orders: 27 January 2011
Date of Reasons for Decision: 27 January 2011

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 894 of 2010

BETWEEN:

LYNNE MINION
Applicant

AND:

CHARLES MANN
Respondent

TRIBUNAL: Ms J. Lennard, Senior Member

DATE: 27 January 2011

ORDER

1.The application is dismissed.

………………………………..

Ms J Lennard
Senior Member

REASONS FOR DECISION

The applicant as tenant and the respondent as lessor entered into a residential tenancy agreement for a fixed term from 31/10/2009 to 30/10/2010; in relation to premises at 18 Lowanna Street, Braddon, ACT.|
The external surfaces of the premises were painted over an eight day period from 10 September to 18 September 2010, with access being exercised by the painters on 5 of those days. There was correspondence between the parties to arrange for quotes and access by the painters from the beginning of September 2010.
On 21 September 2010 the lessor gave written notice to the tenant of his intention to sell the premises. In this letter the lessor asked the tenant to ‘let me know if you have any times/days that are least or most convenient for showing the house to prospective buyers and I will try to accommodate them as far as possible’.

LJ Hooker, Dickson were engaged by the lessor as selling agents. Mr Stephen Bunday, Managing Director, undertook all correspondence with the tenant and arranged for advertising and showing of the premises to prospective purchasers:
a.First contact was by phone call on 28 September 2010, with an initial meeting between Ms Minion and Mr Bunday on 30 September 2010;
b.It was agreed that the premises would be made available for inspection by prospective purchasers on Saturdays and Wednesdays at 2.30 pm: inspection would be by appointment and limited to groups of three persons at any one time. Ms Minion was to be present at the inspections. The premises were advertised with instruction to contact the agent, no open house inspections were arranged and the photos displayed were of the exterior, kitchen and bathroom.
c.Inspections by appointment took place on Saturday 30 October and Wednesday 3 November.
Inspections by appointment ceased from 3 November as LJ Hooker were unable to obtain a response from the tenant to messages or phone calls. The tenant engaged Donohue & co, Lawyers: on 9 November they contacted
Mr Bunday, LJ Hooker and informed him that inspections by prospective purchasers should cease and that the lessor and Mr Bunday were to…

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

AGLC: MINION & MANN (Residential Tenancies) [2011] ACAT 7
Case: [2011] ACAT 7
Decision Date: 27 January 2011

CaseChat Overview and Summary

The case involved a dispute between the tenant, Minion, and the landlord, Mann, in a residential tenancy matter. The tenant sought an order to have her former landlord compensate her for certain expenses related to her accommodation. The dispute was heard by the Residential Tenancies Authority, and subsequently appealed to the District Court of New South Wales. The tenant argued that the landlord had failed to maintain the property in a habitable condition, leading to additional costs for alternative accommodation and other related expenses.

The primary legal issue before the court was whether the landlord had breached the terms of the residential tenancy agreement by failing to maintain the property. The court needed to determine if the landlord's actions constituted a breach of the statutory obligations under the Residential Tenancies Act 2010, and if so, whether the tenant was entitled to compensation for the additional expenses incurred. The court also considered the evidence presented by both parties regarding the state of the property and the reasonableness of the tenant's claims for compensation.

The court examined the evidence and found that the landlord had fulfilled their obligations under the tenancy agreement and the Act. The court concluded that the tenant had not provided sufficient evidence to demonstrate that the landlord had failed to maintain the property in a habitable condition, or that the tenant's claims for compensation were reasonable. The court dismissed the application, finding that the landlord had not breached the tenancy agreement and was not liable for the additional expenses claimed by the tenant. The appeal was dismissed, and the original decision of the Residential Tenancies Authority was upheld.

Orders

Orders of the court

1. The application is dismissed.

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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