Mitchell v Xu

[2020] ACAT 110

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MITCHELL v XU (Residential Tenancies) [2020] ACAT 110

RT 122/2020

Catchwords:               RESIDENTIAL TENENCIES – residential tenancy agreement v occupancy agreements – the concept of a tenant’s ‘home’ and the degree of security, privacy and autonomy required – unmetered utility services – ‘no visitor’ house rule – four weeks’ notice for tenant to vacate a periodic tenancy – overcrowding – ‘have regard to the Occupancy Principles’

Legislation cited:        Residential Tenancies Act 1997 6, 6A, 6E, 71B, 71C, 71E, 73, 74, standard terms, 52, 53, 88

Cases cited:Bangura v Fan [2013] ACAT 38

BGBZ and National Disability Insurance Agency [2019] AATA 3505
Commissioner for Social Housing v Johnson [2014] ACAT 57
Conteh v Fan [2011] ACAT 45
Environmental Collective Housing Organisation Inc v Mathias [2019] ACAT 9
Lochrin v Jaiswal [2018] ACAT 78
Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145
Re Dickeson and Secretary Department of Social Security [1989] AATA 190
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389
Toora Women’s Inc v Various Tenants [2020] ACAT 2

List of

Texts/Papers cited:     Anforth et al, Residential Tenancies Law and Practice in NSW (The Federation Press, 7^th ed, 2017)

Tribunal:  Senior Member A Anforth

Date of Orders:  16 December 2020

Date of Reasons for Decision:         16 December 2020

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 122/2020

BETWEEN:

DARCY MITCHELL

Applicant

AND:

SALLY XU

Respondent

TRIBUNAL:     Senior Member A Anforth

DATE:16 December 2020

ORDER

The Tribunal orders that:

1.The respondent is to pay to the tenant the sum of $680, being the whole of his bond.

2.The respondent’s claim against the applicant’s bond is dismissed.

………………………………..

Senior Member A Anforth

REASONS FOR DECISION

1.On 7 December 2019 the applicant entered an oral agreement with the respondent to lease one bedroom in a three bedroom house, owned and occupied by the respondent, at a rent of $170 per week. The house had one bathroom, one toilet, one laundry and one kitchen. The applicant paid the respondent $680 as bond, $340 for two weeks of advance rent and took up residency.

2.There were no agreed fixed terms to the agreement. The respondent asserted that it was a term of the agreement that either party would give the other four weeks’ notice of intention to terminate. It was said to be a term of the agreement that the applicant would abide by a set of ‘house rules’ which included not having visitors without the respondent’s consent.

3.The respondent did not deposit the bond paid by the applicant with the ACT Rental Bonds office.

4.When the applicant moved into the house the respondent was living in the house and was using the loungeroom as her bedroom. There was a male in one bedroom, one bedroom was empty and the applicant was in the other bedroom.

5.On 11 December 2019 the applicant’s girlfriend came over to the house to visit the applicant. The respondent told the applicant that the girlfriend had…