O'Shaughnessy v Lanton Superannuation Pty Ltd - [2014] ACAT 25

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

O’SHAUGHNESSY v LANTON SUPERANNUATION PTY LTD
(Appeal) [2014] ACAT 25
AA 13/42
Catchwords:
          APPEAL - RESIDENTIAL TENANCIES - questions of law


– questions of fact – a decision appealed against cannot be


disturbed merely because the appeal tribunal disagrees with the


decision - condition report and its consideration– inhabitability


or uninhabitability of premises - whether proper weight was


given to tenant’s evidence – whether tribunal informed itself in


accordance with section 26 of the ACT Civil and Administrative
                Tribunal Act 2008 – interpretation of tribunal informing itself


by “relying on previous experience in relation to the matter” –


whether claim that the respondent and their agent engaged in


misleading and deceptive conduct and breached Australian


Consumer Law was given consideration – procedural fairness


and natural justice – tenant’s duty to mitigate loss: whether


tribunal gave consideration to extraneous matters – difference


between defects and maintenance issues – consideration of


compensation in residential tenancy matters - whether the


decision appealed against is so unreasonable that no reasonable


authority would ever consider imposing it

Legislation:    ACT Civil and Administrative Tribunal Act 2008, ss 7, 26 and
  82
            Residential Tenancies Act 1997, ss 12, 29, 30, 38, 71 and 83

Cases: Chakravarty & Commissioner for ACT Revenue
[2013] ACAT 11

Chief Psychiatrist and A (Mental Health) [2011] ACAT 21
Commissioner for Taxation (Cth) v Cainero
(1988) 15 ALD 368
Corkery v Commissioner for Social Housing [2013] ACAT 2
Das v A & A Airconditioning (Civil Disputes) [2011] ACAT 52
Hilyard & Mainore Pty Ltd [2013] ACAT 16
Levet and Levet & Dalla (Appeal) [2013] ACAT 52
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
[1996] 185 CLR 259
Thornwaite and Commissioner for Social Housing
[2012] ACAT 11
Vetter v Lake Macquarie City Council(2001) 202 CLR 439
Watson v Gaudion [2009] ACAT 15
Winder v Grehan [2013] NSWCTTT 247

Texts/Papers: Butterworths LexisNexis Concise Australian Legal Dictionary
(3rd ed., 2004)

Appeal Tribunal: Ms E. Symons – Presidential Member

Date of Orders: 1 May 2014
Date of Reasons for Decision: 1 May 2014

ACT CIVIL & ADMINISTRATIVE TRIBUNAL AA 13/42

BETWEEN: BERNADINE O’SHAUGHNESSY
Appellant

AND:LANTON SUPERANNUATION PTY LTD
Respondent

APPEAL TRIBUNAL: Ms E. Symons Presidential Member

DATE: 1 May 2014

ORDER

The Tribunal Orders that:

1.The decision under review is confirmed.

………………………………..
Ms E. Symons
Presidential Member

REASONS FOR DECISION

Background

The appellant tenant entered into a residential tenancy agreement with the respondent lessor for the lease of the residential premises (‘the premises’) commencing on 22 February 2013. The appellant has lived in the premises since that time.
On 30 April 2013, the appellant filed an application for resolution of tenancy dispute with the tribunal in which she sought orders for the lessor to complete all repairs as soon as possible; for the landlord (i.e. lessor) to pay compensation for their breaches of the Act and for rent reduction until the repairs are completed. The respondent opposed the application.
The application was heard on 14…

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 25
Decision Date: 1 May 2014

CaseChat Overview and Summary

The case of O'Shaughnessy v Lanton Superannuation Pty Ltd involves a dispute between the appellant tenant and the respondent lessor regarding the state of repair of the leased premises and the adequacy of repairs carried out by the lessor. The matter was heard and determined by the tribunal, which subsequently ordered the lessor to compensate the tenant. The tribunal's decision was appealed to a higher court.

The central legal issue in this case revolves around the interpretation and application of Section 30 of the relevant Act, specifically concerning the admissibility of evidence regarding the condition of the leased premises and any goods leased with it. The tribunal needed to determine whether the lessor had properly complied with the statutory requirements regarding the provision of a condition report and whether the tenant had adequately disputed the condition report within the specified time frame. This, in turn, affects the weight and admissibility of the evidence presented by both parties.

The court examined the compliance of the lessor with the statutory requirements, specifically subsection 29(1) and (3) of the Act. It was found that the lessor had provided two copies of the condition report to the tenant within the required timeframe, as stipulated by the Act. The tenant returned one copy of the condition report to the managing agent within the mandated period, albeit with a one-week delay that had been agreed upon. The court concluded that the lessor had complied with the statutory obligations, and the returned condition report was admissible as evidence of the state of repair of the premises on the day the tenant took possession.

The tribunal's findings and the subsequent orders were affirmed by the court. The tribunal's order for the lessor to pay the tenant $1,229.00, comprising $1,102.00 as compensation and $127.00 for the filing fee, was upheld. The court did not find any errors in the tribunal's reasoning or its application of the law, and therefore the decision was maintained as per the original tribunal's ruling.

Orders

Orders of the court

The appellant tenant entered into a residential tenancy agreement with the respondent lessor for the lease of the residential premises (‘the premises’) commencing on 22 February 2013. The appellant has lived in the premises since that time.

On 30 April 2013, the appellant filed an application for resolution of tenancy dispute with the tribunal in which she sought orders for the lessor to complete all repairs as soon as possible; for the landlord (i.e. lessor) to pay compensation for their breaches of the Act and for rent reduction until the repairs are completed. The respondent opposed the application.

The application was heard on 14 August 2013. At the conclusion of the hearing the tribunal ordered that the lessor pay the tenant $1,229.00 being $1,102.00 as compensation and $127.00 for the filing fee. The sum of $1,102.00 was calculated as follows:

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 30 states:30Evidence of condition of premises(1)If section 29 (1) and (3) have been complied with, a statement in a report mentioned in section 29 about the state of repair or general condition of the premises, and of any goods leased with the premises, (other than a statement in relation to which the tenant, by endorsement, has indicated disagreement) is evidence of that state of repair or general condition on the day the tenant was given the report.(2)If only section 29 (1) has been complied with, a statement in a report mentioned in section 29 about the state of repair or general condition of the premises, and of any goods leased with the premises, is evidence of that state of repair or general condition on the day the tenant was given the report.(3)If section 29 (1) has not been complied with, evidence by the tenant about the state of repair or general condition of the premises, and of any goods leased with the premises, is evidence of that state of repair or general condition on the day the tenant took possession of the premises. The appellant told the Tribunal that she had failed to provide a copy of the condition report to the original tribunal. However, it became apparent from a perusal of the transcript that the appellant filed a copy of the condition report on the day of the hearing, 14 August 2013, which the original tribunal referred to as ‘the incoming inspection report’. The original tribunal spent a considerable amount of time questioning the appellant about her hand written entries on this report as well as her emails about her maintenance requests before she returned the condition report to the agency. The original tribunal also questioned Ms Chivers about matters relating to the condition report and the appellant’s assertion that it did not include all of the defects that she believed the agency were aware of. Subsection 29(1) of the RT Act makes it clear that the lessor is to provide two copies of the condition report to the tenant not later than the day after the tenant takes possession. For the reasons set out above the Tribunal is satisfied that the respondent complied with subsection 29(1) of the RT Act. Pursuant to subsection 29(3) of the RT Act the tenant must, within two weeks after receiving the copies of the condition report, return one copy to the lessor either signed by the tenant or endorsed with a statement signed by the tenant indicating whether the tenant agrees or disagrees with the whole of the report or specified parts of it. The appellant returned the condition report to the managing agent on 14 March 2013. The agent had agreed to the delay of one week in returning the report. The appellant had listed on the top of the front page of the condition report work that had commenced but not been completed, namely, ‘water damage front and back; tiles (on order) and light back patio’. These items were also included in the body of the condition report. As well as including the following items in the body of the condition report the appellant had also written, as new jobs, on the front page:· 3 x smoke alarms not functioning· Downstairs toilet constantly leaking

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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