Ogbonna v Tankard

[2018] ACAT 14

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

OGBONNA & ANOR v TANKARD & ANOR (Appeal) [2018] ACAT 14

AA 38/2017 (RT 335/2017)

Catchwords:             APPEAL – residential tenancies – Tribunal ordered tenants to pay lessors amounts for damage to lessors’ property, cleaning, water consumption – appeal against some of those amounts – role of Appeal Tribunal – whether Appeal Tribunal is satisfied that Original Tribunal made errors of fact or law – whether an unendorsed special instruction in the residential tenancy agreement was void because it was inconsistent with a standard residential tenancy term

Legislation cited:      Residential Tenancies Act 1997 ss 9, 10, standard terms 1, 2, 3, 55, 56, 57, 63, 64

Cases cited:               Tankard & Anor v Ogbonna & Anor [2017] ACAT 72
  Sarbandi v Sharif [2017] ACAT 57

Tribunal:                  President G Neate AM
  Senior Member A Anforth

Date of Orders:  21 February 2018

Date of Reasons for Decision:         21 February 2018

AUSTRALIAN CAPITAL TERRITORY        )          AA 38/2017

CIVIL & ADMINISTRATIVE TRIBUNAL     )          

BETWEEN:

FLORENCE OGBONNA

First Appellant

OGECHI (BARBARA) OGBONNA

Second Appellant

AND:

GLENN TANKARD

First Respondent

DONNA TANKARD

Second Respondent

TRIBUNAL:President G Neate AM

Senior Member A Anforth

DATE:21 February 2018

ORDER

The Tribunal orders that:

1.The appeal is dismissed.

………………………………..

President G Neate AM

for and on behalf of the Tribunal

REASONS FOR DECISION

1.On 3 July 2013, Glenn and Donna Tankard (the lessors) leased their residential premises in the Canberra suburb of Forde (the property) to Florence Ogbonna and Ogechi (Barbara) Ogbonna (the tenants). The tenancy concluded in mid-January 2017.

2.The lessors claimed that the tenants breached clause 64 of the Standard Residential Tenancy Terms, replicated in the lease, which obliged the tenants to leave the property in substantially the same state of cleanliness and in substantially the same condition as the premises were in at the commencement of the tenancy agreement, fair wear and tear excepted.

3.The lessors made claims for seven specified types of damage plus cleaning costs and a final charge for consumption of water supplied to the property.  The tenants denied each of the claims, contending in each case that there was “no damage” and no overdue water consumption invoice. The tenants did not provide any evidence to the ACT Civil and Administrative Tribunal (the Original Tribunal) in support of their claims,[1] but the lessors carried the onus of proof of their claims.

[1] Tankard & Anor v Ogbonna & Anor [2017] ACAT 72 at [8]

4.The Original Tribunal disallowed some of the lessors’ claims, allowed two in part and allowed others in full.  For reasons which he published,[2] the Original Tribunal ordered the tenants to pay the lessors the sum of $5,465.86 comprised of the following amounts:

(a)Damaged carpet $119.50.

(b)Damaged fridge $2,867.00.

(c)Damaged joinery $1,872.75.

(d)Damaged benchtop $451.00.

(e)Water consumption $155.61.

[2] Tankard & Anor v Ogbonna & Anor [2017] ACAT 72

5.The Original Tribunal directed the Office of Rental Bonds to release the bond of $3,000.00 to the lessors by way…