Okazaki v Dickerson - [2019] NSWCATCD 71

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Okazaki v Dickerson [2019] NSWCATCD 71
Hearing dates: 14 June 2019
Decision date: 23 July 2019
Jurisdiction: Consumer and Commercial Division
Before: P French, General Member
Decision:
(1)   The tenants, Magdalena Dickerson and David Weir, must pay the landlord, Kimie Okazaki, the sum of $3,048.12 immediately.
(2)   Rental Bond Services is directed to pay the landlord, Kimie Okazaki, $3,048.12 from Rental Bond No. E917502-6. Any amount received is to be credited against the money order (Order 1). Any balance of the rental bond plus any interest must be paid to the tenants, Magdalena Dickerson and David Weir.
(3)   The application is otherwise dismissed.

Catchwords:
RESIDENTIAL TENANCIES: landlord’s end of tenancy claim for compensation – kitchen bench top – carpets bedroom doors – bathroom vanity units – blinds

Legislation Cited:
Conveyancing Act 1919: s 117
Residential Tenancies Act 2010: ss 6; 13; 29; 30; 51; 187; 166; 175; 190
Residential Tenancies Regulation 2010: 22; 23; Schedule 2

Cases Cited:
Abela v Walker [1997] NSW RT 15
Acetelli v Farrant and Allan [1997] NSWRT 91
Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) P/L [2006] NSWCA 224
Bell & Bell v Boccola, Campbell & Lawrence (Residential Tenancies) [2009] ACAT 26
Bridgford v Brien [2017] NSWCATAP 111
Briginshaw v Briginshaw (1938) 60 CLR 336
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64.
Cooper v Westpac General Insurance Ltd [2007] ACTCA 20
Cure v Bridge Housing Ltd [2014] NSWCATAP 80
Fitzpatrick v Wu unreported, NSWRT, 2001, 01/16425
Hadley v Baxendale [1854] 9 Ex 341
Lindsay v NSW Land and Housing Corporation [2016] NSWCATAP 128
Marcourt v Clark [2012] NSWCA 367
Miller v Minister for Pensions [1947] 2 All ER 372
O’Brien v Twynam [2016] NSWCATAP 125
Sherson & Associates Pty Ltd v Bailey [2000] NSWCA 275
Sunray Investments P/l v Cruwys [1992] NSWRT 95
TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd (1963) 180
Westpac General Insurance v Cooper [2006] ACTSC 91
Yang v NSW Land and Housing Corporation [2016] NSWCATAD 37

Texts Cited:
Australian Taxation Office, Guide to Rental Properties 2018

Category: Principal judgment
Parties: Kimie Okazaki (the landlord)
Magdalena Dickerson and David Weir (the tenants)
Representation: Rheanon Wooldridge, Property Manager (for landlord)
Magdalena Dickerson and David Weir (in person)

File Number(s): RT 19/16913
Publication restriction: Nil

REASONS FOR DECISION

This is an application by Kimie Okazaki (the landlord) for an order from the Tribunal pursuant to sections 51, 187, and 190 of the Residential Tenancies Act 2010 (RT Act) that would require Magdalena Dickerson and David Weir (the tenants) to pay her a total of $12,390.00 in compensation for damage and loss she contends she has incurred due to the tenants’ failure to leave the premises reasonably clean, and because of intentional or negligent damage to the premises caused or permitted by the tenants in the course of the tenancy which resulted in them failing to return the premises…

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.

Continue reading Okazaki v Dickerson

Details

AGLC: Okazaki v Dickerson [2019] NSWCATCD 71
Case: [2019] NSWCATCD 71
Decision Date: 23 July 2019

CaseChat Overview and Summary

In the matter of Okazaki v Dickerson, the landlord, Kimie Okazaki, sought compensation from the tenants, Magdalena Dickerson and David Weir, for damage to the premises at the conclusion of their tenancy. The dispute was heard in the Residential Tenancies Tribunal of Victoria. The landlord claimed damages for a range of items including the kitchen bench top, carpets, bedroom doors, bathroom vanity units, and blinds.

The central legal issue was whether the damages claimed by the landlord were reasonable and necessary in the context of the tenancy agreement. The tenants argued that the claimed damages were unreasonable as they were either pre-existing or not attributable to the tenancy. The court was required to determine the extent of the landlord's responsibility for the claimed damages and whether the landlord's actions in assessing the damages were reasonable.

The tribunal found that the landlord had failed to provide adequate evidence to substantiate the extent of the damage or its attribution to the tenants. The tribunal found that the landlord had not demonstrated that the damage was caused by the tenants, and that the damages claimed were unreasonable. Consequently, the tribunal dismissed the landlord’s application for compensation. However, the tribunal did find that some of the claimed damages were reasonable and ordered the tenants to pay the landlord $3,048.12 for the reasonable damages identified. The tribunal also ordered Rental Bond Services to pay the landlord the same amount from the rental bond held. Any balance remaining in the bond, plus any accrued interest, was to be paid to the tenants.

Orders

Orders of the court

(1) The tenants, Magdalena Dickerson and David Weir, must pay the landlord, Kimie Okazaki, the sum of $3,048.12 immediately.

(2) Rental Bond Services is directed to pay the landlord, Kimie Okazaki, $3,048.12 from Rental Bond No. E917502-6. Any amount received is to be credited against the money order (Order 1). Any balance of the rental bond plus any interest must be paid to the tenants, Magdalena Dickerson and David Weir.

(3) The application is otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Okazaki v Dickerson [2019] NSWCATCD 71
Hearing dates:	14 June 2019
Decision date:	23 July 2019
Jurisdiction:	Consumer and Commercial Division
Before:	P French, General Member
Decision:	(1) The tenants, Magdalena Dickerson and David Weir, must pay the landlord, Kimie Okazaki, the sum of $3,048.12 immediately. (2) Rental Bond Services is directed to pay the landlord, Kimie Okazaki, $3,048.12 from Rental Bond No. E917502-6. Any amount received is to be credited against the money order (Order 1). Any balance of the rental bond plus any interest must be paid to the tenants, Magdalena Dickerson and David Weir. (3) The application is otherwise dismissed.
Catchwords:	RESIDENTIAL TENANCIES: landlord’s end of tenancy claim for compensation – kitchen bench top – carpets bedroom doors – bathroom vanity units – blinds
Legislation Cited:	Conveyancing Act 1919: s 117 Residential Tenancies Act 2010: ss 6; 13; 29; 30; 51; 187; 166; 175; 190 Residential Tenancies Regulation 2010: 22; 23; Schedule 2
Cases Cited:	Abela v Walker [1997] NSW RT 15 Acetelli v Farrant and Allan [1997] NSWRT 91 Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) P/L [2006] NSWCA 224 Bell & Bell v Boccola, Campbell & Lawrence (Residential Tenancies) [2009] ACAT 26 Bridgford v Brien [2017] NSWCATAP 111 Briginshaw v Briginshaw (1938) 60 CLR 336 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64. Cooper v Westpac General Insurance Ltd [2007] ACTCA 20 Cure v Bridge Housing Ltd [2014] NSWCATAP 80 Fitzpatrick v Wu unreported, NSWRT, 2001, 01/16425 Hadley v Baxendale [1854] 9 Ex 341 Lindsay v NSW Land and Housing Corporation [2016] NSWCATAP 128 Marcourt v Clark [2012] NSWCA 367 Miller v Minister for Pensions [1947] 2 All ER 372 O’Brien v Twynam [2016] NSWCATAP 125 Sherson & Associates Pty Ltd v Bailey [2000] NSWCA 275 Sunray Investments P/l v Cruwys [1992] NSWRT 95 TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd (1963) 180 Westpac General Insurance v Cooper [2006] ACTSC 91 Yang v NSW Land and Housing Corporation [2016] NSWCATAD 37
Texts Cited:	Australian Taxation Office, Guide to Rental Properties 2018
Category:	Principal judgment
Parties:	Kimie Okazaki (the landlord) Magdalena Dickerson and David Weir (the tenants)
Representation:	Rheanon Wooldridge, Property Manager (for landlord) Magdalena Dickerson and David Weir (in person)
File Number(s):	RT 19/16913
Publication restriction:	Nil