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Okazaki v Dickerson

Okazaki v Dickerson

Case [2019] NSWCATCD 64 23 July 2019

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Okazaki v Dickerson [2019] NSWCATCD 64
Hearing dates: 14 June 2019
Date of orders: 23 July 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…

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 64
Case: [2019] NSWCATCD 64
Decision Date: 23 July 2019

CaseChat Overview and Summary

The case of Okazaki v Dickerson involved a dispute between the landlord, Kimie Okazaki, and the tenants, Magdalena Dickerson and David Weir. The landlord sought compensation for damage to various items in the rental property, including kitchen benchtops, carpets, bedroom doors, bathroom vanity units, and blinds. The matter was heard in a relevant court, where the tenants disputed the extent of their liability for the alleged damages. The legal issues the court was required to decide centred on the extent of the tenants' responsibility for the damage to the property and the appropriate amount of compensation owed to the landlord. The court needed to assess the evidence presented by both parties and determine whether the tenants were liable for the claimed damages, and if so, to what extent. Additionally, the court had to consider whether the compensation sought was reasonable and justified.

The court examined the evidence presented by the landlord and the tenants regarding the condition of the property at the beginning and end of the tenancy. It considered expert reports, photographs, and witness testimonies to ascertain the extent of the damage and whether it was caused by the tenants. The court found that the tenants were indeed responsible for some of the claimed damages, such as the damage to the kitchen benchtop, carpets, and bedroom doors. However, it determined that the compensation sought by the landlord was excessive and not justified by the actual damage caused. Consequently, the court awarded the landlord a reduced sum of $3,048.12, which was to be paid by the tenants immediately. The court also directed Rental Bond Services to pay this amount from the rental bond held, with any remaining balance to be returned to the tenants.

In summary, the court held that the tenants were liable for certain damages to the rental property but found the compensation sought by the landlord to be excessive. The court ordered the tenants to pay the landlord a reduced sum of $3,048.12 and directed Rental Bond Services to pay this amount from the rental bond. The application was otherwise dismissed. This decision highlights the importance of accurate assessment of damages and the need for reasonable compensation in residential tenancy disputes.

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

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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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Citations

AGLC Citation

Okazaki v Dickerson [2019] NSWCATCD 64

Most Recent Citation

Miller v St George Community Housing [2023] NSWCATCD 28

Cases citing this decision · 2 of 2 shown

Shankar v Carter
[2025] NSWCATCD 5 Para 30

…The operation of s 117 of the Conveyancing Act is also explained by Member French in Okazaki v Dickerson [2019] NSWCATCD 64 at [13]:…
Miller v St George Community Housing
[2023] NSWCATCD 28

…using Ltd [2021] NSWSC 287 Northern Sandblasting Pty Ltd v Harris (1997) 146 ALJR 254 O’Brien v Carlo-Stella [2022] NSWCATCD 12 Okazaki v Dickerson [2019] NSWCATCD 64 Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167 Reisner v Bridge Housing Limited [2019] NSWCATAP 109 Rurik v Travers [2020] NSWCATAP 242 Sacher In…

View all 2 citing cases →

Cases cited in this decision · 11 of 11 shown

Seupule-Feau v Seventh Day Adventist Church (North NSW Conference) Ltd
[2016] NSWCATAD 37 Para 24

…revented: Marcourt v Clark [2012] NSWCA 367 at [98-99]; O’Brien v Twynam [2016] NSWCATAP 125 at [80 to 85]; Yang v NSW Land and Housing Corporation [2016] NSWCATAD 37.…
Marcourt v Clark
[2012] NSWCA 367 Para 24

…has a duty to mitigate their loss. They are not entitled to be compensated for any loss which could reasonably have been prevented: Marcourt v Clark [2012] NSWCA 367 at [98-99]; O’Brien v Twynam [2016] NSWCATAP 125 at [80 to 85]; Yang v NSW Land and Housing Corporation [2016] NSWCATAD 37.…
Bell & Bell v Boccola, Campbell & Lawrence (Residential Tenancies)
[2009] ACAT 26 Para 26

…In Bell & Bell v Boccola, Campbell & Lawrence (Residential Tenancies) [2009] ACAT 26, the ACT Civil and Administrative Tribunal concluded, having reviewed the relevant authorities, that fair wear and tear “generally relates to damage or deterioration that happens through the ordinary day to day use” of premises b…
Cooper v Westpac General Insurance Ltd
[2007] ACTCA 20 Para 24

…l Insurance v Cooper [2006] ACTSC 91 [at 14] (an appeal from the Court’s decision in that case was upheld in Cooper v Westpac General Insurance Ltd [2007] ACTCA 20 but not on this point). If a landlord seeks to prove that a tenant has caused or permitted intentional or negligent damage, they must establish a credi…
Westpac General Insurance v Cooper
[2006] ACTSC 91 Para 24

…ndition of premises during a tenancy. The onus of proving negligent or intentional damage rests with the landlord: Westpac General Insurance v Cooper [2006] ACTSC 91 [at 14] (an appeal from the Court’s decision in that case was upheld in Cooper v Westpac General Insurance Ltd [2007] ACTCA 20 but not on this point)…
Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd
[2006] NSWCA 224 Para 27

…the premises that could be prevented by reasonable conduct on the tenant’s part: Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) P/L [2006] NSWCA 224.…
Sherson & Associates Pty Ltd v Bailey
[2000] NSWCA 275 Para 25

…They are not entitled to be compensated for any loss that could have been prevented had they acted reasonably: Sherson & Associates Pty Ltd v Bailey [2000] NSWCA 275 at [77]. The onus of proving a failure to mitigate lies with the landlord in the circumstances of this case: TC Industrial Plant Pty Ltd v Robert's Q…
Commonwealth v Amann Aviation Pty Ltd
[1991] HCA 54 Para 45

…e as to what this was. The Tribunal must do its best to assess the landlord’s loss on the evidence before it: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 . In order to arrive at an estimate of the original supply and installation cost I will therefore discount the average of the two quotations for the re…
TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd
[1963] HCA 57 Para 25

…of proving a failure to mitigate lies with the landlord in the circumstances of this case: TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd (1963) 180 CLR 130 at 138.…
Briginshaw v Briginshaw
[1938] HCA 36 Para 26

…ich the tenants bear the onus, the landlord bears the onus of proving his case on the civil standard of proof, which is the balance of probabilities: Briginshaw v Briginshaw (1938) 60 CLR 336. This standard of proof was described by Lord Denning in Miller v Minister for Pensions [1947] 2 All ER 372 [at 374] as requiring the Trib…
Briginshaw v Briginshaw
[1938] HCA 34 Para 26

…onus, the landlord bears the onus of proving his case on the civil standard of proof, which is the balance of probabilities: Briginshaw v Briginshaw (1938) 60 CLR 336. This standard of proof was described by Lord Denning in Miller v Minister for Pensions [1947] 2 All ER 372 [at 374] as requiring the Tribunal to be…

Legislation cited in this decision · 2

Conveyancing Act 1919 (ACT)
1 mention (from Para 13)
Residential Tenancies Act 2010 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Okazaki v Dickerson [2019] NSWCATCD 64
Hearing dates:	14 June 2019
Date of orders:	23 July 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