Osuchowski & Scouller v Radojevic - [2008] ACTRTT 13

AUSTRALIAN CAPITAL TERRITORY

RESIDENTIAL TENANCIES TRIBUNAL

CITATION:OSUCHOWSKI & SCOULLER V RADOJEVIC [2008] ACTRTT (13)
RT 618of 2007
Catchwords: Lessor’s obligation to repair.
Notice to vacate clause 96(b)
Compensation

Issues:Meaning of ‘genuine intention’
Failure to repair

Legislation:Residential Tenancies Act 1997 (ACT)
Sections 104;
Prescribed terms: 54(b) & (c); 55; 57; 96(b)

Tribunal:J Lennard, Member

Date:              26 September 2008
AUSTRALIAN CAPITAL TERRITORY                   )
RESIDENTIAL TENANCIES TRIBUNAL               )          NO: RT 618 of 2007
RE:      Monica OSUCHOWSKI & Rebecca SCOULLER

(Applicants/Tenants)

AND: Budimir RADOJEVIC & Slavka RADOJEVIC
(Respondents/Lessor)

DECISION
Tribunal  :J. Lennard, Member
Date  :9 January 2008 – IN-CHAMBERS ORDER
Decision
1.The Residential Tenancies Tribunal finds that the lessor has:
·Breached the Residential Tenancy Agreement between the parties by failing to comply with the obligation to repair;
·Issued a notice to vacate under clause 96(b) of the Residential Tenancies Act 1997, in circumstances where there was no established genuine intention that an immediate relative would reside in the premises and where the lessor engaged in deceptive and deliberately misleading conduct; and
·Has unlawfully demanded, and withheld, monies relating to lessors’ costs from the tenants.

2.The lessor shall pay an amount of $11,677.86 to the tenants within 14 days of the date of this Order. This amount consists of $7,828.20 compensation for failure to repair; $3,841.49, compensation for the invalid termination of the tenancy and $8.17, refund of water abstraction charge.

…………………………….
  J Lennard
  Member
  25 September 2008

AUSTRALIAN CAPITAL TERRITORY )
RESIDENTIAL TENANCIES TRIBUNAL ) NO: RT 618 of 2007

RE:Monica OSUCHOWSKI & Rebecca SCOULLER
(Applicants/Tenants)
AND: Budimir RADOJEVIC & Slavka RADOJEVIC
(Respondents/Lessors)

REASONS FOR DECISION
J Lennard, Member

Re: Premises at 105 Matina Street NARRABUNDAH ACT 2604

1.   The Applicant tenants and the Respondent lessor entered into a Residential Tenancy Agreement in relation to premises at 105 Matina Street Narrabundah for a fixed term of twelve months commencing 9 September 2005. The weekly rent was $320 and OZ Property Services Pty Ltd acted as the lessors’ agent.
2.   On 29 December 2006 a severe hailstorm hit the Canberra region. This hailstorm caused extensive flooding in the premises. The flooding caused water damage to the ceilings, walls and carpets throughout the premises as well as damage to the personal property of the tenants. These facts were acknowledged by both parties, and were not in dispute before the tribunal.
3.   On 31 December 2006 the tenants reported the damage to the lessors’ agent. The lessor and the agent inspected the damage to the premises on 4 January 2007. The lessor made a claim for the cost of the repairs on his insurance policy, which was held by the NRMA.
4.   On 16 March 2007 the rent was increased in accordance with the residential tenancy agreement from $320 to $350 per week.
5.   The repairs to the premises commenced on 28 March 2007 and were completed on 10 June 2007.
6.   On 7 September 2007, the lessors’ agent served the tenants with a termination notice. The notice stated that the…

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 Osuchowski & Scouller v Radojevic

Details

AGLC: OSUCHOWSKI and SCOULLER v RADOJEVIC [2008] ACTRTT 13
Case: [2008] ACTRTT 13
Decision Date: 26 September 2008

CaseChat Overview and Summary

The dispute in Osuchowski & Scouller v Radojevic was heard by the Residential Tenancies Tribunal. The tenants, Osuchowski and Scouller, alleged that their landlord, Radojevic, had breached the terms of their Residential Tenancy Agreement by failing to make necessary repairs to the property, issuing an invalid notice to vacate, and unlawfully withholding monies. The Tribunal was tasked with determining whether the landlord had indeed breached the agreement, issued the notice to vacate in bad faith, and unlawfully withheld funds from the tenants.

The central legal issues the Tribunal needed to resolve were whether the landlord had failed to comply with his obligation to repair, whether the notice to vacate was issued under valid circumstances, and whether the landlord's conduct in withholding monies was lawful. Additionally, the Tribunal had to assess the meaning of 'genuine intention' in the context of the notice to vacate clause 96(b) of the Residential Tenancies Act 1997.

The Tribunal found that the landlord had breached the agreement by not fulfilling his repair obligations. It was determined that the landlord had issued the notice to vacate without a genuine intention for an immediate relative to reside in the premises, engaging in deceptive conduct. Furthermore, the landlord was found to have unlawfully demanded and withheld monies intended for the tenants' costs. The Tribunal concluded that the landlord's actions amounted to a breach of the tenancy agreement and an abuse of the notice to vacate provision. As a result, the landlord was ordered to pay compensation to the tenants for the failure to repair, the invalid termination of the tenancy, and a refund of a water abstraction charge. The total amount of $11,677.86 was to be paid within 14 days of the Tribunal's order.

Orders

Orders of the court

1. The Residential Tenancies Tribunal finds that the lessor has:

? Breached the Residential Tenancy Agreement between the parties by failing to comply with the obligation to repair;

? Issued a notice to vacate under clause 96(b) of the Residential Tenancies Act 1997, in circumstances where there was no established genuine intention that an immediate relative would reside in the premises and where the lessor engaged in deceptive and deliberately misleading conduct; and

? Has unlawfully demanded, and withheld, monies relating to lessors' costs from the tenants.

2. The lessor shall pay an amount of $11,677.86 to the tenants within 14 days of the date of this Order. This amount consists of $7,828.20 compensation for failure to repair; $3,841.49, compensation for the invalid termination of the tenancy and $8.17, refund of water abstraction charge.

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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