Selleck v Cassin & Anor (Residential Tenancies) - [2017] ACAT 7

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SELLECK v CASSIN & ANOR (Residential Tenancies) [2017] ACAT 7

RT 406/2016
Catchwords:RESIDENTIAL TENANCIES – rental bond dispute – compensation – no incoming condition report – fair wear and tear

Legislation cited: Residential Tenancies Act 1997 ss 29, 30, standard term 64
Cases cited:Bell & Bell v Boccola, Campbell & Lawrence [2009] ACAT 26
Maroney v Bullard [2016] ACAT 33

Tribunal:  Senior Member J Lennard
Date of Orders:  10 February 2017
Date of Reasons for Decision:         10 February 2017

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 406/2016
BETWEEN:
REBECCA SELLECK
Applicant/Lessor

AND:
CHRISTOPHER CASSIN
AND
JOY HUMPHRIES
Respondents/Tenants

TRIBUNAL: Senior Member J Lennard

DATE:10 February 2017

ORDER
The Tribunal orders that:
1.The tenants are to pay to the lessor compensation in the amount of $2466.45 being made up as follows:
(a)cost of second clean to the carpet – $35
(b)cost of odour treatment of carpet – $280
(c)loss of value of carpet – $400
(d)cleaning of the premises – $640
(e)painting and patching of walls – $281.25
(f)gardening and rubbish removal – $200
(g)water usage – $70.20
(h)lightbulbs – $50
(i)lost rent – $510

2.The office of regulatory services is directed to release to the lessor the rental bond in the amount of $2040.
3.The tenant is to pay the balance of $426.45 on or before 14 days of the date of this order.
………………………………..
President G Neate AM
Delivered for and on behalf of the Tribunal

REASONS FOR DECISION
The application
1. The matter was initially dealt with as a rental bond conference on 30 May 2016 and directions were made at that conference. On 14 June 2016 the applicant lessor filed an application claiming compensation in the amount of $9326.05. This application related to the condition of premises at the end of the tenancy.

2. The tenants denied liability for the items as claimed.

3. The hearing of the matter was conducted over the following days: 11 July 2016, 21 July 2016 and 18 August 2016. Each party filed detailed evidence, witness statements and submissions. At the conclusion of the hearing on 18 August 2016, the matter was adjourned for a written decision and the parties were directed to file final written submissions. Each party provided the final written submissions. The evidence, witness statements and submissions will be referred to as necessary in the decision below.

4. The tenancy commenced on 10 August 2012, and terminated on 22 March 2016. A copy of the residential tenancy agreement was in evidence before the tribunal. There was no ingoing condition report attached to the residential tenancy agreement.

Finding as to the condition of the premises at the commencement of the tenancy
5. Ms Jodie Humphries, daughter of the tenants, gave evidence that as her parents were still working and living in Cootamundra, but expecting to move to Canberra she inspected the property on their behalf. This inspection took place at some time prior to 27 July 2012. Ms Jodie…

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: [2017] ACAT 7
Decision Date: 10 February 2017

CaseChat Overview and Summary

The case of Selleck v Cassin & Anor involved a dispute over a rental bond between a lessor and tenants in Queensland. The lessor sought compensation for damages to the property and claimed the rental bond should not be returned in full. The dispute was heard by the Queensland Civil and Administrative Tribunal. The tenants argued that the damage was due to fair wear and tear and that the lessor had not provided an incoming condition report.

The legal issues before the Tribunal were whether the tenants were liable for the costs of repairs and cleaning, and whether the lessor was entitled to compensation from the rental bond. The Tribunal had to consider whether the damages claimed were beyond fair wear and tear and if the lessor had discharged their duty to provide an incoming condition report. The tenants claimed that the lessor had failed to provide evidence of the condition of the property at the start of the tenancy, which would have shown any pre-existing damage.

The Tribunal found that the tenants were liable for certain damages, including the cost of a second clean of the carpet, odour treatment, loss of value of the carpet, cleaning of the premises, painting and patching of walls, gardening and rubbish removal, water usage, and replacement of lightbulbs. The Tribunal held that the tenants had not provided sufficient evidence to show that the damage was due to fair wear and tear. The Tribunal also found that the lessor was entitled to compensation for the cost of lost rent. The Tribunal ordered that the tenants pay compensation in the amount of $2466.45 and that the regulatory services office release the rental bond in the amount of $2040, with the balance of $426.45 to be paid by the tenant.

Orders

Orders of the court

The Tribunal orders that:

1. The tenants are to pay to the lessor compensation in the amount of $2466.45 being made up as follows:

(a) cost of second clean to the carpet – $35

(b) cost of odour treatment of carpet – $280

(d) cleaning of the premises – $640

(e) painting and patching of walls – $281.25

(f) gardening and rubbish removal – $200

(g) water usage – $70.20

(h) lightbulbs – $50

(i) lost rent – $510

2. The office of regulatory services is directed to release to the lessor the rental bond in the amount of $2040.

3. The tenant is to pay the balance of $426.45 on or before 14 days of the date of this order.

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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