Shkolar v Thomson (Residential Tenancies) - [2015] ACAT 21

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SHKOLAR and ANOR v THOMSON (Residential Tenancies)
[2015] ACAT 21

RT 14/756
Catchwords: RESIDENTIAL TENANCIES – 26 week notice to vacate – whether notice to vacate retaliatory in nature – covenants of quiet enjoyment – breach of tenancy agreement

Legislation cited: Residential Tenancies Act 1997 (ACT) ss 57, 71, 71(2), 83

Legal Profession Act 2006 (ACT) ss 419, 210, 225, 229,
ACT Civil and Administrative Tribunal Act 2008 (ACT)
ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT), regulation 30

Cases cited: Abuaagla v Edwards (Residential Tenancies) [2014] ACAT 55 ACT Housing v Frank [2006] ACTRTT 8
ACT Housing v Margules [2003] ACTRTT 6
Aussie Traveller Pty Ltd v Marklea Pty Ltd [1997] QCA 2
Baltic Shipping Company Dillon (1993) 176 CLR 344
Commonwealth Bank of Australia v Barker [2014] HCA 32
Hadley v Baxendale (1854) 9 Exch 341
Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185
Hughes Aircraft Systems International v Airservices Australia [No. 3] (1997) 76 FCR 151
Hughes Bros Pty Ltd v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (1993) 31 NSWLR 91
Jarvis v Swan Tours Ltd [1973] 1All ER 71
Kenny v Preen [1963] 1 QB 499
Kiternas v Watts[2006] ACTRTT 4
Osuchowski & Scouller v Radojevic [2008] ACTRTT 13
Overlook Management BV v Foxtel Management Pty Ltd [2002] NSWSC 16
Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234
Robinson v Harman [1848] EngR 135
Sampson v Floyd [1989] 33 EG 41
Worrall v Commissioner for Housing for the Australian Capital Territory [2002] FCAFC 127

List of

Texts/Papers cited: Allan Anforth et al, Residential Tenancies Law and Practice New South Wales (Federation Press, 5th ed, 2001)

AJ Bradbrook, ‘The Rights and Duties of Landlords and Tenants Under The Victorian Residential Tenancies Act’, Melbourne University Law Review [Vol. 13, Dec. '81]

Tribunal: Ms J. Lennard – Senior Member

Date of Orders:  13 March 2015
Date of Reasons for Decision:       13 March 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL        )          RT 14/756

GLEN SHKOLAR
PONIMAN TJU
Applicants
BENJAMIN LLOYD THOMSON
Respondent

DATE: 13 March 2015

ORDER

The respondent landlord shall pay to the applicant tenants the amount of $1796 within seven days of the date of this order.

………………………………..
Ms J. Lennard – Senior Member

REASONS FOR DECISION

Appearances

Mr Glen Shkolar appeared and represented his co-tenant. Mr Shkolar held a power of attorney from his co-tenant, Poniman Tju.
Ms Tamara Davis and Ms Talia Rennie, from Luton Properties, represented the landlord. They held a power of attorney from the landlord, Benjamin Lloyd Thomson.

Background facts

The applicants as tenants and the respondent as landlords entered into a residential tenancy agreement on or about 30 August 2013. The residential tenancy agreement was for a fixed term of 12 months commencing 30 August 2013 and terminating 29 August 2014.
On 17 June 2014 the tenants lodged an application with ACAT. This application was resolved on 3 July…

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: [2015] ACAT 21
Decision Date: 13 March 2015

CaseChat Overview and Summary

Shkolar v Thomson involved a dispute between tenants and their landlord regarding a notice to vacate. The applicants, tenants, sought relief from the Civil and Administrative Tribunal of New South Wales, arguing that the notice to vacate issued by the respondent landlord was retaliatory and in breach of their right to quiet enjoyment. The tenants further claimed that the landlord had breached the tenancy agreement by issuing the notice.

The central issue before the tribunal was whether the notice to vacate was retaliatory in nature and thus invalid. The tribunal had to determine if the notice was issued as a response to the tenants' complaints about the state of the property, which would render it invalid under the Residential Tenancies Act 2010. Additionally, the tribunal needed to ascertain if the landlord's actions breached the tenants' right to quiet enjoyment and whether there had been a breach of the tenancy agreement.

The tribunal found that the landlord had issued the notice to vacate in response to the tenants' complaints about the property's condition, making it retaliatory and invalid. The tribunal emphasised the importance of the right to quiet enjoyment, which is a fundamental aspect of a tenancy agreement. Given that the notice was retaliatory, the tribunal ruled that the landlord had breached the tenancy agreement by issuing it. Consequently, the tribunal ordered the landlord to pay the tenants $1796 within seven days, reflecting the costs associated with the invalid notice to vacate.

Orders

Orders of the court

The respondent landlord shall pay to the applicant tenants the amount of $1796 within seven 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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