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…
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- Case
- [2015] ACAT 21
- Decision Date
CaseChat Overview and Summary
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
1.
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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