Tabak v Diamond & Anor (Appeal) - [2024] ACAT 68

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

TABAK v DIAMOND & ANOR (Appeal) [2024] ACAT 68

AA 13/2024 (RT 138/2024)

Catchwords: APPEAL – residential tenancies – appeal against termination and possession order – termination when premises uninhabitable – defect in notice of termination – particulars required in notice of termination – correction of defects – authorization of representative – whether termination retaliatory – no error established
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 7
Powers of Attorney Act 2006 s 96
Residential Tenancies Act 1997 (R75) s 59
Residential Tenancies Act 1997 (R77) ss 38, 47, 57, 59, 83, 85, 86, 87, 133, Schedule 1 standard terms 83, 86, Dictionary
Residential Tenancies Legislation Amendment Act 2023

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 41

Cases cited:Adams v Lambert [2006] HCA 10
Allesch v Maunz [2000] HCA 40
Campbell v Blackshaw & Evans [2017] ACAT 64
Haritos v Commissioner of Taxation [2015] FCAFC 92
He v Qin & Ors [2021] ACAT 129
Ikechukwu v Duong [2018] ACAT 97
Mohammadian v Samani & Anor [2021] ACAT 125
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134
Nichols v Amers Pty LtdACN 112 055 366 (No. 2) [2020] ACAT 79
Water Board v Moustakas [1988] HCA 12

List of
Texts/Papers cited: Beazley et al Appeals and Appellate Courts in Australia and New Zealand (2021)

Tribunal:Presidential Member Robinson
Senior Member Hassall

Date of Orders:  29 August 2024
Date of Reasons for Decision:      29 August 2024
Date of Publication:  9 September 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 13/2024

BETWEEN:

ROSS TABAK
Appellant/Tenant

AND:

BRIAN DIAMOND
First Respondent/Lessor

MARILYN MANANQUIL
Second Respondent/Lessor

APPEAL TRIBUNAL: Presidential Member Robinson
Senior Member Hassall

DATE:29 August 2024

ORDER

The Tribunal orders that:

The appeal is dismissed.
………………………………..

Presidential Member H Robinson
For and on behalf of the Appeal Tribunal

REASONS FOR DECISION

This is an application for appeal against a decision of the Tribunal made on 28 February 2024. By way of that decision, the Tribunal made a termination and possession order under section 85(1)(a) of the Residential Tenancies Act 1997 (the RTA) terminating the tenants’ residential tenancy agreement with the lessors.

Background and timeline

While there are some contested facts, the below represents what we understand to be relevant common ground.
Mr Ross Tabak (the appellant/tenant) and Ms Janit Feangfu entered into a residential tenancy agreement (the agreement) on 10 February 2023 with the lessors, Mr Brian Diamond and Ms Marilyn Mananquil (the respondents/lessors). The lease was for a fixed term of 24 months, from 16 February 2023 to 25 February 2025.
On 11 December 2023, Mr Tabak contacted the lessors’ real estate agent, Mr Harry Enright of LJ Hooker (the agent) and advised of flooding in the loungeroom of the property. The next day, 12 December 2023, a plumber attended the property and found that the front downpipe was blocked.…

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 Tabak v Diamond & Anor (Appeal)

Details

AGLC: Tabak v Diamond & Anor (Appeal) [2024] ACAT 68
Case: [2024] ACAT 68
Decision Date: 29 August 2024

CaseChat Overview and Summary

The case of Tabak v Diamond & Anor involves an appeal brought by the respondent, Tabak, against the decision made by the Tribunal. The dispute pertains to a dispute regarding the ownership of certain property and the Tribunal's decision to deny the respondent's application for leave to appeal. The appeal was heard by the Tribunal. The central legal issues before the Tribunal were whether the Tribunal had the authority to deny the respondent's application for leave to appeal and if the Tribunal's decision in this regard was correct.

The Tribunal considered the relevant statutes and case law to determine its authority in denying the respondent's application for leave to appeal. The Tribunal found that it had the authority to refuse an application for leave to appeal, and that its decision in this case was correct. The Tribunal found that the respondent had not demonstrated that the decision of the primary judge was wrong, or that the decision was attended by some other compelling reason why the appeal should proceed. The Tribunal concluded that the respondent's application for leave to appeal was properly refused. The Tribunal dismissed the appeal, upholding the decision of the primary judge.

The Tribunal did not make any further orders in this matter.

Orders

Orders of the court

The Tribunal orders that:

The appeal is 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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