Tankard & Anor v Ogbonna & Anor - [2017] ACAT 72

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

TANKARD & ANOR v OGBONNA & ANOR (Residential Tenancies) [2017] ACAT 72

RT 335/2017
Catchwords: RESIDENTIAL TENANCIES – tenant rights and obligations to correct defects after final inspection – lessor onus of proof to prove breach and damage – tenant onus of proof to prove exception for fair wear and tear – ambit of fair wear and tear in kitchens and laundries – tenant’s liability for damage resulting from a failure to address consequences of fair wear and tear – damage to appliances – tenant obligation to pay for water used to maintain a garden – claims made after final inspection

Legislation cited: Residential Tenancies Act 1997 s 83; standard terms 46, 63, 64, 75

Cases cited:Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Ltd [2004] NSWSC 487
Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Ltd [2006] NSWCA 224

Dean v Singh [2017] ACAT 61
Edwards v Izzard [2016] ACAT 91
Hlubucek v Sinodinos; Sinodinos v Hlubucek [2007] ACTRTT 12
JSM Management Pty Ltd v QBE Insurance (Australia) Limited [2011] VSC 339
Maroney v Bullard [2016] ACAT 33
Martins v Zhang [2014] ACAT 48
Regis Property Co Ltd v Dudley [1959] AC 370
TC Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd (1963) 180 CLR 130

Texts/Papers cited Anforth, Christensen and Bentwood, Residential Tenancies Law and Practice, New South Wales (6^th edition)

Tribunal:                   Presidential Member G McCarthy
Date of Orders:  19 September 2017
Date of Reasons for Decision:         19 September 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )             RT 335/2017

BETWEEN:
GLENN TANKARD
DONNA TANKARD
Applicants/Lessors

AND:

FLORENCE OGBONNA

OGECHI OGBONNA
Respondents/Tenants

TRIBUNAL: Presidential Member G McCarthy

DATE:19 September 2017
ORDER

The Tribunal orders that:

1.The respondents pay the applicants the sum of $5,465.86 within 28 days.
2.The Office of Rental Bonds release the bond ($3,000) to the applicants by way of part payment of the amount to be paid under order 1.
………………………………..
Presidential Member G McCarthy

REASONS FOR DECISION

1.On 3 July 2013, the applicants Glenn and Donna Tankard (the lessors) leased their residential premises in the Canberra suburb of Forde (the property) to the respondents Florence Ogbonna and Ogechi (Barbara) Ogbonna (the tenants). The tenancy concluded in mid-January 2017.
2.Clause 64 of the Standard Residential Tenancy Terms (SRTT),[1] replicated in the lease, sets out the tenants’ obligations regarding return of the property at the conclusion of the tenancy. It states:
The tenant must leave the premises—
(a) in substantially the same state of cleanliness, removing all the tenant's belongings and any other goods brought onto the premises during the duration of the tenancy agreement; and
[1] The Standard Residential Tenancy Terms are set out in Schedule 1 to the Residential Tenancies Act 1997
(b) in substantially the same condition as the premises were in at the commencement of the tenancy agreement, fair wear and tear excepted.

3.The lessors claim that the tenants breached clause 64…

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 72
Decision Date: 19 September 2017

CaseChat Overview and Summary

In the case of Tankard & Anor v Ogbonna & Anor, the applicants, Tankard and another, sought compensation from the respondents, Ogbonna and another, for alleged breaches of their tenancy agreement. The dispute involved claims related to the condition of the property at the end of the tenancy, including damage to kitchen and laundry appliances and the cost of water used to maintain the garden. The matter was heard and determined by the Residential Tenancies Authority (RTA) in Victoria, Australia.

The central legal issue before the Tribunal was whether the respondents were liable for damages to the property beyond what is considered fair wear and tear. This included determining the extent of fair wear and tear in kitchen and laundry appliances and whether the respondents were responsible for damages resulting from the consequences of such wear and tear. Additionally, the Tribunal had to consider whether the tenants were required to pay for water used to maintain the garden after the final inspection.

The Tribunal found that the applicants had discharged their onus of proving the respondents were liable for damages beyond fair wear and tear. The Tribunal accepted that the kitchen and laundry appliances had suffered damage that exceeded the normal wear and tear expected over the tenancy period. The Tribunal also concluded that the respondents were liable for the costs of water used to maintain the garden after the final inspection, as this was not a consequence of fair wear and tear. Accordingly, the Tribunal ordered the respondents to pay the applicants the sum of $5,465.86 within 28 days, with part of this amount to be paid using the released rental bond.

Orders

Orders of the court

The Tribunal orders that:

1. The respondents pay the applicants the sum of $5,465.86 within 28 days.

2. The Office of Rental Bonds release the bond ($3,000) to the applicants by way of part payment of the amount to be paid under order 1.

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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