Watson v Gaudion - [2009] ACAT 15

AUSTRALIAN CAPITAL TERRITORY

CIVIL AND ADMINISTRATIVE TRIBUNAL

Watson v Gaudion (Residential Tenancies) [2009] ACAT 15

RT 83of 2009
Catchwords: RESIDENTIAL TENANCIES - Compensation – loss of facilities and loss of quiet enjoyment – failure to mitigate losses – overstatement of inconvenience suffered

Residential Tenancies Act 1997 (ACT)
ACT Civil and Administrative Tribunal Act 2008 (ACT)

Tribunal:A. Anforth, Senior Member

Date: 12 June 2009

AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) No: RT 83 of 2009

STEPHEN WATSON and ANNE WATSON

(Applicants/tenants)

AND:

M. GAUDION

(Respondent/Lessor)

DECISION

Tribunal: A. Anforth, Senior Member

Date: 12 June 2009

Decision:

The Respondent/lessor is to pay the Applicant/tenant the sum of $3812 within 28 days.

The Office of Rental Bonds is to return the whole of the bond to the tenants.

…………………………….
Senior Member

AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) No: RT 83 of 2009

STEPHEN WATSON and ANNE WATSON

(Applicants/tenants)

AND:

M. GAUDION

(Respondent/Lessor)

REASONS FOR DECISION

Overview of the dispute:

The residential tenancy agreement in this matter was entered on 24 April 2008. The premises are in O’Connor in the ACT. The tenancy was for a fixed term of 12 months at a rent was $650.00 per week and with a bond of $2600.00. The residential tenancy agreement was in the standard form of the prescribed terms of the Schedule to the Residential Tenancies Act 1997 (ACT) (the Act). The residential tenancy agreement contained some clauses endorsed under section 10 of the Act, the only relevant one being the gardening clause:

The tenants acknowledge that they are responsible for the maintenance of the lawns, also weeding of the gardens at the property. The tenant also understands that even with water restrictions there are suitable and allocated times to water and keep the gardens looking as healthy as possible according to such restrictions - this garden requires sufficient water to continue its current condition.
There is an automatic watering system that has been pre-set to water the gardens. If the watering system fails please notify the office and the gardener will reset the system
A gardener is provided on a quarterly basis as part of the tenancy to maintain the shrubs and trees

The case concerns the tenants’ complaints that:
(a)   the premises were at the upper end of the rental market and the tenants expected a commensurate level of facilities and services which they assert they were not accorded.
(b)   the premises suffered a serious roof leak on 28 May 2008 that was not repaired by the landlord until 27 January 2009. The tenants’ case is that the roof leak caused the loss of use of the dining room for 34 weeks with consequential inconvenience.
(c)   from the start of the tenancy the dishwasher leaked onto the floor and was not fixed for 2 weeks
(d)   from the start of the tenancy six down lights in the living room/kitchen did not work and 4 lights in the master bedroom did not work. These lights were…

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 Watson v Gaudion

Details

AGLC: Watson v Gaudion (Residential Tenancies) [2009] ACAT 15
Case: [2009] ACAT 15
Decision Date: 12 June 2009

CaseChat Overview and Summary

The Australian Capital Territory Civil and Administrative Tribunal (ACAT) heard a claim by the tenants, Stephen and Anne Watson, against the landlord, M. Gaudion, for compensation due to various issues with the rental property. The tenants argued that the property had numerous defects and that the landlord failed to address these issues in a timely manner, resulting in a loss of quiet enjoyment and functionality of the property. The landlord countered that the tenants had overstated their inconvenience and failed to mitigate their losses. The ACAT found that while the tenants' grievances were legitimate, they had overstated the extent of their inconvenience and had not acted promptly to address the issues with the landlord's agent. The Tribunal ordered the landlord to pay the tenants $3812 in compensation and for the Office of Rental Bonds to return the whole of the bond to the tenants. The tenants had vacated the property on 20 March 2009, and no rent was payable beyond this date.

Orders