Winter v Delacy (Residential Tenancies) - [2023] ACAT 31

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WINTER & ANOR v DELACY (Residential Tenancies) [2023] ACAT 31
RT 71/2023
Catchwords: RESIDENTIAL TENANCIES –– payment of compensation for loss caused by the breach of a residential tenancy agreement reference to the standard residential tenancy terms – reasonable state of repair at commencement of the tenancy – whether repairs were urgent – loss of quiet enjoyment – costs of preparation for hearing - whether the notice to vacate did not constitute a valid termination of the tenancy agreement – whether lessor still in breach at time notice to terminate was issued – lessor to compensate the tenants for multiple issues in the property – bond released to the tenants

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48
Residential Tenancies Act 1997 ss 38, 62, 83, 84, Schedule 1 Standard residential tenancy terms 52, 54, 55, 59, 57, 60, 64, 73, 90, 91

Cases cited:CIC Australia Ltd v Australian Capital Territory Planning and Land Authority [2013] ACTSC 96
Cooper v Westpac General Insurance Ltd [2007] ACTCA 20
Cope & McEachern v Walker & Walker [2018] ACAT 65
Faulder v Tran [2018] ACAT 2
Faulder v Tran [2018] ACAT 80
Fawzi El-Saidy v NSW Land and Housing Corporation [2011] NSWSC 820
Fiege v Wilkinson; Wilkinson v Holbrook (Residential Tenancies) [2023] ACAT 11
In the matter of ruling tribunal section 31 of the unit titles (management) Act 2011 [2017] ACAT 56
Kolodziej v Ali [2021] ACAT 123
Maroney v Bullard [2016] ACAT 33
Marsters v Graham [2016] NSWCATCD 73
Murphy v Lewkovitz; Lewkovitz v Murphy [2021] NSWDC 361
Murphy v Pitt [2017] NSWCATCD 44
Raats v Zein [2016] NSWCATCD 62
Reddy, Robert Arjun v Budai, Alben, and Hatfield, Debbie [1998] NSWRT 170
Reiss v Helson [2001] NSWSC 486
Worrall v Commissioner for Housing for the Australian Capital Territory [2002] FCAFC 127
Westpac General Insurance Ltd v Cooper [2006] ACTSC 91
Zhang v Barden [2018] ACAT 44

List of
Texts/Papers cited: Anforth et al, Residential Tenancies: Law and practice in NSW (Federation Press, 8th edition, 2022)

Tribunal:Senior Member D Stewart

Date of Orders: 23 May 2023
Date of Reasons for Decision: 23 May 2023

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 71/2023
BETWEEN:
ANDREA WINTER
Applicant/Tenant
VERA WHITE
Applicant/Tenant
AND:
JACQUELINE DELACY
Respondent/Lessor
TRIBUNAL:Senior Member D Stewart

DATE:23 May 2023

ORDER

The Tribunal orders that:
1.ACT Rental Bonds on behalf of the Territory is directed to release the balance of any bond monies held to the tenants.
2.The respondent is to pay the applicant the sum of $3,882 within 28 days, calculated as follows:
(a)     $550 for the loss of use of the range hood;
(b)     $2,332 for the second water leak equal to 50% of the rent for 51 days; and
(c)     $1,000 for interference with the peace, comfort, and privacy of the tenants.

………………………………..
Senior Member D Stewart
REASONS FOR DECISION
Introduction
1.Ms Winter and Ms White (applicants or tenants) are tenants of…

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: [2023] ACAT 31
Decision Date: 23 May 2023

CaseChat Overview and Summary

The dispute in this case, Winter v Delacy, arose in the context of a residential tenancy agreement. The applicants, tenants, sought compensation from the respondent, the lessor, for various breaches of the tenancy agreement. The case was heard in the Residential Tenancies Tribunal. The applicants argued that the respondent failed to maintain the property in a reasonable state of repair, leading to multiple issues that disrupted their quiet enjoyment of the premises. They also claimed that the notice to vacate did not constitute a valid termination of the tenancy agreement, and that the respondent remained in breach of the agreement at the time the notice was issued.

The tribunal was tasked with determining several legal issues, including whether the respondent breached the tenancy agreement by failing to maintain the property in a reasonable state of repair, whether the repairs were urgent, and whether the applicants were entitled to compensation for the loss of quiet enjoyment. Additionally, the tribunal needed to decide if the notice to vacate was a valid termination of the tenancy agreement and if the respondent remained in breach when the notice was issued. Finally, the tribunal had to consider the applicants' claim for costs of preparation for the hearing.

The tribunal found that the respondent breached the tenancy agreement by failing to maintain the property in a reasonable state of repair, particularly regarding urgent repairs. The tribunal also found that the applicants lost quiet enjoyment of the premises due to the respondent's failure to address the issues promptly. While the notice to vacate was not a valid termination, the tribunal ruled that the applicants were entitled to compensation for the breaches. The tribunal awarded the applicants compensation for the loss of use of the range hood, for the second water leak, and for interference with their peace, comfort, and privacy. The tribunal also ordered the respondent to pay the applicants' costs of preparation for the hearing.

The tribunal ordered that the bond held by ACT Rental Bonds on behalf of the Territory be released to the applicants. The respondent was directed to pay the applicants $3,882 within 28 days, which included compensation for the loss of use of the range hood, for the second water leak, and for interference with the applicants' peace, comfort, and privacy. The tribunal also ruled that the respondent's notice to vacate did not constitute a valid termination of the tenancy agreement and that the respondent remained in breach at the time the notice was issued.

Orders

Orders of the court

The Tribunal orders that:

1. ACT Rental Bonds on behalf of the Territory is directed to release the balance of any bond monies held to the tenants.

2. The respondent is to pay the applicant the sum of $3,882 within 28 days, calculated as follows:

(a) $550 for the loss of use of the range hood;

(b) $2,332 for the second water leak equal to 50% of the rent for 51 days; and

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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