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Xia v Wang & Bian

Xia v Wang & Bian

Case [2009] ACAT 21 20 July 2009

Breach of Contract

Unconscionable Conduct

Residential Tenancies

Administrative Law

Consumer Law

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AUSTRALIAN CAPITAL TERRITORY

CIVIL AND ADMINISTRATIVE TRIBUNAL

XIA v WANG & BIAN (Residential Tenancies) [2009] ACAT 21

RT 117 of 2009
Catchwords: RESIDENTIAL TENANCIES – Tribunal’s duty to assist unrepresented parties – unlawful eviction – breach of quiet enjoyment – abandonment – unlawful rent increases – rent receipts – tenant guarantors

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

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Galea v Galea (1990) 19 NSWLR 263
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APA Life Insurance Ltd v Charles (1981) 2 NSWLR 352
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Weinstein v Medical Practitioners Board of Victoria (2008) VCA 193
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Tribunal: A. Anforth, Senior Member

Date: 20 July 2009

AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) No: RT 117 of 2009

ELENA MENG XIA

(Applicant/tenant)

AND

YAOXIANG WANG and SHEFANG BIAN

(Respondents/Lessors)

DECISION

Tribunal: A. Anforth, Senior Member

Date: 20 July 2009

Decision:

That the Tenant is to pay the Lessor $1714.28 for rent plus $194.50 for advertisements given a total of $1908.78.

That the Lessor is to pay the Tenant $1908.78 for breach of quiet enjoyment.

The lessors has the bond of $2000 from the Office of Rental Bond. The lessor is to pay the bond to the tenant within 14 days.

…………………………….
Senior Member

AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) No: RT 117 of 2009

ELENA MENG XIA

(Applicant/tenant)

AND

YAOXIANG WANG and SHEFANG BIAN

(Respondents/Lessors)

REASONS FOR DECISION

BACKGROUND:

This matter relates to a residential tenancy of premises at room 225 Waldorf, 2 Akuna Street, Canberra commencing 15 February 2009 for a period of 42 weeks. The rent was $500 per week with a bond of $2000.00 and otherwise the tenancy was in the prescribed terms of the Schedule to the Residential Tenancies Act 1997 (ACT) (the Act). The tenancy was a troubled one from the start and the tenant vacated the premises on 28 February 2009 i.e. after only 13 days.

The tenant is a young university student of Chinese nationality. Her command of English was adequate for a person whose first language is not English and this affected communications during the proceedings. The lessors are a middle aged couple of Chinese ethnicity. Some of the communications between the parties were in Chinese and in those instances translations were relied upon. The fact that English was neither…

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 Xia v Wang & Bian

Details

AGLC: Xia v Wang and Bian (Residential Tenancies) [2009] ACAT 21
Case: [2009] ACAT 21
Decision Date: 20 July 2009

CaseChat Overview and Summary

This case involved a dispute between the applicant, Elena Meng Xia, a university student, and the respondents, Andyaoxiang Wang and Shefang Bian, who were her landlords. The applicant filed an application with the Australian Capital Territory Civil and Administrative Tribunal (ACAT) seeking an order to terminate the tenancy and compensation for defects in the premises. The case involved complex issues, including unlawful eviction, breach of quiet enjoyment, abandonment, unlawful rent increases, and rent receipts. The lessors made various allegations of dishonesty against the applicant and her parents, which were found to be unsubstantiated. The lessors also made numerous claims that had no basis in law. The Tribunal found that the lessors had breached the applicant's quiet enjoyment by their conduct and that the applicant was entitled to compensation for the distress and inconvenience suffered. The Tribunal also found that the lessors had unlawfully attempted to terminate the tenancy and had breached various statutory provisions. The final orders made by the Tribunal were that the lessors pay the applicant $1908.78 for breach of quiet enjoyment and that the lessors pay the applicant $1908.78 for the overpaid rent and bond. The lessors were also ordered to return the bond of $2000 to the applicant within 14 days.

Orders