Zhang v Barden - [2018] ACAT 44

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ZHANG v BARDEN (Residential Tenancies) [2018] ACAT 44

RT 977/2017
Catchwords: RESIDENTIAL TENANCIES – compensation for damage at end of lease – claim for further rent after end of lease for cleaning– onus of proof in making claims for compensation – application dismissed

Legislation cited: Residential Tenancies Act 1997 standard terms 64, 89

Cases cited:Cooper & Ors v Westpac General Insurance Limited [2007] ACTCA 20
Dean v Singh [2017] ACAT 61
Maroney v Bullard [2016] ACAT 33
TC Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd (1963) 180 CLR 130
Westpac General Insurance Ltd v Cooper and Ors [2006] ACTSC 91

Tribunal: Presidential Member G McCarthy

Date of Orders:  18 April 2018
Date of Reasons for Decision:         18 April 2018
AUSTRALIAN CAPITAL TERRITORY        )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 977/2017

BETWEEN:
XUEDONG ZHANG
Applicant/Lessor

AND:
AMANDA BARDEN
RODNEY BARDEN
TODD BARDEN

Respondents/Tenants

TRIBUNAL: Presidential Member G McCarthy
DATE:18 April 2018
ORDER

The Tribunal orders that:

The Office of Rental Bonds pay the amount of the bond held in dispute ($1,020) to the respondents/tenants.
The application dated 27 February 2018 is dismissed.
………………………………..
Presidential Member G McCarthy

REASONS FOR DECISION

On 6 August 2016, the respondents leased a residential property in Gungahlin, ACT, from the applicant, Mr Zhang, for a fixed term of 52 weeks. The rent was set at $630 per week.
The respondents gave the required notice to terminate the lease with effect from 4 October 2017. Although the applicant had engaged the services of a property manager to manage the property during the course of the lease, he chose to conduct the final inspection himself.
The parties arranged for a final inspection to occur on 4 October 2017, but Mr Zhang was not available that day and so the final inspection was postponed to the following day. On 5 October 2017, the tenants (or Mr Rodney Barden on behalf of the tenants) met with Mr Zhang at the property to conduct an exit or outgoing inspection. All of the tenants’ possessions had been removed from the house, and the property was presented for return to the lessor with vacant possession.
Mr Zhang was not satisfied that the property had been returned in a sufficient state of cleanliness. Whilst Mr Barden did not agree with Mr Zhang’s viewpoint he nevertheless agreed to conduct further cleaning. On 5 October 2017, Mr Barden returned all of the keys to the property to Mr Zhang except for one key which he retained with Mr Zhang’s agreement to gain access for the purpose of carrying out further cleaning. The tenants’ work commitments meant that their first opportunity to carry out further cleaning was over the weekend of 7- 8 October 2017.
Mr Barden met with Mr Zhang on 10 October 2017 to conduct a further inspection, at which time Mr Barden gave Mr Zhang the key that he had retained. Mr Zhang nevertheless remained dissatisfied with the condition of the property in the ways…

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 Zhang v Barden

Details

AGLC: Zhang v Barden [2018] ACAT 44
Case: [2018] ACAT 44
Decision Date: 18 April 2018

CaseChat Overview and Summary

In the matter of Zhang v Barden, the dispute before the Tribunal concerned claims for compensation related to damages at the end of a residential tenancy. The respondents, the tenants, had applied for compensation from the applicants, the landlords, under the Residential Tenancies Act. The respondents sought further compensation for cleaning costs and for a period of rent following the end of the lease, in addition to the compensation already awarded. The applicants opposed these claims on the basis that the tenants had failed to discharge the onus of proof required to substantiate their claims.

The Tribunal considered whether the respondents had adequately proved the extent and necessity of the claimed costs. It was necessary to determine the onus of proof in such claims and whether the respondents had met this burden. The Tribunal examined the evidence provided by the respondents, including invoices and testimonies, and assessed whether these were sufficient to satisfy the required standard of proof.

The Tribunal found that the respondents had not discharged the onus of proof for their claims. It concluded that the evidence presented did not adequately substantiate the necessity and extent of the claimed cleaning costs and additional rent. As a result, the application for further compensation was dismissed. The Tribunal ordered that the bond held in dispute be paid to the respondents and dismissed the application for additional compensation.

Orders

Orders of the court

The Tribunal orders that:

The Office of Rental Bonds pay the amount of the bond held in dispute ($1,020) to the respondents/tenants.

The application dated 27 February 2018 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.