Zhang v Manhas - [2023] ACAT 32

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ZHANG V MANHAS & ANOR [2023] ACAT 32

RT 922/2022

Catchwords: RESIDENTIAL TENANCY – co-tenancies – sections 35, 35A and 38 of the Residential Tenancies Act 1997 – whether lessor can give conditional consent to a co-tenant who wants to leave a residential tenancy agreement – whether the Tribunal is allowed to make differential payment orders – second respondent removed from the lease

List of Legislation: Residential Tenancies Act 1997 ss 35, 35A, 35B, 35G, 71AE, 83, Schedule 1 Standard residential tenancy terms

List of Cases: Deng v Managh [2013] WADC 58
Verma v Chilukuri [2017] ACAT 12
Wild v Wild and Anor [2022] ACAT 29
Bartholomew v Pitman-Keys and Ors [2022] ACAT 26

Tribunal:Member W Hawkins
Date of Orders:  31 May 2023
Date of Reasons for Decision:      31 May 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 922/2022
BETWEEN:
MIAO ZHANG
Applicant/Lessor

AND:

NAVIN MANHAS
First Respondent/Tenant
HARPREET KOUR
Second Respondent/Tenant

TRIBUNAL:Member W Hawkins

DATE: 31 May 2023

ORDER

Ex-parte the first respondent
The Tribunal orders that:

The second respondent is removed from the lease pursuant to section 35A of the Residential Tenancies Act 1997 on and from 7 November 2022.
The respondents are to pay to the applicant the sum of $7,207, being unpaid rent $7,040 and water consumption $167.
Subject to order 5, the respondents are to pay the applicant the sum of $3,116 comprised of:
(a)$3,036 for cleaning and rubbish removal; repair damaged driveway, garage floor and concrete slab in backyard; repair ceiling, wall flyscreens and door; repair master bedroom and carpet damage; repair tools (flyscreen); and paint; and
(b)$80 for ACAT filing fee.
In relation to the amounts owed by the respondents to the applicant, the respondents are to receive credit of $1,320 each on the basis that the bond of $2,640 was paid in equal shares by each of them and has already been released in full to the applicant and thereby reduces the overall amount of the amounts that the respondents are to pay to the applicant as set out below.
In addition to the bond of $2,640 that has already been released to the applicant, the first respondent is to pay the applicant $6,225, and the second respondent is to pay the applicant $1,458. Such amounts are to be paid within 28 days.

………………………………..

Member W Hawkins

REASONS FOR DECISION

Introduction

This was an application heard by me on 24 February 2023. The application concerned a claim for damages arising from a residential tenancy agreement between Zhang (the applicant or lessor) and Manhas (the first respondent or tenant) and Kour (the second respondent or tenant). The applicant and the second respondent appeared in person. The first respondent did not appear. Manhas previously had not appeared at the conference and had minimal engagement with the application. After a short adjournment and after satisfying myself that Manhas had been informed of the hearing, the hearing proceeded in…

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 32
Decision Date: 31 May 2023

CaseChat Overview and Summary

The case of Zhang v Manhas involves a dispute between the applicant, Mr. Zhang, and two respondents, Mr. and Mrs. Manhas, regarding the termination of a residential tenancy agreement. The matter was heard in the Civil and Administrative Tribunal of Western Australia. Mr. Zhang sought the removal of Mrs. Manhas from the lease, claiming that she had abandoned the premises and was no longer contributing to the rental payments. Additionally, he sought damages for repairs and cleaning, as well as unpaid rent and water consumption.

The primary legal issues before the Tribunal were whether the lessor could give conditional consent to a co-tenant leaving a residential tenancy agreement and whether the Tribunal was empowered to make differential payment orders. The Tribunal had to determine if Mrs. Manhas's removal from the lease was justified under the relevant sections of the Residential Tenancies Act 1997 and whether the applicant was entitled to the claimed damages. The Tribunal also needed to assess the appropriate amount of credit to be given to the respondents based on the bond already released to Mr. Zhang.

The Tribunal found that the conditions set by Mr. Zhang for Mrs. Manhas's continued occupancy were unreasonable, and her removal from the lease was justified under section 35A of the Act. The Tribunal ruled that Mr. Zhang was entitled to the claimed damages for repairs and cleaning, as well as the unpaid rent and water consumption. It was determined that the respondents should receive credit for the bond already released to Mr. Zhang, reducing the overall amount they owed him. Accordingly, the Tribunal ordered that Mrs. Manhas be removed from the lease and that both respondents pay Mr. Zhang specific amounts for unpaid rent, water consumption, damages, and legal fees.

The final orders of the Tribunal required the respondents to pay Mr. Zhang certain sums within 28 days, with specific amounts allocated to each respondent based on the credit for the bond already released. This decision provides clarity on the powers of a lessor in relation to co-tenancies and the ability of the Tribunal to make differential payment orders in such cases.

Orders

Orders of the court

Ex-parte the first respondent

The Tribunal orders that:

1. The second respondent is removed from the lease pursuant to section 35A of the Residential Tenancies Act 1997 on and from 7 November 2022.

2. The respondents are to pay to the applicant the sum of $7,207, being unpaid rent $7,040 and water consumption $167.

3. Subject to order 5, the respondents are to pay the applicant the sum of $3,116 comprised of:

3. (a) $3,036 for cleaning and rubbish removal; repair damaged driveway, garage floor and concrete slab in backyard; repair ceiling, wall flyscreens and door; repair master bedroom and carpet damage; repair tools (flyscreen); and paint; and

3. (b) $80 for ACAT filing fee.

4. In relation to the amounts owed by the respondents to the applicant, the respondents are to receive credit of $1,320 each on the basis that the bond of $2,640 was paid in equal shares by each of them and has already been released in full to the applicant and thereby reduces the overall amount of the amounts that the respondents are to pay to the applicant as set out below.

5. In addition to the bond of $2,640 that has already been released to the applicant, the first respondent is to pay the applicant $6,225, and the second respondent is to pay the applicant $1,458. Such amounts are to be paid within 28 days.

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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