ZHOU & TAYLOR (Residential Tenancies) - [2011] ACAT 15

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ZHOU & TAYLOR (Residential Tenancies) [2011] ACAT 15

RT 618 of 2010
Catchwords: RESIDENTIAL TENANCIES – landlord and tenant – release of rental bond – unpaid rent – who is responsible for damage to premises during the period of tenancy? – contribution of cost of replacement of damaged carpet and tiles

List of legislation: ACT Civil and Administrative Tribunal Act 2008 (ACT)

List of cases: Abela v Walker [1997] NSWRT 15

Cooper v Westpac General Insurance Ltd. [2007] ACTCA 20
Desai v Dowrick [1996] NSWRT 170,
Morley v Drew [1997] NSWRT 73
Russell v Oliver [1998] NSWRT 184
Taylor v Webb [1937] 2KB 283
Verscheure & Bradbury v Richards & Retmock (Residential Tenancies) [2009] ACAT 11

List of texts:The Federation Press, Residential Tenancies Law and Practice in New South Wales (4^th Edition) by Allan Anforth and Peter Christenesen pp70-74

Tribunal: Mr A. Morris, Registrar

Date of Orders: 18 February 2011
Date of Reasons for Decision: 18 February 2011

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 618 of 2010

BETWEEN:

FENGXIA ZHOU
Applicant

AND:

L & N TAYLOR

Respondent

The Tribunal orders in respect of premises at A311/38 Gozzard Street GUNGAHLIN ACT 2912

The bond is to be disbursed as follows:
·$1191.00 to the Lessor or as the lessor shall direct; and
·$242.00 to the Tenant.
No order is made to costs.

………………………………..

Mr A. Morris
Registrar

REASONS FOR DECISION

At first glance, this matter presents as an application filed by the tenant for compensation. However, on closer examination, the situation is that this application is a call for the resolution of a dispute between the landlord - through their agent - and the tenant about damage to the property that allegedly occurred during the tenancy, and issues relating to the release of the bond.
I am aware that there are a number of other issues that were raised by the parties during the hearing. In no particular order of importance or relevance they included Ms Kover’s non-ongoing employment with Brogan Prestige Properties, allegations about parties’ credibility, the location of the trust monies, the existence or otherwise of insurance policies and other matters. In decision this matter, I have excised those matters that I consider not relevant to the resolution of the dispute, and not referred to them in deliberations.
The relevant facts are that:-
a.The tenant entered into a lease from 28^th May 2008 with the lessor through the agency of Brogan Prestige Properties (“the agent”) for a period of what appears to be 6 months;
b.
The bond was paid and receipted on 29^th May 2008, and lodged on

11^th June 2008;
c.After the fixed term, the tenant continued in occupation under periodic lease terms until early April 2010;
d.A final inspection was held in the absence of the tenant, on 8^th April 2010;
e.The tenant was represented by her husband and sister at the final inspection;
f.At the final inspection, certain damage was…

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: [2011] ACAT 15
Decision Date: 18 February 2011

CaseChat Overview and Summary

In the ACT Civil and Administrative Tribunal, Fengxia Zhou, the tenant, filed an application against L & N Taylor, the landlords, concerning the release of a rental bond and damages to the premises during her tenancy. The main issues revolved around the responsibility for damage to the property and the allocation of costs for repairs. The tenant argued that the damage was not her fault, while the landlords claimed that she was responsible for the damages and the costs of repairs.

The Tribunal had to determine whether the landlord was justified in making the replacements and whether the tenant should bear the cost of these repairs. The Tribunal found that the damage to the tiles and carpet could not be cleaned by usual means, and while the tenant claimed she did not cause the damage, the evidence showed that the damage was not present before the tenancy started. The Tribunal concluded that the tenant was responsible for the damage or at least, someone under her responsibility was. Based on the lease agreement and relevant case law, the Tribunal determined that the tenant must maintain the leased premises in a reasonable state of repair and restore the premises following any damage caused during the tenancy.

The Tribunal found that the damage was not due to fair wear and tear, as the damage was not caused by the normal use of the premises. The Tribunal also considered the age of the unit and accepted the landlord's evidence that the property was purchased new in August 2006. The cost of repairs, including retiling the affected area and removing the un-cleanable carpet, was $1,786.00. The Tribunal decided to award the landlord 2/3 of the replacement costs, as the damage occurred after 2/3 of the carpet's useful life. Therefore, the Tribunal ordered that the bond be disbursed by the agent to the landlord for $1,191.00 and to the tenant for $244.00. The Tribunal declined to order the tenant's costs of filing, as she was largely unsuccessful in the proceedings.

Orders