Considering the tremendous stress Anderson v FM Custodians Ltd has had on the landlord community, Vic Inglis’ successful appeal at the District
Court is nothing short than an extraordinary, and much needed, relief.
In September this year, Mr. Inglis was ordered by the Tenancy Tribunal (citing Anderson as authority) to refund his former tenant, Natalie Parry,
nearly $11,000 of rent paid to him throughout the entire tenancy following a claim by Ms. Parry that there was an absence of council consent over a
part of the premises rendering the property illegal (for residential tenancy) and therefore all money paid recoverable (s137 of the Residential
Tenancies Act).
The District Court, after hearing Mr. Inglis’ appeal, overturned the Tribunal order. During his deliberation, Judge Phillips considers:
- State of the property: That the concerned area of the property was finished to such as standard that the landlord was about to obtain
a Certificate of Acceptance on very short notice (i.e. after Ms. Parry’s application to the Tribunal but before the adjudicator heard the case). - Unjust enrichment: Though there has been a ‘technical breach’, the Tribunal adjudicator ‘did not appear to give any consideration
given as to whether or not the tenant was unjustly enriched by (its) order” (note recent case of Edwards, Bethani vs Wongeoon Vast Limited where the Tribunal appears to share similar sentiment. - No tenant complaint during the tenancy: “There is no evidence that the tenant made complaints concerning the health of the tenants,
dampness, mould, or any issues related to the sanitary operation of the area in question. There was no ingress of dampness or mould.”
Judge Phillips also points to the incorrect post-Anderson application of s137 and writes, “It is my view that...
