Adam and Michelle McGUINNESS v Michael and Alanna ERNST-RUSSELL
[2009] ACTRTT 1
•6 January 2009
AUSTRALIAN CAPITAL TERRITORY
RESIDENTIAL TENANCIES TRIBUNAL
CITATION:Adam and Michelle McGUINNESS v Michael and Alanna ERNST-RUSSELL [2009] ACTRTT (1)
RT 858 of 2008
Catchwords: Landlords duty to repair at the commencement of a tenancy, duty to “ensure” that premises are in a reasonable state of repair.
Tribunal:A. Anforth, Member
Date: 6 January 2009
AUSTRALIAN CAPITAL TERRITORY )
RESIDENTIAL TENANCIES TRIBUNAL ) No: RT 858 of 2008
BETWEEN: ADAM McGUINNESS and MICHELLE McGUINNESS
(Applicants/tenants)
AND MICHAEL ERNEST-RUSSELL and ALANNA ERNEST RUSSELL
(Respondents/landlords)
DECISION
Tribunal : A. Anforth, Member
Date : 24 November 2008
Decision : The application is dismissed.
…………………………….
Member
IN THE RESIDENTIAL TENANCIES
TRIBUNAL OF THE AUSTRALIAN
CAPITAL TERRITORY No. 858 of 2008
BETWEEN: ADAM McGUINNESS and MICHELLE McGUINNESS
(Applicants/tenants)
AND MICHAEL ERNEST-RUSSELL and ALANNA ERNEST RUSSELL
(Respondents/landlords)
REASONS FOR DECISION
The Applicants were tenants of residential premises in the ACT located at 35 Fitchett St Garran. The tenancy commenced on 9 December 2007 for a fixed term of 12 months at a rent of $590.00 per week.
On 29 October 2008 the Applicants lodged an application with the Tribunal seeking an order for compensation for excess gas consumed as a result of the defective ducted gas heating in the premises.
The application annexed the following statement from the Applicants:
“Background
On Friday, 29 August 2008, we received a quarterly gas bill from ActewAGL, covering the period 16 May- 20 August 2008, in the amount of $1968.78. (Flag 1).
On Monday, 01 September 2008, I contacted the property manager, Ms Carla Firman, and ActewAGL to advise that we had a problem with our gas. Ms Firman confirmed she would immediately advise the lessor and wait until I had results of ActewAGL testing. On 02 Sep 2008, ActewAGL tested the integrity of the gas pipe from the street to the property, and then tested the meter for accuracy in reading. While a small leak was identified and repaired, I was advised that it was on the street side of the meter and would not have affected usage. I updated Ms Firman and monitored usage for 24 h to identify whether daily consumption was different after this minor repair. Having seen no change in consumption, I called ActewAGL again to seek further advice, and they confirmed that a gas plumber was required to inspect the property before they could take any further action.
I passed this information on to Miss Firman and despite my persistence; the first available opportunity for the property manager's preferred contractor to visit was 11 September 2008.
On Thursday 11 September 2008, Mr Richard Feist, a senior tradesman and fully qualified gas-fitter from Duncan 's Plumbing Service attended the property, and was granted access by my mother, Mrs Meryl Davison, whom I had asked to be my representative as my husband and I were both at work. Mr Feist is currently on extended leave overseas and will return 05 November 2008. In his absence I have had a number of discussions with Ms Lyn Sargent, who coordinated the work conducted at the residence and spoke with Mr Feist regarding the repairs. Ms Sargent will pass on my request for a statement from Mr Feist upon his return to Australia, however a copy of the repair invoice (Flag 3) provides a general description about the damage and state of the gas heating system.
Mr Feist informed Mrs Davison that the ducting under the house was in very poor condition and was broken or had holes in at least two significant locations. In discussing the issue, he advised Mrs Davison that annual servicing of ducting was highly recommended and that the entire system was in a state of disrepair, and had not appeared to have been serviced. He also indicated that in his estimation, the type of system installed in the property coupled with the size of the property should result in quarterly bill of around $500.00. In the absence of a statement from Mr Feist, I have attached a sworn affidavit from Mrs Davison. (Flag 4).
As a result of the identified damage to the ducted system, Ms Firman asked me to identify what I believed would be a reasonable amount for us as the tenants to pay for this billing period, which she would then take to the lessor. Taking into consideration the comments of the gas plumber, whom I consider an expert in this field, I inquired with neighbours and friends about their own quarterly gas bills, and following the repairs, I conducted some basis calculations about our daily gas consumption (consumption since repair has averaged less than five gas units per day, though I noted on our coldest days since that time it has been no higher than eight, but still down from an average consumption of thirty gas units per day during the 16 May-20 August quarter). Each calculation was around $500.00, though in consideration of the fact that I can't exactly calculate what would have been used, coupled with the unfortunate circumstances, I advised Ms Firman that I was willing to pay $600.00. (Copy of note to Ms Firman at Flag 5).
Please note the following facts:
· We had never received a bill for ducted gas heating prior to this year (2008).
· We had been advised by friends and family that it is the most economical and efficient heating, and this became a specific factor in applying for tenancy of this property.
· During a prolonged work absence, my husband turned on the ducted heating system in early March 2008. There was no program set, and he set the thermostat to heat at 24degrees. He later received a bill for the period 19 February - 16 May 2008, for the amount of $626.14 (Flag 6). Having no prior gas experience, my husband did not think this was excessive and paid the bill on time. When I first saw the bill (Flag 6), I advised him that it was higher than I expected, and I believed we had over-used by both setting the temperature too high and not having the system turn off during the work day and through the night. At this time I set the thermostat to 19 degrees and set a program compatible with our daily work routine which turned on at 0530 and turned off at 0800, and came back on again between 1600 - 2230 daily, which remains at the time of writing.
· After reducing the temperature, the family room at the back of the property was cooler than the rest of the house, although warm air was coming out of the vent and we had no reason to suspect the system was not working. To avoid overuse of gas, as well as keep the small bedrooms at optimal sleeping temperature while the doors were closed, we used a small electric heater at night in this back room. The room in question is an extension to the house, and as the block slopes down, it is elevated above the ground. There is an access gate to underneath this part of the house. As we stepped into this room, the floor (all floating wood) was noticeably colder than elsewhere in the house, leading us to believe it was not well insulated. One of the three external walls of this room is almost all glass, including a sliding door, and there are windows in the other two walls, which supported our belief that the room simply did not hold heat as well as the rest of the house. At no time did we suspect a problem with the gas heating, until we received the large bill (Flag 1), and even then I was adamant that the meter must have been faulty.
The lessor responded (Flag 7), that in their opinion, the May 2008 bill, coupled with my email comment (Flag 5) that the back room was colder than our son's very small bedroom (with the door closed), should have alerted us to a fault in the system. This statement confuses two separate issues; at no stage during the Feb - May billing period (Flag 6) did we feel that any part of the property was cold, nor did we require supplementary heating, which supported my assumption that we had over-used. Using an additional heater in the back room (and the comment regarding the associated electricity bill) specifically related to the period after we reduced the thermostat to 19 degrees (as per my comments at Flag 5). Bringing out the electric heater also coincided with the coldest part of the year, and did not trigger any concerns of a damaged ducted gas system.
Finally, please note the following:
· My statement (Flag 5) was submitted to the property manager on 12 September 2008. On 17 September 2008, I received an email from Ms Firman confirming that she had sent an email to the lessor regarding the matter.
· After repeated requests through the property manager for the lessor to respond to my statement, I finally received a written reply through the property manager on 09 October 2008. Included with the lessor's reply was the written judgement of the property manager coordinator suggesting that both parties split the bill evenly.
· I sent a number of clarifying emails, given that I felt the owners had misinterpreted our circumstances. This complete chain of correspondence is at Flag 8.
· I advised Ms Firman that in an attempt to avoid a tribunal process and the hours of preparation this would require, that we would accept the property manager's recommendation of splitting the bill. Ms Firman later advised that the lessor did not believe they were responsible and "would not budge".
· Paragraph 54 (1), Schedule 1, Standard Residential Tenancy Terms, as part of our Tenancy Agreement (Flag 9) states:
At the start of the tenancy, the lessor must ensure that the premises, including furniture, fittings and appliances (unless excluded from the tenancy agreement), are - a) fit for habitation; and reasonably clean; and in a reasonable state of repair; and reasonably secure.
· We consider ourselves to be excellent tenants who have cared for the property as if it was our own. At Flag 10 is a copy of our rental bond receipt, tenant ledger to date, and reports from all inspections carried out to date.
· We have identified a number of problems with the property throughout our tenancy, which have been notified to the agent immediately. On each of these occasions the agent and lessor have responded promptly. If we had suspected, at any stage, that there was a fault with the system, we would have reported it immediately.
· Throughout the entire ordeal, both Ms Firman, and Ms Suzanne Luchetti (Property Management Coordinator) have been helpful and supportive. They have left me with a strong impression that they believe my husband and I have a legitimate claim.
· 'Duncan's Plumbing Service' has advised me that in accordance with their recommendation at Flag 3, the lessor has sought a quote for having the rest of the system repaired / replaced, in anticipation of their occupation of the premises in December when our lease expires.
· Over the 21 days from the issue date of the bill in question (Flag 1), until repairs were conducted (11 September 2008), 477 units of gas were consumed. Using the rate at Flag 1, this will account for $305.60 (not including supply fee or GST) on our next quarterly bill. In the 44 days since repairs were made, we have consumed a total of 232 units of gas.
The report from Duncan’s Plumbing Service of 15 September 2008 reported that the ducting under the floor of the premises was in poor condition and was leaking.
On 21 November 2008 the Respondent/landlords filed a statement in reply to the claim made, which read:
We contest the application on the following grounds:
We acknowledge that this is a very unfortunate situation. However, we contend that we have been responsible lessors. We have not breached the terms of the lease and we have not acted in a manner that would have the effect of attaching liability to us.
On 1 October 2008 we notified our agent that, in good will, we were willing to make a contribution towards the costs incurred by the tenants of three hundred dollars (#1). Our offer was forwarded to the tenants on 9 October 2008. Following the receipt of a further email from the tenants, and as we wanted an amicable outcome, we increased our goodwill offer to four hundred dollars on 21 October 2008 (#2).
Prescribed terms 54 states:
At the start of the tenancy, the lessor must ensure that the premises, including furniture, fittings and appliances, are -
... (c) in a reasonable state of repair; Prescribed terms 55 states:
The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement.
Prescribed term 55 states:
The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy.
Prescribed term 46 states:
The tenant is responsible for all charges associated with the consumption of services supplied to the premises, including electricity, gas, water and telephone.
We purchased the property in late October 2007. The tenants commenced the tenancy in early December 2007. The tenants first used the central heating in early March 2008. Damage to the ducting was identified on 11 September 2008 (#3). This was repaired the day of discovery. Once the ducting had been repaired the central heating was found to be in working order again (#3).
When we received Michelle's email (#4), dated 15 September 2008, and the accompanying gas statements we thought that the damage to the ducting must have occurred at some point during the May 2008 quarter (i.e. 19 February - 16 May), after the heating had been turned on..
Our initial assessment was based on the tenants' May quarter gas statement of $626 (#5). This is more than we expected (we assumed a usage pattern similar to our own), particularly as in her email of 15 September Michelle states that they had the heating on for 'less than a month at the time the bill was issued' (#4).
However, in her statement to the Tribunal of 28 October, Michelle provides additional information that was not previously made known to us. She states that Adam 'turned on the ducted heating in early March 2008 (#6)'. He 'set the thermostat to heat at 24 °C' and kept the system running at this temperature all day and all night (#6). This usage pattern is significantly above what we had assumed based on the information in the 15 September email.
The publication Operating Costs of Gas Appliances provides typical running costs for domestic gas appliances including ducted gas heating (#7). It provides various estimates for homes of 150 m2 heated to 21 °C (calculations for larger or smaller homes can be estimated proportionately). It assumes heating is used for 8 hours per day.
It states that for each degree the thermostat is increased, costs will increase by up to 15%. It also states that running the heating 24 hours a day will double costs (#7).
These are estimates of course but are sufficient to demonstrate how a 'typical usage cost' of, for example, $250 (for 8 hours at 21 °C) could balloon to over $700 by heating at 24 °C all day:
i.e 8 hours at 21 °C: $250
8 hours at 22 °C: $288
8 hours at 23 °C: $330
8 hours at 24 °C: $380
24 hours at 24 °C: $760The magnitude of the tenants' May statement ($626) can be attributed solely to Adam's choice to heat the house to 24 °C, 24 hours a day.
Had the damage occurred during the period of the May statement, the May statement would be expected to be significantly higher than $626. This indicates that the damage to the ducting occurred sometime during the period of the August statement (17 May - 20 August).
In her statement of 28 October, Michelle writes that it was during the period of the August statement that it became apparent that 'the family room was noticeably cooler than elsewhere in the house' (#6).
In her earlier email of 15 September, Michelle states 'parts of the house were so cold' that they 'used electric heaters in the family room' to the extent that they paid over $600 for electricity for the quarter (#4). In her statement of 28 October to the Tribunal she clarifies that 'at no stage during the Feb - May billing period' did they feel any part of the property was cold (#6).
These observations are consistent with a problem with the ducted heating that has occurred at some point during the period of the August statement.
I called the Brivis Service Centre and enquired 'part of my house is noticeably colder than the rest - what does that mean?' 1 was immediately advised lit means a problem with the ducting'.
The tenants did not notify us or our agent of their concerns or observations until after they received the August gas statement.
Background
The previous owners had a young family and had made the property their home for a number of years. They clearly considered the premises a home and there was ample evidence that it had been well cared for and well maintained.
This evidence was reinforced by the report from a building inspection that was conducted just prior to our purchase. The report's summary states 'this home was found to be in good condition'. There is no indication that the ducting was in anything other than in a reasonable state of repair at the time of the building inspection.
Immediately prior to the commencement of the tenancy we tested the central heating system, turning it on and checking the output from each vent. We found the system to be in good working order.
The Maintenance Section in the central heating Owner's Operating Manual advises:
1. The air filter should be cleaned regularly (frequency dependent upon local conditions)
2. The flue terminal, burner and pilot area should be clear of leaves and clean from dust (once or twice a year)
3. The fan blades should be cleaned periodically (every 3-4 years)
It states ''this is the only regular maintenance needed and if you carry this out you will enjoy trouble-free running"1 (#8).
This was reinforced by the advice I received upon contacting ActewAGL regarding what an annual check up for the central heating system should entail. The ActewAGL representative advised me that the only annual inspection required comprised cleaning the air filter and checking the airflow from each vent. He advised that uneven heating would indicate a possible problem that should be further investigated.
Additional Background
We would like to provide further clarification for a number of statements in Michelle's Statement of Particulars.
1. In her statement to the Tribunal Michelle gives a timeline of events.
'My statement was submitted to the property manager on 12 September 2008. On 17 September 2008, I received an email from Ms Firman confirming that she had sent an email to the lessor regarding the matter. After repeated requests through the property
manager for the lessor to respond to my statement, I finally received a written reply through the property manager on 9 October 2008.'
Michelle's statement is clearly signed (Monday) 15 September 2008 (#4). Her statement was forwarded to us on Tuesday 16 September 2008. On Monday 22 September I spoke with our agent (Ms Carla Firman) and advised her that we were giving the matter our considered attention and that Alanna was due to give birth at any time. On Tuesday 23 September I emailed our agent to let her know that we required more time, reiterated that Alanna was due to give birth imminently, that I thought a considered approach was in everybody's interest and that I noted the tenants had deferred payment of the bill to the end of the following month so I did not anticipate a problem in replying in the near future (#9).
On Sunday 28 September our second child was born. On Wednesday 1 October I emailed our response to our agent (#1). Our agent forwarded our response to the tenants some 9 days later on Thursday 9 October (#10). She did not contact us during this period. She has not provided an explanation for the delay. It appears she did not provide any of the preceding information to the tenants.
We are responsible lessors. Michelle states that they have notified our agent of a number of problems with the property and that on each occasion 'the agent and lessor have responded promptly'' (#6). As Michelle acknowledges, we have always acted quickly to rectify any problem that we were aware of. This has included making repeated calls to our agent regarding the status of work and to ensure that work was being attended to promptly.
On 4 April 2008 I attended the premises to observe the installation of a new oven. On that occasion I introduced myself to Adam and Ms Davidson. I gave Adam my personal mobile phone number and told him he could call me 'at anytime'.
2. Michelle gives various descriptions of the house in her statement to the Tribunal.
The property is 170 m2. A floor plan is included with this response (#11). It has undergone three extensions, the family room, as stated by Michelle, and also the lounge and master bedroom. The family room is elevated above the ground, as is the rear bedroom. There is an access gate under the rear bedroom as well as the family room. Michelle describes the bedrooms variously as small or very small (#6). In contrast, the flyer for the property describes the bedrooms as 'spacious' (#11).
The house contains both floor and roof insulation (#11). Floating wood is used in the family room and in virtually all living areas of the house (#11). All living area windows, including the family room windows and the sliding door, are insulated with good quality blinds.
The matter was listed for hearing before the Tribunal on 24 November 2008. Both Applicants appeared in person and both Respondents appeared in person.
The Respondents tendered a second report from Duncan’s Plumbing which confirmed that the ductwork under the house had failed releasing the hot air into the space under the house. The ductwork was said to be in poor standard of repair.
The Respondent tendered a copy of the Property Evaluation Report dated 13 September 2007 from the time they purchased the property. It makes no reference to the ducting.
At the hearing each party put their case which were essentially consistent with the written statements set out above.
10. The Tribunal explained to the parties that the cost of gas consumption was prima facie a tenant cost and that the tenants could only succeed in recovering part of the consumption cost to the extent that the cost was caused by a breach of the residential tenancy agreement or the Act by the landlords. Hence the issue was whether the defective ducting constituted a breach by the landlords.
11. The Tribunal found as a fact that:
(a)the gas ducting under the house was in poor condition at the commencement of the tenancy
(b)the ducting failed at some unidentified point after 16 May 2008.
(c)it was the failure of the ducting that caused the large gas account for the period 16 May 200-20 August 2008.
(d)prior to 1 September 2008 the landlords had no actual notice of the defective ducting.
(e)In the absence of any notice concerning a potential defect, and in the absence of any statutory or contractual duty to do otherwise, it was not reasonable to expect the landlords to have a plumber inspect the ducting at the commencement of the tenancy on the off chance that there may be a defect. This finding was based on the self evident rationale of the potentially broad and expensive inspections that a landlord would need to commission at the commencement of each new tenancy and the issue of who would bear such costs. If the landlords’ duty were not subject to these limits then the inspections required at the commencement of each new tenancy would include; electricians, plumber for the sewerage, gas plumbers, roof tilers, carpenters, engineers to inspect the foundations, pest exterminators, refrigeration mechanics, airconditioning specialists, concreters etc.
(f)but had the landlords had a plumber inspect the ducting prior the commencement of the lease the defect would have been readily discovered.
(g)the ducting was repaired on 11 September 2008.
12. The Tribunal explained to the parties that prescribed terms 54 and 55 in the Schedule to the Residential Tenancies Act 1997, which also form part of the standard terms of the residential tenancy agreement, applied to the state of repair of the premises that existed at the commencement of the tenancy, and during the tenancy, respectively.
54(1) At the start of the tenancy, the lessor must ensure that the premises, including furniture, fittings and appliances (unless excluded from the tenancy agreement), are—
(a) fit for habitation; and
(b) reasonably clean; and
(c) in a reasonable state of repair; and
(d) reasonably secure.
55(1) The lessor shall maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the Tenancy Agreement. The tenant shall notify the lessor of any need for repairs.
13. In respect of prescribed term 55 the Tribunal was satisfied that the landlords had carried out the repairs as soon as was reasonably practicable once the problem had been brought to their attention. In this sense the landlords had complied with prescribed term 59 which governs the timing or urgent repairs and there was therefore no breach of prescribed term 55 by the landlords.
14. The Tribunal explained that the remaining issue was whether the landlords were in breach of prescribed term 54 in that the defective state of the ducting existed as the commencement of the lease, being a time when the right to possession of the premises was vested in the landlords and they had the capacity and opportunity to have the ducting inspected had they so chosen to do so.
15. The Tribunal explained to the parties that prescribed term 54 was in similar terms to section 25 Residential Tenancies Act 1987 (NSW) which had been the subject of considerable judicial consideration. Section 25 reads:
It is a term of every residential tenancy agreement that:
(a) …
(b) The landlord shall provide and maintain the residential premises in a reasonable state of repairs having regard to the age of, rent payable for and the prospective life of the premises.
16. The words “provide and maintain” in section 25 have been interpreted to apply to the commencement of the tenancy and during the term of the tenancy, respectively (Residential Tenancies Law and Practice in NSW 4th ed Anforth and Christensen at [2.25.0]). By way of comparison, the ACT Residential Tenancies Act 1997 separates out the requirements at the commencement of the tenancy, and during the term of the tenancy, in prescribed terms 54 and 55 5 respectively.
17. In a series of cases from the NSW, QLD and W.A. jurisdictions courts and tribunals have consistently held that the landlords duty to repair defects arising during the lease does not arise until the landlord has notice of the defect [Residential Tenancies Law and Practice in NSW 4th ed Anforth and Christensen at [2.25.2-2.25.3]].
18. In two decisions of the High Court, Jones v Bartlett (2000) 205 CLR 166 and Harris v Northern Sandblasting (9917) 188 CLR 313 the court held that the landlords duty to provide the premises in a reasonable state of repair at the commencement of the tenancy did not extend to having the premises inspected by relevant tradesperson in order to discover if any defect may exist. The landlords duty went no further than to attend to defects of which the landlord was aware or could discover by casual inspection.
19. Jones v Bartlett was a case from Western Australia which considered section 42 Residential Tenancies Act 1987 (WA) that was in the same terms as section 25 of the NSW Act. Northern Sandblasting was a case that considered section 107 Property law Act 1974 which imposed a duty on a landlord “to provide and maintain the premises …in a condition reasonably fit for human habitation”.
20. These principles have been consistently applied in NSW and the Tribunal in the ACT has to date taken the same approach in relation to prescribed term 54.
21. The parties were advised that if the same principles were to applied to prescribed term 54 then the tenants case would be dismissed on the basis that the landlords had no notice of the defective ducting and no duty to have engaged a plumber to have inspected the ducting under the house prior to the commencement of the lease.
22. The Tribunal raised with the parties the slight difference in wording between the NSW, W.A. and QLD provisions on the one hand and prescribed term 54 on the other hand. Whereas the former provisions required that the landlord “shall provide” the premises in a reasonable condition etc, prescribed term 54 states that the landlord “must ensure that the premises …are in a reasonable state of repair” (as does section 68 Residential Tenancies Act 1995 (S.A.)) The Tribunal raised the issue as to whether the words “shall ensure” in prescribed term 54 imports a more onerous obligation on the landlord than does the words “shall provide” in the legislation of the other states.
23. In QLD the Residential Tenancies Act 1994 was amended post Northern Sandblasting to insert new section 103(2) that imposed on the landlord a duty to “ensure” the premises were in a reasonable state of repair at the commencement of the tenancy. The Court of Appeal in QLD in Gration v C Gilliam Investments P/L [2005] QCA 184 considered the effect of this change in wording and said:
[2] The change in terminology from s 7(a)(ii) of the Residential Tenancies Act 1975 ("the 1975 Act") to that used in s 103(2) of the ResidentialTenancies Act 1994 ("the 1994 Act") is not without significance. By operation of s 7(a)(ii) of the 1975 Act the landlord was subject to an implied obligation "to provide . . . the dwelling house in good tenantable repair and in a condition fit for human habitation", whereas under the 1994 Act the obligation imposed by s 103(2) (after the amendment in 1998) was to "ensure" that at the start of the tenancy "the premises . . . are in good repair".
[3] In practical terms however there is not much difference between what is involved in providing premises in good repair and ensuring that the premises are at the start of the tenancy in good repair. According to The New Shorter Oxford English Dictionary "provide" in this context means "take appropriate measures in view of a possible event; make adequate preparation; . . . take measures beforehand to ensure that", whereas in this context "ensure" means to "make sure, convince; . . . make certain the occurrence of an . . . outcome". In the Explanatory Notes to s 103 of the 1994 Act it is said that the provision "requires the lessor to provide to the tenant premises that are clean and in a reasonable state of repair at the beginning of the tenancy." The use of the term "provide" therein might at first glance suggest no real change in the obligation from that imposed under the 1975 Act, but a careful reading of those Notes would suggest that it was used in the sense of meaning "take measures beforehand to ensure that" the premises were in a reasonable state of repair at the beginning of the tenancy. Almost identical language to that found in the Explanatory Notes was used by the Minister in his Second Reading Speech: "The legislation will require the lessor to provide the premises in a reasonable state of repair at the beginning of the tenancy . . .".
[4] Such a construction is, in my view, made more obvious when one compares the obligation on the lessor imposed by s 103(2) with that imposed pursuant to s 103(3). Under the former the lessor must "ensure" that the premises are in good repair at the start of the tenancy, whereas pursuant to the latter provision the obligation on the lessor during the currency of the tenancy is put in terms that the lessor "must maintain the premises . . . in good repair." Generally liability of the landlord during the tenancy will be dependent on the tenant giving notice of the defect; see, for example, Austin v Bonney [1999] 1 Qd R 114. In my view the legislature deliberately chose a different formula when defining the obligation on the lessor at the commencement of the tenancy from that which applied during the currency of the tenancy.
…[7] To the best of my researches only Vaisey J has provided a judicial definition of the term "ensure" when used in a statute. In Reliance Permanent Building Society v Harwood-Stamper [1944] Ch 362 at 373 he said, speaking of the term "ensure" used in s 10 of the Building Societies Act 1939 (UK):
"The word "ensure" has puzzled me a good deal. I think it is used in the common and colloquial sense in which "making sure" is used, that is, as equivalent to ascertaining or satisfying oneself, and does not mean anything in the nature of warranty or guarantee."
[8] With respect, I agree with that approach, and would give the word when used in s 103(2) of the 1994 Act the same meaning. On that approach s 103(2) obliges the lessor to take steps to ascertain and satisfy himself that the premises are in a state of good repair at the start of the tenancy; the lessor cannot sit back and say that as the previous tenant has not complained of any defect therefore the premises must be in a state of good repair. The use of the term "ensure" obliges the lessor to take reasonable steps to ascertain and satisfy himself that the premises are in good repair at the start of the tenancy
24. Taken on its face the decision in Gration would appear to support the thesis that prescribed term 54 imposes a higher duty on the landlord to inspect the premises for defects prior to the commencement of the tenancy. However in Gration the defect was that of rotting steps which would have been obvious to a casual inspection by an interested landlord without the need for the deployment of any tradesmen. The court spoke of the landlord’s duty to take “reasonable steps” by way of inspection of the premises but on the facts of the case did not need to elaborate on what constitutes “reasonable steps”. The decision in Gration leaves open the issue of what are reasonable steps and in particular does it involve employing a gas plumber to inspect the ducting under the house when the landlord had no notice of any problem.
25. Because of the uncertainty surrounding the proper construction of prescribed term 54 the Tribunal offered to refer the matter to the Supreme Court pursuant to section 124 Residential Tenancies Act 1995. However the Tribunal was conscious of the practice of the Supreme Court of inviting parties to a referral to appear by way of legal counsel to argue the case and that costs order are likely to follow the outcome in the Supreme Court. The Tribunal was conscious of the fact that the potential costs order in the Supreme Court would swamp the modest amount in dispute of about $1000.00. On the other hand the Tribunal was also conscious of the fact that the issue is one of systemic importance to residential tenancies in the ACT. For this reason the Tribunal endeavoured to secure an agreement between the parties that if the matter were referred to the Supreme Court that neither party would appear to argue the case and leave the court to determine the matters in chambers based on the interim decision the Tribunal would draft. Unfortunately this agree could not be secured between the parties and accordingly the Tribunal has determined not the refer the matter to the Supreme Court.
26. The parties were informed at the hearing that subject to any contrary determination by the Supreme Court, that as presently informed the Tribunal would follow the decisions in Jones v Bartlett and Northern Sandblasting to the effect that the duty of reasonable inspection prior to the commencement of the tenancy did not extend to having a gas plumber inspect the ducting under the house. This is the position the Tribunal now takes and accordingly the tenants application is dismissed.
A. Anforth, Member
6 January 2009
0
5
0