Argall v Jaiswal
[2021] ACAT 4
•22 January 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ARGALL v JAISWAL (Residential Tenancies) [2021] ACAT 4
RT 261/2020
Catchwords: RESIDENTIAL TENANCIES – whether there was unpaid rent dependant on when notice was given – lessor claims for compensation for damage granted – majority of tenant’s claim for compensation for lack of repairs lacked merit – tenant only partially successful
Legislation cited: Residential Tenancies Act 1997 s 96, standard terms 55, 57, 59, 60
Tribunal: Senior Member D Mulligan
Date of Orders: 22 January 2021
Date of Reasons for Decision: 22 January 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 261/2020
BETWEEN:
CATHERINE ARGALL
Applicant/Lessor
AND:
VANDANA JAISWAL
Respondent/Tenant
TRIBUNAL: Senior Member D Mulligan
DATE:22 January 2020
ORDER
The Tribunal orders that:
1.ACT Rental Bonds on behalf of the Territory is directed to release $952.64 of the disputed sum to the lessor and the remainder to the tenant.
………………………………..
Senior Member D Mulligan
REASONS FOR DECISION
1.The applicant, Catherine Argall, owns a property located at 102/19 Marcus Clarke Street, Civic (the property).
2.The property is a two-bedroom apartment which has a bathroom and an ensuite bathroom off the principal bedroom. The apartment is located on the first floor (one floor above street level).
3.On or about 10 August 2016, the respondent in this matter, Ms Vandana Jaiswal leased the property from the applicant. The parties signed a standard form tenancy agreement.
4.Under the tenancy agreement, the respondent agreed to pay rent at the rate of $650 per week. She also paid a bond of $2,600 which was deposited with ACT Rental Bonds.
5.The lessor’s agent, LJ Hooker (the agent), provided the respondent with an incoming condition report, which described the condition of the property in detail. The tenant made some comments on the face of the report, dated it 2 September 2016, and returned it to the agent.
6.The agreement was for a 12-month fixed term tenancy between 10 August 2016 and 9 August 2017 which could be followed, if both parties wanted to continue the arrangement, by a month-to-month tenancy.
7.The arrangement continued after the expiration of the first 12-month fixed term lease by a number of fixed term, year-long leases.
8.The final fixed term lease commenced on 19 September 2018 and expired on 18 September 2019. The rent during this period was $670 per week.
9.Following the expiration of the fixed term lease on 18 September 2019 the respondent remained on a month-to-month lease at the rate of $680 week.
10.On 6 January 2020, the agent served a notice to vacate pursuant to section 96 of the Residential Tenancies Act 1997 (the Act). The notice required her to move out of the property on 5 February 2020, four weeks after the service of the notice. The applicant was obliged only to give four weeks’ notice to the respondent as she was intending to move into the property herself.
11.On 8 January 2020, the respondent advised the agent that she had a pre-planned holiday and asked that she be allowed to leave the property on 3 March 2020.
12.The applicant did not want to allow this extension of time, but by email of 14 January 2020, ultimately, she agreed to do so. The email from the agent to the respondent said, in part:
Please be aware the landlords called me last night and while they have stated they will be inconvenienced by the delay of vacation they have agreed to extend your tenancy until 08/03/2020 as they appreciate you as a tenant, please note that the final inspection has been rescheduled to the 09/03/2020…[1]
[1] Exhibit R1, Documents filed on 19 July 2020 Page 7 of 28
13.On 5 February 2020, Ms Jaiswal advised the agent that she would be vacating the property by 16 February 2020. Her email stated:
I’m pleased to inform you that as per landlords wish to vacate the apartment earlier I’m in a position to vacate the current residence by the 16th of Feb., Sunday.[2]
[2] Exhibit R1, Documents filed on 19 July 2020 Page 8 of 28
14.The respondent left the property on 16 February 2020 and returned the keys to the agent on 17 February 2020.
15.Following the end of the lease there was no agreement as to who should receive the bond monies and ACT Rental Bonds referred the matter to ACAT for resolution of the issue.
16.On 19 June 2020, the applicant filed an amended application claiming $2,471.03 from the respondent. This sum being made up as follows:
(a)$763.53 – Rental arrears.
(b)$242 – Compensation for carpet stain.
(c)$400 – Quote to replace wardrobe door.
(d)$990 – Quote to undertaking painting of parts of the property.
(e)$75.50 – Application fee.
17.On 3 May 2020 the respondent filed a response defending the claims made by the applicant and in addition made a counter claim in which she sought a total of $8,340, made up by:
(a)$2,340 – Broken tap in ensuite.
(b)$1,320 – Broken balcony door locks.
(c)$1,040 – Broken clothes dryer.
(d)$3,640 – Broken exhaust fans.
18.I will look at each party’s claims in turn.
The applicant’s claims
19.During the course of the hearing the applicant abandoned her claims for the painting work and for the stain on the carpet. Consequently, I will say nothing more about those claims.
Unpaid rent
20.Central to the issue as to when rent is payable is the issue of when notice was given by the respective parties.
21.The applicant originally gave four weeks’ notice to the respondent on 6 January 2020, which required the respondent to quit the tenancy by 5 February 2020.
22.The respondent complained that this was inconvenient and that she wanted to leave on 3 March 2020.
23.The applicant reluctantly agreed to this proposal and on 14 January 2020, the agent sent an email to the respondent which said that the owners “have agreed to extend your tenancy until 08/03/2020”.
24.It appears to me that the notice issued on 6 January 2020, requiring the respondent to quit the apartment in four weeks’ time ceased to have effect from the time the applicant agreed to extend the tenancy to 8 March 2020.
25.It appears to me that what happened instead was that the parties entered into a fixed term lease for the period 17 February 2020 to 8 March 2020.
26.In this context I note the respondent asked the applicant to allow her to stay at the property until 8 March 2020 and the applicant agreed to “extend your tenancy until 8/03/2020”
27.Had the applicant sought unpaid rent based on the fixed term lease between 17 February and 8 March 2020, I would have granted that application.
28.The applicant has instead elected to reduce her claim and allow the respondent to give three weeks’ notice from 5 February 2020, meaning that she was required to pay rent until 26 February 2020.
29.The respondent had paid rent up until 18 February 2020,[3] so the unpaid portion of rent related to the period 18 February – 26 February, a total of eight days. This equates to $777.14 ($680 divided by 7 x 10) and I award her that amount.
[3] Exhibit A1 - “Tribunal Report” page 6
Wardrobe Door
30.The applicant seeks $400 in compensation for damage to a wardrobe door in the second bedroom. The photos supplied by the parties show that the door has been chipped, is unsightly and needs repair.
31.The incoming condition report signed by the respondent on 2 September 2020, does not show that the door was damaged at that time, consequently, I am satisfied the damage occurred during the course of the tenancy.
32.The respondent provided the Tribunal with a statutory declaration from Cameron Hoffman, who confirmed that he lived in the spare bedroom from January 2017 to December 2017 and that the wardrobe door was damaged when he moved into the bedroom.
33.Given Mr Hoffman’s evidence it appears likely the damage occurred sometime before he moved into the property and sometime after the lease commenced.
34.The claim of $400 seems reasonable and I award that amount to the applicant.
35.In total I award the applicant $1,252.64 made up as follows:
(a)$777.14 – Unpaid rent.
(b)$400 – Wardrobe door.
(c)$75.50 – ACAT application filing fee.
The respondent’s claims
36.The first issue to consider is the nature of the lessor’s obligation to undertake repairs and when those repairs must be completed.
37.Clauses 55, 57, 59 & 60 of the rental agreement between the parties set out the respective duties owed by the applicant to maintain her property.
38.Pursuant to clause 55, the applicant has an obligation to maintain the premises to a reasonable standard having regard to the condition of the property at the start of the lease.
39.It should also be noted that pursuant to clause 55(2) the respondent has a duty to inform the owner of any items that need repair.
55 (1) The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement.
(2) The tenant must notify the lessor of any need for repairs.
40.Clause 57 of the standard terms requires an owner to make repairs to the property within four weeks of being notified of the need for a repair, by the tenant, unless, pursuant to sections 59 and 60 of the Act, the repair is classified as an urgent repair, in which case the respondent must carry out the repairs as soon as necessary, having regard to the nature of the problem.
Lessor to make repairs
55 (1) The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement.
(2) The tenant must notify the lessor of any need for repairs.
…
57 Subject to clause 55, the lessor must make repairs, other than urgent repairs, within 4 weeks of being notified of the need for the repairs (unless otherwise agreed).
…
Urgent repairs
59 The tenant must notify the lessor (or the lessor’s nominee) of the need for urgent repairs as soon as practicable, and the lessor must, subject to clause 82, carry out those repairs as soon as necessary, having regard to the nature of the problem.
60 The following are urgent repairs in relation to the premises, or services or fixtures supplied by the lessor:
(a) a burst water service;
(b) a blocked or broken lavatory system;
(c) a serious roof leak;
(d) a gas leak;
(e) a dangerous electrical fault;
(f) flooding or serious flood damage;
(g) serious storm or fire damage;
(h) a failure of gas, electricity or water supply to the premises;
(i) the failure of a refrigerator supplied with the premises;
(j) a failure or breakdown of any service on the premises essential for hot water, cooking, heating, cooling or laundering;
(k) a fault or damage that causes the residential premises to be unsafe or insecure;
(l) a fault or damage likely to cause injury to person or property;
(m) a serious fault in any door, staircase, lift or other common area that inhibits or unduly inconveniences the tenant in gaining access to and use of the premises.
The tap in the ensuite
41.On moving into the property, the respondent noted a problem in the ensuite bathroom; the taps for the two sinks did not work. She complained to the agent via email about the issue on 22 August 2016.
42.The respondent summarised the problem in the incoming condition report where she described the problem as being:
The left tap is broken. The right tap is too tight to operate freely. The water doesn’t flow easily in left sink.
43.The agent engaged a tradesman to fix the problem. It appears likely this occurred in early to mid-September 2016 as there is a ledger entry related to this work dated 15 September 2016.
44.The repair was not an urgent one and was remedied well within four weeks.
45.According to the respondent, the plumber only fixed one tap meaning that only one of the two sinks was operable during her stay. The plumber told the respondent to make do with just one sink in the ensuite bathroom. The respondent appeared to take that advice.
46.The respondent did not make any further complaint about the remaining tap that did not work, to either the agent or the owner.
47.From the perspective of the applicant the problem had been dealt with by the plumber and she was unaware that one of the taps in the ensuite was inoperable.
48.Because the owner had undertaken the repair in a timely manner and reasonably believed the repair had been undertaken, I make no award of compensation for the tap that did not work during the course of the tenancy.
Broken balcony door locks
49.On 29 January 2018, the respondent sent an email to the agent complaining of the matters that needed repair. In part she complained of the lock on the sliding door leading to the balcony being broken. In part her email read:
Hello Wendy,
Hope you had a good weekend.
I have identified following things that needs repair. Please take a look at those while inspection on 2nd Feb. :
1. The lock of the sliding door facing the kitchen cooktop is broken. It's only now I noticed that it was never fixed when my parents pointed it out.
2. The door handle of the second room has loosened quite a bit. I've tried to tighten it but it doesn't tighten up beyond a certain point.
3. The curtain stay bracket in the second room was never fixed properly to the wall.
Could you please organise for someone to address the above issues.
50.By 27 February 2019, the repairs had not been undertaken. The respondent again wrote to the agent this time complaining about the broken lock and the absence of keys for another sliding door in the living room. In part the email said:
Hi Wendy,
Request you to please assign 2 maintenance requests to someone. I’m more concerned about fixing the locks to the 2 balcony sliding doors in the living room. One of the locks was not working and keys were not provided to the other lock, since I moved into the premises. I’ve reported this problem earlier beginning of last year but it is still pending repair. This is a question of safety.
I might have to resort to ACAT for compensation if this is not addressed by March end.
51.The repairs were finally completed on 8 March 2019.
52.Although it doesn’t appear to be a matter that caused the respondent undue concern (more than a year had passed since the initial complaint without a further request to undertake the work) there seems to be no reasonable excuse for the delay in fixing the lock and providing the keys.
53.The respondent’s reasonable complaint seems to have been overlooked by the agent and they failed to respond in a timely manner.
54.In the circumstances, I think the respondent should receive $300 in compensation
Broken clothes dryer
55.The respondent alleges that the clothes dryer did not work on occasion between 4 March 2017 and 17 April 2018. She was not precise in her evidence and did not provide me with a log which recorded the frequency and nature of the problem she encountered and the amount of time it took the agent to effect repairs.
56.The only evidence she has provided is that the dryer had issues on four occasions.
57.On 2 March 2017, the respondent contacted the agent and told them of the problem she was having with the dryer. The substance of the complaint was set out in the work order that the agent sent the respondent on 4 March 2017, which in part stated:
Hi Vandana,
The following maintenance item has been allocated to the Trade Supplier to be completed.
Property address: 102/19 Marcus Clarke Street, City, ACT 2601.
Job Reference: M957333.
Brief Description: Washer/Dryer not working.
Details: The tenants have reported that the dryer in unit 102/19 Marcus Clarke doesn’t seem to be working. They have cleared the lint and emptied the condensed water container.
Request to send an appliance repair person to attend and repair.
58.Following a routine inspection of the property on 8 August 2017 the agent made a note in the inspection report form that the “dryer is ongoing issue.”
59.Repairs were undertaken on four occasions before there were no more issues with its performance. These were as follows:
Date
Description
Cost
21 March 2017
Repairs to dryer
$165
12 July 2017
Found faulty temperature sensor
$165
15 March 2018
Service Call
$165
17 April 2018
Repair
$384
60.It should be noted that pursuant to clause 60(j) of the standard terms the repair of a dryer is classified as an urgent repair that needs to be undertaken as soon as possible.
61.It seems to me that whilst there was an issue with the dryer, it was a problem the owner took seriously; (spending $879 to repair it) and had it repaired as quickly as possible after receiving a complaint from the respondent.
62.In that context I note the agent issued a work order for the repair of the dryer on 21 March 2017, the same day as she was first made aware of the problem. It appears that repairs were affected by a mechanic also on the same day, 21 March 2017, at a cost of $165. By any measure that is a very timely response to the issue.
63.I have no evidence before me as to how long the delay was between the making of the other three complaints and the repairs undertaken on 12 July 2017, 15 March 2018 and 17 April 2018, but have no reason to believe they were not also resolved in a timely manner.
64.Whilst it would have been inconvenient to having the dryer break down on four occasions and then be repaired, I don’t think that inconvenience rises to the standard that calls for the respondent to be compensated.
Broken exhaust fan
65.The respondent claims that the exhaust fan in the second bathroom did not work. She first became aware of this problem on 19 June 2017, when told of it by her flatmate, Cameron Hoffman ,who used the bathroom..
66.By email of 19 June 2017, the respondent complained to the agent of the issue:
Hello Wendy,
Hope you had a good weekend.
Could you please arrange for someone to fix the exhaust fan in the second bathroom for unit 102.
I suspect water is leaking from the dryer. I have cleaned the vent but would be good for someone to check that as well.
67.On 3 July 2017, the agent created a work order for the exhaust fan to be replaced at a cost of $876.
Hi Vandana,
The following maintenance item has been allocated to the Trade Supplier to be completed.
Property address: 102/19 Marcus Clarke Street, City, ACT 2601 Job Reference: M1229311
Brief Description: Exhaust fan in bathroom
Details: Approving the quote for $876 Inc Gst to fix the exhaust fan.
Trade Supplier: BACK TO FRONT MAINTENANCE
Trade Supplier No.: 0432 731 195
Trade Supplier Email: [email protected]
Tue, Jul 11, 2017 at 3:55 PM
If you feel that this item maybe a safety issue, please ensure that you take every precaution whilst the item is being addressed.
Thank you for your assistance with this matter.
Kind Regards
Wendy Higgs
Property Manager
68.The work was undertaken on 11 July 2017.
69.The respondent does not allege she directly suffered any detriment whilst the exhaust fan was not working between 19 June 2017 and 11 July 2017. Rather she alleges that it led to a build-up in moisture in the ensuite bathroom which caused the grout in the shower to get mouldy and she was inconvenienced during its repair in December 2019. In effect she alleges her enjoyment of the property was diminished because of the presence of the mould in her shower.
70.I have attached below a photograph provided by the respondent which depicts an example of the mould issue she was complaining of.
71.It is very hard to see the mould that is being complained of in the picture, but I accept the respondent’s evidence that there was mould on the grout.
72.The respondent provided no cogent evidence that the fact that an exhaust fan was not working in mid-2017 in any way led to the mould that developed in her shower in late 2019.
73.The applicant says the issue with the shower was not connected to ambient moisture but to the fact that the shower’s waterproof membrane failed.
74.According to the application, the issue was discussed by the agent and the respondent during a routine inspection, which I infer from the date of some photographs provided by the respondent relating to this issue, occurred in September 2019.
75.The agent’s explanation for the reason the shower failed seems far more likely than the theory advanced by the respondent.
76.After becoming aware of the issue, it was investigated by a company named Shower Sealer and repair works were carried out by that company at a cost of $1,350.
77.I also note the respondent did not provide any email from her to the agent complaining of the mouldy grout and the need to have it replaced or cleaned and that the matter was one that was raised during a routine property inspection, which must have been some time after the problem first became apparent.
78.I accept that there was a period of time in 2019 in which the shower stall in the ensuite had some mouldy grout. I would expect a reasonable tenant to clean it, as it developed.
79.I also accept that the issue was discussed with the agent during a routine inspection in September 2019, and the issue was addressed and repaired in a relatively brief period.
80.The respondent’s claim for $3,640 in compensation lacks merit.
81.Again, I do not think the issue rises to the standard for which the respondent should be compensated.
82.During the course of the hearing, the respondent made a comment to the effect that she likely would not have made a counter claim had the applicant not sought to make a claim on the bond.
83.In my view that comment gives an insight to the overall lack of substance to her claims. I did not get the impression she suffered any genuine inconvenience or detriment as a consequence of the issues she complains.
84.I am also of the opinion that the amount of compensation she seeks as a total; $8340, and for each individual issue she has complained of are out of proportion to any detriment she suffered.
Summary
85.In total I award the respondent $300.
86.This figure should be deducted from the $1,252.64 awarded to the applicant. Meaning that in total the respondent owes the applicant the sum of $952.64.
87.To satisfy the debt I direct ACT Rental Bonds on behalf of the Territory to release $952.64 of the bond to the applicant (the lessor) with the balance of the bond being released to the respondent (tenant).
………………………………..
Senior Member D Mulligan
Date(s) of hearing 24 August 2020 Applicant: Ms K Forster, authorised representative Respondent: Mr S Jaiswal
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