Bartholomew v Pitman-Keys and Ors (Residential Tenancies)

In the Victorian Civil and Administrative Tribunal, the applicants, Ms Bartholomew, Ms Smith, and Ms Pitman, applied for an order requiring the first respondent, Ms Pitman-Keys, to pay a proportion of the bond held by the landlord to cover unpaid rent and repairs. The applicants were all tenants under a single tenancy agreement. Ms Pitman-Keys had left the premises prior to the end of the tenancy. The applicants sought to use the departing tenant's bond to cover the costs of unpaid rent and damage repairs, which they had carried out in the absence of Ms Pitman-Keys. The Tribunal had to determine whether the repairs and payments were carried out in accordance with an informal contract, whether the original contract for the payment of rent between the tenants had been displaced, whether Ms Pitman-Keys had relied to her detriment on any new understanding, whether a Jones v Dunkel inference could be drawn from her absence, and whether the remaining tenants could be taken to have accepted the new understanding by silence.

The Tribunal found that the repairs were carried out in accordance with the informal contract and that the original intra-tenancy contract for the payment of rent had been displaced by a new understanding among the tenants. Ms Pitman-Keys had not relied to her detriment on this new understanding. The Tribunal also found that a Jones v Dunkel inference could not be drawn from Ms Pitman-Keys’ absence, as the circumstances were not such that her presence would have been reasonably expected. The Tribunal did not find that the remaining tenants had accepted the new understanding by silence.

The Tribunal ordered that the remaining tenants were entitled to deduct $800 from the bond required to be repaid to the leaving tenant, meaning they did not need to pay Ms Pitman-Keys any amount under section 35B(2)(a) of the Residential Tenancies Act 1997. The first respondent was to pay $369.20 in compensation to the other three co-tenants by 7 April 2022.