Berol & Anor v Kercheval & Anor (Residential Tenancies)
[2021] ACAT 73
•9 August 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BEROL & ANOR v KERCHEVAL & ANOR (Residential Tenancies) [2021] ACAT 73
RT 153/2020 & RT 168/2020
Catchwords: RESIDENTIAL TENANCIES – residential tenancy agreement – lessor claims for damage to kitchen benchtop, carpets, flyscreens, curtains, shower screen, and water damage to floor boards – tenant claims for electricity not separately metered, breaches of lessors’ obligations to provide premises as fit for habitation and to carry out repairs, and breaches of quiet enjoyment – reduction in rent for loss of amenity claimed – depreciation of assets applied – tenants’ claims dismissed – lessors’ partially successful – compensation awarded
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 71, 74
Residential Tenancies Act 1997 s 6A, standard terms 42, 54 64 96
Cases cited:Tankard and Anor v Ogbonna and Anor [2017] ACAT 72
Tribunal:Senior Member D Mulligan
Date of Orders: 9 August 2021
Date of Reasons for Decision: 9 August 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 153/2020
BETWEEN:
MARIA BEROL
Applicant/Tenant
AND:
LUKE KERCHEVAL
Respondent/Lessor
TRIBUNAL:Senior Member D Mulligan
DATE:9 August 2021
ORDER
The Tribunal orders that:
1.The tenants are to pay the owners the sum of $1,324.05 within one calendar month of the publication of this decision.
2.The sum of $1,324.05 is made up as follows:
(a)$473.55 for damage done to the carpets; and
(b)$850.50 for damage done to the glass shower screen.
………………………………..
Senior Member D Mulligan
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 168/2020
BETWEEN:
MARIA BEROL
Applicant/Tenant
NIKKI ELESTERIO
Applicant/Tenant
AND:
LUKE KERCHEVAL
Respondent/Lessor
CHRISTOPHER ERSKINE
Respondent/Lessor
TRIBUNAL:Senior Member D Mulligan
DATE:9 August 2021
ORDER
The Tribunal orders that:
1.The tenants are to pay the owners the sum of $1,324.05 within one calendar month of the publication of this decision.
2.The sum of $1,324.05 is made up as follows:
(a)$473.55 for damage done to the carpets; and
(b)$850.50 for damage done to the glass shower screen.
………………………………..
Senior Member D Mulligan
REASONS FOR DECISION
1.The respondents, Mr Luke Kercheval and Mr Christopher Erskine (the owners), own a house located at 38 Devonport Street, Lyons, ACT (the property).
2.The property is divided into two residences; the larger of the two residences which has three bedrooms and faces Devonport Street (the house). There is also a flat which has one bedroom and faces an area of garden behind the house (the flat).
3.The property is shaped like the letter L, with the long stroke of the letter representing the house and the short stroke, the flat.
4.The house and the flat are connected by a common wall that runs across the house’s kitchen.
5.The applicants, Ms Maria Berol and her sister Ms Nikki Elesterio (the tenants), agreed to rent the house. The lease was signed by them and Mr Kercheval on 5 February 2015.
6.The house was occupied by the tenants from February 2015 until 17 April 2020.
7.In addition to the two tenants the property was occupied by Ms Berol’s two children and by her parents, who visited from overseas from time to time.
8.The lease was initially for a fixed period of 12 months and thereafter it became a periodic tenancy.
9.The tenants both lived in the house until Ms Elesterio moved out in July 2017. Her departure did not result in a new lease or a change to the existing lease, and she is correctly joined as a party to these proceeding.
10.The tenants initially paid $335 per week in rent. From 18 March 2016, the rent increased to $350 per week. The rent rose to $395 week from 31 March 2017.
11.The course of the tenancy was unremarkable. The tenants were apparently happy to continue leasing the house and the owners were happy to lease it to them.
12.In early 2020 Mr Kercheval wanted to end the lease of the house so his relatives could move into the property.
13.By email dated 31 January 2020, Mr Kercheval’s estate agents (the agents) wrote to Ms Berol and gave her four weeks’ notice to vacate the house pursuant to Clause 96 of the Standard Residential Tenancy Terms (SRTT).[1] Clause 96 applied as an immediate relative of Mr Kercheval intended to move into the house:
[1] Schedule 1 of the Residential Tenancies Act 1997
14.Ms Berol was required, under the notice, to vacate the house by 2 March 2020.
15.On 28 February 2020 Ms Berol initiated proceedings at ACAT in which she sought resolution of the notice of termination and eviction and compensation for issues which arose during the tenancy. This matter was given the file number RT 153/2020.
16.On 3 March 2020, the owners commenced proceedings against the tenants at ACAT, in which they sought a termination and possession order as well as compensation for damage to the house that occurred during the tenancy and the costs associated with the relative of Mr Kercheval having to find alternate accommodation during the period the tenants remained in the house between 2 February 2020 and 6 April 2020. This matter was given the file number RT 168/2020.
17.Ultimately the tenants left the house on 6 April 2020. The rent was paid until 17 April 2020.
18.I do not need to determine the questions as to the validity of the notice to vacate or the substance of the application for a termination and possession order. Those matters have either fallen away or have been resolved by earlier ACAT processes.
19.It falls on me to resolve the tenants claim for compensation and damages and the owners’ claims relating to damage to the house and the costs associated with Mr Kercheval’s relatives having to find alternate accommodation between 2 February 2020 and 6 April 2020.
20.I will deal with the tenants’ claim and the owners’ claims separately below.
The tenants’ claims
Electricity
21.The tenants’ largest claim relates to the amounts of money they paid ACTEW AGL for electricity supplied during the tenancy; $11,602.14.
22.The tenants allege that the owners should refund them that amount as the electric supply to the house was not metered separately to the flat.
23.In support of that contention the tenants rely on clause 42(c) of the SRTT which states:
Lessor’s costs
The lessor is responsible for the cost of the following:
…
(c) services for which there is not a separate metering device so that amounts consumed during the period of the tenancy cannot be accurately decided;
24.It is not in dispute that the tenants and the flat received separate bills from ACTEW AGL for electricity. Nor is it in dispute that there were ostensibly two separate switch boxes and two separate electricity meters for the house and the flat:
Figure 1 - Photo depicting separate breakers and meters for the house and the flat
25.Instead, the tenants say that there was common wiring between the flat and the house which meant that the tenants’ meter was not accurately accounting for the electricity being used just by the tenants. There was a risk they were paying for some of the electricity consumed by the tenants of the flat.
26.The tenants rely on two types of evidence to support the conclusion that there was common wiring between the house and the flat.
27.Firstly, they say that there were three occasions where an electrical short in the one of the properties led to the loss of electricity in the other property. They say that this proves there must be common wiring between the two properties.
28.Secondly, they rely on Ms Berol’s observations and discussions with three electricians who came to the property on or about 14 February 2028.
29.Thirdly, the tenants rely on the evidence of an electrician, Mr Cameron Meeks, in support of the proposition that some of the flat and house’s wiring was served by one meter.
Short circuits
30.The first incident when there was a common loss of power to the house and flat occurred on 8 May 2017, whilst the tenants were using their washing machine. The tenants suddenly lost power, as did the occupant of the flat.
31.The owners’ real estate agent, Chae Smith, arranged for an electrician to visit the house and fix the problem. According to Ms Smith[2] the electrician found that the washing machine was faulty, and it had caused the tenants’ house to lose power. The electrician concluded that the loss of power to the flat at that same time may have been coincidental.[3]
[2] Exhibit R1 page 12
[3] Mr Short’s statement of 5 August 2020 at [2]
32.This seems to have been a “one-off” incident, which was investigated by an electrician and the electrician provided an explanation as to what happened and why.
33.The next incident is said to have occurred on an unknown date in 2018 when Mr Steven Short was the tenant of the flat. On that occasion his faulty fridge caused him to lose power and at that same time the tenants lost power to parts of their kitchen. According to Mr Short:
I remember during my tenancy in around 2018, I had a faulty fridge that caused the power to trip out the circuit breaker. This also affected the electricity supply to the tenant, Maria Berol, who lived in the house at the front of the property. I went to the front of the house to our combined meter box to reset my flat’s circuit breaker, but when I did that it tripped again. The combined meter box was located just outside Maria’s front door. I then went back into the flat and isolated all the power to my appliances. Then I went back to the main board to reset my flat’s circuit breaker and the power supply for both premises was restored. From then on I started to suspect that the electricity at both our premises were connected.[4] [emphasis added]
[4] Witness statement of Mr Steven Short dated 5 August 2020 at [2]
34.It follows from Mr Short’s version of events that parts of the tenants’ property was being energised through cables going through the flat’s switch box and meter.
35.There is no suggestion from this event that the house was supplying energy to the flat.
36.The issue was not reported by either tenants or Mr Short to the owners of the agents. Likewise, no electrician was called to the property to fix any issue or to investigate the cause of the issue.
37.The third incident occurred on 25 August 2019. On that occasion Ms Berol emailed the agent in the following terms:
Hi Kristy,
The power in the kitchen is off where the microwave, toaster and kettle powerpoint is. the flat in the back has no power either in one part of their kitchen.i look at the powerbox and nothing is off on my end but the powerbox of the flat has one part [5]seems that this problem has not been fixed until now and that both properties share electricity at some point.could someone pls fix these.i have already raised these issues before.
Thanks,
Maria [6] [errors in original]
[5] Omission in the original
[6] Index to the Tenant’s Documents, page 26
38.This email, and the evidence from Mr Short, provides some support for the contention that electricity was being shared between the parts of the kitchens in the flat and the house.
Whose wires were crossed?
39.According to Mr Short his faulty fridge caused him to lose power. This event also led to the tenants’ losing power to parts of her kitchen. This suggests that part of the tenants’ kitchen were being energised by the flat’s electrical system.
40.When the flat’s circuit breaker was tripped the tenant’s kitchen lost power. When Mr Short reset his circuit breaker, energy was restored to both his flat and the house.
41.According to the email relating to the incident that occurred on 25 August 2019[7], the switch in the flat’s switch box flipped and the switches in the houses’ switch box were unaffected.
[7] See paragraph 37 above
42.It follows that the power points in the tenants’ kitchen, which were used for the microwave, toaster and kettle, were being energised through cables going through the flat’s switch box and meter.
43.There is no suggestion from this event that the house was supplying energy to the flat.
44.The incidents in 2018 and August 2019 support the proposition that there was an issue with the flat supplying some of the electricity used in parts of the house’s kitchen.
45.No electrician was called to the incident in 2018.
46.I heard no evidence from the electrician who went to the property in August 2019. That electrician could have given clear evidence as to whether he found there to be any incorrectly metered supply of electricity and for an explanation as to why power points in the tenants’ kitchen seem to have been affected by a switch being tripped in the flat’s switch board.
Ms Berol’s discussions and observations with the electricians
47.Ms Berol alleges that on or about 14 February 2018, three electricians came to the property and worked on the switch boxes. During the course of their examination the power to the house was turned off. She noticed that her kitchen exhaust fan was working and concluded that the fan must be receiving energy from the flat, whose electricity had not been turned off.
48.The event supports the contention that the tenants were receiving electricity that was going through the flats switch box meter.
49.These electricians were not identified, nor were they called to give evidence.
Mr Cameron Meeks
50.The tenants also rely on the evidence of Cameron Meek, an electrician, who they instructed to undertake an inspection of the house.
51.Mr Meek’s undertook an investigation of the property on 1 April 2020.
52.He did not gain access to the flat, nor did he examine any wiring in the flat before writing his report.
53.Mr Meek’s report contains several references to events that Ms Berol alleged occurred relating to visits by other electricians and events that are said to have occurred that he did not observe.
54.He refers to the incident that occurred on 25 August 2019 when Ms Berol lost power in her kitchen at the same time as the tenant in the flat lost power.
55.Mr Meek was told that on 26 August 2019 an electrician, arranged for by the agent, came to the property. Mr Meek recorded that Ms Berol told him that the electrician was of the view that “the electrical lines of the kitchen are connected with the electrical lines of the kitchen in the back flat”.[8] According to Mr Meek’s account, the electrician corrected the wiring and that since that time she “noticed no more electrical issues around her kitchen and laundry”.
[8] Expert report of Mr Cameron Meek dated 1 May 2020, page 4
56.During Mr Meek’s inspection, he noted that some wiring was markedly newer than other wiring.
57.At page 6 of the report, he notes an incidence of wiring which he photographed. He recorded that this wiring:
…shows a cable on the left comes from a junction box above the laundry and goes to the kitchen power points on the right side of the kitchen sink. The two cables going in and out of the white junction box are cables that used to go , before repairs, to the kitchen of the Berol residence and to the rear unit .This is further evidence that the meter box for the front unit ( Ms Berol’s unit ) supplied electricity to the rear unit .The repairs effected are consistent with the separation of that electricity. [emphasis added] [errors in original]
58.Mr Meek concluded:
…the two meters and switch boards are in one meter box. Whilst there are two separate meters and the cables should pass through Ms Berol’s house to the unit at the rear, this is not what has been installed.[9]
[9] Expert report of Mr Cameron Meek dated 1 May 2020, page 7
59.Mr Meek’s observations do not help me determine whether the repairs or re-wiring work was done in 2013 by ACTEW AGL, in February 2018 by the three unknown electricians or in 2019 by the unknown electrician.
60.His comments are also, to an extent, disingenuous. As a matter of fact, he did not observe any cables that were, at the time of his inspection, sharing electricity between the house and the flat.
61.When he inspected the property, its wiring had been “repaired”.
62.What he in fact observed were the remnants of wiring that indicated that at one time the wiring had been shared between the house and the flat via common wiring.
63.He observed that at some stage the original wiring had been modified so that the flat and the house had distinct wiring and metering.
The owners’ position
64.In February 2013, Ms Helen Mckenzie, the owners’ estate agent advised her clients that it was obligatory for the house and the flat to have separate electricity meters.
65.Mr Kercheval accepted that advice and arranged for the wiring to be split. So that the house had its own discrete wiring and meter box and the flat had its own electrical service.
66.According to an email from Peter Drummond, an ACTEW AGL customer service officer, dated 17 February 2020, the work was undertaken by that company on 26 February 2013.
67.The application document (below) completed by Mr Kercheval clearly indicates that the works were to result in a separately wired and metered house and flat.
68.Mr Kercheval also gave evidence about the process that led to the electricity supplies being separated by ACTEW AGL and later inspected and certified by an inspector:
In February 2012, an electrical company came out and cut a larger meter box into the brick wall as they said the original one would not be big enough to hold two meters.
They removed a substantial section of the roof tiles to do re wiring work in the roof cavity of the house and inside both premises. They explained to me that they needed to test every cable to ensure they were on the correct circuits.
I recall questioning the electrician about the delay and they explained they needed the electrical inspector to come out and test everything before ACTEWAGL would even turn up. He explained that once it was tested and approved ACTEWAGL would then come out and install and energise the second meter. He told me that ACTEWAGL would not supply a second meter or attend the property without the approved inspection.
The electrician contacted me and told me a day and time the inspector would be coming out and if I were able to be there so they could access both properties. I cannot recall the exact date, but it was a short time after the electrician did the re wiring work.
On the day, the inspector came out I recall he flicked RCD’s (circuit breakers) on and off while going in and out of the properties. It was clear he was testing the circuits.
ACTEWAGL attended shortly after this and installed the second metering device and a second main fuse.
The rear tenant then put the electricity account into their name. We had paid the electricity bill up until this point.[10]
[10] Witness statement of Mr Luke Kercheval, page 1-2
69.It appears that ACTEW AGL went through a thorough process aimed at ensuring the house and were separately wired and metered:
Figure 4 – Mr Kercheval’s application to ACTEW AGL to install seperate4 meters to the house and flat
70.The owners also rely on an analysis, undertaken by Ms Chae Smith, which indicated that the tenants also had very high electricity consumption levels even when the flat was unleased and unoccupied.
71.If the house’s wiring was supplying electricity to portions of the flat, then you would expect to see sizable reductions in the amount of electricity consumed by the house when the flat was empty. Mrs Smith’s analysis did not show that. This may be because, as mentioned above, the house was the beneficiary of free electricity from the incorrect wiring of the flat’s electrical system.
Onus of proof
72.The tenants brought this claim and they bear the onus of proving their claim that the house and the flat were not separately metered during the tenancy.
73.The evidence satisfies me that early 2013 the owners arranged for ACTEW AGL to provide separate electricity supply and metering for both the house and the flat. Figure 3 above clearly shows separate switch boards and meters for the house and the flat.
74.Mr Kercheval described the careful process taken by the inspector to check the electrical circuits of both the house and the flat.
75.There may have been an issue with some of the wiring, highlighted by the events of 2018 and August 2019, which have not been explained by an electrician who visited the property and undertook remedial work.
76.The facts, as I have recorded them suggests that if there were an inappropriate supply of electricity then it seems the tenants were benefitting, and a part of the tenant’s kitchen was being supplied from the flat’s electrical services.
77.I am by no means satisfied that was the case as I heard from no electrician who visited the premises in 2018 or 2019 who could have given direct evidence on the state of the wiring at those times.
78.The electricians who attended in February 2018 and August 2019, could have given positive evidence as to what led to those events, and squarely answered the question whether there were errors in the wiring, whether they were fixed or whether there were other reasons that power in portions of the tenants’ kitchen failed when portions of the flat lost energy.
79.Mr Meek’s evidence does not answer those questions.
80.In the absence of that evidence the tenants have failed to prove, on the balance of probabilities, that the house and flat were not separately metered during their tenancy and consequently this claim is dismissed.
81.For the reasons given above the evidence satisfies me that the house had a separate meter which was accurate in that it reflected electricity only consumed by the tenants.
82.There is a possibility that the tenants were also the beneficiaries of free electricity from the tenants of the flat and that consequently the flat’s meter was not accurate. The flat’s tenants are not a party to this proceeding, and I am not determining any issues relating to their meter.
83.I also note that if there was any incorrect power supply, that error seems not to have benefited the owners in anyway.
Quiet enjoyment
84.The tenants allege the owners breached their right to the quiet enjoyment of the property.
85.Their allegation is based on the premise that when they rented the house from the owners, they believed they were renting not just the house, but also the flat and all the grounds.
86.The tenants seek compensation for loss of utility as they only occupied the house and not all the land and housing at the address.
87.In essence the tenants say that when they inspected the property they were not told, and did not appreciate, that the flat and house were separate entities.
88.Moreover, the tenants point to the fact that the tenancy agreement does not refer to the fact there was a separate tenancy for the flat.
89.Mr Christensen, for the tenants, in his submissions received by ACAT on 29 March 2021, in essence submits that because the tenancy agreement states, “The Lessor lets to the Tenant the premises at: 38 Devonport Street LYONS ACT”[11] and fails to mention the existence of the flat, then by necessary implication and by adopting the appropriate method of contractual construction the lessor unambiguously leased all of the accommodation and land at that address to the tenants.
[11] Residential Tenancy Agreement dated 23 January 2015 page 1
90.Mr Christensen argues that “there was a written agreement that specified the whole of the premises, and accordingly the basic principles of the parole [sic] evidence rule would normally apply”.[12] He continued by asserting that “if a contract is in writing it is presumed that the contract contains all the terms of the contract (see Mercantile Bank of Sydney v Taylor (1891))”.[13]
[12] Tenant’s submissions dated 29 March 2021 at [23]
[13] Tenant’s submissions dated 29 March 2021 at [24]
91.With respect, I disagree with Mr Christensen’s analysis. Section 6A(2) of the Residential Tenancies Act 1997 (the Act) displaces any presumption that a written tenancy agreement necessarily contains all the terms of the agreement.
92.Under the Act a tenancy agreement can be both in writing and incorporate oral terms. This is made clear in section 6A(2) which provides:
The agreement may be—
(a) express or implied; or
(b) in writing, oral, or partly in writing and partly oral.
93.Moreover, the active phrase in the tenancy agreement is “premises at: 38 Devonport Street”. The use of the phrase does not exclude the existence of another dwelling at the address other than the house. The use of the word “at” accurately describes both the flat and the house. Both premises are “at” 38 Devonport Street.
94.The owners’ response to this claim is threefold. Firstly, they note that at no time between the date the tenants signed the lease in May 2015 and the date upon which the owners gave the tenants notice to vacate in 2020, did the tenants complain that they believed they were renting the entirety of the property.
95.Not only did they not complain they continued to rent the property well after the fixed term lease ended on 4 May 2016, when they must have known that they were not renting the flat and surrounding gardens.
96.Secondly, the owners point to the rental lodgement form which both tenants signed prior to moving into the house. It listed the property type as being a “Townhouse/Semi-detached”, which by implication put the tenants on notice that they were not renting the entire property.
97.I note the form wrongly stated that the property had two bedrooms, so it is possible the tenants simply didn’t read the form with any vigour. I do not give this factor any weight.
98.Thirdly, the owners rely on the evidence of Helen McKenzie, the estate agent who leased the property to the tenants.
99.She recalls[14] that she showed the property to Ms Berol. At that time the listing was for a three-bedroom, one bathroom property.
[14] Witness statement of Helen McKenzie dated 20 August 2020
100.Ms McKenzie recalls showing the flat to Ms Berol and explaining that it was a separate tenancy from the house. She also showed Ms Berol where the tenants of the house and the flat could park. The tenants could use the garage and the tenants of the flat could either park on the street or on a designated area on the front lawn.
101.Ms McKenzie’s comments to Ms Berol can properly be seen as part of the tenancy agreement that was subsequently signed.
102.Again, the tenants bear the onus of proving that they were misled into believing they were leasing not only the house but also the flat and all the land at 38 Devonport Street.
103.The tenants have failed to do.
104.The property was listed as a three-bedroom with one bathroom. After inspecting the house Ms Berol must have realised that it contained three bedrooms.
105.She must also have seen the flat and appreciated it was not part of the house as there was a solid wall between the house’s kitchen and the flat.
106.Leaving aside what an inspection of the property would reveal, the tenants provided no reasonable explanation to discount the version of events provided by Ms McKenzie and her assertion that she showed Ms Berol both the flat and the house and made it clear that the flat was not part of the house was separately tenanted.
107.For those reasons I dismiss this claim.
Quiet enjoyment – use of path at rear of house
108.The tenants claim that their right to quiet enjoyment was also violated when tenants of the flat used the pathway between the house and the shed to access the flat.
109.The tenants argue that as they were unaware there was a separate tenanted flat they were unaware that the tenants of the flat would have to walk between the gap between the shed and the house in order to get to the flat. This would necessarily involve the tenant of the flat and any visitors walking within a metre or so of the third bedroom and close by the toilet and the shower of the house as they made their way to the flat.
110.The tenants claim this usage violated their right to the quiet enjoyment of the property.
111.At no time between the date the tenants signed the lease and the date upon which the owners gave the tenants notice to vacate in 2020, did the tenants complain to the owners or their agents about the use of the pathway to the flat by its tenants or their visitors.
112.I have found that the tenants knew of the existence of the flat and that it was separately tenanted. A corollary of that finding is that the tenants must have been aware that the tenants of the flat and others would use the pathway at the rear of the house to get to the flat.
113.In my view they, by implication, agreed to the passage of the tenant of the flat and others along the pathway at the rear of the house leading to the flat.
114.For that reason, this claim is dismissed.
Unfit for habitation
Kitchen bench
115.The tenants allege that pursuant to clause 54 of the SRTT, the owners did not provide the tenants with premises “which are fit for habitation, in a reasonable state of repair and in a reasonable state of cleanliness and in a reasonably secure condition”.[15] This claim rests on the state of the kitchen bench, the state of the carpet and the condition of the fly screens.
[15] Application, filed on 28 February 2020, Annexure A, at [6(e)]
116.According to the ingoing condition report the kitchen benches were clean and undamaged at the commencement of the lease. Ms Berol confirmed the state of the benches at the start of the tenancy:
Well Ms Berol when you moved in that benchtop was white and unmarked?-- -Yes.[16]
[16] Transcript of proceedings on 13 January 2021 page 227, line 25
117.The tenants did not return a marked up copy of the ingoing report within the prescribed 14 days or at any stage during the tenancy.
118.Consequently, I am satisfied the kitchen benches were in a good condition when the tenants leased the property.
119.The tenants complain that one of the benches became so badly damaged during the tenancy that justice now requires the owners to compensate them for its state.
120.The bench in issue is a return that extends from the wall where is sits beneath a suspended cabinet (see figures 5-8).
Figure 5 - The kitchen at the start of the lease – the bench in issue is the return in the background beneath the suspended cabinet – Photo taken from the incoming condition report.
Figure 6 - The bench top in dispute - Photo taken from the incoming condition report
121.The tenants contend the benchtop was not fit for purpose as the owners “constructed/altered the kitchen prior to the tenant moving in whereby the material used was from MDF composite board with a paper covering over the top and failed to provide a proper laminated granite or other durable top. In consequence of this breach, the applicant has had benchtops which have become deteriorated and damaged and likely to result in bacteria accumulating in the benchtops and present a health hazard to the applicant and her two children, one of whom is autistic”.[17]
[17] Application for resolution of a dispute filed on 28 February 2020, Annexure A at [6(e)(i)]
122.According to Mr Christensen the damage to the bench top was not caused by the occupants of the house using it as a chopping board:
And some of them look to be relatively new – that is the – the cut hasn’t spread. That indicates, doesn’t it, that you were cutting things without a board on this benchtop, doesn’t it?---No.[18]
[18] Transcript of proceedings on 13 January 2021, page 226, line 45
123.Ms Berol was pressed on the how the damage to the bench occurred. She said:
Well, how do you get a straight cut like that without having a knife cutting on the surface?---Well it could be – okay. It could be like – like a cutting board there and then – if I want to use the other – the other side I’m going to flick the top part and then if I pull it, it rubs against and it scratch, it could be that.
I mean first of all with this material I’m not going to slice my vegetables in there, no way. So unhygienic.
Ms Berol, let’s get serious. You’re suggesting, are you, that the scratches we see – the cuts and scratches we see all across this benchtop in those five photos many of which are straight were caused by you flicking the breadboard over?---It could be. It could be something else. It could be like my plates or it could be - - -
A plate?---I don’t know, anything that is – has a sharp edge and then you – this is made of soft paper, cardboard compact and water can seep in.
Ms Berol, you saw these scratches appearing. Are you telling the tribunal that you saw them happen when you turned a breadboard over?---No.
Did you see them happen when you rubbed a plate against them?---No.
How did they happen then, these straight marks? Let’s not speculate. You saw them happen, how did they happen?---I believe I didn’t like observe it happen.[19]
[19] Transcript of proceedings on 13 January 2021, page 227, line 1
124.And:
And when you moved out it looked like those photos?---Tell us how that happened. You have to have seen it happening?---Okay, the water seeped into the benchtop because it’s made of compact paper.
And how does it come to have, bottom left-hand picture, a series of straight marks?---I don’t know how that appeared there but if water seeps into that – that’s how – how it appeared to be all like that. You know, this is a benchtop. I – am I not supposed to put anything on it, plate, anything that is – has a sharp bottom. This is a benchtop and I’m meant to put something in there.[20]
[20] Transcript of proceedings on 13 January 2021, page 227, line 29
125.I did not find Ms Berol’s evidence to be satisfactory and her answers to Mr Erskine were not straightforward.
126.I found her suggestions that the damage could have been caused when she turned the chopping board over or by the rubbing of plates to be fanciful.
127.It seems most likely the bench was damaged by the repeated use of a knife. It appears to me that rather than use a chopping board the residents in the house used the bench as a chopping board.
Figure 7 – The kitchen bench in issue is the return in the foreground under a suspended cabinet – Photo taken during a routine inspection on 10 October 2019
Figure 8 – a close up of some of the damage – Photo taken during a routine inspection on 10 October 2019
Figure 9 – depiction of the full sent of the damage to the bench – photo taken as part of the outgoing report
128.After receiving the final inspection report Ms Berol engaged a “builder” to replace the bench top. The “builder” did not do a good job and the “repair” was removed by the owners:
129.Examples of the builder’s work were shown during the course of the hearing and they appeared to be amateur in the extreme.
130.Ms Berol was cross-examined by Mr Erskine as to why she attended to this repair, particularly when she didn’t attend to other issues highlighted in the outgoing condition report:
Well, your action was to replace the benchtop, wasn’t it?---I replaced the benchtop because I thought that’s the right thing to do.[21]
And:
Yes. You didn’t say to the landlord or to the agent, more precisely, in response to the inspection report that’s fair wear and tear, I’m not going to replace the benchtop?---I cannot recall what I commented in the response but I just decided to just replace it because it’s the right thing to do and I talked to my builder and said that’s – we can fix that, don’t worry about. He’s a builder, is he?---
SENIOR MEMBER MULLIGAN: What was it the right thing to do?--- MS BEROL: Because I’m thinking, you know, someone else is going to come and, you know, they’re going to use the kitchen. I didn’t want them to have the same experience as me. Like having to put up with the dirty kitchen.
MR ERSKINE: Ms Berol, if it was not your fault, why were you replacing it?---Because I think that’s the right thing to do.
Even if it’s not your fault?---I believe it’s the right thing to do Mr Erskine. So, I replaced it.[22]
[21] Transcript of proceedings on 13 January 2021, page 237, line 18
[22] Transcript of proceedings on 13 January 2021, page 238, line 24
131.It seems to me that Ms Berol replaced the bench because she knew that she had damaged it and that the damage was not fair wear and tear for which the owners should be required to account.
132.It seems most likely that, at an early stage, the tenants must have noticed that the bench was becoming scratched and cut as they progressively used it as a cutting board.
133.Rather than stopping to use the bench as a cutting board the tenants persisted to use it in that manner for a protracted period, resulting in the extensive damage depicted in the photos.
134.Mr Christensen asserts that the finish on top of the damaged bench was inadequate and should have been made of laminated granite or other durable top.
135.I don’t agree. It seems to me that had the tenants used a chopping board the damage simply wouldn’t have occurred.
136.Moreover, if the bench was manifestly made from inadequate material as suggested by Mr Christensen, then the tenants should never have used it as a chopping board.
137.I am not prepared to reward the tenants for damaging the bench and then claiming its condition had become a health hazard.
138.This claim is dismissed.
The carpets
139.According to paragraph 63 of Mr Christensen’s submissions, the tenants claim that they should be compensated for the state of the carpets which they described as being “worn and threadbare at the commencement of the tenancy”.
140.I note the tenants inspected the property before they signed the tenancy agreement and moved into the property in 2015.
141.I also note that notwithstanding their concerns about the state of the carpet, they did not make any complaints about its condition until after Ms Berol was given notice to vacate.
142.The tenants did not provide any photos that support their claims that the carpet was worn, threadbare and unfit for purpose when they moved into the property.
143.Ms Elesterio’s evidence was to the effect:
The carpets looked old. You could see where they were joined, that the joins had started to wear and there was a gap between the joins in the carpet. There was a patch in the dining room in the carpet.
I lived in the premises until approximately July 2017. I was in the premises for a period of two years. The carpets might have deteriorated slightly during the time I was there but it wasn’t much. The carpets were basically worn out when I got there.[23]
[23] Witness statement of Nikki Elesterio dated 5 August 2020 at [13], [14]
144.Ms Berol’s evidence was to the effect that[24] “the carpets were very worn and threadbare in places, with gaps developing in the joins. There was a patch in the carpet in the dining room”.
[24] Statement of Maria Berol dated 23 December 2020 at [5(a)]
145.She also said “the carpets looked old and worn out (at least 20 years old). The pile was worn down and they were “prickly”. You could see where the carpets was joined, as the joins had started to wear and there was a gap between the joins in the carpet. There was a patch in the dining room in the carpet”.[25]
[25] Statement of Maria Berol dated 23 December 2020 at paragraphs [22], [23]
146.Ms Berol says that she made a comment about the general condition of the carpets in the ingoing condition report she says she returned to the agents.
147.The agents say that they did not receive an ingoing report from Ms Berol.
148.Ms Berol did not produce a copy of the document at the hearing.
149.Given the concerns I have about Ms Berol’s evidence that I have already alluded to, I am not prepared to accept her evidence that she in fact returned the ingoing condition report to the agent at the commencement of the tenancy.
150.The ingoing condition report contains several photos of the carpet. Those depict the carpet being in a reasonable condition and state of repair at the commencement of the tenancy.
Figure 10 - Photo of carpet in a bedroom
Figure 11 - Photo showing carpet in living room
151.The ingoing condition report describes the floor coverings in the lounge room, dining room, bedroom one, bedroom two and bedroom three all as having carpet that was described as clean, undamaged and working.
152.On the available evidence the tenants have failed to prove there was any particular issue with the carpet and nothing to suggest that it was in a state, either at the beginning of the tenancy or at the end that would warrant the tenants receiving any form of compensation from the owners.
153.This claim is dismissed.
Flyscreens
154.The final issue raised by Mr Christensen in his submissions under the heading “Fit for habitation” relates to the issue of fly screens.
155.Mr Christensen submits that both Ms Elesterio and Ms Berol gave evidence that the flyscreens were loose, and had holes in them and let mosquitos into the premises and that this issue was not addressed by the owners during the tenancy.
156.Both the statement drafted by Ms Berol (23 December 2020) and by Ms Elesterio (5 August 2020) say that the flyscreens were in poor repair when they moved into the property.
157.The ingoing condition report does not detail any issues with the flyscreens and as consequence I find there were no significant issues with the flyscreens at that commencement of the tenancy.
158.On 15 January 2017, Ms Berol wrote to the agent to list the defects to the house she wanted the agent to repair. In that email she spoke of the issue of flyscreens in the following terms: “Also the screen door to the front door needs to get changed as there are signs of wear and tear. It has small holes and the mosquitos and larger insects can go through the holes”.[26]
[26] Statement of Maria Berol on 23 December 2020, Attachment 8
159.This allegation is of a much narrower and more specific nature than the general nature of the claim contained in the statements of the two sisters and the submission made by Mr Christensen under the heading “Fit for habitation”.
160.Section 71(1)(a)(ii) of the Act sets out when ACAT must order a reduction in rent in these circumstances where a tenant is claiming compensation because of loss of utility because of an owner’s failure to maintain the premises. It provides:
71 Reduction of existing rent
(1) On application by a tenant, the ACAT must order a reduction in the rental rate payable under a residential tenancy agreement if it considers that the tenant’s use or enjoyment of the premises has diminished significantly as a result of any of the following:
…
(ii)the failure by the lessor to maintain the premises and any appliance, furniture or facility supplied with the premises in a reasonable state of repair, having regard to their condition at the commencement of the residential tenancy agreement; or
161.In my opinion the issue with the flyscreen on the front door didn’t significantly diminish the tenants’ use or enjoyment of the premises. The issue is a very minor one that doesn’t cross the threshold test under section 71.
162.This claim is dismissed.
The respondents’ case
Costs associated with Mr Kercheval’s relative not being able to move into the property on 2 March 2020
163.The owners seek compensation of $5,371.16 for the costs of housing the relatives who had hoped to move into the house on 2 March 2020, but who was prevented from doing so because the tenants had not moved out by that time and were instead taking proceedings to ACAT.
164.The relatives are not parties to these proceedings and if they paid these costs themselves, they cannot piggyback their claim into these proceedings.
165.No other basis has been put forward as to who paid those costs, when they were paid, who they were paid to, whether an allowance had been made for the weekly rental the tenants were paying whilst occupying the property during that time.
166.For those reasons, this claim is dismissed.
Carpet
167.The owners claim $3,157 for the replacement of the carpet in the dining area and in two of the bedrooms. They have produced an invoice from Hood’s Carpet Court in support of their claim.
168.In evidence Mr Kercheval said that the owners bought the property in 2006 and put new carpets into the house in about 2008.[27]
[27] Transcript of proceedings on 13 January 2021, page 259, line 27
169.In his statement Mr Kercheval described the carpets and the issues relating to them in the following way:
No complaint was ever received about the carpet until the end of the tenancy. I recall the carpet was in good condition prior to the tenants moving in. There was no iron mark and no cut outs in the bedroom/dining room. The cut outs are simply that – a piece of carpet cut out and stuck in the same place. A professional carpet patch would be almost unnoticeable. The carpet company that has quoted informed that they could not match this carpet so the damaged areas would need to be replaced with a different carpet. In fact, the carpet is still in very good condition except for the iron mark and the cutouts. There are some minor ripples in areas, but these are relatively common. They happen for several reasons ranging from installation issues to dragging heavy furniture rather than lifting it. The carpet seam in the living/dining room has started to split. This can happen over time and is more noticeable on patterned carpets. However, we are not claiming for repairs to the carpet ripples. Again, this is relatively common and can happen due to installation or dragging heavy equipment along the carpet. In this case I would argue that the seam has split due to the living room being used as a home gym / business. However, we are not claiming for that and have written it off as wear and tear.[28]
[28] Statement of Luke Kercheval submitted on 21 January 2021 at [23]
170.Mr Kercheval described damage to the carpet in the dining area and two bedrooms.
Burnt iron mark on dining room carpet.
171.There is no dispute that the tenants burnt the dining room carpet by leaving a hot iron face down on its surface. The damage is clearly depicted in the following photograph taken after the tenants left the property in April 2020:
Carpet cut-outs in the bedrooms
172.Two of the bedrooms also had cut-outs, and example is shown in figure 13 below.
173.Ms Berol denied cutting the carpet in the two bedrooms. She said “while I concede an iron mark on the carpet, I did not otherwise damage the carpet during my tenancy”:[29]
[29] Statement of Maria Berol on 23 December 2020 at [24]
174.Having regard to the ingoing and outgoing condition reports I am satisfied that the carpet cut-outs were not present at the commencement of the tenancy but were evident at the end of the tenancy.
175.I reject Ms Berol’s evidence that she (or another occupant of the house) was not responsible for the cut-outs and conclude the damage to the bedroom carpets was done during the tenancy.
176.In my opinion the cutting of the carpets in the two bedrooms were deliberate acts and the burning of the dining area carpet was an act of negligence.
177.The damage to the carpets in the three rooms was not a consequence of fair wear and tear and the tenants are liable for the damage.
How to calculate the compensation due to the owners
178.Presidential Member McCarthy in Tankard and Anor v Ogbonna and Anor [2017] ACAT 72 (Tankard) considered the issue as to how to value items like carpets and observed:
Carpet as a floor covering, deteriorates over time as a consequence of fair wear and tear. The Federal Commissioner of Taxation (the FCT) allows significant tax deductions for depreciation in recognition of this fact. Even if carpet has to be replaced as a consequence of damage for which a tenant is liable, the carpet needs to be valued with reference to its age at the time of its replacement not the cost of its replacement.[30]
[30] Tankard at [9]
179.The carpets in the house were installed in around 2008. They had, or could have been, fully depreciated by the end of the lease.
180.But for the damage done by the tenants’ negligence or wilful act the carpets would have remained serviceable for a number of years.
181.Mr Christensen in essence submits that the carpets were at the end of their useful life and the owners have suffered no real loss despite the damage done to the carpets by the tenants because the carpets needed to be replaced anyway.
182.No other evidence was given, or submission made, as to how long the carpets would have been serviceable but for the damage caused by the tenants.
183.It is not possible for me to apply a formula and arithmetically conclude how much longer the carpets would remain serviceable.
184.Whilst the carpets had been fully depreciated, they were nevertheless in reasonable condition. The tenants did not have the right to intentionally or negligently damage the owners property that was in relatively good condition and that would otherwise remain serviceable for a number of years.
185.Given that the house rents at the lower price level for the Canberra market, lesser quality carpets may suffice for longer. I can see that they may have remained serviceable for another three to five years, which would bring them up to somewhere about 15 – 18 years old.
186.I think that a reasonable value of the carpets is 15% of the replacement costs set out in the Hood’s Carpet Court quote.
187.The owners are awarded $473.55 in relation to this claim.
Curtains
188.The owners seek $6,879.99 for damage done to curtains they installed in the house shortly after the tenancy began. In support of their claim they produced a quote from Capital Blinds and Awnings which provided a replacement cost in the sum claimed.
189.Mr Kercheval described the issue with the curtains in this way:
The property had timber venetian blinds when the tenant moved in. Soon after the tenant moved in – as the weather was getting colder – the property manager contacted me and said the tenant had requested curtains as the venetians were too cold.
Curtains were ordered. They were installed to the entire house, excluding the kitchen window. They were full block out and brown with stripes. They are present in all the inspection photos and the outgoing inspection photos. The first outgoing photos show them in good condition but very dirty. The second outgoing photos show that they had been destroyed. In some of the inspection photos lace shear style products have been placed on top of the curtains. These were not supplied or installed by the landlords. At no point was permission sought for these to be installed. At the end of the tenancy all windows still had the originally installed curtains. Many of the rod holders had been ripped out of the wall.[31]
[31] Statement of Luke Kercheval received on 21 January 2021 at [24], [25]
190.Ms Berol described the curtains in this way:
We asked for curtains early into the tenancy. It took some time for these to arrive.
When they arrived they were cheap, brown stripy curtains that had large grommets in the top that were threaded on to rods. They had some sort of rubber backing.
Over the period of the tenancy the curtains deteriorated due to exposure to sunlight.
The curtains appeared to be in reasonable condition at the end of the tenancy, although they were a bit dusty. The property manager told us to clean them. I washed them in a washing machine, as no one told me it was not appropriate and the curtains did not have care tags attached.[32]
[32] Statement of Maria Berol on 23 December 2020 at [43]-[46]
191.It seems that the curtains were in reasonable condition, up until the time Ms Berol washed them in a washing machine at a laundrette in Kambah,[33] after which they were severely damaged and unserviceable:
[33] Transcript of proceedings on 13 January 2021, page 187, line 30
Figure 14 - Example of curtain damaged after being washed
Figure 15 - Another example of curtain damaged after being washed
192.Ms Berol in summary says she is not liable for the damage done to the curtains during the washing process as she was told by the agent to clean them, and the curtains did not contain care instructions which directed her how to clean them or how not to clean them.
193.No evidence was given as to the material the curtains were made from and the manufacturer’s recommended way to clean or wash them.
194.Ms Berol was not cross-examined on her version of events, nor did the current agent, Ms Chae Smith, comment on the issue of the curtains.
195.Ms Berol’s evidence is unchallenged and consequently I accept what she says about being instructed to clean the curtains and there being no care instructions affixed to them.
196.In those circumstances I can’t say the Ms Berol’s decision to wash them in the washing machine was unreasonable or that she should be liable for the consequences of washing the curtains in a washing machine.
197.The owners bear the onus of proving this claim and have failed to do so.
198.This claim is dismissed.
199.Even were I to have concluded that the tenants were liable for the damage, the damages awarded would have been calculated in accordance with the principles set out in Tankard and the award of damages would have been low.
Shower screen
200.The owners are claiming for the replacement to the glass shower screen that was damaged during the tenancy. They are claiming the sum of $945. This application is supported by a quote from Monaro Glass.
201.The glass shower screen was cracked from near the lower right-hand corner. The fracture is probably about 30 to 40 centimetres long and is highly visible:
202.Ms Berol acknowledges that the shower screen was not broken at the commencement of the tenancy. She says that she didn’t break it and believes that it broke due to exposure to hot water.
203.Mr Christensen asserts that the owners bear the onus of proving that the damage to the screen occurred because of the tenants’ wilful or negligent act.
204.With respect that is not the case. The owners need prove that there was damage that occurred to the shower screen during the course of the tenancy. Having done so, the onus shifts and the tenants need to prove that the damage occurred by way of fair wear and tear. As Presidential Member McCarthy said in Tankard:
Fair wear and tear is an exception to a tenant’s obligation under clause 64. It is for a lessor to allege and prove that premises were not left in substantially the same condition as they were at the commencement of the tenancy agreement. If a lessor can do so, it is then for the tenant to prove that the exception applies. In Regis Property Co Ltd v Dudley, the House of Lords stated:
If any want of repair is alleged and proved in fact, it lies on the tenant to show that it comes within the exception.[34]
[34] Tankard at [42]
205.Mr Christensen went on to submit that glass shower screens are notorious for cracking as they are exposed to different temperatures. No evidence was called to support this assertion.
206.I do not take the view that the fracturing of glass shower screens due to temperature fluctuations is such a common event that I should take notice of it.
207.Mr Kercheval has some experience in the building field. He advised me that:
I have a building and construction management degree. My company has a B class building license. I have been a builder for 17 years. I have owned a joinery for 12 years. The joinery undertakes all forms of cabinetry work including kitchens, wardrobes, and laminate/stone benchtops. I have been doing bathroom and laundry renovations for 17 years. This includes many jobs for property managers that have water damaged laundries and bathrooms.[35]
[35] Statement of Luke Kercheval received on 21 January 2021 at [1]
208.Mr Kercheval spoke, on the basis of his experience, about the issue with the shower screen and he made the following comments:
Shower screen – The shower screen was brand new and installed by Regency Screens, one of Canberra’s longest running shower screen companies. I have had over 400 shower screens installed in bathroom renovations, over 17 years. Apart from this one, the only similar type of screen the has ever cracked, that I am aware of, was due to the owner’s child who suffered from ADHD having a tantrum and slamming the pivot door incredibly hard. Framed shower screens are made from tempered glass. They do not crack from being exposed to hot or cold water.[36]
[36] Statement of Luke Kercheval received on 21 January 2021 at [34]
209.Whilst I am alert to the fact that Mr Kercheval is a party to the proceedings, I found him to be a reasonable, credible and reliable witness.
210.I accept the view put forward by Mr Kercheval, that shower screens are made from strong tempered glass and that they do not crack following exposure to different temperatures.
211.The tenants have offered no reasonable explanation as to how the shower screen broke and I am left with the conclusion that it must have been the result of being struck or deformed with some force.
212.In my view the tenants have failed to prove that the damage occurred by way of fair wear and tear or by any other cause that would obviate their liability.
213.As with the carpets I need to value the shower screen having regard to its age and the fact it will have been subject to depreciation.
214.I also take into account that glass, unlike carpets, does not readily deteriorate, and the owners could have expected many years of service from it before it needed to be replaced.
215.In my opinion the owners are entitled to 90% of the replacement value stated in the Monaro Screens quote.
216.The owners are awarded $850.50 for this claim.
Water damage to the laundry floor
217.The owners final claim relates to rotten timbers under the laundry floor, that became evident once the tenants had moved out of the property. They seek the sum of $13,739 to repair the laundry floor. This claim is supported by a quote from the LFX group.
218.Mr Kercheval gave evidence gave evidence in relation to the laundry floor, which he said was newly installed before the tenants moved in. The laundry floor had been replaced due to a leaking tap. The water from the dripping tap caused the floor to rot. Mr Kercheval said:
The laundry – The laundry floor was replaced prior to the tenant moving in. There had been a leaking washing machine tap that was replaced. There was a more major leak from the hot water system in 2014. While this was found and attended to quickly it was a flow rather than a drip. This meant the original pine floorboards had been water damaged and needed to be replaced so water did not get into the joists causing a bigger problem. The floor coverings were removed, and the pine flooring was carefully removed so that the laundry tub and skirtings stayed mostly in place. As the wall sheeting is a fibro material we decided to work as if it were asbestos material. As the floor joists were still fine there was no need to remove the wall sheeting. The pine flooring was replaced, water resistant villabord [sic] installed and glued and new tiles installed. There was a drip tray placed under the hot water system as well.[37]
[37] Statement of Luke Kercheval received on 21 January 2021 at [27]
219.The ingoing condition report contains a photo of the laundry floor before the tenants moved in:
220.Mr Kercheval described the state of the laundry floor when the tenants moved in as:
At the time the tenant moved in, the floor was in new condition, level and with no cracks. There was a rubber mark on the floor where we had put a washing machine in and decided to remove it prior to the tenant moving into the property. The skirting behind where the washing machine would be had minor water marks and scuff marks. I did not replace this skirting as the walls are a fibro material.[38]
[38] Statement of Luke Kercheval received on 21 January 2021 at [28]
221.According to Mr Kercheval there was an unrelated plumbing issue relating to the hot water system in 2017:
In early 2017 there was a report of a drip from the hot water system and some blockage to the kitchen. I remember asking the property manager for photos and telling her this is common for electric storage tanks and that there is a tray under it for this reason. A plumber was organized to attend to the kitchen sink issue. I have a recollection that the blockage was due to some tree roots that were cleared at the time – this was not a tenant issue.[39]
[39] Statement of Luke Kercheval received on 21 January 2021 at [29]
222.At the end of the lease Mr Kercheval inspected the house and found extensive damage to the laundry. He described that damage in the following terms:
When I inspected the property after the tenants vacated, I found the floor had almost collapsed in the area under the washing machine. I found the wall taps for the washing machine were not leaking. The skirtings around the washing machine area were destroyed due to water damage. The floor in all other area, including in front of the hot water system, laundry tub and rear door were all intact and the tiles in normal condition.
It is my opinion that either the initial washing machine install or when the tenants washing machine caused their power to trip and was replaced, it was not connected properly to the wall tap either by lack of plumbing tape or having not been installed by a plumber. This has led to a very slow dripping that has run down the hose and under the washing machine. Over the remaining years of the tenancy this has caused the timber flooring and the surrounding joists to completely rot out.There is no requirement for a floor waste in laundry areas. This is no different to a dishwasher connected under a kitchen sink in a kitchen where there is no floor waste. Even had there been a floor waste this would have been connected to the laundry sink drain system and would usually be positioned in front of the laundry tub. This would not have changed the damage done to the floor. There was no damage to the other side of the wall or anywhere on the wall, the area also dried out after the tenant vacated, indicating the leak was not a plumbing pipe inside the wall.[40][40] Statement of Luke Kercheval received on 21 January 2021 at [31]-[33]
223.The owners supplied several photographs which depict the damage Mr Kercheval complains of:
224.The owners also called a plumber, Mr Aaron Clark of Clark Plumbing, to give evidence about what he found after inspecting the laundry floor on 2 May 2020:
I inspected the laundry and found that the laundry floor tiles matched the kitchen floor tiles and appeared to be relatively new and modern. There was a small crack at the doorway corner. There was much larger cracking and even loose tiles at the washing machine location and grout had come away
The floor and wall were dry and the tub and washing machine taps had no signs of leaking
In the same area as the tile damage and the area around where a washing machine would have been, the floor felt as if it were about to collapse. This indicates the timber flooring, joists and perhaps to a lesser extent the bearers have rotted out. In my experience hardwood joists and bearers with timber flooring lasts a very long time.
The same flooring system is used throughout the house including the toilet and kitchen and there is no sign of similar damage.
The rest of the floor away from the washing machine, including in front of the laundry tub, was in good condition, not bouncy or springy, and the grout and tiles were undamaged.
The skirting behind the washing machine was completely rotten through and had split in two, although at the time of inspection it appeared to be dry. The skirtings perpendicular to this had similar severe damage that decreased as it moved further away from the washing machine /washing machine tap area
I found the laundry had a standard electric storage hot water system in one corner with an appropriate drip tray and overflow valve. I found no damage in or around the hot water system and the drip tray was not rusted out. There was no leaking from the system or the overflow.
Two taps were positioned in the middle of the long wall of the laundry with an older style laundry tub to their left. The taps were not directly on the wall but extended out from the wall to allow a person to screw the washing machine hoses on. One tap was quite new and I was advised this tap had been replaced prior to the previous tenancy due to a tap washer problem reported by the previous tenant.
I am aware of the timeline of events relating to the laundry and that a new washing machine had been installed in 2017. I was also advised the fibre cement underlay and new tiles had been installed prior to this tenancy.
It is my opinion that the water damage to the floor under the washing machine could have occurred for two reasons;
1 - A washing machine was leaking from below or from behind where the hoses attach to it.
2 - When the washing machine was connected to the taps it was not connected properly. This would mean water would drip down the hose or directly on to the floor from the poor connection of the washing machine hose to the tap.
As the washing machine hose/s are always under pressure (taps are left turned on and water flow is controlled inside the washing machine) there would be a constant dripping from the hose connection to the tap or washing machine or a leak from the underside of the washing machine if it was not connected properly or the machine was faulty. While it is difficult to put an exact timeframe on the damage without knowing the level of leaking, the installation of the washing machine 2-3-year prior would be consistent with the damage done to the floor.
I have been shown photos of the skirting behind the washing machine at the commencement of the tenancy. This appeared to have very minor water damage and scuff marking. The damage to the same skirting and other skirtings moving away from the washing machine was much more severe than what I saw in the photos at the commencement of the tenancy.
The existing drainage and plumbing are code compliant and there is no requirement for a floor waste. The existing hot water system and drip tray installation is code compliant and in working order.
The rectification work would require the complete removal of the flooring. While I am not an asbestos assessor, from my experience, it appears the wall sheeting may contain asbestos. To repair the floor, the existing fibre cement wall sheeting would need to be removed and replaced. The reason for this is that it would be impossible to undertake the floor repairs without some damage occurring to the wall sheeting, especially at the wall/floor junctions. Current fibre cement is a direct replacement of this without asbestos fibres.[41]
[41] Exhibit R3 pages 30-31
225.Mr Clark also gave evidence to the effect that the damage to the laundry floor would have taken place over a period of two to three years.[42]
[42] Transcript of proceedings on 13 January 2021 page 279, line 12
226.I accept the evidence that the floor was damaged by a water leak during the tenancy.
227.As discussed above in relation to the issues of the carpet and the curtains, in order to avoid liability, the tenants need to prove that the damage occurred by way of fair wear and tear or some other cause that relieves them of responsibility for the fault.
228.Ms Berol’s evidence is that:
The laundry was in a very poor state of repair. You could see that some of the boards around were the walls joined the floor were discoloured. The cupboard was in a very poor state of repair.
… My washing machine had an electrical fault which cause issued with the power. However, the washing machine did not leak at that time.
In January 2017 I noticed water leaking from the pipe near the water heater, which is situated at the back of the laundry. In addition water was leaking from the connection for the washing machine. As a result of these leaks water was leaking onto the laundry floor. Attachment is a copy of this email exchange.
I did not do anything else to cause water to spill the laundry stop in my book floor deteriorated as a result of poor design (then not be a floor drain), the leaks refer to the above paragraph and age.[43]
[43] Statement of Maria Berol on 23 December 2020, at [25]–[28]
229.In the extract above Ms Berol alludes to an incident in January 2017, when she noticed a leak from the water heater which was located in the laundry.
230.This is most likely the event Mr Kercheval spoke about above.
231.It should be noted that Mr Kercheval characterised the visit by the plumber in early 2017 as relating to the hot water system and being unrelated to these proceedings. He made no mention of there being any other reason as to why the plumber went to the property.
232.Ms Berol referred to the exchange of emails she had with the agent, Ms Kirsty Hawkins. The first email was sent of 15 January 2017, it stated, in part:
Hi Kirsty,
Just emailing to report on plumbing issues. Main one is the leak on the plumbing that comes out of the wall that is supposed to be connected to the water heater. Second is the loose connection to the washing machine and 3rd is the clogged sink in the kitchen…
Thank you.
Maria Berol [44]
[44] Statement of Maria Berol on 23 December 2020, Attachment 8 (emphasis added)
233.Clearly, Ms Berol has squarely raised an issue with there being a loose connection to the washing machine.
234.If unchecked that leak could account for the water dripping to the floor and destroying the structure below the washing machine.
235.Ms Hawkins replied to Ms Berol by email of 17 January 2017:
Hi Maria,
Can you please confirm the first leak you mention is that a small pipe on the side of the hot water system? If it is this part that is leaking members is a function of the hot water system to release, if there is constantly a lot of water coming out then this could be an issue but can you please confirm. if you could even send a photo that might be helpful to forward to the plumber.
In September we had a plumber and service the taps in the laundry and kitchen and they also cleared a blockage in the pipework under the kitchen sink…
Thanks
Kind Regards
Kirsty Hawkins [45]
[45] Statement of Maria Berol on 23 December 2020, Attachment 8
236.On 19 January 2017, Ms Berol replied to Ms Hawkins and emailed her two photographs, which depicted the issues of concern to her relating to the hot water system. It should be noted that in the photos the hot water system was sitting on a tray.
237.Ms Berol again emailed Ms Hawkins on 7 February 2017. She appeared concerned that the ongoing leaks would ruin the laundry floor:
Hi Kirsty,
I’m following about the plumbing I reported 20 days ago. what is happening with this? Will the owner send a plumber? The water coming out of the pipe that is not connected water heater has been dripping more and more water. I tell you it will destroy the floor. Also the plumbing issue on the kitchen needs to be done asap. I think with the payment I pay for rent with the rent increase coming up, I have the right to use a proper sink.
Maria [46]
[46] Statement of Maria Berol on 23 December 2020, Attachment 8
238.Ms Hawkins replied on 7 February 2017:
Hi Maria,
I have forwarded your mobile number to the owner he was going to have his plumber attend and look at the water heater.
Where is the water heater located?
The tiling issue is it the tiles are broken or is there something else going on in the photo?
I have followed up again with the owner about the plumbing items.
Kind Regards
Kirsty Hawkins [47]
[47] Statement of Maria Berol on 23 December 2020, Attachment 8
239.The exchange of emails shows that Ms Berol was alive to the issue of leaks in the laundry, and she raised that issue with the agent in strong and clear terms.
240.In January 2017, she told the agent of the leaks in the hot water system and the loose connection to the washing machine.
241.In February 2017, she told the agent that she believed there was a clear risk of the floor being destroyed if nothing was done to remedy the leaks.
242.There is an evidentiary black hole as to what happened next. There is no mention as to if or when a plumber went to the property and checked the loose connection to the washing machine which Ms Berol had complained of.
243.There is no mention as to what, if anything, was done to fix the loose connection.
244.The owners did not supply an invoice, email or any other documentation that supported the proposition that a plumber was sent to the property to address the issue of the loose connection raised by Ms Berol in her various emails.
245.Mr Kercheval only spoke of the plumber’s visit to the property as being unrelated to these proceedings and relating to the hot water system.
246.In the absence of any further evidence, I am not satisfied that the tenants are liable for the damage to the laundry floor. Ms Berol told the agent of the issue with the loose connection and expected the agent to respond.
247.Having complained of issues with the loose connection and the hot water system and having had a visit by a plumber sometime in early 2017, Ms Berol could properly conclude that the matters she had complained of had been addressed by the plumber during that visit.
248.Without any investigation of the complaints made by Ms Berol in January and February 2017, or any other intervening act, it would be impossible for me to arrive at any conclusion contrary to as to that articulated by Ms Berol.
Are there any intervening events that show the leaks are the responsibility of the tenants?
249.It was argued by Mr Kercheval that at some stage during the tenancy the tenants’ washing machine was changed. He says he believes that either when the washing machine was initially installed or when the tenants washing machine caused their power to trip and was replaced, “it was not connected properly to the wall tap either by lack of plumbing tape or having not been installed by a plumber. This has led to a very slow dripping that has run down the hose and under the washing machine”.
250.With respect, it seems to have been unlikely that the there was a problem with how the washing machine was initially installed in early 2015. I say this because Mr Clark estimates that the damage occurred in the two or three years preceding its discovery in April 2020.
251.Mr Kercheval suggested the problem occurred when the washing machine was exchanged for a new one.
252.I don’t know when the washing machine was exchanged. There is no direct evidence on the issue.
253.Did this occur before January/February 2017 or at some other stage? There is no direct evidence on the point although inferences can be drawn by reference to the various routine inspection reports.
254.The routine inspection report of 1 March 2016 contained a photograph of the laundry, which included a partial view of the washing machine:[48]
[48] See figure 22
255.The routine inspection report of 19 September 2017 also showed a partial view of the washing machine.[49] Plainly the two washing machines are different.
[49] See figure 23 above
256.It follows that at some time between March 2016 and September 2017 the washing machine was changed.
257.When that occurred is not clear. It could have been before January 2017, on or about 8 May 2017 when Ms Berol’s washing machine was found to be faulty, when Ms Elestario moved out of the house in July 2017, or on some other date.
258.Ms Berol was not asked in cross examination about whether she had purchased a new washing machine and if so when that occurred.
259.Ms Elestario was asked a number of times about when the washing machine was changed. She provided no clear answer.
260.It was suggested to Ms Elesterio on a number of occasions that following the electrical fault on 8 May 2017, the tenants had purchased a new washing machine. Ms Elesterio provided no clear answer to the question. The closest she came was in the following exchange:
Whilst you were living at the property how many washing machines did you have?---I can’t remember.
Did you have just one or did you replace it with another one or did you replace that with another one. How many were - - - ?---I think there was two. Two, I forgot. I can’t remember though.
You had, you think, two washing machines. So, you had one when you moved in did you back in 2015?---I – yes, I think.
And then you replaced it. When did you replace it?---I can’t remember, sorry.[50]
[50] Transcript of proceedings on 14 December 2021, page 85, line 27
261.The evidence does not allow me to conclude when the original washing machine was exchanged.
262.It was suggested that when this was being done the tenants would have seen the space where the washing machine was located.
263.If there was water present, then the tenants should have remedied the situation or advised the agent. If there was no water damage at that time, then by adopting Mr Clark’s reasoning, it is argued that the cause of any subsequent leak must lie with the tenants washing machine.
264.I note that on 8 May 2017, there was potentially an opportunity to view the area to the rear and beneath the washing machine occurred. This arose when there was an electrical fault which caused the tenants’ power board to trip. An electrician visited the property and told Ms Elesterio that the washing machine was ‘faulty’. She reported that fact to Ms Berol.[51]
[51] Statement of Maria Berol dated 23 December 2020 at [9]
265.I don’t know if the electrician had to access the back of the washing machine to affect a repair and if so whether there was any water present or whether the technician only needed to access the front and there was no need to move the washing machine to access its rear compartment.
266.On balance, given the paucity of the evidence, I am satisfied the tenants raised the fact of leaks in the laundry in January and February 2017. The ball was then in the owners’ court to investigate and repair the issues raised by the tenant. There is no evidence they did that.
267.For that reason, this claim is dismissed
Kitchen bench
268.I record that the owner withdrew their claim in relation to the damage done to the kitchen bench.
Conclusion
269.The tenants’ claims are wholly dismissed.
270.On 14 April 2021, the owners sought an order pursuant to section 74(2) of the ACAT Act that the tenants’ application be dismissed for failure to comply with Tribunal directions.
271.As I have wholly dismissed the tenants claims it is unnecessary to consider that application.
272.The owners’ claims are partially successful.
273.The tenants are to pay the owners the sum of $1,324.05 within one calendar month of the publication of this decision.
274.The sum of $1,324.05 is made up as follows:
(a)$473.55 for the damage they did to the carpets; and
(b)$850.50 for the damage they did to the glass shower screen.
………………………………..
Senior Member D Mulligan
Date(s) of hearing: 9 October 2020
14 December 2020
13 January 2021
14 January 2021
Solicitors for the Applicants: Mr P Christensen, Peter B Christensen Solicitor Respondents: Mr L Kercheval
Mr C Erskine
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