Bonke v Kennedy & Swinton (Residential Tenancies)
[2009] ACAT 25
•6 August 2009
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BONKE v KENNEDY & SWINTON (Residential Tenancies) [2009] ACAT 25
RT 39 of 2009
Catchwords: RESIDENTIAL TENANCIES – Rental Arrears
Tribunal: Ms J Lennard, Senior Member
Date of Corrected Orders: 6 August 2009
Date of Reasons for Decision: 23 October 2009
REPUBLISHED WITH DETAILED REASONS
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 39 of 2009
BETWEEN:
JUANITA BONKE
Applicant/Lessor
AND:
SHANE KENNEDY &
BEN SWINTONRespondent/Tenants
Tribunal:Ms J Lennard, Senior Member
Date: 6 August 2009
CORRECTED ORDERS
ACAT finds that the tenants are liable to pay the lessor the amount of $3190.00 being made up of:
Rental arrears for the period from 4 December 2008 to 14 January 2009 in the amount of $2370.00;
The cost of water consumption during the tenancy in the amount of $320.00; and
Compensation for the breach of the obligation to leave the premises in a reasonably clean state of $500.
The Tribunal orders that:
The tenants are to pay an amount of $3190.00 as follows:
Mr Kennedy is to pay 31 weekly instalments of $50 plus one instalment of $45, the first payment to be made on 22 August 2009.
Mr Swinton is to make 31 fortnightly instalments of $50 plus one instalment of $45 commencing 22 August 2009.
If the tenants should fail to comply with order 1 the entire amount outstanding becomes due and payable immediately.
……………………………….
Ms L Crebbin
General President (ACAT)
For: Ms J Lennard (Senior Member)
REASONS FOR DECISION
- The residential tenancy agreement between the applicant lessor and the respondent tenants commenced on or about 7 March 2007. No written agreement was ever executed, the lessor did not undertake any inspection or prepare a ‘check-in’ report on the condition of the premises. Rent was paid by the tenants directly to the bank account of the lessor.
- From about 5 June 2007 to mid November 2007 the property was managed by Strictly Rentals. The lessor took over management for the period from November 2007 until February 2008 when she placed the management of the property in the hands of OZ Property. Mr Andrea Hass of OZ Property informed the tribunal that the lessor told him that the tenants were in arrears. There was no evidence of how this was determined by the lessor not of what period it covered or of the amount alleged to be owed by the tenants.
- From May 2008 until November 2008 OZ Property sent 7 letters headed Rental Arrears – Friendly Reminder to the tenants. These Friendly Reminders appeared to be akin to a Notice to Remedy, but were unclear and confusing. For example, the Friendly Reminder dated 7 July threatened a notice to terminate the tenancy unless the tenants paid rent arrears, but noted that they were paid to 15 July 2008. On 6 February 2008 and 20 February 2008 Termination Notices were issued. Neither of these appears to have been in the terms required for a Notice to Vacate by the Residential Tenancies Act 1997, nor was there evidence of any valid Notice to Remedy.
- On 21 February the lessor through her agent Oz Property, made an application to the tribunal seeking orders for the payment of rental arrears and compensation for cleaning and repairs to the property. By the time of the hearing on 11 February 2009 the tenants had vacated the premises. There was little coherent or understandable evidence as to the rental arrears brought by the lessor. The matter was adjourned and each party was directed to file with ACAT documents, witness statements and rental records on which they intended to rely.
- A second hearing was conducted on 18 June 2009. There was little agreement and a great deal of animosity between the parties. The Tribunal received evidence from both parties: there were several rent schedules prepared by the lessor and rental schedules prepared by Oz Property. It appears that the lessor’s schedules had been prepared for the purpose of the hearing and there was no basis evident for her calculations. However, the tenants conceded that they had not paid rent in the last few weeks of the tenancy and that it was probable that some arrears had arisen from missed or partial payments during the tenancy. The tribunal was not able to determine from the material provided to it, what amount was being claimed by the lessor, nor was there any clear indication of how and when the arrears had arisen. There was some dispute as to the date of vacation and the reason for vacation by the tenants: the tenants appear to have removed their goods over a period of days and to have decided to move following the Termination Notes sent by OZ Property and what they perceived as the threatening conduct of both the lessor and her agents.
- It was clear from photographic and documentary evidence that the tenants had failed to leave the premises in reasonably clean condition. While this was not conceded by the tenants, they did not claim or bring any substantial evidence that they had properly and appropriately cleaned the premises and removed their goods. There was no ‘check-in’ report, no report of routine inspections and the ‘check-out’ report provided was prepared at least 4 weeks after the date the tenants stated they had vacated the premises. Thus, apart from the evident lack of cleanliness, it was not possible for the tribunal to attribute any of the damages to the premises to the neglect or deliberate conduct of the tenants.
- The lessor also claimed for water consumption and provided extracts from water consumption accounts to the Tribunal. There was no evidence that the water meter had been read at the commencement or end of the tenancy. Further, it appeared that the lessor had not claimed water consumption from the tenants during the tenancy.
- The matter was adjourned for a written decision in relation to rent, compensation for cleaning and water consumption. The Tribunal relied on its own understanding of the multiple rental schedules and bank accounts supplied by the lessor and her agent. The tribunal took 7 March 2007 as the commencement date and 14 January 2009 as the vacation date. The tribunal compared the bank statements and the agent’s and the lessor’s rental schedule to a calendar, and determined that the total amount paid by the tenants covered rent until 4 December 2008, with $150 in credit. Thus the amount owing for rent until 14 January 2009 is $2370.00.
- The lessor claimed a total of $366.12 water consumption. The tribunal arrived at the amount of $320 based on the often difficult to decipher copies of bills supplied by the lessor and discounting an amount based on the uncertainty at the beginning and end of the tenancy. The tenants are also required to pay an amount of $500 as compensation to lessor for their failure to return the premises in a reasonably clean condition. In arriving at this amount, ACAT takes into account that:
· There was no ‘check-in’ report;
· The tenants disputed the amount of goods left behind and the time at which the photos of the goods had been taken;
· The photos showed that premises had not been properly cleaned and that there was rubbish left behind; and
· The lessor provided some receipts and quotes for gardening and cleaning.
………………………………..
Ms L Crebbin
General President (ACAT)
For: Ms J Lennard (Senior Member)
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: RT 09/39
APPLICANT: BONKE
RESPONDENT: KENNEDY & SWINTON
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT: SELF
RESPONDENT: SELF
TRIBUNAL MEMBER/S: MS J LENNARD SENIOR MEMBER
DATE/S OF HEARING: 18 JUNE 2009 PLACE: CANBERRA
DATE/S OF DECISION: 23 OCTOBER 2009 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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0
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