Choong v LIU - [2013] SADC 76

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Residential Tenancies Act 1995)
CHOONG v LIU
[2013] SADC 76
Judgment of His Honour Judge Tilmouth
6 June 2013
LANDLORD AND TENANT - RENT - BREACH OF COVENANT TO PAY - ACTIONS TO RECOVER RENT OR DAMAGES - ACTION TO RECOVER RENT
Appeal from a decision of the Residential Tenancies Tribunal dismissed on the merits. Turns on own facts.
Residential Tenancies (Rooming House) Regulations 1999 (SA) R 9(2), R 10, R 15, Schedule I, referred to.

CHOONG v LIU
[2013] SADC 76

This is an appeal by Mr Choong issued on 22 April 2013 from a decision of the Residential Tenancies Tribunal given on 11 April 2013. He seeks an order for the payment of $1,170.04 from the respondent.
He is the proprietor of a rooming house situated in Tranmere. The respondent is a full-time Asian student studying at the University of South Australia. She occupied one of several rooms in the rooming house pursuant to a 12-month rooming house agreement within the meaning of the Residential Tenancies Act 1995 (SA), commencing on 24 September 2012 at a weekly rental of $120.00.
The respondent remained in residence for just over six weeks to 8 November 2012. Her room was re-let on 26 November 2012. On 3 December 2012 she brought an application in the Residential Tenancies Tribunal for the return of a security bond paid by her to the appellant. He responded by filing his own application claiming loss of rent for the period of 18 days to 26 November 2012 ($308.57) and for damages said to have been caused to the room during Ms Liu’s occupancy ($1,242.90).
The matter came before the Tribunal on the 27^th of February 2013. The Tribunal gave detailed reasons for ordering the proprietor (appellant) to pay the resident (respondent) $147.30 within 14 days.
This appeal was argued on the basis of procedural error and the failure to order payment to the proprietor of the full sum claimed by him. So far as procedural complaints are concerned, it is clear from the transcript of proceedings before the Tribunal that it gave Mr Choong every chance to present his case both orally and in writing. There is simply no basis for any procedural irregularity.
The Tribunal first dealt with the rent issue. It correctly determined that rent was only payable by the resident up to the day of vacating the premises, because of Regulation 15 of the Residential Tenancies (Rooming Houses) Regulations 1999 (SA). That regulation provides as follows:
RESIDENTIAL TENANCIES (ROOMING HOUSES) REGULATIONS 1999 - REG 15
15—No penalty clauses
A breach by a rooming house resident of a term of the rooming house agreement does not render the resident liable to pay—
(a) all or any part of the rent remaining payable under the agreement; or
(b) rent of an increased amount; or
(c) an amount by way of penalty; or
(d) an amount by way of liquidated damages.
It is therefore clear because of Regulation 15(a), that even if the respondent did move out prematurely, she was not liable for any further rent, so that part of the appellant’s claim for rent of $308.57 must fail. The Tribunal did find that there were four days rent owing of $68.50, on the basis that rent was paid up to 4 November 2012.
Turning next to the claim for damages, the Tribunal regarded the claim as one brought by way of liquidated damages, for which the tenant would not be responsible under Regulation 15(d). After examining the various claims for damage the Tribunal came to the following conclusion:
After due consideration of all the evidence given at the hearing, the Tribunal found Mr Choong had exaggerated most of his claims to match what had been set out in the rooming house agreement as liquidated damages which is something he simply cannot do. He could not produce an invoice for the cost of cleaning or for the cost of the single mattress protector or for the single mattress. In relation to the stain on the vertical blind, which was approximately the size of a five cent piece, he was claiming $60.00 and a desk chipped at the corner for which he was claiming $70.00. The Tribunal finds that the chip in the desk and the spot on the vertical blind were no more than fair wear and tear.
No reason at all has been advanced to demonstrate there is any flaw in this process of reasoning and still less that would justify any intervention.
The Tribunal then turned its attention to the question of the security bond. On commencement of the residency the respondent paid the appellant $720.00. This was made up of the equivalent of four weeks rent for the bond ($480.00) and two weeks rent in advance ($240.00). The Tribunal rejected Mr Choong’s evidence in relation to this issue. Once again, no error has been shown in relation to those conclusions.
Indeed, the Tribunal went on to observe that it had ‘considerable disquiet about this agreement and this relationship’. It expressly found that the landlord illegally took $480.00 by way of security bond from the resident. This conclusion was no doubt reached because of Regulation 10(1) and Schedule 1 Residential Tenancies (Rooming House) Regulations, which combine to forbid the taking of any more than one week’s rent in advance and the taking of any security bond exceeding two weeks rent. So far as is relevant, the Regulations provide:
10—Rent in advance
(1) A rooming house proprietor must not require a resident of a rooming house to pay rent more than one week in advance.
……
Schedule 1—Code of conduct for rooming house proprietors
1— Security bond
(1)A rooming house proprietor must not—
(a) require more than one security bond for the same rooming house agreement;
or
(b) require the payment of security exceeding two weeks' rent under a rooming house agreement.
The conclusion of the Tribunal on the topic of the security bond was therefore perfectly correct.
With respect to the appellant’s claim to the cost of ‘repairs and the replacement of goods’, the Tribunal considered these were “exaggerated and excessive”. No invoices were produced for any work said to have been done. The proprietor had prevented the respondent from returning to the room in order to clean it. The Tribunal proceeded to find that it was not necessary to repaint the room or to replace the mattress protector. There was no supportive evidence that the proprietor had actually paid for any of the claimed items. In any event the Tribunal held that the stains or marks on the mattress were ‘absolutely minimal’.
Notwithstanding, it allowed for a single mattress of $200, and cleaning at $64.20, making a total of $264.20. From this figure it deducted the amount of the “bond” and determined that a refund was due to the resident of $411.50. After exposing its calculations, the Tribunal made the final order that the respondent pay to the resident the sum of $147.30. Once again, no reason is shown to demonstrate that anything other than that these findings were justified and correct on the material before the Tribunal.
There is one final issue. The landlord made a claim during the appeal for the cost of the use of Wi-Fi internet service by the respondent of $30. Here again, the cost of this has not been substantiated. The tenant claims she was not told of this expense and that it was not made clear to her whether the use of the service formed part of the rooming house agreement. As no invoices or usage data are produced to substantiate the claim, it must fail.
In any case, the respondent has failed to provide any evidence that the rooming house agreement between the parties specifically required her to pay for such services, or that she was “informed … in writing of the basis on which charges for those services would be made”, as required by Regulation 9(2) of the Residential Tenancies (Rooming House) Regulations. As a matter of fact, the Rooming House Agreement actually produced to the Tribunal contains no such reference.
For these reasons the appeal must be dismissed. The decision of the Residential Tenancies Tribunal given on 11 April 2013 is affirmed. The appellant must pay $147.30 to the respondent within 14 days of today. There will be no order as to costs: s 42G District Court Act 1991 (SA).