Diniz and Anor and Bradbury and Anor
[2005] WASAT 151
•30 JUNE 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: COMMERCIAL TENANCY (RETAIL SHOPS)
AGREEMENTS ACT 1985 (WA)
CITATION: DINIZ & ANOR and BRADBURY & ANOR [2005] WASAT 151
MEMBER: MR T J CAREY (MEMBER)
HEARD: 4 APRIL 2005
DELIVERED : 30 JUNE 2005
FILE NO/S: CC 20 of 2005
BETWEEN: IZAEL FARIA DINIZ
CORNELIA PETRONELLA DINIZ
ApplicantAND
STEPHEN BRADBURY
BRADBURY HOLDINGS PTY LTD
Respondent
Catchwords:
Landlord and tenant - Reference of questions to Tribunal by lessor - Identity of lessee - Rent and outgoings payable - Lessee's liability for interest and costs -Alleged failure to make good - Assessment of damages
Legislation:
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 16
Property Law Act 1969 (WA), s 34(1), s 35(2), s 81
Result:
Application successful.
Category: B
Representation:
Counsel:
Applicant: Mr S Pynt
Respondent: Mr R Barrett
Solicitors:
Applicant: McDonald Pynt
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MR T J CAREY (MEMBER):
REASONS FOR DECISION
Case summary
The applicant sought resolution of a number of questions arising under a lease of a retail shop which was terminated. The questions included the identity of the lessee, the lessee's liability for allegedly failing to make good the premises after the lease was terminated and the lessee's liability for rent and outgoings. The Tribunal has determined each of the questions to which it was referred.
Introduction
This is a reference of a number of questions arising under a retail shop lease under s 16(1) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) ("the Act"). The reference was filed in the Tribunal on 7 January 2005.
Lease
The application relates to the lease of one unit in a commercial development in Joondalup. Some care is needed is describing the relevant premises, as initially the respondents or either of them were the lessee of part only of the unit, but later the entire unit was occupied. According to documents filed by the applicant, the premises were the subject of a lease dated 16 December 1992 between Brigid Agnes Raitt and Keven David Raitt as lessors and Hugh Mark Litson and Alan John McCarthy as lessees. The lease was for a term of three years commencing 1 January 1995 with an option for a further three year term. The lease referred to the premises as being part of unit 8, lots 92/93 Winton Road, Joondalup comprising an area of approximately 82.3 square metres. A plan of the leased premises was attached. The lease provided for the lessee to carry out from the premises the permitted business of sale and display of lawnmowing equipment and small motors. The rent provided for by the lease was for an annual figure of $6583.92 per annum payable by monthly payments of $548.56 and was subject to yearly rent review in accordance with the terms of the lease.
By a deed dated 23 December 1993, the interest of the lessees in the lease and leased premises was assigned to the first applicant, Stephen Wayne Bradbury ("Bradbury") and Bryan Vincent Paine.
On 22 April 1996, the Raitts and Bradbury signed a deed of extension of lease. That deed:
(a)released Mr Paine from his obligations as lessee under the lease;
(b)increased the area of the leased premises to an area of approximately 130 square metres. This was still not the entirety of unit 8 however, as the Raitts kept for themselves an area of some 40 square metres for their own purposes;
(c)extended the term of the lease for a further three years commencing 1 January 1996 and granted an option for a second further term of three years commencing 1 January 1999 "and expiring on the 31 December 2002";
(d)provided that the rent payable from the commencement date of the further term was $10 747.92 per annum. This computes to a monthly figure of $895.66; and
(e)Provided that the lessee's permitted business during the further term was sale and display of lawnmowing equipment and small motors including the use of the premises for servicing or repairing machinery or motors.
The option for the second further term was exercised and the lessee remained in occupation until 5 November 2004. On about 1 July 2000, the Raitts moved out of that part of unit 8 which they had previously occupied, and an agreement was reached whereby the lessee would occupy the remaining part and commence paying rent at the rate of $1084 per month. On 9 August 2002, the applicants, Mr and Mrs Diniz, acquired the freehold to the whole of unit 8 and therefore became the lessor under the lease.
It is common ground that from either 1 January 2002 or 1 January 2003 (depending on the view taken of the expiry date of the second further term) the lessee remained in occupation in a holding‑over capacity as a monthly tenant. The lease was terminated after the applicants served notice of termination of the monthly tenancy on or about 4 October 1994. The lessee vacated the premises on 5 November 2004.
I have in the previous two paragraphs used the neutral term "lessee" in light of the first question under the lease which has been referred to the Tribunal.
Referred questions under s 16(1) of the Act.
The applicants have referred five questions, namely:
1: "Who was the tenant at the time of termination of the monthly tenancy of the premises?"
2: "How much rent and outgoings is owed to the applicants?"
3: "What legal costs incurred by the applicants in relation to the breaches of the lease by the respondents is [sic] entitled to recover from the respondents in accordance with cl 3.4.1 of the lease?"
4: "What interest is [sic] the applicants entitled to claim from the respondents in respect of monies due to the applicants under the lease in accordance with cl 3.4.3 of the lease …?"
5: "What damages is [sic] the applicants entitled to claim against the respondents as a result of the failure of the respondents on vacating the premises to make good the premises …in accordance with cl 3.4 of the lease?"
In terms of s 16 of the Act, I am satisfied that each of these questions is a question arising under the lease.
As part of the their response filed prior to the hearing, the respondents sought to raise their own set of 13 questions. At the hearing, I indicated to the parties that I regarded most if not all of those questions as being capable of resolution under the rubric of the applicants' questions. To the extent that they were not so capable, the questions should be the subject of the respondents' own application, subject to a consideration of whether the Tribunal had jurisdiction to deal with them. For this reason, I do not consider it is necessary to refer to any of the 13 questions specifically in these reasons.
In relation to each of the five questions referred by the applicants, I will attempt to summarise the competing positions of the parties, refer to any evidence produced either before or at the hearing which I found helpful in determining the question and set out my own reasoning in deciding the question.
Question 1: Identity of the tenant
The applicants contend that Bradbury was the lessee when the monthly tenancy of the premises terminated. They submit that Bradbury was so identified in the various documents outlined above, with the consequence that Bradbury personally is liable for any monies owing under the lease or (to the extent that it might be a different thing) as overholding tenant.
The respondents rely upon advice given by Bradbury to suppliers, creditors and the Raitts in 1997 that the business that he conducted from the leased premises under the name of "Associated Mower and Machinery Company" was no longer being conducted by himself personally but by Bradbury Holdings Pty Ltd ("Bradbury Holdings"). Reference was made to a clause in the deed of assignment of lease, which provided that the "Assignee" (Bradbury and his former partner) would be required to pay the rent and other monies payable under the lease to the lessor only until the Assignee assigned its interests to another person. At the hearing, the argument was put in terms that the lessor was made aware that Bradbury Holdings was to be responsible for paying the rent, and payments were in fact made by Bradbury Holdings.
The applicants' response to the suggested transfer of responsibility as the lessee was to refer to the requirement under s 34(1) of the Property Law Act 1969 (WA) for any disposal of an interest in land to be by writing. In order for Bradbury Holdings to be responsible for the rent payable under the lease, there would need to have been a written assignment of Bradbury's lease to Bradbury Holdings. It was conceded by the respondents no such written assignment exists.
I accept the submission of the applicants. Although it appears that Bradbury Holdings did for some years make the rent payments, that is not determinative of question 1. The identity of the tenant at a particular time is generally (although not invariably) to be determined by reference to the lease documentation. In this case, none of the exceptions to that general rule applies, and it is clear that Stephen Wayne Bradbury was the tenant at the time of termination of the lease.
In light of this finding, unless the context suggests otherwise, I will for the remainder of these reasons use "Bradbury" to refer to the first respondent in his capacity as lessee of the premises.
Question 2: Liability for rent and outgoings
This question requires determination of the following issues:
(a)What was the rent properly payable during the period prior to the lease being terminated?
(b)Has the lessee been incorrectly charged for any outgoings and GST, and if so, is any refund payable?
(c)Was there a failure by the lessee to make good the premises in accordance with the lease, such that the lessee is liable for rent and outgoings for the period from termination date until when the premises were put in a tenantable condition?
(d)If the answer to (c) is yes, on what basis is the lessee's additional liability to be calculated?
A. Correct rent payable
The applicants submit that for a considerable period of time from mid 2000, the rent was invoiced at the rate of $1192.40 per month, which included GST, and that amount was paid. Then, in about July 2004, Bradbury commenced paying the rent at a figure of $895.66 per month. As indicated above, that was the amount of rent payable during the further term under the deed of variation and extension, that term ending on either of 31 December 2001 or 31 December 2002, and was inclusive of GST.
Bradbury gave evidence to the effect that he received advice from an accountant that he had been paying more rent than that provided for by the lease document. The lessor was not entitled to charge an amount that was not to be found in any lease between the parties (or, perhaps, had not been determined in accordance with the rent review provisions in the lease document).
In evidence to the Tribunal, Ms Raitt said that she and her husband had utilised approximately 40 square metres in unit 8 of the same premises as the leased premises for their own newspaper delivery business until a date she could not accurately recall, but which other evidence suggested was around 30 June 2000. When the Raitts moved out, Bradbury took over the space which they had occupied, and verbally agreed with the Raitts by reason of the extra space Bradbury would from that time occupy to an increase in the rent payable from $895.66 per calendar month to $1084 per calendar month. Bradbury, in his evidence, agreed that such an agreement was entered into. GST was added to the total figure bringing the monthly rental payment to $1192. There is no dispute that this amount was paid from about July 2000 until the decision was taken to pay the lower figure. No discussion about the matter occurred between Bradbury and the applicants after they became entitled as lessor in August 2002. The rent continued to be paid in the same amount.
I do not consider that Bradbury was entitled to take the view, based on his accountant's advice, that the lessor was not entitled to rent at the rate agreed in 2000. Although it is true that there is no lease document in existence authorising the higher rent charge, nor is there any evidence of a rent review in accordance with the lease, it is also clear that the lease documentation does not tell the complete picture. In particular, it does not disclose that the extra area was the subject of a lease (or perhaps a licence) in favour of Bradbury. Contrary to the respondent's submission, s 35(2) Property Law Act 1969 preserves the creation by parol of leases in possession for a term not exceeding three years. Bradbury, by conduct, acknowledged the applicants' entitlement to a higher rent figure subsequent to his acquiring a right to occupy the extra space. In my view, the answer to the first issue relevant to question 2 is that the rent payable for the period prior to termination of the lease was $1192.40 per month, comprising rent of $1084 and GST of $108.40.
B. Any outgoings and GST incorrectly charged?
Bradbury submitted that some illegality arose in relation to the lessor's requests that the lessee pay invoices on behalf of other entities, as opposed to receiving from the lessor tax invoices seeking reimbursement of expenses paid by the lessor to the third parties. The specific instances of this relied upon by Bradbury were a receipt from the City of Joondalup dated 3 September 2002 for rates, a tax invoice from Colliers International Property Consultants dated 6 December 2002 for strata levies and an instalment advice/invoice from Water Corporation dated 3 December 2002 for water use. The respondents have also argued that no budget of outgoings as required by s 12 of the Act having been provided by the applicants, no outgoings were payable.
The applicants' position in relation to outgoings which have been paid is that where a tenant voluntarily pays outgoings then he cannot reclaim the money back later. Presumably, this general statement would not apply in a case where an obvious mistake had been made giving rise to the payment, but no such mistake arose on the facts of this case. I accept the applicants' submission, and can see no proper basis upon which Bradbury is entitled to a refund of outgoings which have been paid. Similarly, after its introduction, GST became an impost properly chargeable on a lessee calculated as 10 per cent of the rent due under the lease, Bradbury paid GST happily for some four years, and no proper basis for a refund of the GST payments has been established.
In relation to the outgoings forming part of the claim for outstanding rent and outgoings, the only claim made by the applicants is for outstanding strata levies in respect of the period 1 April 2004 to 30 September 2004 totalling $767.20. There is evidence that s 12 of the Act was complied with by the provision of the 2004 strata company budget to Bradbury, and I am satisfied that the outgoing was payable.
C. Liability for period post termination until premises in tenantable condition.
The lease contained a number of clauses which placed obligations on the lessee to keep the premises in good repair. Clause 3.10.1 speaks of the lessee keeping the premises clean and in good substantial and functional repair, order and condition. Clause 11 required the lessee during the final two months of the term, or if the term was extended during the last two months of any extended term, to paint, paper and decorate all those parts of the interior and exterior of the premises which had previously been painted, papered or decorated. Clause 3.12 required the lessee to keep the premises in a thorough state of cleanliness. Clause 3.40 required the lessee, at the expiration of the term, to yield and deliver up possession of the premises in a good and substantial repair, order and condition and state of cleanliness and decoration consistent with the observance and performance by the lessee of its covenants under the lease.
The applicants submit that there was a failure by the lessee to comply with these obligations. It was necessary for the applicants to engage contractors, and in the case of Mr Diniz, to do some work himself, to bring the premises to tenantable condition. On Mr Diniz's evidence, that point was reached in about mid‑March 2005. The applicants submit they are entitled to damages for the loss of use of the premises while that work was performed, assessed by reference to the rent and outgoings which had been paid by Bradbury immediately prior to termination of the lease.
The response of Bradbury contained a couple of elements. First, it was unreasonable to expect that, after a period of occupation of some 11 years, Bradbury should be expected to return the premises to something like the condition of the premises at the time of the commencement of the lease (when they were new) within the period of one month, being the effective notice period. Pausing here, the evidence is that two notices of termination were served. The first, dated 21 July 2004, was addressed to Bradbury. Bradbury denies receiving the notice, but was unable to explain in cross examination a letter dated 12 August 2004 signed by him to the applicants' solicitors requesting confirmation that their clients would co‑operatively extend the monthly tenancy until the end of September 2004. The second notice, dated 1 October 2004, was directed to Bradbury Holdings, and required vacation of the premises on 1 November 2004. It is accepted that this notice was not served until 4 October 2004, and resulted in the premises being vacated on 5 November 2004.
The second element of Bradbury's response was that the applicants had the opportunity, and at least one firm offer, to rent the premises to new lessees. Mr Barrett (who was granted leave to represent Bradbury at the hearing) gave evidence that a company in which he had an interest had contacted the leasing agent, First National, seeking a short‑term lease of the premises for the purpose of erection of a structure for Tennis Australia which was required in January 2005. Mr Barrett has a business which he operates from the unit next door to the premises. He said that he was advised by First National that Mr Diniz would not allow him to have any involvement with the leased premises. Mr Barrett also gave some hearsay evidence in relation to a former brother‑in‑law, Mr Moreland, whom he invited to telephone Mr Diniz with a view to leasing the premises from December until the end of January, to the effect that Mr Moreland telephoned Mr Diniz and was advised that he was cleaning the units over the Christmas break and they would not be let because they weren't tenantable.
In my view, the provisions of the lease are quite clear in imposing, both throughout the course of the lease and at the lease's termination, an obligation on the lessee to ensure that they are kept in a good state of repair. Specific obligations regarding cleaning and painting existed. The lessee was required to ensure that at the end of the further term those obligations were met, and that, in respect of the overholding period, they continued to be adhered to. I am satisfied that Bradbury received the earlier of the two notices of termination. Therefore, Bradbury was in fact aware of the lessor's desire to terminate the tenancy for more than three months prior to the termination date, which provided him with ample opportunity to comply with his obligations to make good.
I also reject Bradbury's submission regarding the existence of available tenants at a time shortly after the termination. Even accepting that, for example, Mr Barrett's company was ready and willing to occupy the premises as a paying tenant, the fact is that at the end of Bradbury's tenancy, the premises were not returned to the lessor in the condition in which they should have been. The evidence of the condition of the premises on termination of the lease is referred to in my consideration of question 5 below. The applicants were entitled to take reasonable steps to bring the condition of the premises to that it was entitled to expect when Bradbury's lease terminated.
D. Basis for calculating lessee's additional liability
Mr Diniz's evidence was that the premises were returned to what he regarded as tenantable condition by mid‑March 2005. The nature of the work performed to that end will be discussed under question 5. There is no evidence tending to contradict Mr Diniz's evidence. I consider it reasonable to allow the applicants an additional amount comprising four months' rent and strata levies apportionable to the premises for the final quarter of 2004 of $383.60.
Question 3: Liability for applicant's legal costs
The respondents base this claim on cl 3.4.1 of the lease, which provides:
"that the Lessee shall pay 'on demand' to the Lessor all reasonable legal costs, charges and expenses incurred by the Lessor as a result of or attributable to any default or alleged default by the Lessee in observing or performing any of the Lessee's Covenant's including without limitation all costs, charges, expenses and fees related to the preparation and service of a notice under S 81 of the Property Law Act 1969 (WA) requiring the Lessee to remedy any breach of any of the Lessee's covenants …"
The applicants' counsel referred to the need for the applicants to engage lawyers in the circumstances which arose. The defaults relied upon for the purposes of cl 3.4.1 were the non payment of rent, non payment of outgoings and failure to make good. Although in submissions on this question the applicants' counsel referred to such work as letters of demand, notices of termination and chasing up the respondents to pay for cleaning up and repairs, the actual claim under this head was reduced to one account from McDonald Pynt dated 7 January 2005 of $891 paid by the applicants. The notation of that account reads:
"Further work from [sic] the period 8 November 2004 to 7 January 2005 including further attendances on you, further correspondence and telephone attendances relating to Bradbury lease, preparing and lodging application with State Administrative Tribunal."
The respondents submitted that there was no notice of breach served, and that if any breaches had occurred, no opportunity was offered to remedy the breaches.
In light of my findings in these reasons of breaches by Bradbury of his covenants under the lease, the applicants are entitled to payment of their legal expenses provided they fit within cl 3.4.1. I am satisfied that all of the costs for which a charge was made in the 7 January 2005 invoice meets that criterion, as they relate to a period after the lessee vacated the premises but while there existed the outstanding issue of the condition of the premises.
The applicants are also entitled under cl 3.4.1 to the reasonable costs they have incurred in substantiating their claims in the Tribunal subsequent to filing the application. I will request counsel for the applicants to provide the applicants' claim for any such costs with verification and allow the first respondent the opportunity to comment on the claim before final orders are made.
Question 4: Interest
The applicants' claim in this regard relies upon cl 3.4.3 of the lease, which provides that the lessee is to pay to the lessor:
"Interest at the Prescribed Rate on all Rent and other monies payable by the Lessee to the Lessor under this Lease but unpaid for more than seven (7) days from the respective due date computed on a daily basis on the amount from time to time remaining owing from and including the due date until the date of payment."
The rate prescribed by Item 4 of the Schedule is 18 per cent per annum.
The parties agreed that interest is payable under the lease on all proven unpaid rent and outgoings. I will request the applicants' counsel to provide the Tribunal with a schedule calculating the various amounts, which the first respondent will have the opportunity of commenting on before a final order is made.
Question 5: Damages for failure to make good the premises
The applicants rely upon each of cl 3.11 (painting), cl 3.12 (cleaning), cl 3.10 (repairs and maintenance) and cl 3.40 (yield up ‑ erroneously referred to in the application as cl 3.4) of the lease. They point out that the majority of the claim made is in respect of the lessee's painting obligation, which existed regardless of the condition of the walls and other previously painted surfaces.
The following amounts are claimed:
replacement of lights $220
painting$4378
cleaning of grease $1200
repair of bitumen $385
repair of doors $915
repair of ceiling $330
mini‑skip hire $150
TOTAL$7578
The formal response of the respondents to each component was as follows:
"Replacement of lights – this is not correct. Fluorescent lights were left in the premises as were there on tenanting. The applicant is claiming costs for lights that were not in the premises at time of tenanting. The applicant is unable to produce a property condition report, or inventory lists supporting claims.
[Due to the misdescription of the next claim, painting, in the application as 'works to toilets', the next part of the response was not directed to the true claim, and is not included here.]
Cleaning of grease – there was some grease left. This was not a [sic] unreasonable amount due to the length of time premises were used, and the previous owners occupation as a co‑tenant. Further cleaning was …prevented by the applicant. The cost and time to complete would not have been significant if done correctly and efficiently. Upon viewing the unit after vacation it was noted that the applicant used high pressure cleaning with the purpose of preparing for painting, not cleaning.
Repair of bitumen – the hole in the back entrance was not part of the unit and is part of the strata property. The hole is used for security poles and was approved for installation by previous lessor. The bollards that are removed to vacate large plant and equipment from the unit were left intact inside the unit. The respondent changed the locks preventing re‑installation of the bollards. Subsequently the applicants disposed the bollards.
Repair of doors – the doors were working and operational during the period on tenancy. This was necessary for the security of the property and ease of access by customers. The amount is simply for a capital improvement and refurbishment on the facility after many years of use.
Repair of ceiling – the main problem was the ceiling was in the false ceiling area where water leakage from the roof damaged white tiles over a long number of years. The wear and tear is reasonable, and not dissimilar to wear and tear in other units in the strata complex.
Mini‑bin – a mini‑bin was booked by Bradbury Holdings for the clearance of the remaining small amount of light rubbish. This was not able to be completed due to the lock out. It is apparent that the Diniz's used the large mini‑bin for the removal of a fixed internal wall (s) and other refurbishment improvements."
Mr Diniz gave evidence that when he inspected the premises on the Monday following the date of the lessee's vacation of them, which occurred on a Friday, their condition was "disgraceful". He referred to the existence of left over drums of grease and chemicals, broken lawnmower catches and oil all over the floor. A bundle of 26 photographs was tendered, the photographs having been taken on that day (8 November 2004) by Mr Diniz and the next day by a security guard. With the aid of the photographs, Mr Diniz emphasised a number of aspects in relation to which the condition of the premises were in need of attention immediately following the lessee's vacation of them, including;
(a)the front doors had a large number of holes in them as a result of bolts and padlocks and a security grille having being removed;
(b)grease and dirt on the toilet floor and walls;
(c)a number of electrical wires were hanging from the ceiling;
(d)in the kitchen, the plumbing had been tampered with, the particle wood cabinets were in a bad state of repair due to water leakage, and the grease and dirt were present as in other parts of the premises;
(e)a partition across the shop was unstable, broken and very dirty and had to be removed;
(f)a three‑point power point had been removed by the wires being cut which were left there;
(g)drums of oil and chemicals were left in various states of filling which had to be disposed of;
(h)four fluorescent lights were removed, all of which were replaced;
(i)two large halogen lights were removed;
(j)twelve tiles which were either broken or had holes in them or things hanging from them were damaged and replaced, as part of approximately 30 tiles replaced in total;
(k)bollards that had been in place to prevent ramraiding the shops were removed and left at the side of the premises; and
(l)the general picture was one of rubbish left, dirty and oiled floor and dirty and greasy walls.
Mr Diniz also gave evidence, in relation to each of the components of work, as to whether contractors were engaged to perform work in accordance with their respective quotations, which have formed the basis of the claim in respect of each component. His evidence was as follows:
(a) the applicants did not proceed with the quotation in respect of replacement of lights. Rather, Mr Diniz purchase the lights which had to be replaced wholesale for $270.60 and installed them himself. No explanation was given for the price of the lights wholesale being in excess of the quotation of the electrician for the replacement of lights.
(b) Mr Diniz did not proceed with the quotation for general painting of $4378 because he could not afford to do so. Instead, Mr Diniz spent two months cleaning and painting the premises.
(c) the applicants did not proceed with the quote, which was in Mr Diniz's words "to cut and seal the holes where the bollards have been pulled out". Mr Diniz's explanation for not proceeding was that it concerned an area external to the premises, had not stopped him from renting the shop, and was a matter which could be remedied later without interference with the existing tenant.
(d) the applicants proceeded with the quotation for cleaning of grease in the sum of $1200.
(e) Mr Diniz did not proceed with the quotation for repair of the front doors, but he did the work himself using parts purchased by him for which the applicants had not claimed.
(f) the applicants did not proceed with the quotation for repair of the ceiling as they could not afford to do so. Instead, Mr Diniz purchased 30 tiles at a per tile cost of $5.75 and installed them himself. The applicants claimed 12 of the tiles as being those damaged by the respondent in removing fluorescent lights.
I find for the applicants in relation to the replacement of lights (and allow the full amount paid by the applicants of $270.60 in that regard), painting, cleaning of grease, repair of the ceiling (but only to the extent of the cost of 12 replacement tiles of $69) and the mini‑skip hire. I am allowing the full amount of the lowest quote for painting of $4378, despite the quotes not being proceeded with and Mr Diniz doing the painting himself. I believe this is a reasonable outcome given Mr Diniz's evidence that he was unable to afford the services of the contractor and that he did the cleaning and painting works himself over a period of approximately two months.
I have not allowed the claim for repair of bitumen. As the respondent contended, this concerned an area outside the area of the leased premises. Further, I was not satisfied with Mr Diniz's explanation as to why the bollards could not have merely be returned, rather than restoring the areas back to flat bitumen. In any event that work has not been done and there was no evidence of any requirement by the current tenant that it be done.
This leads to the last item of repair of the front doors. I am basically in agreement with the respondents' position in relation to this claim. A number of holes have been drilled in the door frames, and there was competing evidence about the effect that had on the stability and long‑term structure of the frames. However, the fact is that Mr Diniz appears to have rectified the problem through his own labour and the purchase of parts in relation to which no evidence was adduced. In those circumstances, there is insufficient evidence to enable me to allow any monetary amount in respect of the item.
Answers to referred questions
For reasons stated above, my findings in relation to each of the five questions referred by the applicants are as follows:
Question 1
The tenant was Stephen Wayne Bradbury at the time of termination of the monthly tenancy.
Question 2
The applicants are owed $4769.60 rent and $383.60 in outgoings by the first respondent.
Question 3
The applicants are entitled to recover an amount for legal costs from the first respondent in accordance with cl 3.4.1 of the lease, such amount to be determined after the parties' further submissions.
Question 4
The applicants are entitled to an amount from the first respondent in respect of interest on monies due under the lease in accordance with cl 3.4.3 of the lease, such amount to be determined after the parties' further submissions.
Question 5
The applicants are entitled to $6067.60 in damages as a result of the first respondent's failure to make good the premises on vacating them in accordance with cl 3.40 and other clauses of the lease.
Order
Orders will be made reflecting the answers to the referred questions when the final amounts for costs and interest are settled.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T J CAREY, MEMBER
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