Francesca and Timothy Scorgie v Amanda Chew
[2007] ACTRTT 16
•25 June 2007
Francesca and Timothy Scorgie -v- Amanda Chew ACTRTT16 [2007]
CATCHWORDS:
Dogs
Water consumptions
Mitigation of losses
Compensation
Setting aside
LEGISLATION:
Residential Tenancies Tribunal Act 1997
Sections: 10, 38
Prescribed terms: 21, 23, 42, 52, 53, 63, 64, 68, 72
ISSUES:
The tenant’s right to have dogs on the premises
Compensation for a reduction in the sale price of a house due to damage caused by a tenant
The landlords duty to mitigate losses
Setting aside a previous exparte decision
The criteria for awarding compensation at common law for a breach of a residential tenancy agreement.
The tenant’s responsibility for water accounts where the accounts are not presented to the tenant during the tenancy.
CASE REFERENCE NUMBER: RT 2340 of 2006
RE: Premises at 6 Absolon Place MCKELLAR ACT 2617
DECISION
ORDERS
That the Respondent is to pay the Applicants the sum of $1003.20 on or before the 31 August 2007.
Member: Allan Anforth
Date: 25 June 2007
STATEMENT OF REASONS
Summary of the facts of the case:
This matter relates to a claim by the applicant landlords for compensation for damage allegedly done by the respondent tenant during the tenancy. The tenancy commenced on 4 June 2004 and concluded on 16 August 2006.
The house was put on the market for sale immediately following the termination of the tenancy and sold within 4-5 weeks for the same price for which it was listed on the market.
The landlords claim that the tenant damaged the carpets, the walls, the ceilings, the blinds and curtains, the shower screen, the vanity basin, the outdoor sprinkler system, the hills hoist and failed to care for the gardens. The landlords incurred certain costs in remedying some of these alleged items of damage prior to sale of the house. The landlords claim a reimbursement of the repair costs actually incurred.
The remaining items of alleged damage were not remedied by the landlords prior to the sale, and the house was sold in that condition. The landlords assert that the presence of the unrepair items of damage caused a reduction in the sale price of the house of between $5,000-$10,000 which they now seek by way of compensation.
The evidence:
The applicants are the landlords of residential premises at 6 Absolon Place, McKellar in the ACT. The Respondent was the tenant of those premises. The premises consisted of a house with a garden flat at the rear.
The tenancy commenced on 4 June 2004 for fixed term of 1 year. The original tenants were Amanda Chew and Robert Wells. The lease indicated Diani Chew, Rowan Chew and Andrea Chew would also be residing at the premises. The rent was $420.00 pw. The lease was in standard terms, namely the prescribed terms of the Residential Tenancy Act 1997.
Mr Wells vacated the premises prior to the end of the lease but after the end of the fixed term. The parties have proceeded on the implicit basis that Ms Chew became the sole tenant in a period tenancy after Mr Wells vacated. As the parties were content to proceed on this basis, and neither sought the joinder of Mr Wells as a party, the Tribunal has determined the matter on the basis that Ms Chew was the sole tenant for the purposes of this dispute.
Early in the tenancy a dispute arose between the parties concerning the right of the tenant to have a dog on the premises. The standard prescribed terms are silent on this issue but the residential tenancy agreement entered between the parties included a clause precluding pets. The dispute over the presence of the tenant’s dog came before a differently constituted Tribunal in matter RTT 881/2004. In that matter the Tribunal made an order on 23 September 2004 amending the lease to delete the pet exclusion clause and to substitute a clause which permitted the tenant to keep her existing dog “Tamu” at the premises on the condition that the tenant do her best to keep the dog off the carpets and that she have the carpets professionally steamed cleaned each 6 months. The term substituted into the tenancy agreement specifically reads:
I Jack Russell Terrier (Tamu) is permitted to live in the premises…
Part way through the tenancy “Tamu” died and the tenant then obtain 2 jack russell pups as a replacement without consultation with, or the consent, of the landlord.
10. A Notice to Vacate dated 2 June 2006 was served by the landlord on the tenant giving 8 weeks notice on the basis that the property was on the market for sale. Mr Wells vacated on 27 July 2006. Vacant possession given by the tenant on 16 August 2006.
11. On or about 15 November 2006 the landlords lodged an application with the Tribunal seeking damages in the sum of $9,048.29 for repairs needed to the property which were alleged to have been caused by the tenant. The Statement of Particulars lodged with the application read:
History of Dispute and payment we seek
Painting of walls and ceiling - $1,650.00
Carpet Damage - $4,190.00. (Photo attached)
Could the court please refer to RT No881of 2004. Please read order made by the judge regarding basis of Amanda being allowed to keep dog on premise.
When this order was made, it was made because we agreed to let Amanda keep the family pet, which she so desperately did not want to part with and because she promised the court that she would be liable for any damages caused by the dog.
We have since found out that the dog died and even though she knew that we did not want any dogs on the property (as stated on her tenancy agreement) she disregarded our concerns and purchased another two dogs.
Sunroom Carpet - $1,210
This damage was caused by a blocked downpipe.
Shower Screen - $691.00 (Photo attached)
New Basin - $559.09 (Photo attached)
Vertical Blind - $240 (missing)
Gardening - $247.00 (Photos attached)
The dogs have chewed the irrigation system.
Garden beds have not been weeded.
Lawn destroyed by dogs, holes and dog run noticed on lawn.
Re-installation of clothes line as it is evident that someone has been swinging on it.
Curtains - $261.20
Replacement of sheer curtain in master bedroom. Unstitched curtain hem in bedroom two.
TOTAL IN DAMAGES $9,048.29
HISTORY OF DISPUTE
On the 2nd of July Amanda Chew was given a Notice to Vacate in 8 weeks as the property was to be sold as we were going through financial difficulties. At the same time she also received a letter to advise her that any questions regarding the sale of the property could be directed to Mark Larmer from the Independent Property Group, whom she had already met the previous week, when Mark, Tim and Myself went to the property for a valuation in order for the property to be placed on the market. This was not done without first speaking to Amanda and making a suitable time with her.
It was explained to Amanda that we would like to conduct an ‘Open House’ soon and she would know well in advance, to enable her to prepare herself. At the time she said that it would be fine, but unfortunately a week later, Mark rang her to make arrangements for the ‘Open House’ and none of the days that Mark suggested suited her for the ‘Open House’, she also said “I’m not leaving the property when you have the ‘Open House’ as I have valuable things that could go missing”.
We realized at that time and judging from her behaviour in the past, that she would only jeopardize our chances of selling the house so Mark and I decided to wait until she moved out on the 27th of July. This of course put a strain on our household, as we realized that it would take months before we could sell the property.
On the 22nd of July Amanda rang me to tell me that she would not be moving out, as she had not found a place to live. I once again explained that she needed to move out as she was given 8 weeks to find a property I also mentioned that the other tenant that lived in the flat had found a property with no difficulties. She explained that she had looked at lots of properties and either they were not suitable or she had not been accepted. She said that she would ring me again after the weekend to let me know if she had been accepted after lodging various applications for homes.
On the 25th of July, I was informed by Mark the agent, that photographers and building inspectors had been organised to go over to the property the following week. I thought I would ring Amanda to make sure that she would be vacating the property. Amanda told me she wouldn’t be once again, and this time she had the audacity to say that it was my fault as I was giving people bad references. I explained that I was not volunteering any information, but was answering questions they asked truthfully. She said that she was not going to use me as a reference anymore, I said that it would be fine if this would enable her to vacate the property as soon as possible. I advised Amanda that Mark had booked photographers, building inspectors, etc to go through the property the following week and she said that she would be fine with this, I told her that I would give her at least 48 hours notice.
At this time I also reminded her that she needed to pay rent for another two weeks and she replied that she would rather pay weekly. I stated that that was not what she had agreed to on the Tenancy Agreement, and I would be happy to reimburse her rent money if she was to move out before the two weeks. She agreed to this.
I found out the following week that she had gone ahead and paid only one weeks rent and had ignored what I had previously said. I rang Amanda and she said “I didn’t want to pay for two weeks as I’m not sure that you would reimburse me if I moved out”. She agreed to pay for an extra weeks rent as she wasn’t sure if she would be out in the next two weeks, as she still had not found a place to live.
On the 27th of July Amanda rang me to ask if I could reduce her rent as she would have to put up with trades people going through the house and this would interfere with the quiet enjoyment of the property. I was appalled that she could even ask, considering she was supposed to have vacated the property. I said no and she said that she had spoken to Welfare Rights and that they had agreed with her. I told her if a representative of Welfare Rights wanted to ring me to discuss this matter, I would be more than happy to talk to them.
I did not receive a call from Welfare Rights and this matter was not spoken about again. I decided not to have tradespeople in until she vacated.
I proceeded to inform her that if she did not vacate the property by the 9th of August, I would issue an eviction notice, she said she would be out as she was moving in with a friend. We then agreed that an inspection of the property would be suitable on the 11th of August.
On the 11th of August Tim and I arrived at the property and realized straight away that the property was not ready to be taken over. Amanda was in the middle of cleaning out her garage and the content of the full garage was all over the front and on the side of the garage. She said that she would be finished cleaning outside by Sunday.
We asked if we could inspect the property inside and she said that that would be fine but the windows would not be cleaned until tomorrow as this was the only time the cleaners could do it.
When we walked inside the property the first thing that struck both Tim and I were the walls, they were all patchy. Amanda had tried to patch the walls with a different shade of yellow and unfortunately the wrong type of paint. She had used an enamelled based paint instead of a low sheen acrylic paint, this caused extensive damage to the walls. Tim explained to Amanda what was wrong with the walls and that too much damage was done to the walls to be able to patch them up, and that the walls needed to be painted over. Amanda told us that she was not prepared to repaint the walls, but she would try to patch them again with the right shade of colour and the right paint.
We decided to let her patch them again as we were sure that she would then realize that the walls would need repainting. Amanda told us that we could inspect the property again at the end of the week, after she had fixed the walls.
On the 18th of August, I rang Amanda on her mobile to discuss some issues, and to find out where to send the condition report and any correspondence. A lady answered the phone and I was told that she was lying down and was not well. I left my name and asked the lady if she could pass on a message, and if Amanda could ring me when she was feeling better.
On the 22nd of August I received a call from a Walter Koochew (not sure if this is how to spell it) and he explained that he was a friend of Amanda’s and Amanda had asked him to ring me and let me know that all mail was to be sent to the McKellar address as the mail had a redirection to her new address.
From this I realized that Amanda did not want us to know where she had moved too. I have no problem with this as everyone deserves their privacy, but only hoped that there would be no problem receiving correspondence from us.
On the 28th of August we sent a letter to Amanda to see if she wished to meet at the property and discuss the issues. We did not receive a reply.
We feel that we have no option but to go back to the tribunal and seek compensation for the damages caused to our property.
12. Annexed to the application were the following documents:
(a) A copy of the lease
(b) A copy of the In-Going and Outgoing Condition Reports. Neither are signed by or on behalf of the tenant.
(c) A quote for $1650.00 from Arrowwood for repainting
(d) A quote from “I Clean Carpets” to remove stains and clean the carpet with no price specified.
(e) An invoice from I Clean Carpets for $169.00 for carpet cleaning on 10 August 2006
(f) A quote from Supreme Carpet One for the installation of carpet to the lounge room, dinning room, 4 bedrooms and hall way for $5051.00
(g) A quote from Carpet Choice to supply and lay carpet to the same areas for $4190.00
(h) An invoice from Domore P/L to supply and lay nylon carpets for $1210.00
(i) A quote from Dolphin Bathrooms to repair broken shower screen for $651.00
(j) A quote from Southern Innovations for what appears to be the supply of a vanity unit for $2585.00
(k) An invoice from the Blind Man for the supply of vertical blinds for $240.00
(l) An invoice from Mr Demor for making curtains for $261.20
(m) An invoice from MSA Carpentry and Property Maintenance for weeding and pruning shrubs and trees, replacing damaged sprinklers and tubing and re-installing the clothes line with concrete, for $247.00
(n) A series of photographs showing what appear to be carpet stains
(o) A photograph of the shower screen, without the crack being visible
(p) A photograph of the crack in the bathroom vanity basin
(q) Photographs of the sprinkler tubing out of the ground and without attached sprinklers
(r) A photograph of a bent clothes line
(s) Photographs of the back yard showing holes in the ground and a generally untidy back yard
(t) Two photographs of a what appears to be an attempt to patched a wall and a door
13. The matter was listed before the Tribunal on 29 November 2006. On 13 November 2006 the Tribunal served a Notice of Hearing on the tenant by mail at an address in Mugga Way being an address provided by the tenant to the Office of Rental Bonds (ORB). There was no appearance of the tenant and a differently constituted Tribunal made an order exparte in favour of the landlord for the sum of $11,301.90 for repairs of $3,121.20, unpaid water consumption of $680.70 and “loss of value of the property” of $7,500.00.
14. At that hearing the landlord tendered a statement from Mark Larmer, real estate agent, dated 28 November 2006. Mr Larmer said the property had sold for $450,000 after being on the market for 4-5 weeks. Mr Larmer said the sale price had been suppressed because the landlords could not afford to replace the carpet, replace the broken shower screen, the cracked vanity basin or fix the back yard. He estimated that had these defects not existed the house would have sold for between $5,000 and $10,000 more.
15. The landlords tendered copies of the water accounts for the premises showing the sum of $680.70 outstanding for water consumed during the tenancy.
16. On 29 November, the day of the hearing, the Tribunal was hand delivered at 1.05pm a letter from the tenant saying that she had only just received the hearing notice because she had moved address from the address she had provided to the ORB. The tenant was notified of the result of the hearing by a letter from the Tribunal dated 30 November 2006
17. On 6 December 2006 the Welfare Rights and Legal Centre (WRLC) filed an application to set aside the ex parte order. The application was listed for 22 December 2006.
18. WRLC filed extensive submissions in response to the landlords claim which read:
Orders of 29 November 2006
1. The respondent seeks to have the orders of 29 November 2006 set aside in their entirety.
2. The respondent denies all of the allegations that she deliberately or negligently caused or permitted damage to the premises.
3. The orders were made without the respondent having the opportunity to be heard. The respondent received the application and Notice of Hearing on the morning of the hearing and this was the first she knew of the application. It is not clear why the application was delivered to her temporary address in Red Hill. Attachment 1 is a copy of the Mail Redirection Confirmation showing 20/09/2006 as the commencement date of the redirection from 6 Absolon Place to her current address at 3 William Webb Drive. During the previous month (the period between the end of her Absolon Place tenancy and the start of her new tenancy) the respondent stayed with a friend in Red Hill and arranged a temporary mail redirection for that period. Unaccountably the November application and notice of hearing were sent to the temporary address. The respondent’s friend who received the mail retained it until a convenient time to hand it to the respondent which was the morning of 29 November at approximately 10.30 am. The respondent immediately rang the Tribunal, and advised she had just received the application, wished to contest it and sought advice about what to do. She was advised to bring in a letter explaining her late receipt of the application. She brought the letter in as soon as she could that day and lodged it at the Registry.
4. As a matter of natural justice the matter should be heard afresh.
The Claim
5. The respondent denies liability for every aspect of the applicant’s claim. The respondent says that she complied with her obligations under the tenancy agreement, taking reasonable care of the property throughout the tenancy and leaving it substantially as clean and in substantially the same condition as at the start of the tenancy. Indeed some improvements were made to the premises by the tenants during the tenancy. Some of the defects in the premises pre-existed the tenancy. Some damage was the result of storm and water inflow. There was some wear and tear, particularly in relation to features of the premises which had been poorly repaired or improved for the purposes of the appearance of the premises but with no lasting effect. The particulars of the claim are addressed as follows:
6. Painting walls and ceiling: $1650.00. The respondent says that she repaired damage for which she was responsible. This involved removing the ironing board she had fitted to the wall in the laundry, filling the holes and repainting the wall. Similarly she repaired the holes where her pictures had hung and was at pains to ensure that the repair and repainting were imperceptible. There was pre-existing damage to the paintwork on the ceilings of both bathrooms, as noted on the condition report. The ensuite ceiling was painted by Robert (Mick) Wells during the tenancy and was left in considerably better condition than at the start of the tenancy. The repaired damage to the wall in the ensuite bathroom (shown in one of the photographs) preceded the tenancy and was the result of someone repositioning the towel rail. The repair was a poor job and quite the wrong colour of paint had been used to cover the repair. The other photograph showing paintwork is a cupboard door, not scratched or ruined but possibly showing the residue of a liquid cream cleaning agent of the gumption variety.
7. Carpet damage: $4,190. This is not an expenditure incurred by the lessors. It is the lowest of 2 quotes for the cost of re-carpeting the house. The respondent does not accept liability for this cost, both because it was not incurred and because she did not cause damage such that it was necessary to replace the carpets. The respondent concedes 2 small incidents of accidental damage: one was a small area of red staining on the carpet in the “master” bedroom, arising from dye leakage from a rug she had placed over the carpet for its protection; the other was two small bleach marks on the hallway carpet which occurred when a professional cleaner tracked bleach from the bathroom he had been cleaning. The respondent says that there was no other damage or deterioration of the carpets beyond fair wear and tear during her tenancy. She categorically denies that any damage was done by the dogs in the course of the tenancy. On the contrary, she was at pains to take the utmost care of the carpets and to ensure that the dogs were restricted to the tiled areas of the house.
8. Sunroom carpet: $1,210. The respondent is not liable for the deterioration in the sunroom carpet which was the result of storm damage. The respondent says she was advised by Mick Wells, tenant of the granny flat, that rain water had leaked into the sunroom during a storm in January 2005 while she was overseas. Mr Wells took all reasonable steps to minimize the damage but the sunroom roof was never satisfactorily mended during the tenancy and the respondent was never able to use that space fully or with confidence.
9. Shower screen: $691. This was not an expenditure incurred by the lessors. The respondent denies liability for any damage to the shower screen. She is unaware of any damage to the screen, other than a small crack about an inch long in the bottom corner of the screen on the left hand side near the basin. This crack pre-dated her tenancy. If there was further cracking or breakage of the screen the respondent submits that it is due to the age of the screen and the use of now outdated glass which has a tendency to crack with time and normal usage.
10. New basin: $559. This too was not an expenditure incurred by the lessors. The hairline cracks in the basin were present at the start of the tenancy and brought to the lessors’ attention at the first inspection on 11 October 2004.
11. Vertical blind: $240. Again, this was not an expenditure incurred by the lessors. The respondent says that she took the blind down because it fell apart. It is noted on the original Condition Report that the blind was “bit fragile”. The respondent says that at the start of the tenancy the blind was taken to a repairer in Fyshwick who repaired it but said that it was old and brittle and sun-damaged and no further repair would be possible. When the respondent took it down during the tenancy it was because it was at the end of its life. She stored it in the hall cupboard and, in the course of vacating the premises involving a number of helpers, the blind disappeared, probably disposed of as rubbish.
12. Gardening: $247. The respondent says that the garden was returned to the lessors in considerably better condition than at the start of the tenancy, largely due to the labours of Mick Wells. The respondent says that the dogs did not chew any part of the irrigation system or cause any damage to the garden. They were never left unsupervised in the garden because it was not secure. At the start of the tenancy the “lawn” was in poor condition, the garden was badly overgrown, the irrigation system did not work and the hills hoist stood with a tilt.
13. Curtains: $261.20. The sheer curtain in the main bedroom, like all the sheer curtains in the house, was torn and threadbare at the start of the tenancy. It had split and been resewn in places. The respondent says she took it down and put it in the hallway cupboard. Like the blind, it was at the end of its life. The hem of the curtain in bedroom 2 was already unstitched at the start of the tenancy, as noted on the original Condition Report.
The Evidence
14. In support of her contention that she took good care of the premises during the tenancy and left the premises in substantially the same or better condition and as clean as at the start of the tenancy, the respondent provides Attachments 2 to 9. These are as follows:
· Attachment 2 letter from I Clean Carpets
· Attachment 3 receipt for final carpet cleaning: 10/8/06
· Attachment 4 letter from Home Help Service
· Attachment 5 letter from Belconnen Community Service
· Attachment 6 letter from Walter Koochew
· Attachment 7 witness statement of Robert (Mick) Wells
· Attachment 8 witness statement of Juani O’Reilly
· Attachment 9 witness statement of Celia Anthony
15. Attachment 10 is a letter from Myffy Rae, the friend on whose behalf the respondent purchased and collected a Jack Russell puppy. Attachment 11 is a letter from the respondent’s oncologist confirming her medical condition and supporting her application for Housing. Her medical condition is relevant only insofar as it explains why the respondent needed and received a good deal of support during her tenancy. It also explains why she went overseas for the period from December 2005 to June 2006. The trip was paid for by her father to enable her to have treatment and to convalesce where there is family support. She has no family in Australia.
16. It is important to understand the reasons why the respondent did not annotate the 11 October 2004 Condition Report with her own observations as to the condition of the premises, and then sign it. She says that on 11 October 2004 she and the lessors went through the house and noted a number of defects. The lessors made an undertaking to do a number of repairs, including replacing all the sheer curtains, painting the ceiling in both bathrooms, repairing or replacing the cisterns of both toilets, fixing a number of door knobs, replacing the hinges of the bathroom cupboard, replacing the skirting in the kitchen, and supplying the remote for the garage. When the respondent received the Condition Report from the lessors 2 days later, she noted that some of the repair issues had been mentioned and she thought she would wait until all the agreed repairs had been done and then annotate the Condition Report accordingly. The repairs were never done and the respondent forgot about the Condition Report as other events, including the return of her cancer, overtook her. When her father invited her to go back to Kenya for treatment in December 2004, the respondent rang the lessors, advised them that she would be away for several months and that Mick would look after the house. She gave them an unfettered right of access to the house to do the repairs.
17. No repairs were done during the tenancy and no inspection was conducted (until August 2006) despite the extraordinarily detailed provision for inspection in the Tribunal’s orders of 23 September 2004.
18. It is submitted that the photographs provided by the lessors in support of their claim are of limited value as evidence. Because they are not dated, it is questionable when they were taken and what relevance they have to the condition of the premises on the day the respondent vacated. They are selective and, in relation to the carpet particularly, it is difficult to gauge the perspective and therefore the size and impact of the stains. There is no evidence as to the age or cause of the stains. There was a great deal of activity in and around the house immediately after the tenancy ended on 16 August. On 18 August work on the garden was undertaken, on 20 August painting throughout the house was done, on 23 August measurement and fitting of curtains was done. The lessors’ “carpet condition report” provided by I Clean Carpet is dated 30 August.
19. In their letter to the respondent dated 28 August the lessors enclose “the condition report” (presumably the final inspection report which is the original condition report with additional comments). This report is signed twice by Fran Scorgie and dated 11 August and 16 August. Fran Scorgie did not attend the final inspection on 16 August.
20. Given these facts, it is submitted that any or all of the alleged damage could have occurred after the respondent’s tenancy had ended. Consistent with this contention is the fact that there are many references in the annotated condition report to aspects of the house being “not cleaned” and “dusty”. It is not credible that a house professionally cleaned on a weekly basis for the previous 6 months, and which had sustained 9 hours of professional cleaning on 10 August, and had its carpets cleaned by I Clean Carpets on 10 August, would have been dusty or not clean. The respondent had moved out and removed everything from the house by 10 August. She returned only for the inspections on 11 and 16 August and to redo the unsatisfactory paint job.
21. It is also important to note that, while there a number of references to “urine” as the source of carpet stains, there is no evidence of urine stains. There are allegations and supposition on the part of the lessors, an idea that is then passed on the carpet cleaner who writes in brackets “possibly urine”. Supreme Carpet One on 28 September then provides a quotation to supply and install “close match to existing animal urine damaged carpet”. Unless chemical testing was undertaken, this can be no more than speculation based on the instructions of the lessor. Even if there was evidence of urine staining on the carpet, the question arises as to when this may have occurred – quite possibly prior to this tenancy, when the property was in the hands of a different tenant or even a different owner. There is no evidence of the age of the carpet. It is known that the carpet predates this tenancy; the respondent had a tenancy from 29 May to 10 October 2004 for which there was no condition report, and prior to that the house was occupied by a tenant named Amanda Hill and her 5 year old son.
Beyond the claim
22. There are 2 further matters which were not part of the lessors’ application but which arise from the orders of 29 November. These are: an award of compensation in the amount of $7,500 for “loss of value for property”; and water consumption in the amount of $680.70.
23. The evidence on which the compensation for loss of value is based on an email which was tendered at the hearing on 29 November. It is an email sent to the lessors on the evening of 28 November from Mark Larmer, the Real Estate agent who managed the sale of the property. The respondent objects to this evidence on 3 grounds:
· as the selling agent Mr Larmer clearly has a commercial interest in the sale price;
· the estimate of “between $5000 and $10,000” is purely speculative and based on the notion of “emotional appeal to the buyers”; and
· there is no causal connection established between the alleged loss of the lessors and the alleged negligence of the respondent.
24. It is submitted that there is no basis for an award of compensation to the lessors when neither breach by the tenant nor loss by the lessors has been established.
25. Regarding water consumption, it is not clear whether a water bill was tendered at the hearing on 29 November or whether $680.70 is for water consumption only or whether it includes any rates or taxes (for example, the water abstraction charge). Further, the respondent says that at no time during the tenancy was there any mention of a water bill, nor was one ever presented to her, not even at the end or soon after the end of the tenancy. The lessors received the water bills on a regular quarterly basis, but failed to raise the issue of water consumption charges or to request any reimbursement from the tenant, until the ex parte hearing of their application for compensation in which there is no claim for water consumption. It is submitted that this behaviour is consistent with clause 42 (b) of the Standard Terms: water consumption was part of a service for which the lessor had agreed to be responsible. In support of this contention, the recording of proceedings reveals that the lessor, Fran Scorgie, stated at the hearing on 29 November that she was “quite happy to pay for water consumption but I didn’t want any of my plants killed”. Asked by Member Lennard what was the agreement at the beginning of the tenancy, Ms Scorgie replied: “That I would pay water consumption but I didn’t want any of my plants killed”. At a later point in the hearing, during further discussion about plants being killed, Ms Scorgie clarified that “my husband and I agreed that we wouldn’t charge her because of the way the water was at the moment”. On that basis, and taking into account that the garden is not referred to at all in the original Condition Report and the tenants’ evidence is that the garden was actually improved during the tenancy, despite a dysfunctional sprinkler system, the tenant is not liable for water consumption.
Counter Claim
26. Neither the respondent nor the other tenant, Mick Wells, seeks compensation for the cost of the improvements they made to the premises during the tenancy. However, the respondent seeks compensation for the loss of the use of part of the premises, being the sunroom, from her return from Kenya in June 2005 to the end of the tenancy in August 2006. The lessor was notified by Mick Wells of the damage to the sunroom and the need for repair after the storm in January 2005. The respondent suffered the loss of the use of the room, a large room and a substantial feature of the dwelling because the roof continued to leak and she could not safely furnish it properly without risk of damage to her property. In addition, the carpet remained unsightly and musty, notwithstanding Mr Wells having had it cleaned.
27. The respondent claims a rent reduction of $25 per week under section 71 (1) (b) of the Act for the 59 week period from the end of June 2005 until 16 August 2006, being an amount of $1475.
19. Annexed to these submissions were statements from Robert Wells, Juani O’Reilly and Cecilia Anthony which respective read:
STATEMENT BY ROBERT WELLS
1. My name is Robert Wells. I am generally known as Mick. I am self employed as a sign manufacturer.
2. I lived at 6 Absolon Place, McKellar from 11 October 2004 until 27 July 2006. I was named on the lease as tenant with Amanda (Mandy) Chew. The arrangements were that I occupied the granny flat on the premises and Mandy and her 3 children occupied the main house. I paid $170 per week in rent and Mandy paid $250 per week, making up $420, the total rent for the premises. There were never any problems with the payment of rent or with the arrangements between Mandy and myself throughout the tenancy.
3. I have been a friend of Mandy’s since about 2002 and I visited her occasionally when she was living at the premises before we entered the tenancy agreement referred to above. I did some maintenance work around the place to help Mandy who sometimes only has the use of one arm.
4. Some time in January 2005 there was a severe storm that caused damage to the sunroom, the big room added on to the main house and also accessible from my flat. Mandy was overseas with the children, staying with her father, and I had undertaken to look after the place. After the storm I could tell that the flashing on the sunroom roof had not been fixed, the wind had blown it up and the rain had gone straight into the room.
5. I rang Tim Scorgie and told him about the storm damage and that there might be damage to the carpet. I tried to secure the flashing by tucking it in so that it would not lift in the wind again, but it really needed to be properly fixed. The carpet in the sunroom did dry out but it was water marked and musty, and over time it pulled away from the edges due to gradual shrinkage. I had it cleaned but it was still water damaged.
6. A storm also dislodged 2 tiles on the roof above the lounge room. Mandy said there was a bit of water leaking into the house and I worked out where it was coming from and went up and refixed the tiles.
7. I never saw Tim at the property during the tenancy and to the best of my knowledge no maintenance was done on the property during the tenancy, apart from what I did myself.
8. Mandy showed me the peeling paint on the ceiling of the ensuite bathroom and I offered to repaint it. I did this while Mandy was overseas. The paint had peeled because the wrong sort had been used for a bathroom. I thought an oil-based paint would be best so I rang Tim to see whether I could use that and he said he wanted water-based paint. I stripped the ceiling back, sealed it and repainted it with a suitable water-based paint. The same needed to be done in the main bathroom but that was a big job and I was busy at work.
9. When I spoke to Tim on the phone I also mentioned the remote for the garage door which had never been provided. He said he would bring it over but he never did.
10. When I was working on the ceiling in the ensuite I noticed that the toilet was leaking badly. I did a patch up job to stop the leak.
11. In general this is a place where a lot of things had been superficially fixed up so it looked quite good but it was a poor job and didn’t last. For example, the timber walkway and rail up to the back patio and the flat had been painted but without any preparation so the paint peeled off; the fence posts supporting the gate and the fence had just been stuck in the ground and had rotted at the base; the washing line had not been properly sunk in concrete and it had always had a lean on it.
12. I did a few repairs outside: put in metal posts to support the gate, fixed some of the fence palings that had fallen over, replaced one of the skylights on the garage roof because it had become dry and brittle and was leaking.
13. I also did a major clean-up of all the garden debris at the beginning of the tenancy. I took 4 one ton loads to the tip: leaves and rubbish that had been shoved under the house and were a serious fire hazard, pruning where I trimmed the shrubs that had overgrown, and a dead tree that need to be dug up before it fell.
14. The sprinkler system in the garden never worked. It look old and dry and as if it had perished. It did not look like it had been used for a while, since long before we moved in. Everything was really dry. There wasn’t a lawn as such, just tufts of grass.
15. The garden was not securely fenced off so the dogs would not have been left outside on their own. They were really well cared for and loved by the kids. When Mandy and the kids were overseas, Tamu went to stay with a friend of Mandy’s and unfortunately died of a snake bite. I only found this out when I went to collect Tamu just before the kids came back. They were devastated. When Mandy came back she wanted to replace Tamu with another Jack Russell and I took her to collect the puppy. We brought 2 back, the other was for a friend who had asked Mandy to get her one but then later changed her mind about having it. By then the kids were really attached to both puppies.
STATEMENT BY JUANI O’REILLY
1. My full name is Juani Bernadette O’Reilly. I reside at an address known to Police. I am a Federal Agent with the Australian Federal Police, currently attached to the International Deployment Group.
2. I first met Amanda (Mandy) Chew in 2002 when she was sharing a house with my brother Angelo. At the time Mandy was undergoing treatment for cancer and her three children Diani, Rowan and Andrea were residing in Kenya.
3. Since 2002 Mandy and her children have become family friends. I have frequent contact with Mandy on the telephone, often meet her at running events and have periodically visited her home. On occasions I have visited Mandy’s home unannounced. On each occasion I have visited the home it has been clean and tidy. In my opinion Mandy is very house proud.
4. I know that Mandy and her children moved into 6 Absolon Place McKellar sometime during 2004. I often visited Mandy’s home at McKellar. On each visit the house was neat and clean.
5. I recall on two separate visits after there had been some rain in Canberra, I saw that the carpet, furniture and personal belongings in the room out the back was wet. I assumed the room leaked.
6. About 4.00pm on Wednesday 16 August 2006, I received a telephone call from Mandy. She told me that she was having another house inspection that afternoon and requested I come to the home to support her as she found the home owners very demanding and distressing. At the time Mandy was undergoing extensive treatment for the cancer and I would describe her mental and physical state as fragile.
7. I arrived at McKellar about 4.30pm. Upon approaching the house I saw the front garden and noted it was the neatest I had ever seen. On entering the house I saw there was no furniture in the lounge or dining room. I entered the family room and I saw Mandy, Cecila and an unknown male person. I saw that Mandy was engaged in conversation with this male person.
8. I examined each room of the house. I saw that all furniture had been removed, all of the windows were spotless, all walls were free of dirt and damage, and the bathroom and toilet were fresh. It was evident from my observations that the carpet had been professionally cleaned and the kitchen and family room had been thoroughly cleansed.
9. I also inspected the room out the back and saw it was clean. I then went to the rear yard and saw that it was neat and tidy.
10. From my observations on 16 August 2006, I am of the opinion that Mandy left the house in a perfectly clean and acceptable condition.
STATEMENT BY CELIA ANTHONY
1. My name is Celia Anthony and I am employed by Bing Lee Electrics.
2. I have been a friend of Amanda (Mandy) Chew for a number of years. I went to her house when she first moved into 6 Absolon Place, McKellar, and I have visited her often during the tenancy. I have looked after Mandy’s children on and off when she has been really unwell. When Mandy went overseas for treatment the children went with her, but they returned ahead of her and I was one of the people who regularly looked after them in their home.
3. Mandy asked me to be a witness at the final inspection after she had vacated the property. She had already had 2 inspections and she wanted this one to really be the final inspection. When I arrived at 4.30 pm on 16 August, as arranged with Mandy, I was surprised to find the landlord, Tim Scorgie, already in the house because Mandy had said the inspection was scheduled for 5 pm and she wanted to video the house first.
4. I went through the house when I arrived and I found it in good condition. The walls were clean and Mandy asked me to pay particular attention to where her pictures had previously hung to see if I could notice the repair work and painting she had done. She explained that she had done the painting at night and had used the wrong type of paint, but had then come back and redone it with the right sort which is a low sheen acrylic paint. I honestly could not see any signs of patch work or difference in colour. Tim Scorgie said that if he turned the lights on and I put my cheek against the wall so that I could look directly along the wall, I would see the repair work. I could not confirm his findings.
5. The carpet was professionally clean and in good condition except for a couple of stains that Mandy pointed out. One was a small area of red staining in the main bedroom. Mandy explained that she had placed a red rug over the carpet to protect it as this was a thoroughfare to the ensuite and the hallway. She had scatter rugs in the main traffic areas throughout the house. She said that a glass of water had been accidentally spilt on the red rug and had gone through to the carpet beneath. The other stain I saw was what looked like a bleach mark about the size of a 20 cent piece in the hallway near the bathroom entrance.
6. I am not a “dog person” myself but when I visited Mandy’s house the dogs were well behaved. They stayed mainly in the tiled areas of the kitchen/family room. I know this to be true as we had to close the sliding doors when entering and leaving the family room.
7. The garden was presentable considering the dry conditions in Canberra. Juani O’Reilly, who was present with me at the final inspection, commented on how tidy the garden looked.
8. I find Mandy and her children to be proud people and their house was always clean and tidy. I had a property in Adelaide that I rented and if our tenant had left the house in the condition Mandy left 6 Absolon Place I would have been very happy.
20. Also annexed to the submissions from WRLC were:
(a) A letter from I Clean Carpets dated 14 December 2006 stating that they had steam cleaned the carpets 3-4 times in the last two years.
(b) An invoice from I Clean Carpets dated 10 August 2006 for carpet cleaning on that date for $169.00 at the request of the tenant.
(c) A letter form Home Help Service Act Inc dated 14 December 2006 indicating that 2 hours a week of home help had been supplied since January 2006 and that the house was well maintained.
(d) A letter from Belconnen Community Services dated 23 August 2006 stating that it had retained a cleaner to clean the tenants house on 10 August 2006 for 9 hours.
(e) A character reference from Walter Koochew.
21. The matter came before the presently constituted Tribunal on 22 December 2006. The landlords appeared in person and Ms Yuille from WRLC appeared for the tenant. The Tribunal enquired into the circumstances whereby the tenant failed to received the first Notice of Hearing. Ms Yuille advised that the tenancy was terminated and vacant possession given on 16 August 2006. The tenant then moved to temporary address in Mugga Way before moving to a permanent address on 20 September 2006. The tenant had instituted a mail re-direction to her temporary address and had instituted a further mail redirect to her permanent address on 20 September 2006. A copy of the re-direction notice to Australia Post was tendered in evidence. Given that the Notice of Hearing was not sent until 13 November 2006 it should have been caught in the re-direction and delivered to the tenant’s permanent address. It seems the error was one by Australia Post for which the tenant bears no responsibility.
22. Directions were given for the landlord to file and service any evidence and submissions in reply by 29 December 2007 with final submissions by the tenant by 12 January 2007.
23. On 25 January 2007 the landlords filed detailed submissions, which read:
The Applicant claims from the Respondent:
1. The sum of $10,000 by way of loss of opportunity, in relation to the ultimate sales price for the property,
2. The sum of $3,368.20 paid by the Applicant for repairs to the property, necessitated by the Respondent's breach of clause 64 of the Tenancy Agreement
3. The sum of $300 for unpaid rent, and
4. The sum of $762.55 for water consumption.The Applicant's total claim against the Respondent is in the sum of $14,430.75, minus $500 already received from Office of Rental Bonds = $13,930.75
List of witness statements relevant to Applicant's claim
• Amanda Hill dated 20 December 2006.
• First Statement of Mark Larmer dated 20January 2007
• Second Statement of Mark Larmer dated 20 January 2007
• Neil King dated 11 January 2007
• Cathy Douglas dated 10 January 2007
• Wisam Dib dated 18 December 2006List of invoices, quotes and other material relevant to Applicant's claim
1. Order of the Tenancy Tribunal dated 24 September 2004
2. Tenancy agreement signed by the Applicant and respondent on 11 October 2004
3. Condition report for property performed on 11/10/2004 (unsigned by the Respondent). The same Condition Report after inspections were carried out on 11 and 18 August 2006 with additions highlighted.
4. Letter from Respondent to Applicant (undated) in relation to condition report.
5. Letters from the Applicant to the Respondent dated 2 June 2007 (with Notice to Vacate)
6. Letter from Mr Wisam Dib to the Applicant of 10 July 2006. (re problems with Respondent)
7. Letter from the Applicant to the Respondent dated 28 August 2006
8. Tax invoice from MSA Carpentry and Property Maintenance dated 18 August 2006
9. Tax invoice from Arrowwood Pty Ltd dated 20 August 2006.
10. Tax invoice from M. Demar dated 23 August 2006
11. Condition report from I Clean Carpets dated 30 August 2006
12. Quote from Supreme Carpet One dated 28 September 2006
13. Quote from Carpet Choice dated 29 September 2006
14. Tax invoice from Donmore Pty Ltd dated 22 September 2006
15. Tax invoice from Dolphin Bathroom Industries dated 19 October 2006
16. Quote from Southern Innovations dated 8 November 2006
17. Quote from The Blind Man (previously provided to the Tribunal)
18. Water Bill from ACTEWAGL (various)
19. Letter from Wisam Dib (re prospective purchaser of house)
20. Account details for Ms Fran Scorgie (showing payments of rent by Respondent since 10 July 2006)
21. CD Rom of photographs and colour photographs taken between 18 and 30 August 2006
Chronology
15 Julv2003
Applicant Bought Property
1 August 2003
First tenant (Amanda Hill, her son and brother) moved into property
End May 2004
Amanda Hill vacates property
4 June 2004
Respondent moves into property
12 Auqust2004
Amanda Hill's brother, Eddie, vacates property
23 September 2004
First Court Order made re dog in premises (Tamu)
7 October 2004
Mick Wells moves into property
?????
Mick Wells moves out of property. Applicants were not
advised
11 October 2004
Respondent signs Tenancy Agreement. Is provided with
condition report (which she does not sign)
2 June 2006
Respondent served with Notice to Vacate premises
June/July 2006
Respondent refuses to make property available for Open
Houses
22 July 2006
Respondent advises will not be moving out on vacation date
11 August 2006
First "Final inspection" by the Applicants
16 August2006
Second "final inspection" by the Applicants. Respondent
vacates premises
28 August 2006
Letter sent by Applicants to respondents asking to meet at
house to discuss outstanding matters (Respondent did not
respond)
27 October 2006
Exchange of contracts on sale of house by Applicant
Summary of claim
The tenancy commenced on 4 June 2004 and ended on 16 August 2006. The applicant claims that the respondent tenant caused damage and/or failed to maintain the premises in breach of the lease agreement between the Applicant and the Respondent, causing loss to the Applicant.
The Applicant claims that some of the damage was directly caused by two dogs kept on the premises in breach of the Tenancy Agreement and also in direct breach of orders made by the Residential Tenancies Tribunal on 23 September 2004 (RT 881 of 2004), (which allowed one, specifically named, dog to reside with the Respondent at the premises). The applicant claims that, in breach of the orders of the Tribunal made on 23 September 2004, the Respondent purchased and kept two other dogs, not mentioned in those orders, on the premises. In support of this claim, the Applicant relies on the Respondent's own submissions (see paragraph 15 of the Respondent's attachment 10-Statement from Robert Wells and Attachment 10- statement of Myffy Rae). Having been the subject of a previous Tribunal order, the Respondent could be in no doubt of the Applicant's position in relation to animals at the premises. Despite this, the Respondent chose to blatantly disregard the Tribunal's orders.
The Applicant relies on the submissions previously filed in relation to this matter, for the hearing which took place on 30 November 2006, insofar as they provide a history of the difficulties experienced by the Applicant in having the tenant vacate the premises.
Particulars of the Applicant's claim for compensation are as follows:
1. Loss of opportunity - $10,000.00
The Applicant claims the amount of $10,000 from the Respondent by way of loss of opportunity. The Applicant claims that the sale price eventually achieved upon the sale of the property was less than that which could have been achieved, had the premises been left in a suitable condition upon the end of the tenancy .
In support of the Applicant's claim for loss of opportunity, the Applicant relies on the second statement of Mark Larmer, from Independent Property Group and the statement from Mr Wisam Dib, more specifically the evidence referred to in items (a-d below). The Applicant submits that Mr Larmer has provided credible, unbiased evidence of the amount by which the potential sales price was reduced, because of the condition of the premises, and, consequently, the amount of loss suffered by the Applicant as a result of the breaches by the Respondent.
The following items have not been claimed as separate items, as the Applicant was not in a financial position to attend to them prior to putting the house up for sale. However, the details are provided in support of the claim for loss of opportunity, as the Applicant says the condition of each of these items contributed to the property being sold for less than what the Applicant would have received had the property been in the same condition as it was at the start of the Respondent's tenancy.
The items below are not the only items that the Applicant alleges contributed to the devaluation of the property. Other items include, for example, the garden.
While the Applicant incurred some expenses in improving the condition of the garden following the Respondent's exit (see 2c below) it was not returned to the same condition as it was prior to the Respondent's tenancy. This contributed to the reduced sales price.
a) Carpets
The Applicant relies on the photographs, taken on 18 August 2006 and 22 August 2006 and presented as evidence of the condition in which the carpet was left by the Respondent. The applicant says that, in addition to the visual images, the yellow/brown stains have a urine odour. The Applicant tried several products designed to remove the stains from the carpet, to no avail.
In addition, the Applicant relies on:
i) the statement of Amanda Hill in relation to the condition of the carpet at the end of her tenancy (and immediately prior to the commencement of the Respondent's tenancy)
ii). the condition report signed by the Applicant on 11 October 2004 (four months after the tenancy commenced) but not signed by the Respondent) and signed again by the applicant on 11 August 2006.
iii). the quotes from Mitchell Carpet Choice,
iv). the quote from Supreme Carpet One (who quote on replacing "animal urine damaged carpet).
v). the carpet condition report from I Clean Carpet (the company initially employed by the Respondent to clean the carpets at the end of the tenancy). Ariel Pattugalan from I Clean Carpet has concluded that the "orange/yellow stains visible in all carpeted areas" are "possibly urine."b) Shower Screen
The applicant relies on the photographs, taken on 19 August 2006 and presented as evidence of the condition of the shower screen in the main bathroom shower at the end of the Respondent's tenancy
In addition, the Applicant relies on:
i.) The statement of Amanda Hill in relation to the condition of the shower screen at the end of her tenancy (and immediately prior to the commencement of the Respondent tenancy)
ii.) The condition report signed by the Applicant on 11 October 2004 (four months after the tenancy commenced) but not signed by the Respondent) and signed again by the applicant on 11 August 2006.iii.) The quote from Dolphin Bathroom Industries, indicating the cost to replace the shower screen.
c) Basin
The applicant relies on the photographs taken on 30 August 2006 and presented as evidence of the condition of the basin in the ensuite at the end of the Respondent's tenancy
In addition, the Applicant relies on:
i.) The statement of Amanda Hill in relation to the condition of the ensuite basin at the end of her tenancy (and immediately prior to the
commencement of the Respondent's tenancy)
ii.) The condition report signed by the Applicant on 11 October 2004 (four months after the tenancy commenced but not signed by the Respondent) and signed again by the applicant on 11 August 2006.iii.) Item 1 of the quote from Southern Innovations, indicating the cost to replace the ensuite basin.
d) Vertical Blind
The applicant claims that the vertical blind in the family room was in a fair condition at the commencement of the Respondent's tenancy, but was missing at the end of the Respondent's tenancy.
In addition, the Applicant relies on:
i.) the statement of Amanda Hill in relation to the condition of the vertical blind at the end of her tenancy (and immediately prior to the commencement of the Respondent's tenancy)
ii.) The condition report signed by the Applicant on 11 October 2004 (four months after the tenancy commenced) but not signed by the Respondent) and signed again by the applicant on 11 August 2006.
iii.) The quote from the Blind Man (previously filed with the Tribunal)2.The applicant makes a claim in the sum of $3,368.20 for expenses incurred by the Applicant, as a result of the Respondent's breaches, as follows:
a) Painting of walls and ceiling - $1,650.00
The applicant claims the amount of $1,650.00 from the Respondent for the cost incurred in restoring the walls and ceilings of the premises to the condition they were in prior to the respondent's tenancy.
The applicant relies on the following evidence in support of her claim:
i.) The statement of Amanda Hill in relation to the condition of the walls and ceilings at the end of her tenancy (and immediately prior to the commencement of the Respondent's tenancy)
ii.) The condition report signed by the Applicant on 11 October 2004 (four months after the tenancy commenced) but not signed by the Respondent) and signed again by the applicant on 11 August 2006.
iii.) The statement of Neil King (witness to the condition of the walls at the end of the Respondent's tenancy).
iv.) Tax invoice from Arrowwood Pty Limited in the sum of $1650 dated 20 August 2006.b) Sunroom Carpet - $1,210.00
The applicant claims the amount of $1,210.00 from the Respondent for the cost incurred in replacing the carpet to the sunroom of the premises. The Applicant alleges that the sunroom carpet needed to be replaced, due to marks and stains over the entire carpet, as well as flood damage caused by the build up of material in the downpipe outside the sunroom. The Applicant alleges that it was the Respondent's obligation to keep the drains and downpipes free of material. It was a direct result of the Respondent's failure to clean the downpipes (and their failure to clean the carpet as a whole) that the carpet required replacement.
The Applicant relies on the following evidence in respect of this claim:
i.) The statement of Amanda Hill in relation to the condition of the sunroom carpet at the end of her tenancy (and immediately prior to the commencement of the Respondent's tenancy)
ii.) The condition report signed by the Applicant on 11 October 2004 (four months after the tenancy commenced) but not signed by the Respondent) and signed again by the applicant on 11 August 2006.iii.) The Witness statement of the current resident of the property, Cathy Douglas
iv.) Tax invoice from Donmore Pty Ltd for replacement of the carpet
c) Gardening - $247.00
The applicant claims the amount of $247.00 from the Respondent for the cost of work to the garden, incurred by the Applicant. The applicant relies on the photographs taken on 18 August 2006 and 22 August 2006 and produced as evidence of the condition of the garden at the end of the Respondent's tenancy
The Applicant relies on the following evidence in respect of this claim:
i.) The statement of Amanda Hill in relation to the condition of the garden at the end of her tenancy (and immediately prior to the commencement of the Respondent's tenancy)
ii.) The condition report signed by the Applicant on 11 October 2004 (four months after the tenancy commenced) but not signed by the Respondent) and signed again by the applicant on 11 August 2006.
iii.) Tax invoice from MS A Carpentry and property maintenance for work done to the gardend) Curtains - $261.20
The applicant claims the amount of $261.20 from the Respondent for the cost to replace the sheer curtain in the master bedroom and to stich the hem on the curtain in bedroom 3. Replacement was necessary as a result of damage done to the sheer curtain during the Respondent's tenancy.
The Applicant relies on the following evidence in respect of this claim:
i.) the statement of Amanda Hill in relation to the condition of the sheer curtains at the end of her tenancy (and immediately prior to the commencement of the Respondent's tenancy)
ii.) The condition report signed by the Applicant on 11 October 2004 (four months after the tenancy commenced) but not signed by the Respondent) and signed again by the applicant on 11 August 2006.
iii.) Tax invoice from Mrs Demar for the replacement of the curtain and fixing hem on curtain in bedroom 3, dated 23 August 2006.3. Outstanding Rent - $300
The Applicant claims the amount of $300.00 in outstanding rental payments. Rental payments were received by the applicant up until 11 August 2006. However, the respondent did not vacate the premises until 16 August 2006. The rent for the property was $420 per week ($60 per day). The Applicant therefore claims $300.00 from the Respondent.
4. Water Consumption - $762.55
The Applicant claims the amount of $762.55 in water consumption by the Respondent. The Applicant concedes that water was a service for which she had agreed to be responsible under clause 42(b) of the Standard Terms.
However, a condition of this agreement was that the garden of the premises would be maintained. The Respondent was made aware of this condition and agreed to it prior to signing the Tenancy Agreement. The Applicant, Ms Fran Scorgie says that she said to the Respondent words to the effect: "We will pay the water bills so long as the plants and garden are kept alive, unless you do not maintain the garden, in which case the water bills will become your responsibility." The Applicant claims, as above, that the Respondent failed to keep the plants and garden alive, and therefore, the Applicant was entitled to claim for water consumption.
In support of the amount claimed, the Applicant relies on water bills from ACTEWAGL totalling $762.55
Response to submissions of Respondent dated 18 December 2006
In response to paragraph 5
The Applicant denies that the Respondent complied with her obligations under the Tenancy Agreement. The premises were not left substantially as clean or in substantially the same condition as prior to the tenancy and the Applicant refers to the matters raised in paragraphs 1-3 of the Applicant's principal submissions, above.
The Respondent breached the specific orders of Registrar Morris in obtaining two more dogs, after the dog specifically allowed for in the orders (Tamu) died.
The Respondent was also in breach of Clause 22 of the Tenancy Agreement, by failing to return the condition report signed by the Applicant on 11 October 2004. The applicants were advised by Registrar Morris to complete a condition report for the property and this would then prove the condition of the property should any damage be sustained in the future. The Applicants took Registrar Morris's advice and issued the respondent with a condition report.
To the extent that the Respondent relies on character witnesses to attest to her suitability as a tenant, the Applicant rejects these witnesses (for the reasons stated below). Further, the Applicant relies on the letter received from a resident of a neighbouring property, Mr Wisam Dib, dated 10 July 2006, to refute any suggestion that the Respondent was a responsible tenant.
In response to paragraph 6
The Applicant denies that the Respondent repaired the damage to the walls and ceiling for which she was responsible as required by clause 64 of the Tenancy Agreement. The Applicant refers to item 2 a) of her claim, above, in support of this response. Regarding the wardrobe doors, the Applicant claims that these are scratch marks caused by a scouring pad, used to presumably remove marks on the wardrobe in bedroom 3. These marks are definitely not the remains of residue of a cleaning agent.
In response to paragraph 7
The Applicant denies that the only damage to the carpet was through 'fair wear and tear', and refers to item 1 a) above. The Applicant does not seek to claim the amounts quoted from the carpet stores, but instead relies on the content of the quotes, as evidence contradicting the claim by the Respondent that the only damage to the Carpets was through 'fair wear and tear". The evidence is strongly supportive of the Applicant's claim that animal urine damaged the carpets, in addition to the matters conceded by the Respondent.
In relation to the respondent's allegation that a professional cleaner tracked bleach from the bathroom, the Applicant refers the Respondent to Clause 73 of the Tenancy agreement, which holds the Respondent liable for the actions or omissions of other persons on the premises.
In response to paragraph 8
The Applicant alleges that the Respondent is liable for the damage to the sunroom carpet and refers to item 2 b) of these submissions in support of this position. The Applicant's alleges that the sunroom damage would not have been caused had the downpipes outside the sunroom been cleaned by the Respondent. In response to the Respondent's claim that she was never able to use the sunroom space "fully or with confidence" following damage to the sunroom, the Applicant refers to and relies on the statement of the current resident, Ms Cathy Douglas, and the first statement of Mark Larmer. See also response to paragraph 26 of the Respondent's submissions (under heading counter-claim)
In response to paragraph 9
The Applicant alleges that the Respondent is liable for the damage to the shower screen and refers to item 1 (b) of the claim, above, in support of this position. The applicant does not seek to claim the amount of $691.00, but instead relies on the content of the quote, as evidence contradicting the claim by the Respondent that the shower screen was not cracked. The crack to the shower screen is evident in the photographs. The Applicant does not accept that the "age of the screen" and "use of outdated glass" reduces the Respondent's obligation to leave the premises in substantially the same condition as they were at the start of the tenancy.
In response to paragraph 10
The Applicant alleges that the Respondent is liable for the damage to the basin and refers to item 1 c) of these submissions, above, in support of this position. The Applicant says that the inspection carried out on 11 October 2004, was some three months after the Respondent moved into the property, and relies on the statement of Amanda Hill as to the condition of the basin at the commencement of the Respondent's tenancy.
In response to paragraph 11
The Applicant alleges the vertical blind required replacement and refers to item 1 d) of the claim, above, and the statement of Amanda Hill in particular, in support of this response. The Applicant states that the annotation "a bit fragile" on the original condition report refers only to the clips on the blind, and not to the condition of the blind itself.
The Respondent has only provided "hearsay" evidence of the opinion of the "repairer in Fyshwick" as to the condition of the blind. This evidence is unreliable and should not be favoured over the evidence of Ms Hill.
The Applicant was never contacted by the Respondent in relation to the condition, repair or replacement of the blind.
The Applicant also relies on clause 73 of the tenancy agreement, imposing responsibility on the Respondent for the actions of people inside the premises at the invitation of the Respondent. This would include the 'helpers' referred to by the Respondent. The disposal of the blind by the Respondent, or those she is responsible for, has meant that the Applicant has no independent means of assessing the condition of the blind.
In response to paragraph 12
The applicant denies that the garden was returned in considerably better condition than at the start of the tenancy, and relies on the evidence of Ms Hill in this regard.
The Applicant relies on the letter she received from Mr Wisam Dib, a neighbour to the subject property, to refute the Respondents claims that the dogs were never left unsupervised in the garden. The letter from Mr Dib was the first notice the Applicant had of the presence of the two dogs at the premises. Based on the damage to the irrigation system, where bite marks could be clearly seen, the Applicant submits that the only plausible conclusion is that the dogs damaged the irrigation system.
In response to paragraph 13
The Applicant denies that the sheer curtain in the main bedroom was torn and threadbare at the start of the Respondent's tenancy, and refers to item 2 d) of the claim, above, in support of this position. The Applicant also lost the ability to inspect the condition of the sheer curtain, when it was removed from the premises at the end of the tenancy.
In response to paragraph 14
a) In response to Attachments, 2-4, the Applicant says that the fact that the Respondent may have employed people to clean the premises in the past is not evidence of the condition of the premises at the end of the tenancy, and whether it was substantially the same as the condition at the commencement of the tenancy (the only relevant consideration). In relation to Attachment 2, I Clean Carpets have not provided the invoices for carpet cleaning. In any event, I Clean Carpets have provided the Applicant with a condition report, which describes the condition of the carpet at the end of the tenancy.
b) In response to Attachment 5, the Applicant says that, without some indication of the condition of the premises after completion of the 9 hours performed by Belconnen Community service, the evidence provided from them is meaningless.
c) In response to Attachment 6, we note that this report was provided in June 2006 prior to the end of the tenancy (and presumably in support of the Respondent's application for new accommodation. The Respondent had difficulty in obtaining new accommodation (see Applicant's previous submissions). From this the Applicant is entitled to infer that the opinion of Mr Koochew was not given substantive weight by the Respondent's potential landlords.
There is no evidence that Mr Koochew has ever had the Respondent as a tenant. He is a family friend of the Respondent. He has given no details of how "regularly" he attended the subject premises. As such, he is not in a position to hold himself out as an impartial expert, who can express his opinion of this particular "tenant."
d) In response to Attachment 7, the Applicant says (in response to each numbered paragraph:
5. The Applicants deny that it was the flashing that caused damage to the property, but rather damage to the drainpipes and guttering. The Applicant denies that Mr Wells advised that the problem needed to be properly fixed. Rather, the Applicant, Tim Scorgie, says that he received a call from Mick Wells, advising him of the storm and how water had seeped in through an area of the roof. Mick told Tim that he had removed the leaves from a downpipe and in Mick Wells opinion "it fixed it", and if not he would let Tim know. The subject was never raised with the Applicants again, by either Mr Wells or the Respondent. The Applicants were never notified of further leaks to the sunroom.
6. The Respondent does not indicate when the storm caused water leaking into the house. This allegation is too vague as to time for the Respondents to comment. No complaint was ever made to the Applicants in relation to leaking into the house as a result of loose tiles. The Respondent denied that water had ever come into the house, when asked by Ms Scorgie.
7. In relation to renovations to the property, the Applicants say that they put on a new door knob at the request of the Respondent. Apart from this, and the peeling paint on the bathroom ceilings (which is admitted), the Applicants say that no further repairs were requested by either the Respondent or Mr Wells, and no further comments were made about the condition of the premises.
9. In relation to the remote control for the garage, the Applicant, Mr Tim Scorgie says that he called Mr Wells and advised that he would be dropping the remote over that afternoon. Mr Wells stated that he was going out, but would call Mr Scorgie back when it was a more convenient time to drop it off. Mr Wells never called back to arrange such a time.
10-13 The Applicants say that any work that Mr Wells may have done to the property was never notified to the Applicants (apart from painting to the bathroom ceilings). The Applicants further say that such work is irrelevant to the claim for damages made against the Respondent.
14. The Applicant asks the Tribunal to accept the evidence of Ms Hill over the evidence of Mr Wells in relation to the sprinkler system. The Applicants submit that Ms Hill has no reason to embellish the statement she has freely provided the Tribunal.
15. The Applicant again relies on the letter of Wisam Dib, neighbour, in relation to the dogs in the backyard. In respect of the rest of paragraph 15, the evidence provided proves a blatant breach, by the Respondent of the Tribunal's specific orders.
e) In relation to attachment 8, Ms O'Reilly provides no details of her "periodic" visits to the Respondent. She provides no time frame for the visits described in paragraph 5 (when she allegedly witnessed wet possessions). There is no basis provided to establish that Ms O'Reilly is a witness who can pass comment on the condition of the premises, such as that "the carpets had been professionally cleaned." There is no basis for Ms O'Reilly to opine on the condition of the premises. In the event that she is considered to be a witness who can express such opinion, the Applicants say that remarks that "the garden was the neatest (she) had ever seen" are unhelpful, unless they are provided in the context of the garden at the commencement of the premises.
f) The same objections are made to Attachment 9, as are raised above, at 14 e).
In response to paragraph 15
a) Attachment 10 is further confirmation of the Respondent's blatant disregard of the Tribunal's previous orders, and the wishes of the Applicant. The Respondent should have advised Ms Rae that she was not entitled, under her lease, to keep the puppy.
b) The Respondent provides Attachment 11, stating that it is relevant "only insofar as it explains why the respondent needed and received a good deal of support during her tenancy". The Applicants confirm their position (expressed in response at 14 (a) above), that the support itself is irrelevant, and all that matters is the condition of the premises at the end of the tenancy, compared to the condition at its commencement.
In response to paragraph 16 and 17
The Applicants deny that the return of the Condition report was conditional on the Applicants first conducting repairs to the property, and deny they provided the Respondent with any undertaking that they would perform such repairs at that time. The Applicants received a letter from the Respondent shortly after providing her with the condition report. In that letter, the Respondent says nothing about waiting until repairs have been undertaken, and instead advises that she will return it after she has "read it thoroughly, signed it and photocopied it." There is no evidence that the Respondent's decision to "wait until all the agreed repairs had been done and then annotate the Condition Report accordingly," was ever passed on to the Applicants. The Applicants say that this is because there was no agreement, on 11 October 2004, to undertake repairs.
The Applicants say that the fact that regular inspections were not undertaken by them is irrelevant to the principal question in this dispute: whether the property was left in substantially the same condition at the end of the tenancy as its condition upon commencement.
In response to paragraphs 18-20
The Applicant has now provided a disc to the Tribunal and the Respondent, which evidences when the photographs were taken.
The photographs were taken at a date or dates in time, so close to the end of the tenancy, that, on the balance of probabilities, the Respondent is the only feasible person responsible for the damage illustrated. It is simply inconceivable to suggest that the damage noted, in both the photographs and other evidence was caused in the days between the Respondent's departure and the days when the photographs were taken. The Respondent's attempts to suggest that "painters or fitters of curtains" could have been the cause of the evident damage is indicative of her failure to accept her obligations under the Tenancy agreement.
The Respondent did not return the keys to the Applicant until 16 August 2006. Until that time, the Respondent had unfettered access to the premises, to remove belongings (including a large amount of items left in the garage as at 11 August 2006). The Respondent advised the Applicants that she had organised people to assist the removal of her belongings in the next few days. The Applicants submit, that on the balance of probabilities, any further damage to the property, or dust added to it, would more likely than not have come from the actions of the Respondent, or those assisting her, rather than the limited actions of the Applicants up until the last photographs were taken on 30 August 2006.
As to paragraph 21
The Applicants say that there is strong evidence of urine stains. In addition to the Applicant's own observations (following visual and nasal inspection), a carpet cleaner has concluded that the stains found on the carpet are "possibly urine." The suggestion that the quotation to replace "animal urine damaged carpet" is speculation based on the instructions of the lessor, is in itself, pure speculation. The Applicants say that the quote provided by Supreme Carpet One, was based on the quoter's own assessment of the carpet, and not on anything the applicants told them.
The Applicants have the statement of Amanda Hill, to refute the Respondent's attempts to blame "the previous tenant, or even a different owner" for the condition of the carpet. Ms Hill confirms that the carpets "had no marks or stains" at the end of her tenancy. It was only the Respondent who owned one, and then two dogs, who were seen by witnesses inside the property. On the balance of probabilities, many of the stains on the carpet were caused by animal urine, from dogs owned by the Respondent.
As to paragraph 23 and 24
Mark Larmer is an experienced real estate agent, who is in a position to provide his expert opinion as to the loss in value of the property as a result of the condition of the premises.
It is patently obvious that Mr Larmer has a commercial interest in the sales price. This does not however, make him a witness with no credit. To the contrary, it is in Mr Larmer's interests to sell the property for as much money as possible. In his professional, experienced opinion, the property sold for less than it could have, had the property been in better condition.
The expression "had of had more emotional appeal to the buyers" needs to be looked at in the context of the rest of the sentence. In Mr Larmer's professional opinion, the house would have had more emotional appeal, had the "issues dealt with above" been dealt with before going to market (carpets cleaned, carpet in the sunroom replaced, painting done, home de-cluttered, outside cleaned up (including fixing the watering system).
71. The Tribunal is aware of the state of the housing market in Canberra as it deals with the issue as an element in rent increase application on a regular basis. Apart from the Tribunal’s own experience, the buoyant state of the Canberra housing market is common general knowledge from media sources and otherwise. The fact that the landlords obtained a quick sale and did not have to reduce the price at all suggests that house was probably undervalued in market terms. The fact that the house sold quickly for the asking price is not evidence that this price was its true market value any more than if the Government put the Lodge up for sale for $10.00 and obtained a quick sale without having to reduce the price. The fact of the matter is that neither the landlords nor the Tribunal now know what the true market value was.
72. The landlords had a duty to mitigate their losses. At the very least this would involve not engaging in a below market value sale of the house. The landlords had a right to engage in a sale for below market value if they wanted a quick sale for some reason. But the landlords cannot pass onto the tenant the cost of this decision which they made for their own reasons. A true mitigation of losses would require that the landlords have properly tested the market for the best market price.
73. A tribunal of fact must do the best it can with the evidence available to determine the level of damages. Mere difficulty is not a grounds for a tribunal not undertaking that task (Amann at 125; Sellars v Adelaide Petroleum N/L 1994 179 CLR 332 at 349). In the present case on the evidence before it, with recognition that the Tribunal is at times drawing on its own experiences and common general knowledge, the Tribunal is not satisfied that any reduction in sale price occurred due to any damage caused by the tenant to the property. Accordingly this item of the landlords claim is dismissed. In so far as the landlords did not incurred any costs for the replacement of the carpets and blind and did not suffer any reduction in the sale price, these items of the landlords claim are dismissed.
Those items which the landlord did in fact repair prior to the sale of the house in the sum of $3368.20:
74. The items falling into this category are the painting of the walls and ceiling in the sum of $1650.00; the replacement of the carpet in the sunroom in the sum of $1210.00; gardening in the sum of $247.00; the replacement of the sheer curtains in the master bedroom and bedroom 3 in the sum of $261.20.
The absence of the Condition Report:
75. The resolution of this item of the landlords claim is significantly frustrated by the absence of any agreed or executed In-Going Condition Report at the start of the tenancy. Prescribed terms 21-22 of the Act deals with the preparation of the condition report and requires as follows:
21. Within 1 day of the tenant taking possession of the premises, the lessor must give 3 copies of a Condition Report completed by him or her to the tenant. The Condition Report must be on, or to the effect of, the Condition Report form published by the Territory.
22. The tenant must examine the Report and indicate on the Report his or her agreement or disagreement with the items. The tenant must return to the lessor 2 copies of the Report as completed by him or her within 7 days of receiving it.
76. The tenant admits that the landlords gave her an In-Going Condition Report but that she did not annotate and return that report. The tenant offered an explanation for this omission on her part, namely that she was initially waiting for the landlord to do some agreed repairs and then she forgot about the Condition Report. The tenant should have annotated and returned the report as required by prescribed term 22 and any difficulties which now arise by reason of that failure on the tenant’s part are of her own making.
The painting of the walls and ceilings:
77. In their Statement of Particulars lodged with the application, the landlords asserted that the internal walls had been patched with non-matching paint by the tenant which necessitated that the internal walls be wholly repainted. The were newly painted at the commencement of the tenancy of Ms Amanda Hill in August 2003. The tenant admitted that she caused damage to the walls by hanging or affixing various items to the walls without the consent of the landlords which is a breach of prescribed term 68
68.The tenant shall not add any fixtures or fittings to the premises without the consent of the lessor. The lessor’s consent shall not be unreasonably withheld. The tenant shall make good any damage to the premises on removal of any fixtures and fittings. Any fixtures or fittings not removed by the tenant prior to the tenant leaving the premises shall become the property of the lessor.
78. The tenant said she had two goes at matching the paint and believes she succeed in a sufficient match.
79. Ms Anthony testified on behalf of the tenant that she was present at the final inspection on 16 August 2006. In her written statement she said she could not see any patch work of paint on the walls. She said that Mr Scorgie invited her to note the problem but even then she could not see it. However in oral evidence Ms Anthony admitted that she did notice some patches on the walls on 16 August. In oral evidence Mr O’Reilly said she personally cleaned the walls on 16 August and did not notice any patches. However Ms O’Reilly also said that she did not notice any stains on the carpets at that time. It is common ground between the parties that there were stains and raises a question concerning the credibility of Mrs O’Reilly’s evidence.
80. Mr King testified for the landlords. He was present at the inspection on 11 August 2006 but not at the final inspection of 18 August 2006. He noted the patchy paint on the walls and heard the tenant undertake to have another go at matching the paint. So much is agreed by the tenant.
81. The tenant admitted the initial unlawful damage to the walls and her unsuccessful attempt to repair the damage. The tenant admitted that she declined to have the walls wholly painted and attempted a second patch repair job. The Tribunal is satisfied that the paint patch was noticeable. The paint work was relative new, about 3 years old at the end of the tenant’s lease. The usual life span of a paint job for an investment property is about 7 years. Without any deduction for the fact that the landlords would have claimed a tax deduction for the 2003 paint job, the landlords have incurred the cost of bringing forward in time the replacement painting. If the new paint job cost $1650.00 then the Tribunal allows 4/7th of this cost which is $942.00.
The replacement of the carpet in the sun room:
82. In their Statement of Particulars lodged with the application, the landlords asserted that the damage to the carpets occurred because of a block downpipe which caused the flooding of the sunroom in January 2005. The tenant says that the damage was caused by flooding of sunroom which occurred in January 2005 whilst she was overseas seeking medical treatment.
83. The tenant relied upon the evidence of Mr Wells who was living in the garden flat at the back of the house at the time of the storm. He said that the noted that the flashing on the sunroom roof had come away allowing the water to enter the sun room. He said he did a temporary repair job and informed the landlords of the problem at the time. The landlords contend that Mr Wells in fact told them that the flooding had occurred from the down pipe being blocked by leaves which he removed.
84. The Tribunal has no reason to doubt the testimony of Mr Wells who was the only person to witness the cause of the flooding of the sunroom and the only person to investigate it. On the basis that the flooding occurred due to the flashing coming away from the roof, there is no negligent or deliberate damage attributable to the tenant. According this element of the landlords claim is dismissed.
Gardening costs:
85. In their Statement of Particulars lodged with the application the landlords asserted that the gardening costs arose from the dogs having chewed the irrigation tubing, the dogs having destroyed the lawn, a failure of the tenant to weed and the alleged damage to the clothes line by the tenant. The tenant denies her dogs chewed anything, she denied that they were left unsupervised in the back yard because the yard was unsecured and says that she left the yard in a much better condition than she found it at the start of the lease. The tenant said that the hills hoist clothes line was bend when she moved in.
86. Mr Wells testified that the hills hoist was bend when he moved in 2 months after the tenant had moved in. He said the yard was in a poor state and he took 4 one ton truck loads of debris to the tip, and he did extensive pruning of undergrowth. He said the grass was only tuffs and was otherwise dead. Mr Wells said the sprinkler system never worked at any time and the tubing looked old, dry and perished.
87. Ms O’Reilly and Ms Anthony testified on behalf of the tenant to the effect that they were present on 18 August 2006 at the final inspection and thought the gardens were neat and tidy.
88. Ms Hill only testified concerning the condition of the garden at the commencement of her lease and made no comment about the state of the gardens at the end of her lease. Ms Hill does comment that at the start of the Respondent lease the Respondent complained of the need to have weeding to both the back and front yards. Ms Hill said the hills hoist was in good condition at the end of her lease.
89. The evidence shows that at the start of the lease the tenant complained to the outgoing tenant, Ms Hill, that the gardens and yard needed weeding. Mr Wells moved in only 2 months later and found a mess which he put much effort into remedying. The tenant herself says the gardens and yard were not in good condition when she moved in and that she left the yard in a better condition than that in which it was received. The tenant’s helper at the final inspection said the yards were neat and tidy.
90. It is hard to know were the truth lies in cases such as the present, but the Tribunal is more persuaded by the evidence of Mr Wells. Given that the two months between the tenant moving in and Mr Wells moving in was in winter and during a drought, it is most unlikely that the profusion of overgrowth described by Mr Wells occurred in these two months.
91. Mr Wells says that the irrigation tubing was old, dry and perished and never worked. He said he did not see the dog chewing them. Given Mr Wells lived in the flat in the back yard he was in the best position to see if the dogs were causing mischief.
92. Ms Hill says the hills hoist was in good condition at the end of her lease. The tenant ways it was bent at the start of her lease and Mr Wells says it was bent when he moved in. There is no evidence that any one saw the tenant or her children handing off the clothes line or otherwise causing damage to it. The mere fact that the clothes line is bent does not of itself say anything about how it came to be bent. For example when the tenant first moved in there was another male person resident in the flat for a short period who could conceivable have caused the damage. The landlords bear the onus of proof to the civil standard and has not discharged that onus.
93. The Tribunal is not satisfied that the tenant has breached her duty to return the yard in the condition in which it was received minus fair wear and tear and therefore dismisses this element of the landlords claim.
The curtains:
94. In relation to the sheer curtains in the bedrooms the tenant says they were badly worn, torn and at the end of their life when she moved in. She took them down and put them in a cupboard. On the other hand the immediately prior tenant, Ms Hill, said the curtain were in good order at the end of her tenancy with the exception of one curtain in a bedroom whose hem had come down.
95. Whether the curtains were torn or not the tenant had a duty to return them at the end of the lease and not to discard them. The landlords are entitled to the value of the curtains. The curtains were plainly not new and it is admitted by the landlords that one hem had failed. The tenant is entitled to some discount for the “new for old” factor although the landlords are entitled to some margin for the time and effort they had to invest to obtain the replacement. Without wanting to go into unjustifiable small margins of guesswork the Tribunal is satisfied that the discount to which the tenant is entitled approximately cancels the margin to which the landlords are entitled. The Tribunal finds for the landlords in the sum of $261.20.
The water accounts of $762.55:
96. The issue relating to the water accounts concerns the relevance of the admissions by the landlords that they agreed with the tenant that she was not required to pay water consumption as long as she did her best to keep the garden alive. The landlords at no time during the tenancy presented the tenant with any water account for payment and now makes a claim for the whole of the water consumption for the whole of the tenancy.
97. Prescribed term 46 places the responsibility on the tenant for water consumed during the tenancy. But prescribed term 42(b) permits the landlords to agree with the tenant that the landlords will pay the water consumption costs. In the present case it is admitted by the landlords that a qualified agreement was reached to this effect and hence the reason the landlords did not present the tenant with any water accounts during the term of the tenancy.
98. The Tribunal has found as a fact that the tenant did not leave the yards in any lesser condition than the condition in which they were received. This would be a sufficient reason in itself to find that the tenant had complied with the qualification referred to above. But the landlords had the right to carry out periodic inspections of the house throughout the lease and if the landlords were of the view that the tenant was not complying with her obligation to do her best to maintain the garden alive having regard to the drought and water restrictions, then the landlords could and should have raised the issue at the time and rendered the water accounts due to that point in time. By taking no steps in this direction the landlords have induced the tenant to continue in the belief that she is not responsible for the water consumption. To give the tenant one large bill at the end of the lease after the relationship between the parties had broken down smacks of a retaliatory motive.
99. The Tribunal finds that the tenant is not required to pay the water consumption accounts.
The tenant’s counter claim
The tenant counter claim is for the landlords alleged failure to repair the water leak in the ceiling of the sunroom which first manifested in a storm in January 2005. The tenant contends that the landlord was put on notice of the problem by Mr Wells and failed to address the problem as a result of which she had only a limited use of the sum room from the time of her return from overseas on in June 2005 until the end of her lease in August 2006.
Mr Larmer says that he saw the sunroom being used for storage purposes. The evidence of Cathy Douglas, the tenant after the Respondent, says that there has not been any leaking in the sunroom since the commencement of her tenancy.
Mr Wells said he did temporary repairs to the flashing following the storm. There is no evidence that the roof has leaked since. It seems to the Tribunal that the tenant’s reservation about using the sunroom were probably of an emotional nature rather than any concern based in fact or evidence. The Tribunal accepts that the uncontradicted evidence of Mr Larmer on the point that the sunroom had in fact been used for storage.
The cross claim is dismissed.
Setting aside the order of 29 November 2006:
The tenant’s failure to attend at the first hearing is explicable on the basis of the Australia Post’s failure to give effect to the mail re-direct. It is true that the tenant should have provided the landlords with a forwarding address pursuant to prescribed term 99.
The criteria for setting aside an exparte decision was recently considered by the ACT Supreme Court in Eastman v Commissioner for Housing [2006] ACTSC 52 where Ryan J said:
21. Mr Crowe SC accepted that the considerations discussed at [18] to [20] above could warrant the setting aside of the Tribunal's orders of 26 November 2001. However, he contended that the Court should only take such a course if it were persuaded that, on a rehearing of the Commissioner's application, the Tribunal might reasonably have come to a different result; see Allesch v Maunz (2000) 203 CLR 172 where Kirby J observed, at [48]-[50];
`[48] ...... it is desirable, as it seems to me, to treat the considerations applicable to such decisions conceptually and to classify them as impinging upon the two criteria that have for a very long time been viewed as critical to an affirmative decision to set aside a judicial order made in default of the appearance of a party. These are:
(1) that an explanation, reasonable to the circumstances, is provided for the party's absence or other default; and
(2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order [Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239; Rosing v Ben Shemesh [1960] VR 173; Surfers Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australasia Ltd [1984] 2 Qd R 447; cf Macquarie Bank Ltd v Beaconsfield [1992] 2 VR 461].[49] If no reasonable explanation is given for the default, it is not an injustice to deny the party in default a second opportunity to be heard. That opportunity is taken to have been waived or forfeited. Nowadays, the consideration of the reasonableness of an explanation will take into account the legitimate interests of any other party affected by the court's order (including any innocent third parties) as well as the general public. The interests at stake include a general respect for the finality of judicial orders [DJL v Central Authority (2000) 74 ALJR 706 at 724-725 [90]; 170 ALR 659 at 684] and for the efficient management of judicial proceedings that is consistent with their fundamental objectives, including the attainment of justice [Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 172].
[50] Similarly, there will be no miscarriage of justice if the party affected by the impugned order cannot demonstrate an arguable case that reopening the matter might reasonably produce a materially different result which is more favourable to that party. If the process by which that order is made is flawed, but it is not shown that the outcome might reasonably be materially different, the party offended by the process may be upset by a sense of procedural injustice. However, upon analysis, that feeling will not find reflection in the ultimate disposition of the rights and duties of the parties with which the law is finally concerned. Correction concentrates on any supposed error in the ultimate judicial orders and not exclusively on the procedures leading to, or reasons given for, those orders.'
22. I am satisfied that the appellant has provided a reasonable explanation for his failure to appear before the Tribunal on 26 November 2001. Part of that explanation lay in delays experienced in the delivery of mail to and from the Goulburn Correctional Centre.
In the present case the tenant has given a good explanation for her failure to attend the previous hearing and demonstrated a strongly arguable case which the Tribunal largely accepts. For these reasons the decision of 29 November 2006 is set aside.
Conclusion:
The tenant is to pay the landlords the sums of:
(a) $300.00 for rent arrears
(b) $942.00 for painting of the walls and ceilings
(c) $261.20 for curtains
From this sum is to be deducted the $500.00 which has apparently been paid to the landlords from tenants bond leaving a balance of $1003.20 to be paid by the tenant to the landlords.
ORDERS
That the Respondent is to pay the Applicants the sum of $1003.20 on or before the 31 August 2007.
A. Anforth
Member
25 June 2007
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