Gallagher and Johansen v Whittaker (Residential Tenancies)
[2009] ACAT 42
•27 October 2009
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GALLAGHER & JOHANSEN v WHITTAKER (Residential Tenancies) [2009] ACAT 42
RT 620 of 2009
Catchwords: RESIDENTIAL TENANCIES – non payment of rent
Residential Tenancies Law and Practice in NSW, 4th ed, Anforth and Christensen at [2.25.3]
Tribunal: Ms J Lennard Senior Member
Date of Orders: 27 October 2009
Date of Reasons for Decision: 27 October 2009AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 620 of 2009
BETWEEN:
JOANNE GALLAGHER &
TORBEN JOHANSENApplicants/Lessors
AND:
MELANIE WHITTAKER
Respondent/Tenant
Tribunal:Ms J Lennard Senior Member
Date: 27 October 2009
ORDER
The Tribunal orders that the tenant is to pay an amount of $1972.36 to the lessor as follows:
-$1200 bond to be released to the lessor and the balance of $772.36 within 14 days of the date of this order.
The Tribunal further orders that:
1.The tenant is to pay the rental arrears of $1956.25;
2.The tenant is to pay compensation to the lessor in the amount of $866.11, made up as follows:
a.Compensation for cleaning costs $385;
b.Compensation for cost of rubbish removal $280;
c.Cost of replacing the mirror $42.26
d.Cost of replacing the towel rail $38.85
e.Cost of replacing the sliding door $120; and
3.The lessor is to pay the tenant an amount of $850 for loss of use and quiet enjoyment of the premises.
……………………………….
Ms L Crebbin
General President (ACAT)
For: Ms J Lennard (Senior Member)REASONS FOR DECISION
1.Ms Whittaker, with her joint tenant Michael Ward, entered into a tenancy agreement with the Applicant on 14 April 2004 in relation to premises at 4 Dempster Place, Kambah, ACT. This tenancy was terminated by agreement on or about 7 March 2007. Mr Ward moved from the premises and Ms Whittaker became the sole tenant. There were no formalities, except for striking out Mr Ward’s name from the existing lease. At a later time Mr Travis Coppin became a resident of the premises.
2.On 6 August 2009 the lessors through their agent, Sadil Quinlan Properties, served a notice to remedy for non payment of rent, in the required form. On 17 August 2009 the lessors’ agent served a Notice to Vacate. Application for a termination and possession order and payment of rental arrears was made to ACAT and the first hearing was on 2 September 2009.
3.At that hearing the tenant informed the Tribunal that the 2 September was to be her last day in the property, she had not received the Notice to Vacate and intended to dispute the rental arrears and /or file a counter claim. The matter was therefore adjourned to 28 September and the tenant was ordered to return the keys to the premises by 5pm on 2 September 2009.
Hearing 28 September 2009
4.The Lessors appeared and represented themselves, they were assisted by Ms Paxton and Ms O’Connell form Sadil Quinlan Properties. Ms Whittaker appeared and was represented by Mr Travis Coppin.
5.The lessors filed a statement of particulars and set out the claims as follows:
a)Payment of outstanding rent of $1956.25;
b)Compensation for:
I.Cost of changing the locks - $225
II.Cleaning of premises – $476.50
III.Removal of rubbish - $280
IV.Replacement of mirror - $42.26
V.Replacement of towel rail – $38.85
VI.Cleaning of gutters
VII.Damage to the sliding door - $120
6.Before hearing the counter claim ACAT dealt with each of the claims of the lessor as follows:
a)Payment of outstanding rent of $1956.25: the tenant agrees that rental arrears in that amount are owing and to pay them.
b)Cost of changing the locks - $225: the lessor argued that the tenant had been supplied with 7 keys at the commencement of the tenancy and had only returned 4. Further it was stated by Ms Paxton that the keys returned by the tenant were not able to be used to gain access to the premises. The tenancy referred to was that which commenced in 2004, and to which Mr Ward was a party. Ms Whittaker asserted that she had returned the only keys she had ever had; that she had raised the lack of keys to some locks and the difficulty in unlocking the doors with the lessor on many occasions. Mr Johansen gave evidence that he had had the locks changed to prevent the tenant from accessing the premises in order to remove rubbish or undertake cleaning or repairs. Ms Paxton stated that the locks had been changed for security reasons. It was however acknowledged that little had been done to ascertain what keys Ms Whittaker had, no request had been made of Mr Ward as to whether he had some keys still in his possession, and no steps had been taken to address the reasons why the keys returned by the tenant were unable to be used by the agent to gain access to the premises. In all the circumstances ACAT finds that the lessor should bear the cost of replacing the locks.
c)Cost of cleaning the premises – there was no report on the condition of the premises compiled at the time Ms Whittaker became the sole tenant. The parties indicated to the tribunal that they were each prepared to accept the contents of the report compiled when Ms Whittaker and Mr Ward commenced as joint tenants as a fair description of the condition of the premises at the time her sole tenancy commenced. This report dated 20/4/04 and signed by Ms Whittaker describes the premise as in a clean state, except for some dusty areas. ACAT notes that the tenants did not annotate or alter the report at the commencement of the joint tenancy. Inspection report by the agent at various times throughout the tenancy reveal that the premises were kept in generally fair condition, although on several occasions specific areas which needed cleaning were identified. For example on 23/10 /07 the oven, exhaust fan and carpets were identified as needing to be properly cleaned and a re-inspection was required. Photographic evidence of the state of the premises at the end of the tenancy show that while a considerable amount of cleaning had been done, the premises were not left in a reasonably clean state, nor in substantially the same state of cleanliness as the premises were in at the commencement of the tenancy, as required by clause 64(a) of the tenancy agreement. The lessor engaged Silver Cleaning Services to perform an end of lease clean, at a cost of $467.50. Taking into account the foregoing and the refusal of the lessor to allow the tenant access to the premises after the termination of the tenancy the tenants are liable to compensate the lessors for the breach of clause 64(a) in the sum of $385.00.
d)Removal of rubbish – the evidence before the tribunal included photographs, invoices and receipts for hire of bobcats, skips and removal of rubbish and tip fees. The tenants admit that there were a number of items to be removed, including a dog house, cubby house and old tyres. It was asserted by the tenants that some of the rubbish in the backyard was left behind by the previous tenant Michael Ward and that some of the untidiness was caused by paving work being only partially completed by the lessor [this is the subject of the counter clam discussed below]. The tenants gave evidence that they had removed a considerable amount of rubbish and debris from the back yard and that they had intended to do more but the lessor denied them access to the premises after 2 September. During the hearing on 28 September the tribunal indicated to the parties that more detailed evidence of what had been removed from the premises and what had been taken to the tip was needed. The lessors had undertaken renovations to the bathroom and garden and yards of the premises and the invoices from the ACT tip and recycling at Mugga Lane, dated variously from 15 to 29 September, describe only domestic loads. The tenants are liable to pay for the removal of the items they left behind, but not for waste created by the lessor in renovations and improvements to the premises and gardens. The total cost of all clean up done is in excess of $1000, but the lessors claim only the cost of rubbish removal on 10 September, in the sum of $280. In all the circumstances this is a reasonable claim and ACAT finds the tenants are liable to compensate the lessors in the sum of $280 for rubbish removal.
e)Replacement of mirror – the tenant admits that she broke the mirror and argues that the refurbishment of the bathroom made repair of the mirror unnecessary. The lessor stated that the broken mirror was a door to a vanity unit, which was replaced by a mirror, but that had it not been broken it would not have been relaced. The work done to the bathroom was retiling and painting, not a complete renovation. The tenant is liable to compensate the lessor for the cost of replacing the mirror in the sum of $42.26.
f)Replacement of towel rail the tenant conceded that she had broken the towel rail and agreed to pay the replacement cost of $38.85.
g)Cleaning of gutters – it was conceded that this was a cost to be born by the lessor.
h)Damage to the sliding door – the tenants agreed to pay the cost of $120 to replace the damaged door.
7.The tenant makes a counter claim which raises five issues:
a)The loss of use and enjoyment of the back yard and garden following uplifting of a paved area by the lessor in order to undertake necessary repairs. The tenant alleges that this area was not restored and claims compensation of $6090.00 being 25% of the rent paid during the period.
b)The inconvenience and health risks associated with a growth of mould in the laundry following flooding from an exploded hot water service the tenant claims $522.00 or 5% of rent for the relevant period.
c)The inconvenience and health risks caused by a leaking tap in the bathroom and consequent lack of storage space due to the vanity being wet and mouldy - the tenant claims $2661.60 or 8% of the rent for the relevant period.
d)The inconvenience and lack of amenity caused by a faulty oven – the tenant claims an amount of $500.00.
e)The cost to the tenant of patching and repainting walls - $1320.00.
8.The claim in relation to items b), c) and d) above were not made out by the tenant. There was no evidence that she had drawn the need for repair and/or maintenance of these items to the lessors’ attention. The agent for the lessor gave evidence that there had been no phone calls and that these items were not mentioned during routine inspections. The tenant asserted that she had mentioned each item to the lessors on numerous occasions but the lessors denied this. The lessors ‘obligation to undertake repairs is not to be doubted, but the tenant must draw the need for these repairs to the lessors’ attention. The issues complained of were said to be longstanding but the tenant had not made any effort to assert her rights. In failing to make the need for repairs known to the lessor the tenant allowed the condition of the laundry and the bathroom to deteriorate.
9.The lessor’s duty to repair premises is an obligation arising as a matter of contract and is found in the Residential Tenancy Agreement at clause 55:
I.The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement.
II.The tenant must notify the lessor of any need for repairs.
The authorities support the proposition that a lessor’s duty to repair is dependent on notice: Residential Tenancies Law and Practice in NSW, 4th ed, Anforth and Christensen at [2.25.3]. the tenant has failed to give the necessary notice, and so the application for relief based on a failure to repair or maintain is dismissed.
10.The issue raised in item e) above is that the lessors had unlawfully required the tenant to make improvements to the premises. The evidence before the tribunal was that the painting and patching work had been made necessary by the damage to the walls caused during the tenancy. The tenant has failed to make out her claim on this issue.
11.In November 2007 the lessor had caused the paving in the back yard of the premises to be uplifted so that necessary repairs to sewerage pipes could be carried out. The repairs took approximately 2 days and some of the pavers were re-laid, but many were left lying around the yard. The lessor gave evidence that it would be necessary to remove a tree from the back yard prior to relaying all pavers and that he could not afford to do this. There was evidence from the tenant that the lessors promised to complete the paving on many occasions. The lessors were at one time in the tenancy frequent visitors to the premises and the need for the completion of the work was evident. Mr Johansen asserted that he was not able to complete the paving work because there was rubbish in the back yard. The tribunal was not persuaded by his evidence and formed the view that as the relationship between the parties altered from friendly to difficult the lessors could not be bothered to complete this work.
12.The failure by the lessor to complete the paving work removed a great deal of use and enjoyment of the premises. The yard was unattractive and dangerous and so could not be used either a play space for the tenants’ children or as an area for entertaining guests and general relaxation. The lessors are liable to compensate the tenants in the amount of $850 for the loss of amenity.
I certify that the preceding seven (7) numbered paragraphs
are a true copy of the Reasons for Decision herein of MemberLennard of the ACT Civil & Administrative Tribunal
………………………………
Ms L Crebbin
General President (ACAT)
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: RT 09/620
APPLICANT: GALLAGHER & JOHANSEN
RESPONDENT: WHITTAKERCOUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT: SELF
RESPONDENT: SELF
TRIBUNAL MEMBER/S: MS J LENNARD Senior Member
DATE/S OF HEARING: 28 SEPTEMBER 2009PLACE: CANBERRA
DATE/S OF DECISION: 27 OCTOBER 2009 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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