Gedeon and Anor v Bason and Anor (Appeal)
[2018] ACAT 13
•19 February 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GEDEON & ANOR v BASON & ANOR (Appeal) [2018] ACAT 13
AA 45/2017 (RT 623/2017)
Catchwords: APPEAL – residential tenancies – bond dispute – lessors awarded amount of money in compensation for some expenses to restore rented premises to reasonable condition – appeal against orders of Tribunal – former tenants dispute claims for compensation – whether tenants were afforded procedural fairness at initial hearing – role of Appeal Tribunal – whether open to Original Tribunal to make findings and orders on evidence at the hearing
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 8, 26, 30, 82
Administrative Appeals Tribunal Act 1975 (Cth) s33
Residential Tenancies Act 1997 ss 29, 30A, 31
Cases cited:Minister for Immigration andMulticultural Affairs v Eshetu (1999) 197 CLR 611
Sarbandi v Sharif [2017] ACAT 57
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
List of
Texts/Papers cited: Hon Justice Duncan Kerr, ‘Keeping the AAT from becoming a court,’ AIAL (NSW) Seminar, 27 August 2013
Tribunal: President G Neate AM
Date of Orders: 19 February 2018
Date of Reasons for Decision: 19 February 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 45/2017
BETWEEN:
SUHEIR GEDEON
First Applicant
SAMER GEDEON
Second Applicant
AND:
LEIGH BASON
First Respondent
SHANNON BASON
Second Respondent
TRIBUNAL: President G Neate AM
DATE:19 February 2018
ORDER
The Tribunal orders that:
1.The appeal is dismissed.
2.Order 3 in RT 623/2017 made on 17 November 2017 is varied by deleting “1 December 2017” and inserting “6 March 2018.
………………………………..
President G Neate AM
REASONS FOR DECISION
1.Leigh and Shannon Bason (the lessors) own a residence in Monash in the Australian Capital Territory (ACT). They purchased it as a new building and lived there for four years. Samer and Suheir Gedeon (the tenants) entered into a lease of the residence for four years from 3 August 2013. The lease came to an end on or about 10 May 2017 when the tenants vacated the premises.
2.On 21 July 2017, the Rental Bonds officer of Access Canberra advised the ACT Civil and Administrative Tribunal (the Tribunal) of a dispute between the parties about the claim for a refund of the bond of $2,400.00 in relation to that property. The dispute was listed for hearing, and the parties were directed to provide specified types of documents to the Tribunal and each other. In their ‘Application for Resolution of a Dispute’ under the Residential Tenancies Act 1997, the lessors sought to recover the amount of $8,243.01 which they alleged was owed to them by the tenants. The lessors provided an itemised list, described as a summary of end of lease expenses that they said they had incurred to a total of that amount.
3.At a hearing on 17 November 2017 (the previous hearing), a senior member of the Tribunal (the Original Tribunal) heard evidence and submissions from the lessors and the tenants. On the basis that some items were not pursued or were disallowed, and some were allowed in whole or in part, the Original Tribunal ordered, in summary, that:
(a)the tenants pay the lessors the sum of $6,082.16;
(b)the Office of Rental Bonds release $2,400.00 to the lessors to be credited against the sum in the previous order; and
(c)the tenants pay the balance of $3,682.16 to the lessors on or before 1 December 2017.
4.The tenants appealed the decision of the Original Tribunal and submit that the claim by the lessors should be dismissed. In written submissions to the Appeal Tribunal, the tenants expressly “refute all claims made by the Lessor” and contend that the correspondence and invoices provided previously to the Original Tribunal “clearly demonstrates” the tenants’ claim that the lessors have “wilfully misrepresented, conflated and attempted to mislead” the Tribunal about the issues in their application and at the previous hearing. At the hearing of the appeal, Ms Diana Rahman OAM, who appeared on behalf of the tenants, expressly refuted everything put by the lessors.
5.On 18 December 2017, on the application of the tenants, the Tribunal stayed the orders of 17 November 2017 and directed each party to file with the Tribunal and provide to the other party specified documents including written submissions. The hearing of the appeal before the Tribunal as presently constituted (the Appeal Tribunal) proceeded as a review of the decision of the Original Tribunal.
Background and brief chronology of events
6.The lease was dated 1 August 2013 and the tenants occupied the premises for almost four years. Apparently, any practical matters involving the lessors were dealt with amicably, and there appear to have been no disputes between the lessors and the tenants for much of the lease period. Ms Bason described the relationship as “friendly” and said there were “no issues with the property.”
7.On 9 March 2017, the lessors inspected the premises at about 2.00pm in the absence of the tenants.
8.On 13 March 2017, the lessors sent an email to the tenants referring to that inspection and stating that the lessors were “very disappointed in the state of the property.” The email referred to attached photos and descriptions of “what work needs to be carried to have the property to an acceptable standard.” The lessors stated their willingness to give the tenants “three weeks to have all damage rectified and and (sic) general cleaning carried out” and advised that the lessors would be carrying out a follow-up inspection on Saturday, 1 April 2017 at 2:30pm. The email concluded with a list of tasks to be undertaken inside the house, on the front deck, and in the back yard and front yard.
9.On 1 April 2017, the lessors inspected the premises in the presence of the tenants who informed the lessors that they intended not staying beyond the current lease period.
10.On 5 April 2017, the lessors sent the following email to the tenants:
Hi Sam,
This is a follow up email about our discussions on Saturday 1/4/17.
Shannon and I both appreciate the effort that you have gone to in regards to getting the property back to the state it was handed over to you, however, the quality of the work carried out is not up to an acceptable standard as the plastering is still visible, the painting has been applied with a roller for gloss work where a fine brush should have been used. We spoke about these points and we both agreed that it has to be re done by a qualified tradesmen in order to bring the finish back to the standard in which it was handed over to you originally.
I will let you know when my painter is available to provide you with a quote to carry out this work.
We also discussed that we are both happy to terminate the lease early provided that we give the other party at least 4 weeks’ notice, this will depend on our situations as to who gives who notice.
Kind regards,
Leigh Bason
11.On 7 May 2017, a painter engaged by the tenants repainted some areas inside the house at a cost which was paid by the tenants and not passed on to the lessors.[1]
[1] However, the Invoice #00237 attached to their written submission of 12 January 2017, is the same invoice as they attach to the table form of submissions which the tenants state is the invoice to the lessors for the cost of subsequent repainting. The invoice is addressed to the attention of Leigh and Shannon Bason
12.On 10 May 2017, the tenants vacated the premises and handed keys to the lessors.
13.On 13 May 2017, at the request of the lessors, Mr Gedeon attended the premises with an acquaintance who is a paint contractor to check on the painting.
14.On 25 June 2017 the tenants contacted the Rental Bonds office for the return of their bond money.
15.On 21 July 2017, the Rental Bonds officer advised the Tribunal of a dispute between the parties about the claim for a refund of the bond of $2,400.00 in relation to that property.
16.On 4 October 2017, the lessors filed an ‘Application for Resolution of a Dispute’ under the Residential Tenancies Act 1997 seeking $8,243.01.
17.On 17 November 2017, the Original Tribunal heard and determined the lessors’ application and made the orders summarised at [3].
Grounds of appeal
18.The application for appeal listed as issues that the tenants would like to appeal:
- Water rate
- Lawn
- Cleaning
19.The application for appeal made it clear that the issues were not limited to those matters and advised that the tenants were awaiting transcript of the previous hearing and reasons and grounds for the decision to provide further details. The document continued:
Also, english is a second language of the respondent and they did not understand their rights and the process. They need to organize legal help. (Errors in original)
20.Documents filed on behalf of the tenants on 2 and 12 January 2018 in response to directions of the Tribunal identified the issues in relation to the following matters as the grounds submitting that the appeal should be allowed and the original application by the lessors should be dismissed:
(a) Ingoing condition report.
(b) Lease inspections.
(c) Final inspection and condition report.
(d) Releasing of bond.
(e) Lawns.
(f) Blinds.
(g) Painting.
(h) Cleaning.
(i) Keys.
21.At the hearing of the appeal, the tenants’ representative, Ms Rahman advised that the table provided to the Tribunal and the lessors on 12 January 2018 was an expanded version of the document provided previously and formed the basis of the tenants’ submissions.
Conduct of the appeal
22.As noted earlier, the hearing of the appeal proceeded as a review of the decision of the Original Tribunal.[2] Accordingly, the parties referred the Appeal Tribunal to documents, photographs and submissions before the Original Tribunal, as well as submissions and supporting material relevant to that review.
[2] As distinct from dealing with the appeal as a new application or hearing de novo. See ACT Civil and Administrative Appeal Tribunal Act 2008 section 82(a)
23.The tenants were represented by Ms Rahman. The lessors appeared in person on their own behalf, with Ms Bason as the primary spokesperson.
Procedural fairness in the conduct of the proceedings before the Original Tribunal
24.In their letter dated 12 January 2018, the tenants submitted that “there has been a degree of procedural unfairness which has placed us at a legal disadvantage.” Later in that letter they expressed concern that the Tribunal process had “not functioned in a fair and reasonable manner” in various specified ways. Some of those ways concerned the use by the Original Tribunal of certain contested documents as evidence (a matter dealt with elsewhere in these reasons for decision). The tenants also stated that:
(a)they attempted to inform the Original Tribunal in their “limited English” that they did not have any prior knowledge or awareness of any of the matters raised by lessors;
(b)the Original Tribunal did not properly consult them in reference to the lessors’ claims but rather assumed those claims were prima facie correct;
(c)the Original Tribunal permitted the lessor to ask the tenants questions many times;[3] and
(d)the lessors were permitted to run the hearing to such an extent that the lessor made the decision to move erratically from the topic of water rates to lawns and the Original Tribunal agreed.[4]
[3] See transcript of proceedings page 66
[4] See transcript of proceedings page 79
25.On that basis, the tenants submit that the entire hearing and subsequent process has been procedurally unfair to them.
26.The tenants’ written submission states that they provided the Original Tribunal with “many issues” in response to the lessors that were not discussed or taken into consideration during the 17 November 2017 hearing. The tenants submit that they were not given sufficient opportunity to respond sufficiently to the lessors’ claims.
27.At the hearing of the appeal, Ms Rahman confirmed that submission, suggesting that the tenants felt “completely overwhelmed” and “out of place” as they were unsure of how the Tribunal operates and their English was not very good.
28.In reply, the lessors note that they also were not aware of the Tribunal process and it was new to them. They submit that there is no unfairness to one party if neither party has been through the Tribunal process. They also note that Mrs Gedeon was employed at a diplomatic delegation which would require proficiency in English. (At the hearing before the Original Tribunal Ms Gedeon said “We are diplomats.”[5]) The lessors also advised the Appeal Tribunal that they had no difficulty communicating with the tenants by phone, text or email during the term of the lease.
[5] See transcript of proceedings page 60
29.The ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides that access to the Tribunal is to be “simple and inexpensive for all people who need to deal with the tribunal” (section 6(b)), and the Tribunal must ensure that its procedures are as “simple, quick, inexpensive and informal as is consistent with achieving justice” (section 7(a)). Although section 30 of the ACAT Act allows legal representation, it expressly provides that a person may appear in person in relation to an application before the Tribunal. It seems that the Legislature intended the Tribunal to be utilised almost entirely by self-represented litigants. For the Tribunal to be accessible to “all people” who need to deal with it, such individuals should be able, and feel able, to effectively represent themselves.
30.In preparing these reasons for decision I read the entire transcript of the proceedings before the Original Tribunal to assess whether the hearing was conducted consistently with that statutory scheme, as well as to assess whether the grounds of appeal were made out.
31.The two passages of transcript referred to in the tenants’ submissions (noted at [24] (c) and (d)) do not prove the points made in those submissions. First, the Original Tribunal did not permit the lessors to ask the tenants questions many times. The previous hearing was not conducted in a court-like manner. Witnesses were not sworn or affirmed to give evidence, and questioning did not proceed in turn in a court hearing way. Rather, the Original Tribunal proceeded in an informal but guided way to deal with each issue. The parties answered her questions and sometimes had exchanges with each other. At the stage of the hearing referred to in the tenants’ submissions, there was an exchange between the parties that established the extent to which they disagreed about whether, when, how and by whom blinds were cleaned and painting was done. At that point, the Original Tribunal intervened and said:[6]
Let’s not go there. We can go into these minute bits of evidence all you’re going to end up doing is being upset at the end of the day. I’ve just got to make a decision on the facts.
[6] Transcript of proceedings page 67
32.Second, the lessors were not permitted to run the hearing and change the topic from water rates to lawns. The reason the topic changed at that stage in the hearing was that the Original Tribunal (not the lessors) was questioning Mr Gedeon about the water bills because she did not want to “make a decision about that without more information.”[7] At that point, Ms Bason suggested they move on to the next thing and the lessors agreed to withdraw the claim to water charges. Consequently, no decision was required in relation to water charges. It was appropriate to consider the disputed claim in relation to the lawn.
[7] Transcript of proceedings page 79
33.Nor do the two passages cited by the tenants give a complete picture of the way in which the hearing was conducted by the Original Tribunal or the nature and extent of the tenants’ participation in the hearing.
34.The transcript records numerous instances when each or both of the tenants replied to questions asked by the Original Tribunal,[8] responded to issues raised by the Original Tribunal,[9] and engaged in exchanges with the lessors.[10] Indeed there are few pages of transcript that do not record statements made by either or both of the tenants. They intervened as they thought appropriate to clarify something or raise an issue. For example, Ms Gedeon asked if she could make a comment on a matter being considered[11] and if they could see particular photographs to ensure that the participants were looking at the same pictures.[12] At one stage, Mr Gedeon sought permission to leave briefly.[13]
[8] See transcript of proceedings pages 3, 5, 7, 8, 9, 10, 12, 13, 21, 24-25, 30-31, 35, 36, 44-46, 48-49, 51-52, 56, 58, 60, 69-73, 75, 77, 78-79, 86, 89, 90, 102, 108-109, 120-121, 123
[9] See transcript of proceedings pages 4, 6, 10, 16, 32, 36, 38, 41, 46, 48, 51, 52, 57, 63-64, 68, 79, 83, 87, 99-100, 114-116, 118-120
[10] See transcript of proceedings pages 14-15, 16-17, 19, 23, 27-28, 29, 31-32, 33, 39, 40, 45, 46-47, 49-51, 53-54, 57, 60-61, 66-67, 73-74, 75, 80-82, 84, 86-87, 89-90, 92-93, 95-98, 100-108, 109-110, 117-119, 122-127
[11] Transcript of proceedings page 41
[12] Transcript of proceedings page 45
[13] Transcript of proceedings page 112
35.The Original Tribunal explained to the parties the respective obligations of tenants and lessors in relation to specific matters in issue, on her own incentive or in response to questions. After the Original Tribunal cautioned the parties against going into “minute bits of evidence” so that they might end up “being upset at the end of the day” and had reminded them that she had to “make a decision on the facts,”[14] the following exchange occurred:[15]
[14] Transcript of proceedings page 67
[15] Transcript of proceedings page 68
MR GEDEON: Yes. Sorry, may I ask a question?
SENIOR MEMBER
LENNARD: Yeah.
MR GEDEON: I don’t know tenancy law. I don’t know anything but is the landlord allowed to ask me to paint the whole house?
SENIOR MEMBER
LENNARD: I’m going to come to that.
MR GEDEON: Yeah.
The issues around painting were dealt with in detail later in the hearing.[16]
[16] Principally at transcript of proceedings pages 102-106, 113
36.There is no evidence of an inability to communicate effectively in English. When discussing the state of the garage, the following exchange occurred:[17]
MR GEDEON: There was a flood over there. It was – what do you call it?
MS GEDEON: Flooding.
MR GEDEON: Sorry about my English, but …
[17] Transcript of proceedings page 46
37.A similar exchange occurred later in connection with the lawn, trees and garden:[18]
MR GEDEON: Every two weeks I was mowing the trees and ---
MR BASDON: Mowing the trees?
MR GEDEON: Mowing the garden. Sorry, my mistake.
MS GEDEON: It’s okay. English is our second language. Please don’t make fun.
[18] Transcript of proceedings page 86
38.These minor lapses were readily remedied. It is clear from those passages and the surrounding statements by Mr Gedeon that he was able to communicate fully his concerns or recollections of the state of specific parts of the premises at relevant times and of specific events.
39.I accept that the tenants probably felt some apprehension and uncertainty before and during the hearing, and some awkwardness about their perceived lack of fluency in English. However, the overall impression is that the tenants engaged with each other, with the Original Tribunal and with the lessors throughout the hearing. Whatever unease or uncertainty they felt at the time, it is clear that they participated fully and communicated effectively in the hearing. The fact that they are dissatisfied with the outcome of the hearing does not mean that they were denied procedural fairness.
40.It is also clear from the transcript that the Original Tribunal was operating under time constraints that are not uncommon in this Tribunal and other comparable tribunals. The hearing commenced at 10.13am. It concluded at 12.18pm. Relatively early in the proceedings the Original Tribunal stated that she was going to conduct a hearing and that she would ask questions to obtain information. She advised the parties to talk to her rather than talk to each other “because if you just argue across the room it will come to 12 o’clock and I’ll adjourn the matter to another day. I’m sure you’d all like to get through it today, so let me just follow my usual process.”[19]
[19] Transcript of proceedings page 17
41.The Original Tribunal explained to the parties that she had looked at the files and the photographs and that, before she made any decision, the parties should draw to her attention anything else that they thought she should consider.[20] She then proceeded to hear evidence and submissions from the parties in relation to each of the matters in dispute.
[20] Transcript of proceedings page 17
42.At a later stage of the hearing, the Original Tribunal advised the parties that she might have to adjourn the matter as she had another matter listed for 12 o’clock. However she also indicated that she was “prepared to go 15 or 20 minutes over” and stated “I appreciate, absolutely, if you don’t want to come back.… But on the other hand I don’t want to rush … so that I don’t do things properly.”[21] The lessors expressly, and the tenants implicitly, agreed to continue. The hearing concluded with a decision being made by 12.18pm.
[21] Transcript of proceedings page 68
43.As to the suggestion that the tenants were disadvantaged through lack of knowledge of how the Tribunal proceedings operate, the transcript indicates that the Original Tribunal made it clear how she would proceed and, as appropriate explained the respective obligations of tenants and lessors to provide the framework for considering the evidence and deciding each claim for compensation. In any case, I accept that the lessors were equally inexperienced in relation to Tribunal proceedings. Each side represented themselves and acquitted themselves appropriately. The Original Tribunal guided the parties in a methodical way through a series of items of claimed costs and, at appropriate times in the proceedings, reminded the parties that she could only proceed on the basis of evidence before her. The Original Tribunal summarised the applicable law to explain the basis on which she accepted (in part or in whole) or rejected claims in relation to specific costs incurred by the lessors.
44.Having read the transcript, I am satisfied that the Original Tribunal afforded both parties procedural fairness.
Other grounds of appeal considered individually
45.In documents filed with the Tribunal and the submissions made at the hearing of the appeal, the tenants identified issues in relation to matters listed at [20] as the basis for submitting that the original application by the lessors should be dismissed. The lessors responded in writing.
46.As each item was dealt with in some detail by the Original Tribunal and by each party at the hearing of the appeal, it is appropriate for the Appeal Tribunal to consider each ground carefully.
Ingoing condition report
47.The tenants submit in writing that:
(a)they do not recall receiving the ingoing condition report, but do recall receiving the photos on the CD;
(b)all the documentation was in the name of the agent, and there was confusion because the lessors “dismissed” their agent on the day the lease was signed and the tenants were told to deal with the lessors from then on;
(c)the Original Tribunal criticised the lessors for submitting a document that did not have a tenant’s name or signature on it, did not include a water meter reading, and was not signed by the lessors; and
(d)the tenants did not agree with the document said to be the ingoing condition report; and
(e)the Original Tribunal stated that she would not take the document at face value.
48.On that basis, and the tenants submit:
The ingoing condition report should not be accepted as a valid document as we never agreed to it, it does not have our name on it, nor did we sign it, nor did the lessors sign it and it does not have the water meter reading either. The deficiency or idleness of the Landlord in lieu of employing an agent to follow up and complete the report fully invalidates all the Lessor’s claims.
49.I will deal with each of those submissions. First, the parties accepted at the appeal hearing that at the start of the lease the tenants were given a document (presumably the ingoing condition report) together with a disc containing approximately 1,900 photos of the rented premises. That concession is hardly surprising given that the tenants signed a document receipt form dated 3 August 2013 acknowledging that they received, among other things, “Condition and Inventory Report x2” and “Condition and Inventory Report Photographs”.[22] Clause 13 of the lease stated:
13-CONDITION REPORT:
The tenant agrees to return a signed and agreed copy of the written condition and inventory report to the agent within 14 days of receiving it. Should the tenant fail to submit the report signed and agreed within the 14 day time frame – then the agents (sic) initial comments on the condition become binding.
[22] See also the tenants’ oral evidence that they received a condition report when they moved into the premises, and that the report explained to them that they were obliged to return it in two weeks, transcript of proceedings pages 2-3, 5
50.Despite:
(a)the requirement of section 29 of the Residential Tenancies Act1997 that a lessor must give the tenant two copies of a report about the state of repair or general condition of the premises and the tenant must, within two weeks after receiving the report, return one copy of it to the lessor (signed or endorsed with a statement);
(b)the statement in the lease that the tenants agreed to return a signed and agreed copy of the written condition and inventory report to the agent within 14 days of receiving; and
(c)the agent explaining that obligation to the tenants[23]
[23] Transcript of proceedings page 5
they did not do so. They have since been unable to locate the document. Mr Gedeon told the Original Tribunal that he lost it when moving house and had not received another copy of it.[24] However, the tenants received and retained the disc of photographs.
[24] Transcript of proceedings pages 4-5. At the hearing Ms Rahman said that Mr Gedeon also lost the lease and asked the lessors for a copy of it
51.In summary, the tenants did not return the condition report to the agent or the lessors within the 14 day time frame. The contractual consequences of the tenants not submitting the condition report within 14 days of receiving it are clear.
52.Second, the claim that the lessors “dismissed” their agent on the day the lease was signed cannot be supported. At the hearing of the appeal, Ms Bason said that the agent had been engaged as letting agent only and that the lessors took over the management of the property. That much is clear from the lease signed by the tenants on 3 August 2013 which set out the agent details and continued:
INSTRUCTED BY THE OWNER AS A LETTING AGENT ONLY – ALL DAY TO DAY MANAGEMENT WILL BE HANDLED BY THE OWNER MR L BASON AND MRS S BASON
53.If there was any confusion about who the tenants were to deal with, it seems that was resolved early in the term of the lease. The tenants contacted the lessors about some maintenance issues, and the relationship between the tenants and the lessors appears to have been amicable for some years.
54.Third, in support of their submission that the ingoing condition report should not be accepted as a valid document, the tenants quote the Original Tribunal as saying in the hearing, “I’m not satisfied that this is the condition report that was handed out because it’s not signed.”[25]
[25] Transcript of proceedings page 15
55.That quote needs to be considered in the context of the Original Tribunal’s other statements at that stage of the hearing, and the statutory provisions governing how the Original Tribunal was to operate. The issue was not whether the tenants had received an ingoing condition report, but whether the document produced to the Original Tribunal was that document and, if it was, whether the document accurately described the condition of the property at the start of the lease.
56.By that stage of the hearing, the Original Tribunal had expressed concerns about the absence of a signed and fully completed ingoing condition report and had heard from the tenants and the lessors about the condition of various items when the lease commenced. Having heard Ms Bason say that “it’s all in the condition report,” the Original Tribunal replied:[26]
I understand that, but the thing is I’m not satisfied that this is the condition report that was handed up because it’s not signed. I now have to determine how much weight I put on it. So I asked the tenants, “you give me a description.” Now, if their description accords with the condition report – so for instance, the photo shows there was one vent dirty, the condition report shows there was one even dirty. That means I can put more weight on the condition report than otherwise. … I don’t say, and I don’t want to be heard to say, that you didn’t give them a condition report. They clearly acknowledge that they got one, and I don’t say that I think this isn’t it. It’s just I have to be careful because … if it was signed, I wouldn’t be asking these questions. I’d be saying, “That’s it, I can rely on that. That’s what the landlord gave you and if you didn’t look at it and sign it and send it back, that’s too bad for the tenant,” but because I haven’t got that actual information, I’m just testing the evidence to be sure...
[26] Transcript of proceedings page 15
57.Earlier in the hearing, the Original Tribunal expressed clear reluctance to rely on an ingoing report which did not have the names of the tenants, the signature of the parties or a water meter reading.[27] She explained the parties why she wanted that document and the inadequacies of the document presented to her. She stated:
If you’re asking me to look at the condition of the premises at the end of the tenancy and compare to the condition of the premises at the beginning of the tenancy, you have to provide the evidence of the condition at the beginning of the tenancy, and I don’t know what it is.[28]
[27] Transcript of proceedings pages 2-6
[28] Transcript of proceedings page 6
58.The Original Tribunal referred to her experience in dealing with such matters and her practice not to accept at face value evidence of that type.
59.The Original Tribunal was taken to the residential tenancy agreement which was signed by both parties and (as noted earlier) states that they signed for the condition and inventory report and a copy of the disc with the condition and inventory report photographs and that they had two weeks to return the report and indicate whether they agreed or disagreed with the report or parts of the report.
60.The Original Tribunal sought evidence of what the tenants received. She asked them to look at the document which was provided by the lessors and tell her whether they thought it looked like the condition report they received and whether they agreed that the description under the ‘General Comment’ on each page in relation to each area corresponded to the condition of the premises on the day they took possession of it.[29] Mr Gedeon replied:
I remember I got something like that but I didn’t sign it, for sure. But we don’t agree of course with the general comment what is written here.
[29] Transcript of proceedings page 7
61.When the Original Tribunal asked whether the real estate agent explained to the tenants that the purpose of the condition report was for them to see whether they agreed with it and sent it back, Ms Gedeon said:[30]
That was four years ago. We cannot remember details but we remember that we were in a hurry to get into the house because we had little kids and they had to go to school and we were so overwhelmed with settling down as fast as we could. We noticed that there were certain issues that we didn’t want to go back to the tenants (sic) and bother because we just wanted to settle down and that’s what we had … We did not really bother - or because we didn’t read - I mean which says everything is, “Excellent, excellent, excellent,” because we had here (indistinct) that were broken but we didn’t bother about that.
We mentioned in our report there were a few things that were an issue but we didn’t really go back and say there’s a problem because all we wanted at that time is to settle down as soon as possible with two little kids and to provide them …
[30] Transcript of proceedings pages 7-8
62.The Original Tribunal explained to the parties that she was in the situation where the tenant said the report does not quite match what condition of the premises was when they moved in and asked what evidence they had of that. Both the tenants referred to the photographs which, in Ms Gedeon’s words “were taken from the ingoing photo CD that was given to us” and “show that some of the condition of the house is given to us by the tenant (sic) in the ingoing …”[31] The Original Tribunal then considered various photographs with the parties noting things such as marks on a wall, something on the oven and faded carpet. She said:[32]
What I’m looking for here is how much weight I can put on the unsigned condition report and so I need to be able to look at what photos are of and look at what’s on the condition report.
[31] Transcript of proceedings page 8
[32] Transcript of proceedings page 11
63.In addition to making that comparison, she asked the tenants to describe the condition of the premises when they moved in. Mr Gedeon said it was “okay.” When asked by the Original Tribunal, he described the state of the walls, windows, garage, and laundry.[33] Ms Gedeon described other items.[34] The lessors also made observations about particular matters.
[33] Transcript of proceedings pages 12-13
[34] Transcript of proceedings page 13
64.Although the situation was not ideal, the Original Tribunal was entitled to seek information in order to decide whether to give any weight to the document. As noted earlier, the Original Tribunal observed that, if the tenants’ description and the photographs accord with the condition report handed up, “That means I can put more weight on the condition report than otherwise.”[35] She reiterated that if they had a signed ingoing condition report she would not have asked those questions, and continued, “because I haven’t got that actual information, I’m just testing the evidence to be sure.”[36]
[35] Transcript of proceedings page 15
[36] Transcript of proceedings page 15
65.The evidentiary point made by the tenants when submitting that the document should not be accepted must be considered by reference to the statutory provisions that govern the way in which the Tribunal conducts a hearing. Section 26 of the ACAT Act states:
26 Tribunal may inform itself
The tribunal may inform itself in any way it considers appropriate in the circumstances.
66.Section 8 of the ACAT Act states:
8 Rules of evidence
To remove any doubt, the tribunal need not comply with the rules of evidence applying in the ACT.
NoteThe tribunal may inform itself in any way it considers appropriate in the circumstances (see s 26).
67.The implications of those sections and comparable provisions in other legislation have been considered by the Tribunal and other courts and tribunals. The following five paragraphs draw on the discussion in the Appeal Tribunal’s decision in Sarbandi v Sharif.[37]
[37] Sarbandi v Sharif [2017] ACAT 57 at [54] to [58]
68.Sections 8 and 26 do not mean that there are no rules governing the receipt of evidence at a hearing before the Tribunal. Section 7 provides:
7 Principles applying to Act
In exercising its functions under this Act, the tribunal must—
(a)ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice; and
(b)observe natural justice and procedural fairness.
69.Provisions similar to sections 7, 8 and 26 of the ACAT Act are found in the legislation creating and governing tribunals elsewhere in Australia. For example, section 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides:
In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
70.The operation and implications of that subsection, particularly section 33(1)(c), were considered by a Full Federal Court in Sullivan v Civil Aviation Safety Authority[38] (Sullivan), primarily by Justices Flick and Perry. The Court expressly stated that the procedures whereby superior courts of record resolve civil litigation (and the rules of evidence applicable in such litigation) cannot automatically be transposed to the sphere of administrative decision-making where the tasks entrusted to the making of such decisions and the procedures to be followed may be very different.[39] Decisions of that type are considered and made by the Administrative Appeals Tribunal (AAT).
[38] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
[39] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [61]
71.Although the dispute before this Appeal Tribunal is a civil dispute (rather than merits review of an administrative decision), the reasons for decision in Sullivan and judgments quoted in those reasons contain the following propositions that apply to this Tribunal:
(a)Legislative provisions such as section 33 of the AAT Act (and hence comparable sections of the ACAT Act) are intended to be facultative, not restrictive, and their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.[40]
(b)The procedural flexibility afforded to an administrative tribunal freed from the rules of evidence does not absolve it from the obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide guidance.[41]
(c)Section 33(1)(c) of the AAT Act is to be read and applied in context. It is not a grant of power to depart occasionally from the strict application of the rules of evidence, but rather it presupposes and establishes a scheme for the AAT to inform itself of relevant matters in which (notwithstanding that the procedure of the AAT always remains within the AAT’s independent control) the AAT, subject to the rules of natural justice, properly may rely on any probative materials relevant to its function.[42]
(d)Section 33(1)(c) of the AAT Act simply provides that the AAT is not “bound” to apply the rules of evidence. It is not a prohibition upon the AAT applying those rules if it sees fit.[43]
(e)The reasons standing behind the common law rules of evidence may guide an administrative tribunal and the procedure which best facilitates the discharge of its statutory functions; indeed, in many instances, the common law rules of evidence are founded upon principles of common sense, reliability and fairness.[44]
[40] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, quoting from Minister for Immigration andMulticultural Affairs v Eshetu (1999) 197 CLR 611, 628 (Gleeson CJ and McHugh J)
[41] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [97]
[42] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, [91] quoting from Re Tarrant and AustralianSecurities and Investments Commission (2013) 62 AAR 192, 209 (Kerr J and Sen Mem Redfern)
[43] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [121]
[44] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [93]-[95] and cases cited
72.Writing extra-judicially while he was President of the AAT, Justice Kerr contended that provisions such as section 33 of the AAT Act require that the admissibility of evidence in merits review tribunals should be determined exclusively by the limits of relevance rather than the interstices of the rules of evidence.[45] The freedom to take into account all of the relevant testimony, materials and circumstances known to it, removed from the strictures of the rules of evidence, is not freedom at large. It is a freedom to be fair.[46]
[45] Hon Justice Duncan Kerr, “Keeping the AAT from becoming a court," AIAL (NSW) Seminar, 27 August 2013, page 6 citing Casey v Repatriation Commission (1995) 60 FCR 510, 514 (Hill J)
[46] Ibid, 7
73.Applying those principles to the present case, it is clear that the Original Tribunal had the power to inform herself in any way she considered appropriate, and so could elicit the information in relation to the document described as the incoming condition report. The Original Tribunal did not have to comply with the rules of evidence. It is clear from the transcript (as the tenants observe) that the Original Tribunal spent some time and care deciding what weight she should give to the unsigned document. It appears that having considered the photographs, and statements from the tenants and lessors, the Original Tribunal was satisfied that she could give some weight to the document as one part of the evidence before her. In those circumstances, and in the statutory context just described, the Original Tribunal was entitled to take the document into account. Accordingly, I reject the tenant’s submission that the ingoing report should not be accepted.
74.Before considering the other ground of appeal, it is appropriate to note briefly one facet of the way in which an appeal tribunal approaches the review of a decision of an original tribunal. As noted by an Appeal Tribunal in Sarbandi v Sharif[47], an appeal tribunal will be loath to disturb a finding of fact by an original tribunal who had the advantage of observing the demeanour of the witnesses, particularly where the interests of the individuals diverge and conflict, where personal feeling is acute and much depends on the character, personal motives and interest of individual persons. Where it was reasonably open to an original tribunal to prefer the evidence of one party over the other, the appeal tribunal is unlikely to uphold an appeal where there is no compelling evidence to demonstrate that the decision of the original tribunal to prefer the evidence of one witness rather than the other was wrong.
Lease inspections
[47] Sarbandi v Sharif [2017] ACAT 57 at [67], [17]
75.In their written submission, the tenants note that the lease provided that they agreed to undergo routine inspection within four weeks of the tenancy commencing and then at least six months thereafter until the tenancy ends. However, they state that the lessor conducted only three inspections during the four-year lease, on 19 June 2013, 24 May 2015 and 9 March 2017, and, based on the lessors’ comments, the tenants understood that they were maintaining the property to a high standard.
76.The tenants took issue with the conduct of the inspection on 9 March 2017 which they said was undertaken without their knowledge or consent. They asserted that they were “completely shocked and surprised at the long list” of items to be fixed contained in the lessors’ email of 13 March 2017. They noted that neither that email nor the email dated 5 April 2017 referred to the lawns at the property, and the email of 5 April 2017 made no mention about the condition of the blinds and tiles.
77.The specific issue raised by the tenants in this part of the written submission was whether the lessors could confirm that the 9 March 2017 inspection was the last one before the end of the lease.
78.At the hearing before the Original Tribunal, the lessors advised that they did regular inspections during the tenancy and drew the tenants’ attention to matters such as fingerprints on the walls and the condition of the blinds.[48] The tenants took issue with that in their submission to the Appeal Tribunal other than that the inspection on 9 March 2017 was not undertaken as the last inspection before the end of the lease.
[48] Transcript of proceedings page 59
79.Before the Appeal Tribunal, the lessors stated that during the first three years of the lease there were no issues and the parties had a friendly relationship. The lessors carried out regular inspections and visited the property on several occasions after Mr Gedeon contacted them in relation to their mail or if the property required any maintenance. Mr Bason inspected the property during that period, particularly in 2016 in relation to specific repair or maintenance requests. On those occasions, he commented that the house was still being looked after and was in great condition. At that time, the lessors were happy with how the tenants had been maintaining the property.
80.In the last six to eight months, the lessors apparently formed the view that the tenants had decided to vacate the property at the end of the lease and no longer felt it necessary to maintain the property.
81.According to the lessors:
(a) the 9 March 2017 inspection was a routine inspection, not a final inspection; and
(b) contrary to the tenants’ assertion, the inspection had been foreshadowed by a text message and subsequent telephone and text communications. Indeed, the date had been agreed by the tenants who were subsequently unavailable as they were to be at work that day. The lessors explained that the tenants did not need to be at home for the lessors to carry out an inspection, and that the lessors had taken the day off work to carry out an inspection after Mr Gedeon had confirmed the date was suitable. Mr Gedeon left the key in the letterbox to enable lessors to access the property (as they had provided both sets of keys to the tenants on 3 August 2013).
82.The evidence and submissions just summarised provide additional context to the matters in issue but are not themselves grounds of appeal. Consequently, they do not invite or require a finding by the Appeal Tribunal other than that the inspection on 9 March 2017 was not undertaken as the last inspection before the end of the lease.
Final inspection and condition report
83.The tenants submit in writing that, although section 30A of the Residential Tenancies Act 1997 required the lessor and the tenant to carry out an inspection of the premises at the end of the residential tenancy agreement and complete and sign a condition report based on the inspection, the final inspection and report was not conducted by the lessors. They point to a statement by the lessors to the Original Tribunal that they prepared the outgoing report,[49] yet contend that the lessors “never conducted an outgoing condition report” and criticise the answers given by the lessors to questions raised by the Original Tribunal.
[49] Transcript of proceedings page 17
84.The tenants submit that, in the absence of a final inspection and condition report, the Original Tribunal should not have allowed the lessors to submit items to be fixed on the property. They also submit that although the Original Tribunal described what would constitute “wear and tear” and distinguished that from damage that is done negligently or wilfully, the Original Tribunal still made the tenants pay for things they should not have to.
85.The tenants ask whether the lessor conducted an outgoing condition report in their presence, and whether the lessors and tenants signed it.
86.In reply, the lessors refer to issues raised on 1 April 2017 which were not completed by the tenants, and the email dated 5 April 2017 which states that, while the lessors appreciated the efforts the tenants had made to bring the property back to the state it was in when it was handed to the tenants initially, “the quality of the work carried out is not up to an acceptable standard as the plastering is still visible, the painting has been applied with a roller for gloss work where a fine brush should have been used.” The lessors contended that the parties spoke about these points and both agreed that the work had to be done by a qualified tradesmen to bring the finish back to the standard in which it was handed to the tenants originally.
87.The lessors referred to section 31(a) of the Residential Tenancies Act 1997 which provides that a lessor is entitled to deduct from the bond paid under the residential tenancy “the reasonable cost of repairs to, or the restoration of, the premises or goods leased with the premises as a result of damage (other than fair wear and tear) caused by the tenant.”
88.They also referred to additional term 21in the lease which states:
The tenant agrees that upon vacation, a final inspection will be conducted. The property is to be handed back to the agent on the final day in the same condition as noted in the provided condition and inventories report. Should there be any discrepancies; the agent will provide the tenant with reasonable opportunity to rectify the matters. Should this not be completed to a satisfactory standard the tenant understands that the agent may procure relevant professionals to return the property to its prior condition and have the costs deducted from the tenants bond amount. (Errors in original)
89.The lessors state that the end-of-lease inspection was conducted on 11 May 2017, after the tenants had vacated the property and had handed a set of keys to the lessors. On 13 May 2017, Mr Bason contacted Mr Gedeon to post the outgoing condition report and photos to Mr Gedeon at his new residential address. Mr Gedeon agreed to inspect the property and brought a friend with him. They walked through the property with Mr Bason who outlined remaining issues concerning the property. Mr Bason showed them the ingoing condition report and photos and compared them with the outgoing condition report and photos. According to the lessors:
(a)all parties agreed that the state of the property was to an unsatisfactory standard and that a full end-of-lease clean was required, along with a professional painter and plasterer and a professional tiler to replace the broken tiles; and
(b)Mr Gedeon left with a USB showing the outgoing photos and a printed copy of the outgoing condition report.
90.The lessors state that:
(a)they gave the tenants an opportunity to rectify the issues listed in the outgoing condition report;
(b)Mr Gedeon felt that he had done enough work on the house, and said that he did not have time and was too busy moving into his new residence;
(c)they explained that they would work out the costs and deduct that amount from the bond;
(d)because the costs far exceeded the amount of the bond ($2,400.00), they requested that the bond be returned to them; and
(e)they were shocked that the tenants disputed the return of the bond to the lessors.
91.Again the issue raised by the tenants and to which the lessors responded is not in the nature of a ground of appeal in relation to a particular aspect of the orders made by the Original Tribunal. However, given that tenants assert that no condition report was prepared and no such report exists, I note that the documents provided by the lessors to the Original Tribunal included two documents described as outgoing condition reports. One document had text under the heading ‘General Comments’ (including some references to attached photos and quotes or invoices) but nothing under the heading ‘Tenant remarks’. The other document was in a similar but not identical form, with columns for ‘Owner comment’ and ‘Tenants remarks’. The typed entries under ‘Owner comment’ were consistent with the ‘General Comments’ in the former document, but did not include references to quotes and invoices. There were detailed typed entries under ‘Tenants remarks’ that were consistent with the content and expression of the tenants’ evidence given at the hearing before the Original Tribunal. Neither document was signed or dated.
92.The brief reference to the purported outgoing condition report in the hearing before the Original Tribunal does not enable the Appeal Tribunal to identify which document was being considered at that time. It also indicates that the Original Tribunal placed little or no weight on that document or those documents. For that reason, and because there was no examination of the documents during the hearing of the appeal, the Appeal Tribunal does not make findings about the status of either or both of those documents.
Releasing of bond
93.The tenants noted that they submitted an appeal (received on 4 December 2017) within a two week period after the decision of the Original Tribunal asking for a stay of the original orders. They submit that the Tribunal did not follow its procedures and released the bond to the lessors before the legal release date. The tenants state that they require the bond moneys be paid to them as a matter of urgency.
94.The tenants misunderstood the process for the release of bond money. As the Original Tribunal explained at the hearing, the Original Tribunal’s order would be sent to the Office of Rental Bonds and it would be for that Office to release the money in accordance with the order.[50]
Lawns
[50] Transcript of proceedings pages 121-122
95.Having considered evidence in the form of written documents, photographs and oral statements, the Original Tribunal was satisfied that the tenants had not maintained the front lawn but allowed it to die and be over taken by weeds. She awarded the lessors $2,442.00 for the cost of replacing the front lawn.
96.The tenants dispute that finding and submit that they maintained lawns throughout the tenancy, including by watering and mowing. They also submit that the lessor never mentioned the lawns during the inspections, or in the 48 items listed in the email of 9 March 2017, or in the email of 5 April 2017, or in subsequent phone calls or meetings. The only time the tenants knew that there was supposedly anything wrong with the lawns was from the documents submitted by the lessors to the Tribunal. Accordingly, they assert they were surprised in that way is unfair and unjust.
97.The tenants criticise the lessors’ reliance on an undated photograph of the lawns which, the tenants submit, is contradicted by another photograph featuring an umbrella in the foreground with the grass area in the background that is very green. Furthermore, the tenants submit that the landlords’ quote to replace the grass was dated five weeks after the tenants moved from the property. They submit they should not be responsible for what happened to the lawns five weeks after they had moved out, and they should not have to pay any of the costs in relation to the lawns.
98.In reply, the lessors refer to occasions on 24 May 2015, October 2016 and 10 March 2017 when they say they discussed with Mr Gedeon the unsatisfactory state of the lawn, and he advised them he would take better care of it. Their evidence to the Original Tribunal was that at the end of the lease the grass was dead and the area was covered with weeds.
99.The lessors note that:
(a)there is no contradiction regarding the photographs as both the ingoing and outgoing pictures were taken in winter, and video footage shown to the Original Tribunal that was taken on 16 May 2017 (six days after the tenants vacated the property);
(b)the reason the vegetation is green in the photograph featuring the umbrella is because the grass was full of green weeds;
(c)there was a special lease condition 3 for gardens which stated, in part:
The tenant agrees to water and upkeep the gardens to keep in line with the condition and inventory report and maintain the standard at commencement of tenancy.[51]
[51] The remainder of this condition referred to Astro Turf in the back yard
100.The incoming report described the lawn at the front of the property as “healthy, green, edged and mowed”. That assessment was confirmed by photographs taken in the winter of 2013.
101.The Original Tribunal explained to the tenants the extent of their obligations in relation to gardens generally and lawns in particular.[52] She stated that the tenants had to return to the lessors healthy green grass that was weed free.
[52] Transcript of proceedings, pages 79-80, 83-86
102.The lessors stated that, after the tenants had vacated the property:
(a)they were advised that the lawn could not be restored;
(b)they obtained a quote based on an inspection of the lawn on 15 May 2017 (five days after the tenants had vacated the property) and another quote from a different company based on an inspection of 24 May 2017, and both quotations stated that the grass and weeds needed to be removed and replaced with turf after the soil was treated. The quote for $2,442.00 was the lower price.[53] The other quote was for $2,870.20.[54]
[53] Transcript of proceedings, page 79
[54] Transcript of proceedings, page 84
103.Having asked the tenants whether there was any reason why she should discount the claim made by the lessors, and having considered their reply and evidence as a whole, the Original Tribunal found that the tenants had not maintained the front lawn in the required condition, and that the area had been taken over by weeds.[55]
[55] Transcript of proceedings pages 87-88
104.There was evidence to support the finding, and the tenants have not satisfied the Appeal Tribunal that the Original Tribunal made an error of fact. That part of the appeal is dismissed.
Blinds
105.The Original Tribunal awarded the lessors $540.00 for cost of cleaning of the blinds.
106.The tenants submit that they kept the blinds in good and clean condition. Because the cleaning of the blinds was one of the 48 items listed in the 9 March 2017 email, the tenants purchased a machine and steam-cleaned the blinds. After the inspection on 1 April 2017, the lessor said he appreciated the effort to clean the blinds and did not mention them again until the documents submitted by the lessors to the Tribunal. The tenants described as “very dubious” that the lessors asked for the costs of cleaning the blinds two weeks after the tenants moved out and at a stage when the lessors were moving in. The tenants ask that the Appeal Tribunal remove the cleaning costs of the blinds from the order because the lessors had already acknowledged the blinds were cleaned prior to the tenants moving out.
107.The tenants also note that the Original Tribunal identified fair wear and tear as not the responsibility of a tenant. The tenants reiterate that, at the hearing before the Original Tribunal, the lessors advised that they did regular inspections during the tenancy and drew the tenants’ attention to matters such as fingerprints on the walls and the condition of the blinds.[56] The tenants took issue with that in their submission to the Appeal Tribunal, stating that the first they heard about any issue with the blinds was in the email of 9 March 2017.
[56] Transcript of proceedings page 59
108.In reply, the lessors rely on the quotation to clean the blinds prepared by Amazing Clean on 12 May 2017, two days after the tenants moved out. That quote separately lists cleaning cost for two panel glides, three timber venetians, and “restoration cleaning” of Roman blinds. The quote states that the Roman blinds “will need to be wet cleaned to remove the heavy soiling.” According to the lessors, the blinds had dirt, oil, grease and finger marks from children touching them.[57] The quote for cleaning the Roman blinds was $512.40, plus a service charge of $95.00 to take down and rehang the curtains, and GST on the total amount.
[57] Transcript of proceedings page 57
109.The lessors informed the Original Tribunal that they did not want the curtains taken away from the premises, but the person who provided the quote stated that the curtains could not be cleaned on site.[58] The work was done in the week commencing 22 May and had to be done twice.[59] The account was paid on or about 26 May 2017.
[58] Transcript of proceedings pages 57-58, 61
[59] Transcript of proceedings page 61
110.The lessors gave evidence that they moved into the premises from Thursday 8 June and over the following June long weekend[60] (not two weeks after the tenants vacated the premises), after the painting and plastering had been done and the property had been cleaned.
[60] Transcript of proceedings page 54
111.The Original Tribunal discussed in detail with the parties the evidence about the condition of the Roman blinds, how the Roman blinds would usually be cleaned, the cleaning undertaken by the tenants, the nature of fair wear and tear, and whether tenants generally should have to pay for the cleaning of curtains at the end of a lease.[61] She concluded that regular cleaning is the tenants’ responsibility and the larger tasks and servicing are the landlords’ responsibility. In this case, the Original Tribunal decided that the regular cleaning of the Roman blinds had not been enough to prevent heavy soiling and ordered the tenants to pay 60% of the cost to the lessors of cleaning them.
[61] Transcript of proceedings pages 55-69
112.The tenants have not satisfied the Appeal Tribunal that the Original Tribunal made an error of fact or law in relation to the order that the tenants pay 60% of the cost of cleaning the Roman blinds. The Appeal Tribunal is satisfied that there was evidence for the Original Tribunal to decide that the Roman blinds needed unusual treatment at the end of the lease, and that the allocation to the tenants of that proportion of the cost of cleaning the Roman blinds was reasonable. Accordingly, that part of the appeal is dismissed.
Painting
113.Much of the original hearing was spent in hearing competing accounts of the amount of painting and plastering that was necessary at the end of the lease to restore some parts of the house to a reasonable condition. In essence, there was conflict about the extent and quality of the paining and plastering work undertaken by or on behalf of the tenants, and the extent to which the tenants should reimburse the lessors for the cost of further painting and plastering after the tenants vacated the property. The Original Tribunal decided that the lessors should bear 33% of the cost of painting and the tenants should bear the balance ($937.12).[62]
[62] At the appeal, the lessors submitted that the figure was calculated incorrectly and should have been $1,033.47
114.The tenants dispute the lessors’ requirement in the 13 March 2017 email that they paint all the house because, the tenants submit, the painting was for fair wear and tear. However, they painted at the house anyway. In the 5 April 2017 email, the lessor asked for the property to be repainted by a professional painter and the tenants engaged one on 7 May 2017. At the lessors’ request, Mr Gedeon attended the house on 13 May 2017 (with an acquaintance who is a paint contractor) and, according to the tenants, the lessors accepted the painting work.
115.The tenants dispute the lessors’ claims for the house to be repainted a third time and the cost of plastering and other materials itemised in accounts (attachments G, H and I of their submission).
116.The tenants submit that, as the house was not freshly painted when they moved in (after the lessors had occupied it for four years) and it had not been upgraded for eight years, the tenant should not have been responsible for repainting it at all (let alone twice) and the Original Tribunal should not have awarded the lessors the costs of repainting. They submit that the cost of painting and associated costs be removed from the amount awarded to the lessors.
117.In reply, the lessors note that at no point did they ever request that the entire house be repainted. The only walls that they asked be painted were walls in which the tenants put holes.[63] Those were made worse by Mr Gedeon’s failed attempts to plaster and repaint, a situation which he acknowledged and was confirmed in the email dated 5 April 2017. In that email, Mr Bason stated that he would let Mr Gedeon know when his painter would be able to attend the property and provide a quotation. Mr Gedeon and Mr Bason attended the quotation at the property but Mr Gedeon was not satisfied with the quotation provided ($1,457.50) and employed another painter who provided a lower quote ($700.00). That quote did not include any materials, and the painter used the lessors’ materials without their permission.[64] Because that painter did such a poor job, the lessors had to engage another painter to redo the work. The invoice clearly states the work to be done in each room. The invoices were made out to Canberra Decks which is the lessors’ business as they have an account with Dulux. The materials listed on the invoice were required to bring the walls back to standard. Because the painter engaged by Mr Gedeon used the lessors’ materials, they had to be replaced.
[63] That point was also made at the hearing, see transcript of proceedings pages 105-106
[64] See transcript of proceedings pages 18, 32
118.The lessors also note that the claims made by the tenants that they painted the house twice are false and misleading because, as mentioned during the original hearing, there was not enough paint in the shed to paint half the house once.[65]
[65] See transcript of proceedings page 32
119.The lessors state that they are fully aware of what constitutes general wear and tear, and made that clear to the Original Tribunal when contrasting wear and tear with a hole in the wall.[66] The plastering invoice was for professional replastering of parts of walls where the tenants had put holes, and was in place of the attempted patchwork undertaken by Mr Gedeon. According to the lessors, Mr Gedeon was aware of that had agreed to it.
[66] See transcript of proceedings pages 100-102.
120.There was photographic, documentary and oral evidence on which the Original Tribunal could make her findings that additional painting and plastering was necessary to remedy the unsatisfactory work undertaken by or on behalf of the tenants and return the property to a satisfactory state. The Original Tribunal apportioned that cost between the tenants and the lessors on the basis of that evidence. The Appeal Tribunal is not satisfied that the Original Tribunal made an error of fact or law. Accordingly, that part of the appeal is dismissed.
Cleaning
121.The Original Tribunal awarded the lessors $646.25, calculated as 55% of the total cleaning costs incurred by them.
122.The tenants state that they had the carpets professionally steam-cleaned on 8 May 2017 and the following day the house was cleaned by five people who helped them. The tenants described the house as being left “spotlessly clean.” By comparison, they note that according to the photos from the ingoing inspection there were spots, scuffs and marks in the house before the tenants moved in. According to the tenants, the lessors acknowledged their work in the follow-up email of 5 April 2017.
123.The tenants also state that the lessors submitted an invoice dated 7 June 2017 from H and H Cleaning for cleaning which, the tenants contend, was done after the lessors conducted other works in the house (including tiling, painting and plastering). The tenants contended they are not liable for the cleaning of the house four weeks after they vacated, particularly as the cleaner was brought in to clean up after plasterers, painters and tilers had conducted other work.
124.The tenants also note that the Original Tribunal indicated that the sum claimed for cleaning was a large amount, and there was no itemised report for the “End of the lease cleaning.”
125.In reply, the lessors assert that:
(a)the property was far from clean upon the tenants vacating it, and the cleaner engaged by the lessors (H and H Cleaning Services) could not believe that the tenants had carried out a full end-of-lease clean;
(b)there is no evidence of payment by the tenants for the cleaning, and the tenants say they paid cash because it was cheaper (as the unnamed cleaners “don’t work with tax”);[67]
(c)H and H Cleaning Services completed the clean over three days, once other work had been done to rectify things caused by the tenants’ negligence (plastering, painting, and blind removal and cleaning).[68]
[67] Transcript of proceedings pages 30-31
[68] Transcript of proceedings pages 38-40
126.The lessors also note the observation by the Original Tribunal after viewing photographs of part of the property (the garage) that “It wasn’t perfectly clean but if you look at the photo after you left, it is disgusting. It’s really dirty.”[69] The Original Tribunal also noted that “a lot of the cleaning costs would have been the removal of paint from taps, tiles, switches, skirting boards, et cetera”[70] which, the lessors assert, was all caused by the person engaged by the tenants to do the painting.
[69] Transcript of proceedings page 45
[70] Transcript of proceedings page 54
127.In reply to the quoted observation about the large total cost of cleaning, the lessors note that they advised the Original Tribunal that the cost was not $1,700.00 as the Original Tribunal initially thought, but $1,175.00.[71]
[71] Transcript of proceedings pages 42-43
128.Again, nothing different or additional was put to the Appeal Tribunal. Rather, the parties relied on evidence before and submissions made to the Original Tribunal. The Appeal Tribunal is not satisfied that the Original Tribunal made an error of fact or law when deciding that the tenants should pay part of the cleaning costs incurred by the lessors, or in determining the amount that the tenants should pay. Accordingly, that part of the appeal is dismissed.
Keys
129.The Original Tribunal awarded $498.80 (the lower of two quotes) on the basis of the evidence before her including that the lessors were not claiming, and did not need, the window locks replaced. The higher quote included the cost of the replacing window locks.
130.There was no issue that the tenants were given two sets of keys. The issue was how many and what types of keys the tenants returned to the lessors.
131.At the original hearing, the lessors said that the two garage remote keys had been returned (and there was no claim in respect of them),[72] but the tenants had only returned one set of keys. Although they only received one set of keys for the whole house, they were not claiming in relation to the windows because they can be closed and locked from the inside and cannot be locked or unlocked from the outside.[73] However, “it’s one whole set of keys that is missing, one whole set of keys”,[74] which keys are “to the main access from our house from the outside of the property”[75] and, in the absence of the second set of keys, the lessors were “very vulnerable”.[76]
[72] Transcript of proceedings page 91
[73] Transcript of proceedings pages 91-92
[74] Transcript of proceedings page 93
[75] Transcript of proceedings page 93
[76] Transcript of proceedings page 92
132.The evidence from the tenants on that occasion was unclear. Mr Gedeon indicated that, in the course of moving in May 2017, some of the keys were in cartons and he could not find them. He did not know where they were, or how long it would take to find them.[77] He also said that he had handed back two keys to the doors and to the garage, and one set of keys for the windows.[78] Ms Gedeon indicated that the missing keys were not for the main door but the windows.[79] She then explained that, having been given two sets of keys, the tenants separated them and that:
(a)Ms Gedeon took a main door key and a garage key;
(b)Mr Gedeon took a main door key;
(c)other keys remained inside the house.
[77] Transcript of proceedings pages 88-90
[78] Transcript of proceedings page 90
[79] Transcript of proceedings page 89
133.According to Ms Gedeon, the tenants returned to the lessors the keys they had been using, and “some keys are missing. Those mainly are the ones that we don’t use. They were the ones that are for the windows inside internally and especially for the study room, I guess, because we never used them.”[80]
[80] Transcript of proceedings page 93
134.According to the tenants at the appeal:
(a)two sets of keys (for all external doors and all internal windows) were provided to them; and
(b)they returned two sets of keys for all external access doors and one set of keys for internal windows.
135.The tenants note that the Original Tribunal allowed the lower quote for replacing the keys but did not confirm the validity of the key request. Although the Original Tribunal queried why two new sets of keys needed to be cut, and the lessors admit that only part of the set (internal window keys) is missing, the Original Tribunal allowed the claim. The tenants now request that this item be removed from the list of amounts owing.
136.The lessors’ written submission states that they were only given one set of keys by the tenants. In support of that submission they refer to:
(a)a photograph of the keys provided by the tenants; and
(b)the tenants’ admission to the Original Tribunal that they had lost the second set of keys that they were given on 3 August 2013.[81]
[81] Transcript of proceedings page 89
137.The lessors submit that because they do not know who has access to the missing keys, all the locks in the house need to be replaced. They refer to the additional term 19 ‘Keys’ to the residential tenancy lease agreement signed by the tenants which includes:
The tenant agrees that the keys provided to them at commencement of the tenancy become their responsibility. Should the tenant misplace, break, or have stolen the keys, it is the tenant’s responsibility to have all locks re keyed or replaced and provide a new set to the Agent.
138.Section 31(b) of the Residential Tenancies Act 1977 provides that a lessor is entitled to deduct from the bond paid under the residential tenancy agreement “the reasonable cost of securing the premises if the tenant fails to return the keys for the premises to the lessor at the end of the tenancy.”
139.It appears that the Original Tribunal accepted that a key or keys (other than window keys) had not been returned to the lessors and accordingly made the award based on the lower quote for replacing locks which did not include a component for securing the windows. It was open to the Original Tribunal to make that finding, including by reference to the photograph of keys returned to the lessors. Accordingly, the tenants have not convinced the Appeal Tribunal that the Original Tribunal made an error of fact when deciding to award a sum for the replacement of locks, and that part of the appeal is dismissed.
Conclusion and orders
140.For the reasons given above I have concluded that none of the grounds of appeal has been made out.
141.Consequently, the appeal is dismissed. As the time for complying with the orders of the Original Tribunal has expired, Order 3 is amended to delete “1 December 2017”, and insert “6 March 2018”.
………………………………..
President G Neate AM
HEARING DETAILS
FILE NUMBER:
AA 45/2017
PARTIES, APPLICANT:
Suheir Gedeon and Samer Gedeon
PARTIES, RESPONDENT:
Leigh Bason and Shannon Bason
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
President G Neate AM
DATES OF HEARING:
23 January 2018
1