Gold Coast Property Expo v Risco & Tung
[2014] QCAT 524
•9 October 2014
| CITATION: | Gold Coast Property Expo v Risco & Tung [2014] QCAT 524 |
| PARTIES: | Gold Coast Property Expo (Applicant) |
| v | |
| Dennis Ever Flores Risco Yi-Han Tung (Respondents) |
| APPLICATION NUMBER: | MCDT916-14 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 16 June 2014 |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Trueman |
| DELIVERED ON: | 9 October 2014 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. That the Residential Tenancy Authority release the bond in the sum of $2,680.00 as follows: Applicant Lessor: $ Nil |
| CATCHWORDS: | Residential tenancy – Bond dispute – claim for compensation of rent arrears and damages to unit – where alleged tenants refused access to unit after water leak – where alleged tenants caused more extensive damage due to failure to allow access – where owner provided misleading evidence regarding repairs and damages – whether tenants breached lease agreement – whether compensation owing – whether owner mitigated his loss Residential Tenancies and Rooming Accommodation Act 2008 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Gold Coast Property Expo represented by Lee Lee Goh |
| RESPONDENT: | Dennis Ever Flores Risco & Yi Han Tung |
REASONS FOR DECISION
Gold Coast Property Group (the “lessor”) rented a furnished property to Mr Risco and Ms Tung (the “tenants”) at 19 Ferny Avenue, Surfers Paradise. The tenants signed a fixed term lease which commenced on 21 January 2014 and was due to end on 17 September 2014. The rent was $670 per week and a Bond was lodged with the Residential Tenancies Authority in the sum of $2,680.00.
The lessor is claiming compensation for an amount over the Bond. The total claim is for $5,759.05. The claim includes compensation for:
i) Bond Clean $385.00
ii) Rent Arrears $287.15
iii) Smoking Penalty $670.00
iv) Accommodation costs $544.50
v) Repair & replacement costs $3,771.00
vi) Filing fee $101.40
vii) TOTAL $5,759.05
The tenants dispute the claims for damages. They claim that the allegation of damaged or broken items of furniture or chattels is untrue. They claim that all items were functional, undamaged and operational when they vacated the property. They deny taking any of the items listed on the inventory. They dispute that they owe rental arrears or that they smoked inside the property. The tenants allege that some of the photos taken to prove the lessor’s case were photos not actually taken inside their unit.
At the conclusion of the hearing the decision was reserved and leave was granted to the parties to file further evidence regarding the flooding of the unit and payment or repairs.
LEGISLATION
A lessor or tenant under a residential tenancy agreement, or provider or resident under a rooming accommodation agreement, may apply under the Residential Tenancies and Rooming Accommodation Act 2008 (the RTRA Act) to a tribunal about an issue only if the applicant has first made a dispute resolution request about the issue[1].
[1]RTRA Act s 416(1).
A lessor or tenant may apply after the conciliation process has ended without a conciliated resolution being reached[2], or even it if agreement has been reached but a party has breached the conciliation agreement.[3]
[2]Ibid s 146(1)(a).
[3]Ibid s 146(1)(b).
The RTRA Act clearly prescribes the procedures to be followed and for a non-urgent application, including compensation claims, the application cannot be heard and determined until s 416 of the RTRA Act has been complied with.[4]
[4]Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277 at [32].
The tribunal has jurisdiction to hear and decide a minor civil dispute.[5] The jurisdiction for minor civil dispute can be exercised if a relevant person has commenced an application in the tribunal.[6] A relevant person can be for tenancy matter — a person who, under the RTRA Act, may apply to the tribunal for a decision in relation to the matter.[7]
[5]Queensland Civil and Administrative Tribunal Act 2009 s 11.
[6]Ibid s 12(1).
[7]Ibid s 12(4)(f).
The parties have attempted mediation at the RTA and provided a Notice of Unresolved Dispute dated 26 May 2014. The parties have complied with s 416 of the RTRA Act by undertaking the conciliation process which has ended without a conciliated resolution having been reached.[8] The tribunal therefore has jurisdiction to hear and determine the dispute.
[8]RTRA Act s 416(1)(a).
A lessor or tenant subject to a residential tenancy agreement who claim there has been a breach of the agreement, must make application within 6 months after the lessor or tenant, (or provider or resident), becomes aware of the breach.[9] In this case the alleged breach and Form 11 Notice was issued on 24 March 2014. The claim was filed on 3 June 2014 and was filed within the relevant time frame. The claim has been filed within 6 months from the date of the alleged breach, and is therefore filed in time.
[9]Ibid s 419(3).
The tribunal must consider and have regard to matters when considering orders for compensation, and in particular if considering an order for making an order for compensation in favour of a lessor is whether the lessor has met their duty under section 362 to mitigate loss or expense.[10]
[10]Ibid s 421(1)(d).
A lessor has a duty to mitigate loss or expense if the lessor incurs loss or expense due to either an act or omission of the tenant.[11]
[11]Ibid s 362(1)(c).
HISTORY
The lessor stated that during the evening of the 23 March 2014 a water pipe broke in the common corridor causing water to flow under the door of the tenants’ premises. The lessor alleged that the tenants sub-let the property to backpackers and that on the night in question there were eight people sleeping in the unit. The lessor stated that the tenants had requested on numerous occasion during the tenancy for extra keys and for their friends and family to use who were staying at the property.
The lessor alleges that on the night of the flood the tenants refused the Body Corporate access to the property for emergency attendance to remove the water, resulting in extensive damage to other property on the two levels below.
The lessor stated that on the morning of 24 March 2014 she accessed the premises with the Body Corporate security personnel and the Chairman of the Body Corporate. The lessor said that the property was discovered in ‘disarray and occupied by 8 backpackers without supervision by the tenants’. The lessor said that upon entering the property they noticed property items and furniture were damaged. The lessor provided photos[12] of the alleged damaged items.
[12]22 pages attached to claim.
The lessor stated that the tenants were moved to emergency accommodation due to the water damage and the lessor paid for 3 nights’ accommodation. They allege that the tenants also housed ‘lots of backpackers in the temporary accommodation’. The lessor said that there were ‘four male backpackers who were not tenants on the lease who refused to leave the premises and were eventually removed by the body corporate security personnel under the supervision of the chair person’.
The lessor alleges that the Body Corporate were unable to carry out the repairs and drying with so many backpackers sleeping on the floors, couches and temporary bedding in the property. The lessor issued a Notice to leave to the tenants due to non-liveability.[13] The Notice provided the tenants with a days’ notice to vacate the property.
[13]Dated 26 March 2014.
The lessor is seeking costs of all repairs and replacement costs, cleaning costs and a smoking penalty and reimbursement of the temporary accommodation costs.
The lessor provided copies of tax invoices[14] for repairs and replacement costs from Canberra Direct, invoices for the smoking penalty and temporary accommodation from Gold Coast Property Expo and an invoice from Ulysses for the carpet and bond cleaning.
[14]In bundle of documents attached to claim filed 3/6/2014.
At the conclusion of the hearing, the lessor was granted leave to file further evidence relating to the flooding of the unit and repair costs and proof of payment. The lessor filed further material, the tenants filed a response, and that evidence has been considered and taken into account.
The tenants refute the claim that they were subletting their property to backpackers. They agree that some family and friends have stayed at their property from time to time and that they have obtained additional keys and fobs for their guests to use. They claim that the owner approved their request for those guests to stay.
The tenants stated that on the night in question that the flood occurred, they had friends staying with them. They said they had a party and a few drinks and then they went out. The stated that they got home and went to bed. They allege that when the flood occurred it was during the night, they said that they did not know about the flooding until the next morning. They dispute refusing access to the property by the lessor or security.
The tenants said when the lessor came to the property they co-operated with the lessor and security. The tenants stated that on the morning of the flood the owner and agent were very aggressive and rude to them and demanded they only had an hour to leave the property. The tenants said that they did not have time to collect all their belongings. They said that in the rush to leave the property they left some personal things behind. The tenants stated that their unit was not locked and secured after they left and that their personal items were removed and/or stolen. They said the items they lost were an ‘I-pad, a phone, a Louis Vuitton bag, a gold necklace with a cross on it and other lesser valued items like a pot and rice cooker’.
The tenants were not seeking compensation for their lost items as they stated that perhaps it was their fault that they did not grab everything when leaving. The tenants said they were scared and intimidated by the owner, Mr Tom Royston, who allegedly yelled and threatened them. The tenants said that they were told that the ‘owner of the unit was Mr Royston, and he owned about 50 units in the Circle on Cavil complex, and that he was also the Body Corporate Chairman’.
The tenants said that the lessor moved them to temporary accommodation and that they cannot understand why the lessor is now seeking to be reimbursed for those costs. They said they did not cause the flood and they had to move out of their unit because of the water damage. The tenants provided evidence that after the initial three days they stayed in the temporary accommodation in the complex they had to pay for a further short stay until they could find alternative accommodation. They produced receipts to prove they paid a further $960.00[15] for temporary accommodation until they found somewhere else to live.
[15]Further evidence provided pursuant to order 3 made on 16 June 2014
The tenants alleged that when they vacated the unit after the floods the owner threatened them that they could not come back to the unit or he would call the police and have them removed.
The tenants claim that as they are ‘not Australians and that they are not professionals’, they stated that they ‘did not report their stolen items as they were intimidated and felt scared and threatened by the Owner’, Mr Royston. The tenants said that they felt that they were treated unfairly and that they had been threatened that if they did not give up their bond that they would be sued for ‘double compensation’ and told ‘we will put you on the black list’. They allege that they were threatened that the lessor ‘has experience at QCAT for disputes, so we were told “we better give up”’.
The tenants said that they were employed as cleaners at Circle on Cavil and that after the unit flood that the owner and chairman of the Body Corporate, Mr Royston, caused them to both lose their jobs. The tenants claim that with loss of jobs, lost and stolen personal property and rent they had to pay to stay in temporary accommodation and should they lose their bond, that they are out of pocked approximately $15,000.00
The tenants claim that the evidence of the lessor was conflicting and distorted. They said it was untrue and incorrect that their unit was depicted as a one-bedroom unit. They said it was a 2 bedroom, 2 bathroom plus study unit, that the owner was ‘happy for us to have friends stay over’. The tenants said they were even given fold out beds that were placed in their unit for their guests to use. They said they told the agent that they would pay for any alleged damages if true receipts and proof was given to them. They said they asked for proof from the agent but it was refused. The tenants said at RTA mediation they did agree to give up their bond to resolve the matter due to feeling pressured and intimidated by the owner and the agent. They stated that on reflection they considered they had not done anything wrong, that the owner’s claim was fabricated and they now wanted their bond returned to them.
The tenants claimed to have rented at Circle on Cavill for years previously and had never had a problem before and had got their previous bond back in full. They stated that as professional cleaners they always left their properties clean and in excellent condition. The tenants allege this is the first bond dispute they have ever had.
The tenants said they were not given an Exit Condition report, were not advised of any cleaning issues, were threatened and denied the option to go back to the property when threatened by the owner and dispute the agent’s evidence that the property took many months to be repaired and rent out due to the water and damages. The tenants provided evidence that as at 8 April 2014[16] the property was listed for rent on the internet as ‘available’.
[16]Rental listing provided under order 3 made on 16 June 2014.
FINDINGS
I will deal separately with each of the lessor’s particular claims.
Should the tenants pay for a Bond Clean?
The lessor claims the cost of $385.00 for a bond clean. The receipt was dated 3 April 2014. It is not disputed that the property was flooded by a burst water pipe and that the tenants did not cause the flood. There is some suggestion the flooded apartment was exacerbated by the late entry to the unit to remove the water. Whatever the time delay, the tenants would have been required to vacate the property to have the water extracted and the flooding attended too. The lessor sought to serve the tenants with a Form 12 Notice to leave due to non-liveability, that is not the fault of the tenants. I find that in the usual circumstances the tenants would have undertaken a bond clean, considering they are professional cleaners themselves. I find the extenuating circumstances in this case rendered it impossible for the tenants to properly clean the property. I accept they were “ordered” off the premises and in the circumstances could not have been able to perform any such cleaning. I find that even if the tenants did a bond clean when they left on 27 March, the unit would have required cleaning again due to the mess caused by the floods. I am surprised that the lessor would consider that in all the circumstances that the tenants would be liable for the bond clean for this unit. The claim for bond clean is without merit and is dismissed.
Do the tenants owe rent arrears?
The tenant ledger indicates that the tenants paid rent up to and including 24 March 2014. The lessor alleges rental arrears owed for a further few days up to 27 March 2014. The lessor calculates the amount as $287.15. In view of the circumstances, I am not inclined to find that the tenants owe rent arrears. Firstly, the tenants were forced to vacate their property due to a flooding of their unit. They had a fixed term lease in place that entitled them to remain in the property until 17 September 2014. The tenants had paid rent past the date of the flood, they vacated the property at the request of the lessor. They were given temporary accommodation for three nights due to the flooding. The tenants paid a further $960 to the lessor for temporary accommodation at Circle on Cavill. A claim for rent arrears for those few nights appears a double dipping by the lessor. The claim is without any merit whatsoever. The claim for rent arrears is dismissed.
Should the tenants pay the smoking penalty?
It is alleged that the tenants were smoking in the property. The lessor said that the lease contained a no smoking clause in the special terms and conditions. It was alleged the tenants smoked in the premises. I find that the lease agreement does provide some assistance in this regard. The lease stipulates ‘smoking is not allowed in the unit. Penalty of 1 week rent will be held back from bond for deodorisation process if this clause is breached’. There was no evidence provided that the unit was “deodorised” and that there was a cost paid by the lessor for that “process”. The tenants said that they never smoked inside the unit. They said that if anyone was smoking that they did so on the balcony. The tenants said the unit did not require deodorising. The tenants stated that due to the unit being flooded with water the carpets would have required to be cleaned and deodorised anyway. I agree with the tenants on that point. In the absence of any evidence, that the tenants were smoking in the premises and that deodorisation was performed, I find that the claim is without merit and it is dismissed.
Should the tenants reimburse the lessor for accommodation costs?
The lessor is claiming a payment from the tenants for the costs of their temporary accommodation for three nights when they were removed from the unit due to the flood. The only evidence is a tax invoice from the lessor that seems to suggest they were moved to unit 2226 at Circle on Cavill from 24 – 26 March 2014 at a cost of $544.50. There is no evidence that in fact the owner has paid for these costs. Further, if I accept the evidence of the tenants, that the owner of their unit, owns many units in the complex, it may well be they were moved to a unit that he owns that was empty and there has not been any cost to him. There is no evidence that would persuade me to make a finding that the lessor is out of pocket for the 3 night’s accommodation that was arranged for the tenants due to the flood.
I find that in all the circumstances the lessor should have offered and paid for a longer period for the tenants until they could find other accommodation, or until they could remove all of their belongings and personal effects from the flooded unit. In fact, the tenants should have been provided with temporary accommodation until their unit was rectified ready for them to return to live there. I find the lessor’s attempt to seek a refund of the cost of the temporary emergency accommodation surprising considering that their relocation was due to an intervening event that was outside of their control.
The claim for reimbursement for the temporary accommodation is, on the evidence, unreasonable and is dismissed.
Should the tenants pay for repair & replacement costs?
The lessor is seeking costs of repairs and replacement costs from the tenants in the sum of $3,771.00.
The list of items that the lessor has provided for either replacement or repair includes costs for the following:
i) Replace damaged sofa bed $600.00
ii) Repair dishwasher $50.00
iii) Repair bed frame $100.00
iv) Dryer damaged, replace new one $350.00
v) Chip on balcony $50.00
vi) Master Bedroom venetian damaged $100.00
vii) Repair damaged cook top $200.00
viii) Replace damaged range hood $135.00
ix) Replace Smoke detectors $200.00
x) Replace damaged coffee table $50.00
xi) Replace damaged power point & switch $100.00
xii) Replace broken safe $210.00
xiii) Repair and replace blinds $500.00
xiv) Replace damaged bed side table $130.00
xv) Repair and paint damaged wall $500.00
xvi) Replace missing items – white art deco plate, bowl, 2 desert spoons, 2 soup spoons, 1 tea spoon, 1 salad server, 1 tea strainer, 1 rectangle serving plate, 1 glass oven dish, 1 glass mixing bowl, 6 plastic utensils, 1 white cereal bowl, 1 white salad bowl, 1 mop bucket, 8 pillows, 12 pillow protectors, 3 wooden and 25 plastic clothes hangers $321.00
xvii) Replace spoiled King size doona & protector $100.00
xviii) Replace spoiled single doona & cover $100.00
xix) TOTAL(including GST) $3,771.00
The items allegedly missing damaged or spoiled was evidence by a typed up invoice from “Canberra Direct”. It is unclear who this company is. The tenants suggest that the owner owns that company. The address on the invoice indicates the company is located at unit 2231/9 Ferny Avenue, Surfers Paradise. Surprisingly enough the address of the company that undertook the repairs and replacement of the missing and damaged items is located at Circle on Cavill, the same address as the rental property. The lessor did not dispute the tenants’ evidence that the owner may be the owner of the company Canberra Direct. The lessor did not provide evidence to the assertion that the tenants alleged that the tax invoice is false.
The tenants demanded proof that those payments have been made to person or persons who undertook repairs and replaced damaged items at the unit. In my view, that is a fair request. The tenants said they had asked for the proof prior to the hearing and the documentation had been refused.
At the conclusion of the hearing, an order was made on 16 June 2014 granting leave to the lessor to provide further evidence regarding the proof of payment for the cost of the repairs. The evidence regarding this claim is insightful. The lessor provided further evidence to substantiate the claim by two payment receipts. One Westpac payment receipt indicates a payment from Ms Tran to Kevin Malady for $1,891.00. The receipt appears to be a payment for the invoice from Home Handyman Services issued on 30/3/2014. That invoice was not helpful and describes the work performed as: ‘repairs and replacements to goods damaged by the tenancy at Circle 2051/9 Ferny Avenue, Surfers Paradise (excluding any labour and materials for repairs of water damaged components)’.
A second receipt as proof of payment for damages and replaced items was a Westpac receipt paid by Blue Corp Trading dated 30 April 2014. Blue Corp Trading is the company name that trades as Gold Coast Property Expo. The payment was made to Canberra Direct on 23 June 2014, only after the tribunal required the lessor to provide proof of payment. Clearly at the date of the hearing the cost of the alleged repairs, replacement items and damages had not been paid.
FINDINGS
I find that the evidence provided by the lessor, including the further documents provided pursuant to leave that was granted after the hearing supports a finding that the lessor has attempted to mislead the tribunal and has provided evidence that is both misleading and or not truthful. For example, the lessor has attempted to portray the tenants as irresponsible tenants who sub-letted the unit to backpackers, who overcrowded the unit and allowed persons to stay at the property without permission. In contrast the evidence of the tenants, supports a finding that the visitors were permitted, hence the tenant ledger showed that extra fobs were given and paid for by the tenants for their visitors to use. In addition the photos attached to the claim show the fold out beds that were placed in the study by the lessor to allow the visitors to stay with the tenants while visiting. This evidence was not disputed by the lessor.
I find, further evidence on the point of alleged ‘backpackers and overcrowding’ was the fact that the lessor could not provide any evidence that this issue was a problem until the flooding occurred. The lessor issued a Form 11 notice to remedy breach on 24 March 2014, the day after the flood occurred. The Notice breached the tenants for ‘number of person allowed to reside at the premises. Please rectify the notice asap. Failure to rectify this notice will lead to further legal action against you’. In contrast, the lessor had full knowledge that the tenants had friends and family staying with them as they had requested keys, fobs and extra beds, which were approved by the owner and provided to the tenant. For the lessor to suggest the extra persons staying with the tenants was a surprise and in breach of their lease agreement, is ludicrous.
I find that there are further examples of inconsistent and withheld evidence by the lessor, the fact that the lessor did not volunteer the evidence that the owner of the unit was the Chairman of the Body Corporate and the same person who provided a witness statement for this application is misleading. A letter from the Chairman of the Body Corporate stating that he is the ‘supervisor of the on site security presence at the scheme and the person primarily responsible for the keeping of the security records’ was not helpful. The letter adds little weight to the evidence when taken into consideration that the Chairman of the Body Corporate is the actual owner of the unit in dispute and therefore has a vested interest in the outcome of this application.
I find that as Mr Royston, the owner of the unit, did not appear at the hearing and was not available for cross-examination on his evidence, I cannot place much weight on his evidence. The lessor provided evidence on behalf of the owner and this has been given little weight. The lessor provided a further letter from the Body Corporate Security Officer dated 23 June 2014 claiming that ‘from the period of 23 March 20 23 June 2014 there have been no complaints registered with the Circle on Cavill Body Corporate Security Office of any property being stolen from unit 2051’. The letter did not indicate who prepared it as it was not signed. It is likely, that as a previous letter was written by Mr Royston, the owner, that he was responsible for the supervision for on site security and the recorder of records for security issues, that Mr Royston probably prepared this letter. I find that this letter is merely an example of misleading and self-serving evidence provided to the tribunal by the lessor to bolster their claim.
The tenants said that the exaggerated costs and allegations that they had damaged some items were not true and that some of the damage was evident when they moved in. I find the tenants’ evidence to be accurate on that point. I find that the entry condition report records damages to the coffee table and white side table, the entry report indicates the coffee table as having chips and damage prior to the tenants moving in. The lessor’s claim for damage to the coffee table caused by the tenants is not accurate.
In contrast, I find that the tenants appeared to give evidence in a truthful and honest manner. They admitted to family and friends staying at their unit. They said that this was approved. They stated that if there was evidence that they had damaged or mistakenly taken some of the utensils or items in the property they would pay to replace them or repair things. They had reasonable explanations when particular matters were put to them. They said for example that the smoke alarms were not taken or damaged by them but were taken down after the water flooded in the apartment through the lights, as they were concerned there were safety issues. They said the water was coming into the unit through the lights from the unit above and they were worried about the power, they said they ‘took them down, and they just needed to be put back up’. The tenants said they did the ‘same with the lights by removing the globes, and the photos’ showed that. I agree with the tenants’ observation of the photos on that point.
I find that the photos provide by the lessor do not show any damage to beds, tables and furniture or replacement of missing items that are alleged. The photos clearly show a property that is dirty and not cleaned. The photos taken prior to the tenants removing their personal belongings shows an untidy unit. While taking into account the fact the tenants had to move out quickly due to the flood, it is little wonder their unit was a bit dirty and untidy, as they did not have time to rectify any of those issues.
The photos themselves do not justify an order for compensation in the amount sought by the lessor. I find that the photos do not prove that the sofa bed was broken beyond repair, that the dryer was not working due to ‘disfunction’ that the dryer was broken, and that cook top did not work. In the absence of particular invoices to prove the items were replaced I can only make a finding that it is likely that they were not. The only photographic evidence of some damage that appears reasonable is some damage to a blind by what looks like damages to the edge of the roller blind. The photo of the evidence was a photo[17] labelled IMG 0146 and this damage was not noted on the Entry Condition report. As there was no proof that the blind had been replaced or repaired, and the actual costs for the blind, the claim for replacement blind must fail based on lack of evidence.
[17]In bundle of photos attached to original claim.
I find that the lessor’s failure to provide any evidence for the claim, most likely is because the claim for compensation is mostly fabricated. The claim for some items is so unreasonable and unfair that I consider the bond claim to have no merit and to be most vindictive.
A further example of inconsistent evidence and a finding that the evidence by the lessor is not accurate or misleading was a letter prepared by the owner Mr Royston dated 23 June 2014. The letter was provided to the tribunal after the hearing with leave. The letter suggests that ‘for the two months leading up to the 23rd March 2014 that unit 2051 was occupied by short stay back packers style occupants with a high turnover with stays of as little as two weeks’. The letter goes on to say ‘I can confirm that the 8 person who were asleep inside the unit when I entered it with the letting agent and a security office on the morning of the 24th march 2014, were residents of the unit for all of the previous week and most had sought escorts during the previous week’. Further it states, ‘I confirm that the security presence was monitoring this unit closely during the weeks leading to the water incident due to overcrowding and security complaints relating to violence in the public areas by one of the temporary occupants’. I do not believe the evidence of Mr Royston at all in this regard, as he lived on site in the complex and was obviously aware of the goings on in the unit. I am satisfied and find that if there had been serious breaches, as he alleges, regarding overcrowding and violent acts by the tenants, he would have breached the tenants with a Form 11 notice to Remedy Breach regarding such serious allegations. The fact the tenants were not breached for these type of incidents for such serious matters, not even an email or a warning about such conduct, I find that it is clear that the incidents referred to by Mr Royston did not occur and are made up to support this claim.
The fact that the lessor was prepared to mislead the tribunal that the cost of replacement items in the unit in the sum of some $3,771.00 was substantiated with an invoice that was issued by the owner himself or his company is alarming and clearly not appropriate. The fact raised at the hearing on 16 June 2014 was that there was no proof of any payment, and to then bring proof of a payment after the hearing, a payment made on 23 June 2014 is misleading. Further, the agent has engaged in conduct bordering on misleading by her failure to acknowledge that the company Canberra Direct “allegedly did the repairs and replaced missing items” was a company owned by the owner and unlikely to have actually been genuine in the works that were done and the costs incurred. I find it hard to believe that the agent would not have known this fact and she would have informed the tribunal of this.
The glaringly obvious evidence missing from the application, and from the lessor’s evidence in chief, which I consider an important evidentiary matter strangely ignored by the lessor, was evidence regarding the Owners insurances and any obligations for the Body Corporate to pay for the repairs to the unit from the accidental water leak and flood. From the evidence of the parties it is not disputed a water pipe broke in the complex and water damage was caused to various units. On the facts, it appears an insurance claim is perhaps a matter for the owner’s consideration, as it might cover the alleged damage. In may well be the matter has already been referred to an insurer or the Body Corporate to handle the water flood costs. It may be that insurance has been refused or paid, no evidence was provided regarding this point. I find that the reason perhaps it has been ignored may be obvious.
There is insufficient evidence that would persuade me that an act or omission of the tenants has caused the lessor a financial loss. Further, I find that the owner has failed to provide any evidence regarding possible insurance for the flood, that he has failed in his duty to provide evidence that he has attempted to mitigate his loss and failed to mitigate costs for the tenants.
In relation to the claim for the cost of repairs and damages, I find that there is little evidence to support the claim for the damages and repairs for compensation. The owner’s evidence and conduct in these proceedings has been self-serving, and disingenuous.
In these types of cases, the applicant bears the onus to provide the evidence to the tribunal that would warrant an order being made in their favour. In this case, the lessor has failed in every regard. The claim for compensation against the tenant must fail. I therefore order:
ORDER
1. That the bond held with the Residential Tenancies Authority in the sum of $2,680.00 be paid to the Respondent tenants forthwith.
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