Green v Roberts (Residential Tenancies) - [2021] ACAT 87

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GREEN v ROBERTS (Residential Tenancies) [2021] ACAT 87

RT 612/2020
Catchwords: RESIDENTIAL TENANCIES – application by lessor for unpaid rent, damage to property and breaking the lease during the fixed-term – reductions in rent – reduction negotiated between lessor and tenant – financial considerations of both the lessor and tenant – lessor’s entitlements under the Residential Tenancies Act 1997 – tenant’s duties to pay rent and leave premises in reasonable state – tenant ordered to pay outstanding rent and for repairs
Legislation cited: Residential Tenancies Act 1997 ss 8, 29, 30, 30A

Tribunal:Senior Member D Mulligan

Date of Orders:  22 September 2021
Date of Reasons for Decision:      22 September 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 612/2020
BETWEEN:
NICKY GREEN
Applicant/Lessor

AND:
KATHERINE ELIZABETH ROBERTS
Respondent/Tenant

TRIBUNAL:Senior Member D Mulligan

DATE:22 September 2021

ORDER

The Tribunal orders that:

Ms Roberts is to pay Ms Green $5,241.15.
This sum is made up of $739.15 for unpaid rent, $2,320 for breaking the lease early and $2,182 for damage to the property that occurred during the tenancy.
ACT Rental Bonds on behalf of the Territory is directed to release the entire bond to the lessor.
Taking into account the transfer of the bond, Ms Roberts owes Ms Green $2,921.15, which she must pay to Ms Green within a calendar month of the date of this decision.
………………………………..

Senior Member D Mulligan

REASONS FOR DECISION

The applicant, Ms Nicky Green (the owner), owns a townhouse located in Lyneham, ACT (the property).
In November 2019 the applicant was trying to lease the unit. To that end she had it advertised on Gumtree. The advertised price of the unit was $600 per week.
The respondent, Ms Katherine Roberts (the tenant), was going through a break-up with her partner and was urgently looking for a home for her and her two children.
Ms Roberts saw the add and on 19 November 2019, she contacted Ms Green. She indicated that she was looking to move into a property urgently, “even this weekend would be perfect”.[1]
[1] Exhibit A1, Attachment 4 page 2
The two women communicated largely by way of text message. These texts included a number of claims made by Ms Roberts relating to her income and being a good tenant. These texts included comments that:
I earn a good amount of money and work part time, I will receive Centrelink payments and a very good amount of child support…
I have perfect rental references, I’ve always been commended by landlords and property managers on how I keep the houses and I always pay my rent.[2]
[2] Exhibit A1, Attachment 4 page 2
The tenant also told the owner that the tenant’s mother had transferred her $5,000 for moving expenses.[3]
[3] Exhibit A1, Attachment 4 page 4
Based on her claims Ms Green looked like a tenant who had a good track record of paying her rent and looking after the properties she had rented.
Ms Roberts made an offer to rent the property at the rate of $560 per week.[4] This was not accepted.
[4] Exhibit A1, Attachment 4 page 2
Instead, Ms Green offered to rent the property to Ms Roberts at the rate of $580 per week. By text message of 20 November 2019, Ms Green wrote:
Hi Katie
I’m more than happy to help you out.
Could you please adjust your application to 580 (down from 600) and take screenshots of funds transfers so that I know that everything is ok.[5]
[5] Exhibit A1, Attachment 4 page 2
Later that day Ms Roberts went to house where Ms Green was living and the parties signed a tenancy agreement[6] in relation to the property.
[6] Exhibit A1, Attachment 7
The agreement was for a fixed term lease which was to commence on 22 November 2019 and was to expire on 21 November 2020. The rent was set at $580 per week.
The lease was signed without the tenant having inspected the inside of the house. After signing the lease she inspected the townhouse and then texted to Ms Green[7] that “We love it!! And we will definitely take it”.
[7] Exhibit A1, Attachment 4 page 5
The bond of $2,320 was lodged with the ACT Rental Bonds.
The property was not in a clean condition and the carpets needed to be professionally cleaned. Because of the limited time available between the signing of the lease (20 November 2019) and the tenant moving in (22 November 2019), the owner was not able to arrange for the professional cleaning of the property.
The owner and the tenant agreed that the tenant would arrange for the cleaning to take place. She would pay the cleaner and then deduct the cost from her rent obligation. This in fact occurred.
No ingoing condition report was prepared or provided to the tenant.
On 15 March 2020, the tenant wrote to the owner and told her that she was struggling with the rent and she asked if she could break the lease. She wrote:
I am struggling with the rent here, I’ve had to start doing cleaning and odd jobs on the side to make ends meet … I know this is not your problem and you have your own, and I know I’m in a contract, but I wondered if there is anyway, if I found somewhere cheaper you would let me break lease? There is another townhouse in the complex that is only $490.
You have been so good to me and gave me a chance when no one else would…[8]
[8] Exhibit A1, Attachment 4 page 32
On 16 March 2010 the owner, in part, replied:
Hi Katie, I’m really sorry to hear that you are having such a hard time!!…. On the subject of the lease I would like to be as helpful as possible. I’m not very well at the moment, would you be happy to advertise and show the house to find someone to take over your lease?[9]
[9] Exhibit A1, Attachment 4 Page 33
Later that day the tenant replied:
Thank you! I am very happy to advertise and show the house. I’ll let you know when I’ve started the ball rolling etc. did you want me to advertise it at $580 or $600?[10]
[10] Exhibit A1, Attachment 4 Page 34
On 17 March, instead of advertising the property with a view to moving out, the tenant changed her mind and asked if the owner she could reduce the rent:
I was thinking of asking their dad if he could afford to pay me a little more to help me not have to move but I know it would not be much. Is there anyway you can afford to drop the rent at all in anyway.[11]
[11] Exhibit A1, Attachment 4 Page 37
The tenant asked Ms Green to reduce the rent by another $50,[12] which would have seen the rent be reduced to $530 per week.
[12] Exhibit A1, Attachment 4 Page 38
Ultimately, on 19 March 2020, Ms Green agreed to reduce the rent by $30 per week bring the rent down to $550 per week. Ms Green, in part, wrote:
I’m happy to meet you more than half way and reduce by a further $30 a week. That’s $50 less than the other applicant and I hope that it will help ease your troubles. Let me know what you think?[13]
[13] Exhibit A1, Attachment 4 page 41
Unsurprisingly, the tenant accepted the proposal and she replied:
Hi! Yes, thank you! Every little helps so thank you so much. That is really lovely and amazing of you. I’m really really grateful.[14]
[14] Exhibit A1, Attachment 4 page 42
The parties seem to have concluded that this $30 per week reduction was a temporary measure. On 16 April Ms Roberts referred to this rent reduction and said “The temporary rent reduction is a huge help and I’m very grateful”.[15]
[15] Exhibit A1, Attachment 4 page 64
The next morning at 8:18am on 20 March 2020, after having the rent reduced by $30 per week the previous day, the tenant changed her position again and sought to end the lease. She wrote to the owner:
I just found out last week that my work are struggling financially and so have asked me to look for something else. They will honour my contract but it would help them out if they didn’t have to pay me! I have found another job and its what I want to do, back in medical, but it’s a $10 an hour pay cut…
If you don’t mind me breaking the lease If I find somewhere grateful it would probs be better all around do you think? Rather than dropping the rent?
I’m really really sorry Nicky. You took a chance on me and I’m sorry for letting you down.[16]
[16] Exhibit A1, Attachment 4 page 47
It’s very difficult to take Ms Robert’s statement and contentions seriously. None of the information in the text message was new and none of it had been mentioned during the previous day when the rent reduction had been negotiated.
It should be noted that the tenant’s employer would continue to honour her contract and it was Ms Roberts decision to go to a new job that paid less.
A lessor does not have an obligation to reduce rent or terminate a fixed term tenancy because the tenant makes choices that affect her ability to afford the rent.
Understandably, the owner wrote to the tenant and said:
Katie, I’m sorry but you have a lease. I can’t do anymore at the moment.[17]
[17] Exhibit A1, Attachment 4 page 48
Undeterred, Ms Roberts persisted and wrote:
All good with the decrease I totally understand, but will you let me break lease if I help find a tenant like you said before?
Thanks[18]
[18] Exhibit A1, Attachment 4 page 48
Ms Green, very generously, responded that she would maintain the offer of the reduced rent, but she declined to commit to any break lease agreement. She said in part:[19]
As it stands I’m happy to accept a reduction in rent effective next week. Any other suggestions I need to seek advice on as I’m not in a position to make that decision at this point in time.
Suffice to say I’m more than disappointed in the way things are going, particularly given the care I believe I have shown you.
[19] Exhibit A1, Attachment 4 page 49
On Monday, 23 March 2020, Ms Roberts again wrote to Ms Green and advised her that in three days’ time she would be out of a job.[20]
[20] Exhibit A1, Attachment 4 page 52
The prospect of Ms Roberts being unable to pay her rent caused Ms Green a great deal of concern as she relied on the rental payments to pay her mortgage. Her bank was willing to freeze payments but that would ultimately cost her $12,000 and add time to her mortgage.
Ms Roberts began to look for cheaper rental properties.
The tenant’s financial position did not improve and on 3 June 2020, she wrote to the owner and told her that:
I have done the sums and, without having a job still I can’t afford to pay anything extra in rent at the moment I’m really sorry. Even the thousand dollars takes up the bulk of what I get from the government.[21]
[21] Exhibit A1, Attachment 4 Page 70
At this point Ms Roberts was receiving Centrelink payments under the job seeker COVID-19 relief program. Ms Green who looked at the records supplied by Ms Roberts says that those payments totalled $1,575.45 per fortnight. This sum was not disputed by Ms Roberts.
On 14 June 2020, Ms Roberts wrote to Ms Green and broke the lease. Her message in part stated:
I know I’m in a lease and you have been so good to me but I’m going to have to break it on the basis of financial hardship. I know it’s a big ask but you may get calls for a reference for me if that’s ok. I’ll pay rent on Friday and then let you know how I go from there.[22]
[22] Exhibit A1, Attachment 4 page 73
Ms Green was understandably concerned and confused by this development. She took from the message that Ms Roberts was giving her two weeks’ notice. She came to this conclusion as at the time of the message Ms Roberts was one week ahead in her rent and Ms Robert’s reference to paying a further week’s rent suggested to her that Ms Roberts intended to leave the property at the time when the rental was at a zero balance in two weeks’ time.
The next day, 15 June 2020, Ms Roberts wrote to Ms Green and advised her that she may not have to move out as she may be getting a job.[23]
[23] Exhibit A1, Attachment 4 page 74
The next day, 16 June 2020, Ms Roberts advised that she didn’t get the job and that:
I don’t have a move date yet but if you want me to move out sooner then I do have places to go.[24]
[24] Exhibit A1, Attachment 4 page 74
On 17 June 2020 Ms Green wrote to Ms Roberts and in part said:
I will accept three weeks’ notice effective from tomorrow. I assume that you are happy to have the house etc in pristine condition and ready for an open house the next day (Friday) – 3 weeks from tomorrow?[25]
[25] Exhibit A1, Attachment 4 page 76
Under this proposal Ms Roberts would quit the property on Friday 9 July 2020.
Ms Green did not receive a reply to that message so she wrote to Ms Roberts on 20 June 2020 and asked her to confirm the date upon which she would be moving out.[26] To which later that day Ms Roberts responded, in part:
I haven’t found a place yet…I don’t have a move out date but I can certainly aim for 3 weeks and have the house perfect for any inspection and will of course leave it pristine and perfect when I leave…If I don’t find anywhere in 3 weeks tho and you don’t have a new tenant yet can I stay until I find somewhere?[27]
[26] Exhibit A1, Attachment 4 page 76
[27] Exhibit A1, Attachment 4 page 77
Ms Green responded, in part:
Yes of course you can stay. The only thing I would ask is for more than 2 weeks notice. I’m already struggling, to have the place empty for any length of time would sink me.[28]
[28] Exhibit A1, Attachment 4 page 79
The next communication took place on 26 June 2020, when Ms Roberts wrote to Ms Green and said:
…Still no update yet but I hope to hear something early next week, and I will give you 2 weeks notice
Have you advertised yet? I haven’t seen it anywhere, or are you moving back in?...[29]
[29] Exhibit A1, Attachment 4 page 80
Later that day Ms Green responded and made her position very clear. She said:
Hi Katie, no I can’t advertise until I know when the property is available. That would be completely unfair and a waste of everybody’s time. Please note that you are liable for the rent until a replacement is found, as you are breaking the lease. It is not fair or reasonable to leave me stuck. I’ve done everything I can to help. Reduce the rent, pay the water etc… There needs to be some equity here.[30]
[30] Exhibit A1, Attachment 4 page 81
Ms Roberts replied a few minutes later and said:
If you could please advertise to say mid-July (many people do this at the moment especially) I will try to be out by the 10^th July, but by the end of July at the latest.[31]
[31] Exhibit A1, Attachment 4 page 82
Ms Roberts response appears to be that she should be entitled to stay at the property whilst convenient to her. Her response seems oblivious to Ms Green’s very reasonable position that she needs to be able to tell potential renters when the property will be able to move into the property. Few people would accept a lease in circumstances where there is no certainty as to when they can move into the property.
Ms Roberts remained in the property and on 10 July 2020, she wrote to Ms Green and unilaterally reduced her rent to $450 per week. She said, in part:
I can only afford to pay $450 as that’s what I allowed for for moving…[32]
[32] Exhibit A1, Attachment 4 page 88
By this time Ms Green was understandably annoyed with Ms Roberts. She would not say when she was leaving the property and she was telling the owner what rent she was prepared to pay in circumstances where the owner had already reduced her rent on two occasions by a total of $50 per week.
Later that day Ms Green replied to Ms Roberts in the following terms:
Hi Katie this is not ok. Please pay your rent, in full - $580. The amount I reduced it to, to help you out pre COVID.
I’m on sick leave with no pay and cannot afford the mortgage. You cannot just tell me that you are reducing your payments again!!...[33]
[33] Exhibit A1, Attachment 4 page 90
Ms Roberts then wrote back to Ms Green and agreed to pay an extra $50 for the week, bringing what she was prepared to pay to $500 per week as opposed to the $550 she was meant to be paying up until that point.
On 14 July 2020 Ms Roberts wrote to Ms Green and said:
… I just wanted to formalise my final date. I will hand the keys back by COB Friday 31^st July. If I move out before then, I will of course give the keys back sooner but pay rent ($500) up until then if I am able…
As we came to an agreement which is in writing about you accepting my break-lease and given it is on the grounds of hardship I do not believe I will be liable for break lease fees…[34]
[34] Exhibit A1, Attachment 4 page 95
On 17 July 2020, Ms Roberts messaged Ms Green and advised her that she had “paid $1000, my final rent”.[35] She did not explain why she was choosing to pay $1,000 as opposed to the $1,100 she in fact owed.
[35] Exhibit A1, Attachment 4 page 97
According to Ms Mary-Anne Felton, a housing Programs Manager, with Catholic Care, Ms Roberts leased a property located in Kaleen in the ACT from Catholic Care. According to Ms Felton the lease began on 23 July 2020[36].
[36] Exhibit R1, Letter from Ms Felton dated 28 October 2020
Ms Roberts was scheduled to leave the premises by the close of business on Friday 31 July 2020. She did not do so.
Ms Green had potential tenants she wanted to show through the property over the weekend of 1-2 August 2020. Surprisingly, Ms Roberts would not let them inspect the property and insisted that any inspection take place after she had left the property.
On Monday, 3 August Ms Roberts offered to allow the potential tenants to look at the property during that evening.
By this time the potential tenants who were to inspect the property were offered another property which they accepted.[37]
[37] Exhibit A1, Attachment 4 page 129
Ms Roberts ultimately left the property and returned the keys on Tuesday, 4 August 2020.
Ms Green was not happy with the state in which the property was returned to her and she noted a significant amount of damage to the property which she says occurred during the tenancy.

Ms Green’s claims

Ms Green filed an application for the resolution of a dispute under the Residential Tenancies Act 1997[38] (the Act), on 6 November 2020. In that application she sought:
(a)Lost rent.
(b)Compensation for early termination of a fixed term tenancy.
(c)Compensation for the damage to her property that she says occurred during the tenancy.
Lost rent
[38] Exhibit A2
Ms Green voluntarily dropped the rent on two occasions; firstly from $600/week to $580/week at the commencement of the lease and then on 19 March 2020 the rent was dropped from $580/week to $550/week. The rent was reduced because Ms Roberts was having difficulties paying the rent and she asked Ms Green to help her by reducing the rent. Ms Green is a very kind woman who agreed to the reduction.
Whilst the rent reduction occurred during the COVID-19 pandemic, Ms Roberts did not ask for the rent reduction on that basis and she did not suggest to Ms Green that any COVID-19 legislation or guideline warranted the reduction of the rent she was seeking.
At no stage during the tenancy did Ms Roberts provide Ms Green with a request to apply any COVID-19 legislation or guideline to her situation and at no stage during the tenancy did she give Ms Green any supporting documents that would have allowed Ms Green to apply any COVID-19 legislation or guideline to Ms Roberts’ situation.
For those reasons I am satisfied that no COVID-19 legislation or guideline applies to Ms Green’s lease of the property to Ms Roberts and that the dispute should be determined without regard to that legislation or guidelines.
Ms Green is entitled to the outstanding rent that has not been paid by Ms Roberts.
Ms Green is entitled to have been paid rent at $580/week from the commencement of the lease until 19 March 2020. She is entitled to rent at $550/week from 20 March 2020 until 10 July 2020, when Ms Green wrote to Ms Roberts and confirmed that she was no longer willing to apply the temporary rent reduction of $30/week. Ms Green is also entitled to charge $580/week from 11 July 2020 until the day Ms Roberts moved out of the property: 4 August 2020.
Ms Green was entitled to be paid the following sums:
$9,776.30118 days (from 22 November 2019 to 19 March 2020) at $82.85/day
$8,799.84112 days (from 20 March 2020 to 10 July 2020) at $78.57/day
$1,988.4024 days (from 11 July 2020 to 4 August 2020) at $82.85
Total:$20,564.58

According to Ms Green, Ms Roberts paid her rent in the sum of $19,825.43.[39]
[39] Exhibit A2 page 5
I order Ms Roberts to pay Ms Green $739.15 for unpaid rent ($20,564.58 - $19,825.43).
Break lease fee
Ms Roberts argued that Ms Green is not entitled to any break lease fee as some of the comments she made indicated her intention not to charge a break lease fee and instead would accept two or three weeks’ notice instead. For example, on 17 June 2020 Ms Green wrote to Ms Roberts and in part said:
I will accept three weeks’ notice effective from tomorrow. I assume that you are happy to have the house etc in pristine condition and ready for an open house the next day (Friday) – 3 weeks from tomorrow?[40]
[40] Exhibit A1, Attachment 4 page 76
There are two separate issues that arise. The date upon which the tenancy is to terminate and the amount of compensation due to the lessor for the early termination of a fixed term lease.
I understand Ms Green’s comments about accepting two or three weeks’ notice as a statement of her position as to when she was prepared to end the tenancy. I do not see those comments as giving up her entitlement to be compensated for the early termination of the lease under section 8(2) of the Act.
On 26 June Ms Green affirmed her position very clearly:
Hi Katie, no I can’t advertise until I know when the property is available. That would be completely unfair and a waste of everybody’s time. Please note that you are liable for the rent until a replacement is found, as you are breaking the lease. It is not fair or reasonable to leave me stuck. I’ve done everything I can to help. Reduce the rent, pay the water etc… there needs to be some equity here.[41]
[41] Exhibit A1, Attachment 4 page 81
I also note that on 14 July Ms Roberts wrote to Ms Green and said that she did not believe she should pay a break lease fee because she was terminating the agreement because of hardship:
As we came to an agreement which is in writing about you accepting my break-lease and given it is on the grounds of hardship I do not believe I will be liable for break lease fees…[42]
[42] Exhibit A1, Attachment 4 page 96
A tenant cannot simply tell a lessor that she is terminating a lease on the grounds of hardship. A tenant’s statement to that effect is not binding on a lessor.
A tenant can make an application to ACAT to have their lease terminated on the basis of financial hardship.
Ms Green did not bring a proceeding of that nature to ACAT.
For those reasons I reject Ms Green’s arguments.
Section 8(4) of the Act provides the consequences a tenant will face if they terminate a fixed term tenancy before the end of the lease. It provides:
Termination before end of fixed term—fee for breaking lease
(1) If the tenant ends a fixed term agreement before the end of the fixed term (other than for a reason provided for by the Residential Tenancies Act or the agreement), the tenant must pay a fee (a break fee) of the following amount:
(a)if the fixed term is 3 years or less—
(i)if less than half of the fixed term has expired—6 weeks rent; or
(ii)in any other case—4 weeks rent;
(2)     The lessor agrees that the compensation payable by the tenant for ending a fixed term agreement before the end of the fixed term is limited to the amount of the break fee specified in subclause (1).
(3)     However, the lessor and tenant agree that if, within the defined period after the tenant vacates the premises, the lessor enters into a residential tenancy agreement with a new tenant, the amount payable by the tenant is limited to—
(a)the amount of the break fee under subclause (1) less the amount of rent payable by the new tenant for the defined period; and
(b)if the tenant vacates the premises more than 4 weeks before the end of the fixed term—the lessor’s reasonable costs (not exceeding the defined cost limit) of advertising the premises for lease and of giving a right to occupy the premises to another person.
(4)     In this clause:
defined cost limit means—
(a)if half or more than half of the fixed term has expired—an amount equal to 2/3 of 1 week’s rent; or
(b)if less than half of the fixed term has expired—an amount equal to 1 week’s rent.
defined period means—
(a)if subclause (1) (a) (i) applies—6 weeks; or
(b)if subclause (1) (a) (ii) applies—4 weeks; or
(c)if subclause (1) (b) applies—N weeks.
N is the number worked out as follows:
According to the Act Ms Green is entitled to four weeks rent for the early termination of the lease by Ms Roberts. She is entitled to this figure because the lease was a fixed term lease of less than three years and more than half of the lease had expired at the time the tenancy terminated on 4 August 2020 and she is entitled to four weeks rent at the rate of $580/week as she was not able to attract a tenant to offset any amount during that four-week period.
Normally, Ms Green would be entitled to two-thirds-of-a-week’s rent to cover the costs associated with advertising the property for rent. She has not made a claim for this amount, nor supplied any receipts for costs she incurred. Consequently, I make no order for those costs.
I order Ms Roberts to pay Ms Green $2,320 ($580 x 4) for breaking the lease early.
Damage to the property
Ms Green claims the sum of $3,449.54 for putting the property back to rights after Ms Roberts left it on 4 August 2020.
A lessor has an obligation to provide a tenant with two copies of an in-going condition report which has been signed by the lessor or their agent. The report must be given to the tenant within one day of the tenant taking possession of the property.[43]
[43] Residential Tenancies Act 1997 section 29
The in-going condition report sets out the condition of the property at the time the tenancy commenced.
The report addresses each room in the property and speaks to the condition of each space.
Reports commonly contain photographs which depict each space and authoritatively describe the condition of the property.
The tenant then has two weeks to carry out their own inspection and mark any differences they note on the report. They should return one copy of the report to the owner or agent.
At the end of a tenancy the owner of a property, or their agent, is to prepare an outgoing condition report.
The ingoing report is evidence of the state of the property at the time it was leased to the tenant.[44]
[44] Residential Tenancies Act 1997 section 30(1)
At the end of a tenancy the owner, or their agent, together with the tenant should undertake an inspection and complete an outgoing, or final, inspection report.[45]
[45] Residential Tenancies Act 1997 section 30A
By comparing the ingoing and outgoing reports ACAT can readily and authoritatively determine what damage occurred to the property during the tenancy and consequently what damages an owner is due for the damage to their property.
Ms Green did not give Ms Roberts an ingoing condition report. There is no document that independently informs me as to the state of the property at its commencement.
The McGrath Property Group (the agent) did prepare an outgoing condition report which listed defects they noted during their inspection.
The agent’s report is of very limited assistance to me as there is no ingoing report to compare it with.
Ms Roberts in essence submits that in the absence of the ingoing report I can not safely determine what damage occurred during the tenancy and what damage was pre-existing.
Ms Roberts argument has much to recommend it. Parliament has set out a clear and effective process for ACAT to determine what damage occurred during a tenancy; a comparison of the ingoing and outgoing reports.
Notwithstanding the absence of the two reports, I can still conclude that particular damage occurred during the tenancy if there is strong evidence, that satisfies me on the balance of the probabilities, to support that conclusion.
Whilst Ms Green impressed me as a generous and kind woman, in the absence of an ingoing report, I nevertheless need to approach her claims for damages with some caution.
Looking at her list of claims[46] there are only a limited number of claims which I am satisfied must have occurred during the tenancy. They are:
$1,197 – cost to replace to three light fittings/shades;
$550 – electrician fee to replace light shades;
$145 – missing oven hotplate switch;
$290 – carpet cleaning;
Total: – $2,182
[46] Exhibit A3
I accept Ms Green had a very clear recollection of the condition of her light shades and the presence of the switch on her hotplate.
I accept that the damage to the lights/fittings and the absence of the hotplate switch did not arise by way of fair wear and tear.
I also accept that the carpets needed to be cleaned at the termination of the tenancy. I note Ms Green paid for this to be done at the commencement of the tenancy, shortly after Ms Roberts moved in.
In the absence of an ingoing report I am not satisfied that Ms Green has made out her claim for the other items she says were damaged during the tenancy and I make no order in relation to them.
I order Ms Roberts to pay Ms Green the sum of $2,182 for damage to the property that occurred during the tenancy.

Conclusion

I order Ms Roberts to pay Ms Green $5,241.15.
This sum is made up of $739.15 for unpaid rent, $2,320 for breaking the lease early and $2,182 for damage to the property that occurred during the tenancy.
The bond of $2,320 is to be immediately released to Ms Green.
Taking into account the transfer of the bond to Ms Green, Ms Roberts is to pay Ms Green the remaining $2,921.15, which she must pay to Ms Green within a calendar month of the date of this decision.
………………………………..

Senior Member D Mulligan

Date(s) of hearing	30 April 2021
Applicant:	In person
Respondent:	In person