Hull v Mills No. Dcadd-03-636

STEVE HULL v MARGARET MILLS
[2003] SADC 184
CIVIL - ADMINISTRATIVE AND DISCIPLINARY DIVISION
JUDGE DAVID SMITH

This is an appeal pursuant to s41 of the Residential Tenancies Act 1995 by a tenant, Stephen John Hull, against an order of the Residential Tenancies Tribunal (“the Tribunal”), made on the 18^th November 2003 which required the tenant to pay to the landlord, Mrs Margaret Mills, the following payments:
Unpaid rent for period 20/0703 to 16/08/03(4 x $200)   $800
Compensation for damage to the garden  $500
Cost of replacing hex mesh   $6
—————
  Total   $1,306
Background circumstances
The landlady, Mrs Margaret Mills, owned and lived in what was and is a charming rural property at Nangkita in the southern vales area of the State. The home was on 2.5 acres of land and featured a large garden. Mrs Mills took an appointment in the UK and so through LJ Hooker at McLaren Vale, and in particular Mr Rodney Rea, of that enterprise, she leased the property to Mr Stephen Hull and his family for a term of six months with a right of renewal of six months. The period of the tenancy commenced on the 16^th August 2002. After the initial period of six months, Mr Hull renewed the tenancy. The rent was $200 per week. There was a security bond of $800 paid by Mr Hull and lodged with the Commissioner for Consumer Affairs.
It is common ground that the tenancy was terminated on the 20^th July 2003 and so did not run its full term as renewed to the 16^th August 2003. At that time the tenant and his family vacated the property and thereafter ceased maintaining the grounds or garden.
The landlady, Mrs Mills, who had returned from overseas in July of 2003 did not accept the early departure of the tenant and nor did she accept the state of both the house itself and the garden. She instituted proceedings in the Residential Tenancies Tribunal seeking recompense from the tenant as follows:
Cleaning of walls (landlord’s labour – 4 hours)  $60.00
Cleaning of windows (landlords’ labour – 2 hours)  $30.00
Painting of bathroom ceiling  $200.00
Repairs (detailed below)  $184.20
Replacement of plants  $1,500.00
Weed control  $276.10
Replacement of treated logs  $196.35
Wire netting  $30.00
Gardening  $150.00
Rent (from 20 July 2003 to 16 August 2003)  $800.00
  ——————
Total  $3,426.65
The careful and helpful reasons of decision of the Tribunal canvassed the evidence as to all the claimed items and at pages 5 and 6 the Tribunal set out its findings and orders in the following terms:
“On the basis of the evidence, and on the balance of probabilities, I set the tenant’s total liability as follows:
Replacement of hex mesh  $6.00
Rent (from 20 July 2003 to 16 August 2003)  $800.00
Global compensation for damage to the garden  $500.00
  ——————
Total  $1,306.00
After deducting the security bond of $800.00 which I will order be refunded to the landlord, I find the tenant liable in the amount of $506.00 for the balance of Claims.
ORDERS:
1Pursuant to Section 110(1)(i) of the Act, I order that the security bond of $800.00 held by the Commissioner (Bond No. 3284458-1) be paid to the landlord, via the agent, in the amount of $800.00.
2Pursuant to Section 110(1)(c) of the Act, I order that the tenant pay to the landlord, via the agent, the sum of $506.00 within 28 days of the below date. Failing payment, this order may be registered in the appropriate court and enforced as an order of that court.”
This Appeal
This appeal raised a potentially crucial matter, namely whether or not the landlord’s agent had released the tenant from liability to comply with the letter of the agreement and therefore whether the tenant had any obligation both as to paying rent and maintaining the garden from the 20^th July 2003 onward.
It was common ground that this consideration was debated at length at the Tribunal but despite that there was neither an allusion to this issue much less any findings about it in the Tribunal’s determination. Accordingly, pursuant to s42E of the District Court Act 1991 I heard evidence as to this issue from the following witnesses:
·the appellant tenant, Mr Stephen Hull;
·the landlady’s agent Mr Rodney Neville Rea of LJ Hooker McLaren Vale, who was charged with the management of the property;
·Damien Anthony Mills, the son of the landlady who acted for his mother in relation to the management of the property;
·Mr Adrian Burton, a neighbour; and
·the landlady, Mrs Margaret Mills
I add here that I took Mrs Mills’ submissions to me throughout the day long appeal as her evidence.
Findings
It is clear from the uncategorical evidence from both the tenant, Mr Hull, and the agent, Mr Rea, that the agent Mr Rea did indeed release Mr Hull from the obligations of the Tenancy Agreement as and from the 20^th July 2003. In particular, Mr Rea conveyed to Mr Hull that the landlady consented to him terminating the lease early. Mr Rea explained that Mrs Mills’ son, Damien, authorised him to so release the tenant. Mr Damien Mills in evidence denied that. It is not necessary for me to resolve this impasse. It is trite law that the landlady, Mrs Mills, is bound by what her agent does in the course of the agency. If he acts without authority then that is a matter between her and him. The tenant Mr Hull was entitled to act on Mr Rea’s assurance as if it came directly from Mrs Mills herself. The tenant Mr Hull says that is exactly what he did. I accept the evidence of Mr Hull as to this. Mr Rea agrees that he released Mr Hull and I have no basis to question this evidence.
So I have no difficulty in this matter concluding that the respondent landlady through her agent waived reliance on the strict letter of the Tenancy Agreement and thereby released Mr Hull from the obligation to pay the rent from the 20^th July 2003 to the 16^th August 2003.
As to garden, the tenant said that it was in good order when he surrendered possession of the premises on the 20^th July 2003. He said in particular that he maintained the garden and grounds right up to the 20^th July notwithstanding that he had physically left the premises prior to that date. So too the agent Mr Rea said that he carried out a final inspection on about the 20^th July and that the garden and grounds were in good condition then bearing in mind such phenomena as the drought and fair wear and tear. Accordingly, the tenant left assuming all was well. In cross-examination Mr Rea said that at the time of his final inspection the state of the garden and the premises generally were much the same as depicted in the photographs taken by him at the commencement of the tenancy. He did however accept that he was not a gardening enthusiast.
What perhaps is crucial is that some four or five weeks elapsed after the 20^th July 2003 during which time no-one attended to the maintenance of in particular the garden. So in this period there was a likelihood for instance of uncontrolled weed growth.
On the other hand Mrs Mills proffered photographs of the garden and, supported by her neighbour Mr Burton, said that such was the state of the garden when she resumed possession that it could not be ascribed to a month or so of inattention.
However, the tenant was effectively released from any obligation in respect of the grounds and the garden by the “green light” given to him by the agent.
Accordingly, it is not necessary for me to resolve the disagreement in the evidence between the tenant and the agent on the one hand and the landlady and her neighbour on the other. The landlady is estopped from claiming against the tenant for the state of the garden by the representation or acceptance of her agent that all was well when the tenant departed on the 20^th July 2003.
Conclusion
There is cogent reason to depart from the decision of the Tribunal. The Tribunal simply did not deal with this issue of the agent accepting the early departure of the tenant. Pursuant to s42F of the District Court Act 1991 I rescind the decision and in particular indicate that the landlady, Mrs Mills, is not entitled to the rent from the 20^th July 2003 to the 16^th August 2003 fixed at $800 and nor is the tenant obliged to pay any compensation for the damage to the garden fixed by the Tribunal at $500. The tenant accepts his liability to replace the hex mesh at the grand total at $6 and accordingly that part of the decision remains.
Accordingly, the appeal is allowed. The decision of the Tribunal is rescinded save that the appellant’s liability to pay the respondent $6.00 for the hex mesh remains.
Though I will hear the parties as to costs I consider that it would be just in all the circumstances if each party bears their costs.

[2003] SADC 184

24 December 2003