Ilkiw v Bonson & Lau - [2010] SADC 5

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Appeal Under Residential Tenancies Act 1995)
ILKIW v BONSON & LAU
[2010] SADC 5
Reasons of His Honour Judge Burley
19 January 2010
LANDLORD AND TENANT - AGREEMENTS FOR LEASE - GENERALLY
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION - OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES - INSPECTION AND REPAIR
LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION - OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES - RENTAL BONDS OR SECURITY DEPOSITS
Appeal against decision of Residential Tenancies Tribunal – whether rent payable by tenants for period between acceptance of premises and entry into occupation of premises by tenants – whether legal requirement to give notice to landlord of intention to vacate premises – whether Tribunal erred in refusing to award costs of cleaning expenses after tenants left premises – whether Tribunal erred in awarding damages to tenant for landlord’s failure to keep premises in reasonable state of repair.
Appeal dismissed insofar as landlord seeks to set aside order of Tribunal requiring repayment of the bond monies to tenants – orders of Tribunal requiring payments of $173.57 and $620 to tenants set aside – Tribunal erred in awarding damages for breach of provision set out in s 68 of Residential Tenancies Act 1995 (SA) – claim against tenant for rent in lieu of notice dismissed.
Residential Tenancies Act 1995 (SA) s 41, s 116, s 68, s 68(1), referred to.

ILKIW v BONSON & LAU
[2010] SADC 5
Appeal under Residential Tenancies Act 1995

JUDGE BURLEY: This is an appeal from the decision of the Residential Tenancies Tribunal pursuant to s 41 of the Residential Tenancies Act 1995 (the Act). The appellant is the landlord of the premises and the respondents were the tenants of the subject premises. The appeal is in respect of the judgment of the Tribunal dated 9 April 2009. The Notice of Appeal was filed on 8 May 2009.
In early 2007 the premises were occupied by one tenant, a Ms O’Connor, who, although she did not give evidence at the hearing before the Tribunal, was permitted to give evidence before me. Ms Ilkiw gave authority to Ms O’Connor to obtain two additional tenants each to occupy the remaining two bedrooms in the premises. Ms O’Connor advertised for tenants and Ms Lau and Mr Bonson, independently of one another, responded to the advertisement. The rental was $135 per week each and a security bond of $500 had to be paid. Agreement was reached as to the Tenancy. Mr Bonson moved into the premises on about 18 January 2008 and Ms Lau on about 21 January 2008.
It was Ms Ilkiw’s case that the tenants should have paid rent from the time they accepted the room as opposed to the time when they entered into occupation. At her request, Ms Lau paid a week’s rent and Mr Bonson two week’s rent to cover this requirement.
The parties entered into written tenancy agreements, the duration of which was six months. The tenants left the premises at the expiry of the tenancy period.
The proceedings before the Tribunal consisted of a number of applications brought by the parties as follows:
·On 22 July 2008 Mr Bonson applied for a refund of the bond money.
·On 23 July 2008 the landlord lodged an application seeking payment of the sum of $489.50 from the bond monies paid by Mr Bonson.
·On 26 September 2008 Ms Lau lodged an application seeking a refund of overpaid rent amounting to $173.61.
·On 3 October 2008 the landlord lodged two applications, firstly to claim $84.50 from Mr Bonson for carpet cleaning and cleaning expenses and secondly, a claim for $227.50 from Ms Lau for carpet cleaning and ten days’ rent in lieu of giving notice.
·In 14 July 2008 Mr Bonson lodged an application (which was subsequently amended). The amended claim was for compensation for overpaid rent ($270) and for damages allegedly arising from the lack of repairs carried out to the premises ($2,295).
In addition, the Tribunal dealt with the recovery of the bond money paid by Ms Lau.
The Orders made by the Tribunal on 9 April were for the refund of the bond of $500 to each of the tenants and that in addition, the landlord pay to Ms Lau the sum of $173.57 on account of overpaid rent and that the sum of $620 be paid by the landlord to Mr Bonson. The $620 consisted of damages in the sum of $350 and $270 for overpaid rent. No Order was made in favour of the landlord in respect of her applications.
At the hearing of the Appeal, Ms Ilkiw relied largely upon her relatively detailed Notice of Appeal. In the first two grounds she asserts that if there had been overpayment, they could not be recovered because of the provisions of s 116 of the Act. The landlord did not accept that those amounts constituted overpayments. It was always her primary contention that those payments represented rent for the period between the acceptance of the premises and the entry into occupation of the premises by the respective tenants. Nevertheless, she argued that even if such rent was not recoverable for any period prior to the entry into occupation of the premises by the respective tenants, overpayment could not be recovered unless the proceedings for recovery of such rent were commenced within six months of the occurrence of the overpayment as required by s 116 of the Act. The learned Tribunal member made no reference to this Section during the course of her reasons. It appears to me that she has overlooked the provision. In my opinion, s 116 applies to both payments because, in the case of Mr Bonson, proceedings for the recovery of the rent were not brought until October 2008, and, in the case of Ms Lau, until September 2008. The alleged overpayments of rent occurred in January 2008 and consequently the proceedings to recover overpayments were made outside the relevant six month period.
In my opinion, the Tribunal erred in not taking into account the provisions of s 116 of the Act. The Orders made for the recovery of those amounts either from bond monies or otherwise should be set aside. In lieu of those Orders, an Order should be made on Appeal that the respective applications for recovery of allegedly overpaid rent should be dismissed.
Grounds 3 and 4 of the Notice of Appeal raise other aspects of the claim for allegedly overpaid rent. In light of my conclusions in relation to Grounds 1 and 2, it is not necessary to rule upon these grounds.
Ground 5 relates to the award of the $350 compensation to Mr Bonson. I will deal with that aspect of the matter later in these reasons.
Ground 6 relates to an application apparently made by the landlord against Ms Lau for ten days’ rent in lieu of giving adequate notice to vacate the premises. This aspect of the matter may be shortly disposed of. The landlord’s submission that inadequate notice was given by Ms Lau was dependent for its efficacy upon a finding that the Tenancy Agreement had been extended beyond the six month period provided for in the original Tenancy Agreement. Although it is clear that, initially, Ms Lau indicated that she would be willing to take an extension of the tenancy period, the fact is that this never occurred for a variety of reasons, including a fall out between Ms Lau and Ms O’Connor. No written extension of the Tenancy Agreement was ever signed by the parties nor did Ms Lau remain in occupation of the premises after the expiry of the six month period. In addition, there was no unequivocal acceptance by the landlord that an extension could and would be granted. On the contrary, she ultimately decided that any new tenancy would be solely between her and Ms O’Connor who could, in turn, sub‑let part of the premises. In those circumstances there was no legal requirement imposed upon Ms Lau to give notice to the landlord that she intended to vacate the premises. She vacated the premises at the expiration of the six month period. To the extent that, by implication, the Tribunal refused such an application on the part of the landlord for payment in lieu of notice, the Tribunal was correct in that determination. This is so, even though Ms Lau, towards the end of the initial six month period, asked whether two weeks’ notice of intention to vacate the premises would be sufficient. Such a proposal may have had contractual force if it had been accepted, but it was never effectively accepted by the landlord.
Ground 7 of the Notice of Appeal related to an application to call Ms O’Connor to give evidence on the appeal. This occurred.
Ground 8 relates to the refusal of the Tribunal to award to the landlord the costs of carpet cleaning and cleaning expenses allegedly incurred after Ms Lau and Mr Bonson left the premises. The ground concerns a question of fact: did either or both Mr Bonson and Ms Lau leave the premises in a poor condition such that the landlord incurred expense in cleaning either or both of the bedrooms respectively occupied by them and the carpeting in the premises?
As to this, the learned Tribunal member said (at page 3 of her Reasons):
When the tenants left Ms O’Connor had the carpets cleaned at a cost of $104. Ms Ilkiw is claiming one third of the costs of the carpet cleaning against each of the three tenants. She alleges that Mr Bonson had not done his share of cleaning at the house and that Ms O’Connor, in cleaning the house, had been put to expense and she claimed $50 against Mr Bonson for cleaning expenses.
No inspection sheets were completed at the start of the tenancy.
Ms Ilkiw was overseas when the tenants took up residence at the unit. Ms Ilkiw relies upon what Ms O’Connor has told her about the condition of the premises but the Tribunal did not have that evidence from Ms O’Connor herself.
She said later in her Reasons (at page 5):
As for the landlord’s other claims for compensation, the Tribunal simply does not have evidence to support the assertion put by Ms Ilkiw that the carpets were clean at the commencement of the tenancy. Even if the account of the carpet cleaner supported an assertion that the carpets had been cleaned by Ms O’Connor 8 months previously, others had occupied the premises since the carpets were last cleaned and before these tenants took up occupation. Ms Lau was adamant that the tenants had returned their rooms to the state they had found them in and that they had cleaned (sic). She did not think the carpets had been cleaned prior to them moving into the property. Given the credible first hand evidence I have from the tenants and only hearsay evidence to contradict them I cannot find the landlord’s claims to be proven.
The claims for carpet cleaning and cleaning generally will be dismissed.
The landlord sought to overcome the lack of evidence by calling Ms O’Connor on the appeal. I gave permission for her to be called but “only in relation to the carpet, [the] cleaning of the premises and the state of the premises before the tenancy and after” (T45).
In relation to this aspect of the matter, the landlord seeks the following orders:-
“3.That the tenant Bonson do pay $84.50 carpet cleaning and general cleaning.
4.That the tenant Lau do pay $34.50 carpet cleaning.”
The evidence before the Tribunal was that after the tenants left the premises, Ms O’Connor arranged for the carpets to be professionally cleaned at a cost of $104. The claim against each of the tenants represents one-third of that amount approximately. The additional claim of $50 for cleaning is made only against Mr Bonson. This cleaning was carried out by Ms O’Connor. According to the landlord it was on the basis that if she was able to obtain an order for the cost of cleaning she would pay Ms O’Connor accordingly.
It is clear to me that it was open to the Tribunal to conclude that the landlord had failed to establish a claim for the cost of cleaning the carpet and the cleaning of the premises. There was only secondary evidence of the claim given by Ms Ilkiw because Ms O’Connor acted on her behalf in relation to those matters. The question on appeal, in relation to this claim, is whether or not the evidence given by Ms O’Connor and by Ms Ilkiw on the hearing of the appeal alters that position. In my opinion it does not. It is quite unclear whether the condition of the carpets was such that it required professional cleaning as a result of the occupation of the premises by the tenants. A small part of the carpet was water stained, caused by water leaking from a shower alcove. The tenants could not be said to be responsible for that damage. As to the remainder of the carpet, the tenants contended that they used a vacuum cleaner at the premises to vacuum the carpet. Whilst I accept that it is probable that at the time they left the premises the carpet was dirty, it by no means follows that the carpet was required to be professionally cleaned. I think that the evidence given by Ms O’Connor and Ms Ilkiw at the hearing of the appeal is unreliable because it is confusing and, at times, inconsistent. In all the circumstances, I consider that the decision of the Tribunal in relation to the cleaning expenses should stand because such a conclusion was open to the Tribunal and the subsequent evidence called on the appeal has not altered that position.
I turn now to paragraph 5 of the Notice of Appeal. By this ground, the landlord challenges the award of the sum of $350 damages to Mr Bonson. A discussion of this claim commences at page 5 of the Tribunal’s Reasons. The claim was characterised as follows:
Mr Bonson alleges that the landlord took too long to repair the premises when repairs were needed and that as a consequence his use of the property was compromised.
Reference is then made to s 68 of the Act, sub-section (1) of which provides for a statutory term to be included in a Residential Tenancy Agreement that the landlord will keep the premises in a reasonable state of repair.
Having set out this section in full, the learned Tribunal member said:
The issues in dispute were locks that needed to be fixed, a shower that needed re-tiling and re-sealing, replacement of hot plates and the repair of a toilet.
The landlord conceded that in carrying out work on the shower she had taken the opportunity of replacing the existing shower head with a water saving shower head. Mr Bonson complained that this was not height adjustable and, being over 6 feet tall, he then found it difficult to shower under the new arrangement.
The essence of the claim for an award of damages is the reliance upon an alleged failure on the part of the landlord to keep the premises in a reasonable state of repair. Even if it is accepted that installation of the new shower head caused inconvenience to Mr Bonson, it could not be said that the inconvenience arose from a failure to keep the premises in a reasonable state of repair. In the circumstances of this case, to replace a shower head is not to repair it. There was nothing defective about the original shower head. It was replaced so that less water would be used. This does not attract the operation of s 68(1) of the Act. To the extent that the Tribunal included this aspect of the matter in the award of compensation, the Tribunal was in error.
Particulars of ground 5 were provided as follows:
Such order is contrary to the findings of the Tribunal that the claims of Bonson were exaggerated and the Tribunal was not satisfied that there was great inconvenience, but there was no “ongoing reluctance or refusal by the landlord to repair the premises”, that the tenants were not “greatly inconvenienced by the problems of the locks; that the tenants made “no further request in relation to the locks, that there was no “urgency with which the tenants regarded” the problem, that the landlord had used “reasonable diligence to have the shower repaired”, that Bonson “exaggerated the inconvenience to him” concerning the shower head, and that there was no breach in installing a gas cooktop.
The Tribunal’s findings were as follows (at page 6):
In relation to the locks, I find that the landlord found out that the keys at the unit were a problem on 29 January 2008 and organised “George” to fix the problem. She assumed that the locks had been repaired but in fact they were not. She discovered this in April 2008 and the locks were fixed in a matter of days at that stage. The locks were changed and new keys provided.
In the meantime the tenants were concerned about a lack of security at the unit. I find that the landlord failed to react “with reasonable diligence” to have locks repaired at the house. An issue such as security should be kept at the forefront of the landlord’s mind when organising repairs. The landlord might easily have checked with “George” to make sure that the work had been done and would have discovered sooner that there had been a delay. I accept that this was not a case of ongoing reluctance or refusal by the landlord to repair the premises but rather, a job which had been overlooked by “George” and not diligently attended to by the landlord.
I cannot find, however, that the tenants were greatly inconvenienced by the problems of the locks at the house. The tenants themselves could easily have contacted the landlord when the locks were not repaired but two months went by without a call to the landlord. It is not the tenants’ responsibility to make sure that tradesmen are followed up but it reflects the urgency with which the tenant regarded this “problem”. There was seemingly no further request in relation to the locks until the parties met to sign the leases in April.
Mr Bonson is entitled to compensation for inconvenience but I am not satisfied that this was great.
The landlord herself re-tiled the shower and this meant the tenants were obliged to use the bath for three days while the shower dried. This is the inconvenience naturally associated with the repair itself and I cannot find that the landlord failed to use reasonable diligence to have the shower repaired.
As stated earlier, the landlord took the opportunity when re-tiling the shower to replace the leaking shower head. The landlord claimed that in replacing the shower head with a water efficient shower head she had no option but to choose the one that she then installed. This was not height adjustable and Mr Bonson has had to crouch in the shower since because of his height.
I do not accept that a water efficient shower head cannot also be height adjustable. The landlord needed to replace “like for like” if she chose to replace the shower head. Mr Bonson was not complaining that the shower head was water efficient but rather was complaining that it was now too short for him. I accept that Mr Bonson would have been inconvenienced by the change of shower head but, again, I find that Mr Bonson has exaggerated the inconvenience caused to him.
I have already dealt with the replacement of the shower head.
The learned Tribunal member next refers (at page 7) to the broken cooktop. It was a glass cooktop that was probably broken when a can from the cupboard above fell onto the stove. It appears that the Tribunal recognised that the repair of the glass cooktop may have been the responsibility of one of the tenants. In any event, it is clear from her Reasons that the tenants “conceded that the broken hotplate was not inconvenient until it was actually replaced when they were without the use of the hotplate.” In those circumstances she did not consider that the landlord was in breach of the Act when the broken hotplate was repaired.

In summary, the Tribunal said (at pages 7 and 8):
I have taken into account the predictable inconvenience to Mr Bonson in the delay in having the toilet repaired, the locks changed and the inconvenience of an unsatisfactory height of the shower head. I have taken into account that Mr Bonson was away from the house for 4 weeks towards the end of the tenancy and would have been saved inconvenience during that time.
Mr Bonson’s claims are exaggerated but at the same time he has been able to prove to the Tribunal that the landlord was in breach of her obligations under the Act and that he has suffered inconvenience as a result. There is no precise formula for calculating compensation and the Tribunal must approach each case in relation to its own set of facts. Taking a global approach to the allocation of compensation, I fix compensation in the sum of $350.
In my opinion, the substance of the particulars forming part of paragraph 5 of the Notice of Appeal have been made out by the landlord. It may be that there was a technical breach of the statutory term provided for in s 68 of the Act in relation to the repair of the locks and the repair of the toilet, but the detailed findings of the Tribunal in relation to those matters indicate that only nominal damages should be awarded. There could be no claim for damages in respect of the shower head, the stove top and the shower alcove. In my opinion, the Tribunal erred in awarding $350 damages for breach of the statutory provision set out in s 68 of the Act.
The appeal will be upheld in relation to paragraph 2 of the orders made by the Tribunal on 9 April 2009 whereby the landlord was ordered to pay the sum of $173.57 to Ms Lau and the sum of $620 to Mr Bonson. That order will be set aside.
The appeal will be dismissed insofar as the landlord seeks to set aside paragraph 1 of the orders of the Tribunal requiring repayment of the bond monies respectively to Ms Lau and Mr Bonson.
In addition, the appeal will be dismissed insofar as the landlord seeks to set aside the order of the Tribunal dismissing the landlord’s claim for carpet cleaning and cleaning expenses.
As to the appellant’s claim for 10 days’ rent ($154.00) in lieu of notice, it is not clear whether the Tribunal made a formal order dismissing that claim. If such an order was made I would uphold it. If such an order has not been made, I now make the order dismissing the landlord’s claim against Ms Lau for payment of the sum of $154.00.