Lockwood & Pieri v Gemini Management No. Dcadd-03-123

LOCKWOOD V GEMINI MANAGEMENT
[2004] SADC 83
Judge Kitchen
Administrative and Disciplinary Division

This is an appeal, pursuant to Section 41 of the Residential Tenancies Act 1995 (the Act), by a tenant against an order made by the Residential Tenancies Tribunal
·that the security bond held by the Commissioner for Consumer Affairs be paid to the landlord
·that the tenant pay to the landlord $514
·that the tenant’s claim for compensation be dismissed.
The appellant entered into a tenancy agreement to rent from R & D Corletto (the landlord) the house premises at 490 Port Road, Welland for a term of twelve months, commencing on 18^th September 2001. The rent was $160 per week payable fortnightly in advance. A guarantee bond of four week’s rent, totalling $640, was given by the South Australian Housing Trust to the Commissioner for Consumer Affairs.
On 27^th December 2001 the landlord, by their agent Gemini Real Estate Agency, gave notice to the appellant to remedy within seven days a failure to pay rent in accordance with the tenancy agreement, stipulating that upon a failure to remedy the tenancy would be terminated by force of that notice. The notice was in the form of Form 2 prescribed by the Act.
On 18^th January 2002 the Tribunal found that the appellant had failed to comply with the notice, but pursuant to the Section 80(5) of the Act the Tribunal ordered that the tenancy be re-instated conditional upon the appellant making payments to the landlord which “by the end of February 2002” would pay all arrears of rent and put the rent account two weeks in advance; the Tribunal further ordered that if the appellant failed to comply with the order the landlord may apply for possession of the premises without first serving a Form 2 notice.
On 26^th February 2002 the landlord applied to the Tribunal for possession of the premises, on the ground that the appellant had failed to comply with the order made on 18^th January 2002, and also applied for an order for payment of outstanding moneys to the landlord. Notice of that application, and that it would be heard on 6^th March 2002, was given by the Tribunal to the appellant. It appears the appellant did not attend. On 6^th March 2002 evidence was given by Ms Judith Ryan, an employee of the landlord’s agent. There is no transcript of the proceedings at the hearing, but it is plain from the form entitled “Standard Vacant Possession (by landlord/agent). Rent Arrears (Version 3A)”, which I infer was completed by the presiding officer, that the appellant had failed to comply with the order made on 18^th January 2002; the Tribunal found:
“The previous Tribunal order provided that the tenant pay $320 by 24^th January 2002 and then clear the arrears by the end of February. The tenant had in fact paid $380 on 24^th January 2002, $160 on 1 February 2002, $160 on 12^th February 2002 and $320 on 1 March 2002. Consequently rent was paid to 25^th February 2002”.
The Tribunal further found that by Friday 15^th March 2002 “arrears would be
approximately $400”. The Tribunal ordered that:
“… the tenant should make five fortnightly payments of $400 so that the arrears be cleared and rent a fortnight in advance. In default of any payment the tenancy will terminate at 10.00 a.m. the following Tuesday”.
The order set out that the appellant must make payments of $400 to the landlord by 5.00 p.m. on the Fridays 15^th and 29^th March 2002, the Fridays 12^th and 26^th April 2002 and Friday 10^th May 2002, and that in default of payment the landlord be entitled to possession of the premises on the dates identified in the order – in effect the Tuesday next after the Friday on which the appellant failed to make the required payment. In particular, in the event of the appellant failing to pay $400 on 12^th April 2002, the landlord was entitled to take possession of the premises on 16^th April 2002.
The appellant failed to make the payment of $400 due on 12^th April 2002 pursuant to the Tribunal’s order, and on 16^th April 2002 Mr D Hutchins, an employee of Gemini, in company with a bailiff went to the premises; the appellant was evicted.
On the following day, 17^th April 2002, the appellant appealed to this court against the order for eviction made on 6^th March 2002 – the “self executing order” – averring in an accompanying affidavit, sworn by her partner Mr P Pieri, reasons why the appellant had not made the payment of $400 due on 12^th April 2002, and that Mr Hutchins had refused to accept the amount of $400 when it was offered to him on 16^th April 2002.
In this present appeal the appellant alleges that her eviction from the premises on 16^th April 2002 was unlawful.
On 18^th April 2002 this court made an order staying the execution of the Tribunal’s order dated 6^th March 2002 pending the determination of the appellant’s appeal, directing that the landlord make the premises available to the appellant by 5 p.m. on 19^th April 2002 and adjourning to 8^th May 2002 the full hearing of the appeal.
On 8^th May 2002 this court allowed the appeal, quashed the Tribunal’s order made on 6^th March 2002, noted that the appellant undertook “to put in place a scheme of direct debit payments of rent” and ordered that the landlord be not required to serve a Form 2 upon the appellant in relation to any subsequent application to the Tribunal. The appellant went back into possession of the premises.
On 29^th August 2002 Gemini applied to the Tribunal for possession of the premises and for the payment to the landlord of the rental bond; a similar application was made on 30^th August 2002. Combined, the grounds of the applications were that it appeared the appellant had abandoned the premises and further that the rental payments were in arrears by more than fourteen days. On 2^nd September 2002 Gemini, in a facsimile to the Tribunal, requested that the hearing of its application be cancelled stating “Tenant has definitely vacated”.
On 18^th October 2002 Gemini applied to the Tribunal for an order for payment of “outstanding rent, cleaning and repairs”. The appellant opposed the application and applied to the Tribunal on 29^th November 2002 for an order that the landlord pay damages (not exceeding $8,000) to the appellant “on account of” charging an excessive rent for the premises, and breaches by the landlord of Sections 65, 66, 67, 68 and 72(1)(e) of the Act.
The several applications were heard by the Tribunal on 4^th February 2003; on 25^th February 2003 the orders were made which are the subject of the appellant’s appeal to this court.
The grounds of appeal are:
“1.The chairman did not give proper consideration to the evidence before him.
2.The chairman had already made up his mind on certain issues without hearing the evidence, for example he said at the start of the hearing: “There is a lot of material here so why can’t we do a deal and all go home? I cannot see how you can possibly claim $8,000 as this seems far too exaggerated and your lawyer’s told you to go for this amount”.
3.The chairman did not allow us to present our case to the extent we wanted. He heard the landlord’s case in detail and point by point. When it was our turn he either argued with us so as to prevent our argument and admonished us for accusing the agent of not telling the truth. Basically, we were unable to present our argument.
4.When we proved the submissions of the landlord were incorrect (by reference to the contents of the contract) the chairman said he no longer wanted to hear about that issue as it was over. An example is the case of the keys.”
The appellant seeks the following order:
·the Landlord’s claim be dismissed
·damages on account of the matters specified in the application to the Tribunal, not exceeding $8,000.”
The appellant’s notice of appeal was out of time. A Master granted the appellant’s application for an extension of time on condition that she file within fourteen days an affidavit “listing with sufficient detail the alleged incidents where it is said the Tribunal acted inappropriately” and directed that any responding affidavit be filed within a further fourteen days.
The appellant and Mr J Eskenazi (the principal of Gemini) each filed an affidavit.
There was no transcript taken of the proceedings before the Tribunal on 4^th February 2003.
Section 41(2)(a) of the Act provides that the court may (according to the nature of the case):
“(2)
(a) re-hear evidence taken before the Tribunal or take further evidence.”
The events before the Tribunal as related in the two affidavits differ in substance and in detail. In my judgment, even with the benefit of the Tribunal’s reasons, it would have been invidious and unsatisfactory to try to determine the appeal, or parts of it, by focussing upon the parties memories and perceptions of the course of the hearing before the Tribunal. I therefore determined to re-hear the evidence and permit the tenant to call or give evidence which, as she perceived, she was not given, or did not have, the opportunity to adduce before the Tribunal.
Mr Eskenazi represented the landlord before the Tribunal, and the appellant and Mr Pieri were also before the Tribunal. Each of them and Mr Hutchins gave evidence before me.
The house the subject of the tenancy agreement comprised three bedrooms with kitchen, laundry and bathroom facilities. It was constructed in about 1940.
At the time the tenancy agreement was entered into the appellant and Mr Hutchins inspected the premises; a Form 6 dated 17^th September 2001 was completed and signed by both of them. The tenant’s evidence was that the inspection “was really skimmed through (Mr Hutchins) hurried us through the whole property … The premises were clean (as I saw it). Then everything started falling apart” (T. 114/115), and at page 128 “it was a clean and tidy place and not until after we moved in then all the faults appeared”.
One of the appellant’s allegations is that the landlord is in breach of Section 67 which provides it is a term of a residential tenancy agreement that the premises “are in a reasonable state of cleanliness when the tenant goes into occupation of the premises”. The inspection sheet dated 17^th September 2001 comprises an extensive list of items and facilities against each of which provision is made for a letter to be inserted, by the tenant and the landlord, as to the condition of that item or facility, the letter being decoded at the top of the document. The letters c and d are decoded to mean “clean” and “dirty” respectively. “c” appears against many items but against only two of them (the griller and toilet bowl) is the letter “d” inserted and that was inserted by both the appellant and Mr Hutchins.
The claim that the landlord was in breach of Section 67 is not supported by the appellant’s evidence or by the inspection sheet. In any event in her application to the Tribunal for damages, the appellant’s grounds for the application assert that at the time of the inspection “the premises presented themselves in reasonable condition”.
There is no substance in the appellant’s complaint that the landlord was in breach of Section 67 of the Act.
The other allegations made in support of the appellant’s claim for “damages” are set out in paragraphs 4-10 of her application to the Tribunal. Section 110(1)(c) of the Act empowers the Tribunal, on application by a party to a tenancy dispute, to require a person to make a payment, which may include compensation, for a breach of the Act or of a residential tenancy agreement. The Tribunal does not have power to award compensation for damages arising from personal injury.
Before turning to the appellant’s remaining claims for compensation I will deal with the order made by the Tribunal in relation to the landlord’s claim.
The Tribunal was satisfied that the tenant had failed to pay rent from 15^th August 2002, that she vacated the premises on or soon after that date without notice to the landlord and that the landlord did not re-let the premises until 17^th September 2002, the day on which the tenancy agreement terminated by effluxion of time. The Tribunal calculated unpaid rent to the end of the term (a period of 33 days) to be $754 and ordered that the appellant pay that sum. In addition the Tribunal awarded to the landlord $400 compensation for cleaning the house and removing rubbish; the landlord had claimed $705.85 on that account which the Tribunal adjudged to be excessive for the reasons given by the Tribunal. There is no appeal by the landlord against the Tribunal’s order. Some evidence was given to this court concerning the quantum of the sum of $400 awarded to the landlord, and ordered to be paid by the appellant. The appellant’s evidence is that she left the premises in a condition which would not have required the expenditure of a sum in the order of $400. Mr Eskenazi recorded on video film views of the premises when he entered them soon after he learned, about the end of August 2002, that the appellant had abandoned them. That recording was tendered to and seen by the Tribunal; its content is referred to in the Tribunal’s reasons and was, together with the evidence of Mr Eskenazi, the basis for the allowance of $400 compensation to the landlord. Except that the appellant suggested that the state in which the premises were found at the end of August 2002 could have been caused by “someone … (who) could have broken in”, of which there was no evidence whatsoever, there was no evidence by or on behalf of the appellant upon which there is any reason to disturb the Tribunal’s finding that $400 compensation should be allowed to the landlord for cleaning, and repairing the premises and removing rubbish from them.
A great deal of evidence was given to the court concerning the appellant’s allegation in support of her claim for compensation.
The events or circumstances on which the appellant founds her claim for compensation may be summarised as follows; references to a paragraph number are to the paragraph of that number in the appellant’s claim, stamped 29^th November 2002, filed in the Tribunal.
Paragraph number Summary of Allegation
4.that the appellant was permitted to keep a dog on the premises, but the landlord asserted it was a breach of the tenancy agreement.
5.insect screening, security of the premises, drainage of the roof and a defects report by South Australian Housing Trust on 21^st November 2002.
6.regular, unannounced visits to the premises by Gemini staff to collect rent or inspect, and damage to a door caused by such a staff member; unlawful eviction of the appellant.
7.failure by the landlord to carry out either at all or properly requests “constantly” made by the appellant to Gemini concerning the installation or repair of insect screens, the upgrading of the electricity service, the repair of gas services and appliances, repairs to prevent water penetration, upgrading of the laundry and toilet “and generally the amenity of the property”.
8.as a consequence of the identified defects the premises were not worth a rent of $160 per week and that rent was excessive.
9.by reason of the “unlawful” eviction alleged in paragraph 6 the appellant had suffered financial loss and damage.
10.� by reason of the defects in the premises the appellant was
not able to cook or refrigerate food and was obliged to dine at restaurants or purchase take away meals.
�by reason of the defects in the premises and “harassment over the keeping of her dog” the appellant was obliged to vacate the premises two to three weeks before the end of the term of the tenancy”.
From among those allegations I will first deal with the appellant’s claim that her eviction from the premises on 16^th April 2002 was unlawful.
Mr Hutchins’ evidence was that about 11.45 a.m. on 16^th April 2002, the day on which the landlord became entitled to possession for the appellant’s failure to pay $400 on 12^th April 2002, he went to the premises to ascertain whether or not the appellant had vacated them. He made a note of what occurred. He said, referring to his note, that on ringing the doorbell there was no answer, he used his key to operate the screen door lock but the door was also secured by some other means and the door would not open. He made to go to the back of the house and as he did so he was confronted by a dog. He saw washing on the line. He retreated to the front door. At first there was no response to his knocks on the door, but then the appellant came to the door and said that she had the money for the rent which she had intended to give to him on 17^th April 2002, the day on which an inspection had been scheduled by a notice sent to her two weeks earlier. She said she had not paid on 12^th April because she had been ill; Mr Hutchins related he told the appellant that that had not been communicated to Gemini and no arrangement had been made to delay the payment due on 12^th April 2002. To Mr Hutchins’ statement that he had an order for possession the appellant said she would give him the money; Mr Hutchins said that if she had the money he would take it. The appellant left the door, returned and told Mr Hutchins she would have to go to draw the money on her key-card; she invited him to accompany her there but then “changed her mind” and said he could remain in the driveway and wait for her to go and draw the money. Mr Hutchins said he told the appellant he could not wait, he had an appointment at mid-day in the suburb of Richmond. “I told her if she could get the money and take it to Gemini’s office to pay the rent, which is what you are asking, we would be fine otherwise the bailiff would be called to evict her from the premises. She told me she would have charges raised against me for harassing her and so on”.
Mr Hutchins’ evidence is that he was at Gemini’s office at 3.15 p.m. on 16^th April 2002 when Mr Pieri came and remained for some fifteen minutes during which Mr Pieri held in his hand “what appeared to be some rent money”. Mr Hutchins’ evidence continued. “We asked (Mr Pieri) on several occasions ‘Would you please pay the rent and then we can all just move on from here’ and (Mr Pieri) would not do so … We gave (Mr Pieri) a fifteen minute opportunity to actually pay the rent and he failed to do so”. This evidence was elicited in cross-examination of Mr Hutchins by Mr Pieri.
It was put to Mr Hutchins, by Mr Pieri, that Mr Hutchins would not accept the money because “you were unsure whether you should take it or not (and said) I don’t have to accept the rent money now because I can just choose to evict (the appellant)”. Mr Hutchins’ answer was “As I recall what we were saying was ‘If you pay the rent, we can all move on. If you don’t pay the rent, I have a residential tenancy order and we will have to call the bailiff”.
The appellant’s evidence is that when Mr Hutchins came to the premises on 16^th April 2002 she told him she had been sick and begged him to give her a chance to pay the $400 which had been due on the previous Friday. She described that Mr Hutchins was angry (her evidence is that he damaged the screen door) and that at first he would not accept the rent but, to her repeated “begging”, he then told her “Okay, bring it around to Gemini Management by 5 o’clock”; the appellant related she contacted Mr Pieri and asked him to take the money to Gemini.
It is apparent to me from the evidence given by Mr Hutchins and Mr Pieri that there was a confrontation between them at Gemini’s office on 16^th April 2002. Mr Hutchins described that Mr Pieri’s behaviour and loud manner caused other persons in the office to leave the office to take telephone calls elsewhere. To the question whether he (Mr Hutchins) was angry, Mr Hutchins’ responded “I was feeling somewhat abused”. That being the atmosphere of tension and heightened emotions, as I find, I am not prepared to find on the balance of probabilities which version of the events at Gemini’s office is more likely than not, and having regard to the order made by the Tribunal on 6^th March 2002 it is not necessary to do so; by force of that order the landlord became entitled to possession on 16^th April 2002, the landlord was not obliged to accept, on 16^th April 2002, the payment which had been due on 12^th April 2002 and in my opinion the eviction of the appellant was not unlawful – it was carried out under the authority of the Tribunal’s order. In the event, this court, on 8^th May 2002, quashed the Tribunal’s order and the tenancy agreement was effectively reinstated. To satisfy myself that the Judge of this court who heard the appeal on 8^th May 2002 did not find that the eviction on 16^th April 2002 was unlawful I have read the transcript of that hearing. There is nothing His Honour is recorded to have said which even hints he considered that either the Tribunal’s order made on 6^th March 2002 was not regularly and properly made or that the landlords’ acts (or those of their agents) to give effect to it were unlawful. Indeed His Honour said:
(Page 6)
“… I understand why it was that you were late – that there was a break-down of a motor car and you were unwell.”
(At page 13)
“I am making this order because I am satisfied that there was, on the face of it at least, some reasonable explanation for the failure to comply by 12^th April, particularly bearing in mind that the orders that – previous two orders seem to have been complied with, and that there were funds available to comply with it – or offered to comply with it – early the following week.”

The appellant’s claim that her eviction from the premises on 16^th April 2002 was unlawful, is dismissed.
Section 65 of the Act provides, inter alia, that it is a term a residential tenancy agreement that the tenant is entitled to quiet enjoyment of the premises and the landlord will not cause or permit an interference with the tenant’s reasonable peace, comfort or privacy in his or her use of the premises. Section 72 prescribes when a landlord may enter the premises; those occasions include:
·for the purpose of inspecting the premises, but only at a time previously arranged with the tenant and not more frequently than once every four weeks (Section 72(1)(c))
·for the purpose of carrying out necessary repairs or maintenance in which case at least 48 hours written notice must be given (Section 72(1)(e))
·for a purpose stated in a written notice which specifies a time and date not less than seven not more than fourteen days before entering the premises (Section 72(1)(b))
Mr Hutchins’ evidence was that he carried out inspections of the premises prior to 16^th April 2002 at intervals of three months and as to each of those he gave written notice in advance. Mr Pieri, who said that he lived in the premises with the appellant for about half his time prior to 16^th April 2002 and thereafter full time, said there were three inspections before 16^th April 2002 and one after that date and as to each of them prior notice was given by the landlords’ agent Gemini; he said, and Mr Eskenazi agreed, that the last inspection was carried out by Mr Eskenazi. There were other occasions when Mr Hutchins or Mr Eskenazi or both of them went to the premises but, as I find, they were on 16^th April 2002 to ascertain whether the appellant had vacated the premises and on the same date when Mr Hutchins subsequently went to the premises with a bailiff to evict the appellant; on 6 June 2002; then on a date in July 2002 to serve upon the appellant a letter notifying her that the tenancy agreement would not be extended and finally on a date late in August 2002 when it was discovered that the appellant had, as she admits, abandoned the premises.
The allegation is that staff members of Gemini Management “called upon the premises regularly and unannounced to collect rent and to inspect”. I accept the evidence of Mr Hutchins and Mr Eskenazi that neither they nor any other member of Gemini’s staff ever went to the premises to collect rental payments. Except for the occasions I have identified earlier no staff member of Gemini went to the premises. The appellant said that after recovering possession of the premises following her eviction in April 2002, there were inspections every four-five weeks; I do not accept her evidence – it is contrary to the evidence of Messrs Hutchins and Eskenazi and her own witness Mr Peiri. The appellant also said that in the same period the landlord, unannounced, “Came at weekends a great deal of the time”; her evidence was not supported by Mr Pieri and in any event visits to the premises by the landlord were not the subject of the allegations made in her application dated 29^th November 2002 to the Tribunal.
The appellant’s claim that there were regular unannounced visits to the premises by members of Gemini is dismissed.
Section 66 of the Act enacts that it is a term of a residential tenancy agreement that the landlord will take reasonable steps to provide and maintain the locks and other security devices that are necessary to ensure the premises are reasonably secure. The appellants claim is “that the premises were fitted with only one lock and this was to the front door and consequently unsecured”.
Mr Hutchins described that the front screen door, the front door and the rear kitchen door were each fitted with a lock and the latter two locks were operated by the same key. He said that the enclosed porch area at the rear of the house, which gave access to the toilet, was equipped with a sliding door fitted with a bolt mechanism on the inside of the door which could be secured with a key operated lock. The inspection sheet completed and signed on behalf of the landlord and by the appellant before the appellant went into occupation of the premises records that keys for the front security door, the front door and rear door deadlocks and five window locks were (as I infer) handed to the appellant.
The appellant said she was given keys to the front door and the front screen door but she was not aware that the front door key also operated the deadlock on the rear door. She also said that she was not given a key to lock the bolt mechanism on the sliding door, that on an unidentified occasion someone broke into the premises by, as she described, “popping” the bolt which was not locked and “I had to get the key replaced … They eventually gave me a key to lock it” (99). The appellant claims that because the bolt and locking mechanism was on the inside of the sliding door, the door could not be unlocked from the outside which she said was “very uncomfortable” (120).
The appellant’s evidence about the security of the premises was contrary to her written acknowledgement in the inspection sheet as to the number and purpose of the seven keys provided to her. I infer that at some point after she went into occupation the appellant requested a key for the sliding door and it was provided to her. The full circumstances in which that request was made were not the subject of any evidence and neither was it explored whether one of the five window-lock keys operated the sliding door. Mr Pieri said he asked Mr Hutchins whether there was a key “to the back door”, who told him he “was not aware that there were no keys available for the back entrance”; then, after the premises were broken into, he asked for the lock to be changed, the landlord personally came and changed the lock but “(the appellant) still had no key for the back door, she only had the keys for the kitchen door”.
I am not satisfied the landlord failed to provide and maintain locks to ensure the premises were reasonably secure. The appellant’s complaint that she found it “uncomfortable” because the sliding door lock could not be operated externally, is in my opinion irrelevant to the security of the premises.
Section 68(1) of the Act provides that it is a term of a residential tenancy agreement that the landlord will ensure that the premises and ancillary property are in a reasonable state of repair at the beginning of the tenancy “and will keep them in a reasonable state of repair having regard to their age, character and prospective life … The obligation applies even though the tenant had notice of the state of disrepair before entering into occupation”. Ancillary property is defined to mean property, not forming part of the premises, that is provided by the landlord for the use of the tenant. By Section 68(2) of the Act a landlord is not in breach of an obligation to repair unless:
“(i) the landlord has notice of the defect requiring repair; and
(ii) the landlord fails to act with reasonable diligence to have the defect repaired …”
Stove
In her application to the Tribunal the appellant alleged that the cooking stove was unsatisfactory. Her evidence to this court was that when she inspected the premises with Mr Hutchins before going into occupation she asked Mr Hutchins “'Does the stove work?' and I said 'Could we try it' and he said 'There is no need, it was alright, that it worked fine.' There was a knob that was stuck, you couldn’t turn it on at all and the griller tray, it was completely rusty and dirty. The stove was really, really old and that’s why I wanted to test it” (93). None of the conversation the appellant said she had with Mr Hutchins was put to him.
The appellant’s evidence is that when she went into occupation of the premises she found that a knob to operate one of the burners of the stove was “stuck”, two of the four burners operated properly, a third only half operated and the fourth was inoperable. She said she complained about the stove to Mr Hutchins “every inspection we had”, and that she was present when Mr Pieri asked Mr Hutchins that the stove be serviced or replaced but nothing was done; that alleged request was not put to Mr Hutchins.
Mr Hutchins said that the only complaint about the stove made to him, likely early in the tenancy, “was that there was a knob on the stove which kept coming off. It could, however, be still used and the knob could be changed from one knob to another to overcome that and we are aware that to find a knob of that particular is nie (sic) impossible. It may be possible but we believe not”. He said he arrived at that view after he made inquiries of a gas plumber whom Gemini usually employs. His evidence is that he was not aware the stove was “non-operable” or of any requests by or on behalf of the appellant to repair the stove to allow cooking.
During part of Mr Hutchins’ cross-examination Mr Pieri embarked on questions about an occasion when a gas repair man came to the premises in relation to the hot water service. The appellant spoke of informing Mr Hutchins what she was told by the repair man concerning the age and operation of the stove, but she was interrupted by Mr Pieri who said it was he who told Mr Hutchins about the stove, identifying the occasion to have been about the time of a letter dated 6^th June 2002 (Exhibit A1) from Gemini to the appellant. Mr Hutchins said he had no recollection of that. The letter refers to an inspection of the premises by Mr Eskenazi with Mr Pieri on the date of the letter. There is no reference to the stove in that letter.
Mr Eskenazi said that he was not aware of any problem with the stove until (I infer) it appeared in a report dated 13^th September 2002 prepared by South Australian Housing Trust (following an inspection on 26^th August 2002 at the request of the appellant) as the item “cooking stove inefficient and defective”; by that time the appellant had abandoned the premises.
Mr Eskenazi identified what work was done in response to the report from the South Australian Housing Trust before the premises were re-let; that work he said did not include anything related to the stove.
The issue of the stove and its functioning on the appellant’s case is confined to one inoperable burner, one partly operable burner and a griller tray which was rusty and dirty. The condition of the tray appears in the pre-occupation inspection sheet – as to that the appellant said that Mr Hutchins told her it would be replaced, but that assertion was not put to Mr Hutchins in cross-examination.
It is to my mind significant that although the letter Exhibit A1 makes reference to a number of items the subject of complaint by the appellant (or Mr Pieri on her behalf) to Mr Eskenazi at the inspection made on the date of that letter (6^th June 2002) there is no reference at all to the stove; Mr Pieri said that he did not “actually complain to Mr Eskenazi about the stove. I made that many complaints to Mr Hutchins in the past.” Further, as to substantially all of the “defects” which the appellant said she complained about to Mr Hutchins, Mr Hutchins denies that any complaint of defect was made to him.
That the stove had a defect concerning an operating knob, and the griller plate associated with the stove was in an unsatisfactory condition, I accept. However I am not satisfied the stove also had all the other defects, particularly described by the appellant, and to the extent any of those did exist I am not persuaded the landlord, or Gemini’s employees, were told of them or otherwise knew they existed.
Electrical System
Mr Pieri’s evidence is that beginning at about the time the air conditioner in the premises was switched on in November/December 2001 “short circuiting” would occur when too many lights or too many power points were operated at the same time and he had to continuously change fuses; “at one point it got so bad that you just couldn’t use any power unless you switched off everything, so I was changing them just about every night”. The appellant said that only Mr Pieri complained about the problem. Mr Pieri said that his first complaint was made to Mr Hutchins when a manhole cover in the kitchen was to be replaced and the next was the occasion of Mr Hutchins’ first inspection; he said Mr Hutchins told him that someone would attend to that matter as well. Mr Hutchins’ evidence was that no complaint was made to him about short circuiting during any inspection that he made, but he “believed” there was a report of a “short out” and an electrician was called in – he identified that to be around about the month of July 2002.
In his letter to the appellant dated 6^th June 2002, Exhibit A1, Mr Eskenazi wrote “(The owner) will also re-fit the access hole cover over the kitchen”. Mr Pieri said that the cover was “fixed” by the landlord, implying that was done reasonably promptly after 6^th June 2002.
I accept Mr Eskenazi’s evidence that no complaint was made to him about the electrical system on the occasion of his inspection on 6^th June 2002 – his letter of that date (Exhibit A1) does not mention that as a subject of complaint by Mr Pieri; were there to have existed on and before 6 June 2002 disruptions to the electricity supply of the kind and degree described by the appellant and Mr Pieri it is inconceivable Mr Pieri would not have drawn them to Mr Eskenazi’s attention. Mr Eskenazi said that his firm was advised of an electrical short circuiting problem at the premises – he thought this was in June or early July 2002. Mr Pieri’s evidence is that the landlord came to the premises concerning “blown” light bulbs – I infer that was in response to Mr Eskenazi reporting to the landlord the short circuiting problem. Mr Eskenazi said that on 29 July 2002 either the appellant or Mr Pieri telephoned Gemini’s office to report that “Half the house’s power points are not working, have changed the fuses and still nothing, globes blow all the time”. Mr Eskenazi’s evidence is that he arranged for an electrician to go to the premises, who reported back that a new electrical switchboard would need to be installed which would involve employees of ETSA attending at the premises to disconnect the electricity supply. Mr Eskenazi said he contacted the landlord, obtained approval for the work to proceed and then instructed the electrician to make arrangements with the appellant and ETSA for a convenient time and date for the work to be carried out.
Mr Eskenazi said that on 27^th August 2002 he was informed by the electrician that an arrangement made by the electrician to attend at the premises with ETSA personnel for the purpose of carrying out the electrical work was not kept by the appellant – there was no-one at the house; Mr Eskenazi related that he telephoned the Tribunal to inquire whether the electrician could enter into the premises to carry out the work – he was informed that was appropriate but the electrician told him that he, the electrician, was not prepared to go into the premises. Mr Eskenazi thereupon wrote to the appellant on 27^th August 2002 stating that it had been necessary to cancel the carrying out of the work and concluded “Therefore in order to have this work done and to avoid further argument I need written confirmation from you to either be there at the next appointment on 48 hours notice or agree that if you are not there at the appointed time that the electrician can enter the house to do this work. The work will take the best part of the day. I await your letter to confirm.” The appellant, and Mr Pieri said they did not receive that letter, they had already abandoned the premises. The South Australian Housing Trust report of its inspection on 26^th August 2002 records “Electrical installation faulty (meter box).” Mr Pieri said that he was present at the time of the inspection by an officer of the South Australian Housing Trust.
I note the appellant concedes that neither at the hearing before the Tribunal on 18 January 2002 nor when she appeared in this court in April and May 2002, did she complain or even mention what she claims were severe electrical problems beginning late in 2001, or of any other of the defects she claims.
I accept that on a date sometime between 6 June 2002 and 29 July 2002 the appellant, by Mr Pieri, first made known to the landlord, through Gemini, that there were problems with the electrical circuits in the premises, the nature of which adversely affected the appellant’s use of the premises, probably progressively to the point that on 29 July 2002, Mr Pieri on the appellant’s behalf bitterly complained to Gemini. The landlord did not give evidence and neither was the electrician called as part of the landlord’s case to explain the delay between notification of the electrical problem and the attendance of the electrician, with ETSA personnel, at the premises on, I infer, 27 August 2002 to carry out the work of replacing the switchboard. In the absence of some evidence on that subject, and no reason advanced for its absence, I find that there was a failure by the landlord to act with reasonable diligence to have the defect repaired; although the extent of the delay cannot be identified with precision it was, at the very least on the evidence, from on or soon after 29 July 2002 to 27 August 2002.
Laundry, Toilet, Bathroom and other areas
The appellant said that the laundry did not have a ceiling. She described that when she went into occupation of the house the laundry “had been cleaned and there was no dust and that” but “dirt and rain would come in… all the drainage was blocked … there was a faulty electric plug where you had to plug your washing machine in, and for the lights … everything would be dirty. It was hard to – near impossible to wash and have clean washing coming out” (98). The appellant also said that in the toilet, water from a leak puddled on the floor, the walls of the toilet and laundry were damp and unhygienic and there was no floor drainage in the laundry and bathroom. The appellant said that when it rained, water penetrated the kitchen, laundry and sitting room.
Mr Hutchins’ evidence was that except he knew there was no ceiling in the laundry no complaint was made to him about these matters, either in the course of inspections he made or otherwise.
Mr Eskenazi said that no complaint was made to him, and he was not aware of any made to others of Gemini’s employees, until he went to the premises on 6^th June 2002 and carried out an inspection in company with Mr Pieri. Mr Eskenazi’s evidence is that the matters he observed or which were drawn to his attention were referred to in his letter dated 6^th June 2002 (Exhibit A1).
The appellant incorporated into her claim for compensation, the report by the South Australian Housing Trust of its inspection of the premises on 26^th August 2002, a copy of which was sent to Gemini on 13^th September 2002. That report includes cryptic observations concerning the laundry and toilet. No witness was called from the South Australian Housing Trust to say he or she inspected the premises and compiled, or could otherwise attest to, the report. The appellant said that she approached the South Australian Housing Trust after she received a letter from Gemini, in July 2002, informing her that the tenancy of the premises would not be extended.
Mr Eskenazi’s evidence is that he attended at the premises on about 18^th September 2002 with a representative of the South Australian Housing Trust. The South Australian Housing Trust report comprises two pages, the first is headed “List of Sub-standard Defects”; as to that list of items Mr Eskenazi said he did not take issue “that they may exist” but “in that they need attention I do take issue”. His evidence is that except for the item “electrical installation” there had been no complaint by or on behalf of the appellant in relation to the “defects” listed on the first page of the report.

Mr Eskenazi said that after his discussion with a representative of the South Australian Housing Trust in relation to that organisation’s report, work was carried out to place “cladding on the laundry roof and we put a splash back on. We put some skirting tiles on the toilet, a fly-screen on the toilet window … and we fixed the electrical … So that is all we did. The other items, the Housing Trust was not interested in”. Except for a need to service the gas heater, attend to the hot water service unit (the pilot light of which blew out sometimes), roof leaks into the kitchen and lean-to and the refitting of the access hole cover in the kitchen, all of which were identified in Exhibit A1 on his inspection of the premises with Mr Pieri on 6^th June 2002, Mr Eskenazi said that neither Gemini nor the landlord knew of, by report of otherwise, the items listed in the South Australian Housing Trust report, or the subject of the appellant’s claim; in particular he reiterated that on 6^th June 2002, as Exhibit A1 records, he and Mr Pieri “inspected all apparatus and water pipes together – there was no evidence of any leaks anywhere.”
Damage to door, absence of fly-screens on some windows and the keeping of a dog on the premises
The appellant claimed that damage was done to a rear door and alleged that damage was done to a front screen door, by Mr Hutchins on 16^th April 2002, the day the appellant was evicted from the premises, and that damage was not repaired. I accept Mr Hutchins’ evidence that because of the presence of a dog he did not go to the rear door and it was not damaged by him. He admitted that a two inch slit was cut in the fly wire of the front screen door to obtain access to the front door lock. He denied that he, as the appellant alleged, buckled the fly-screen door either on the first or second occasion he went to the premises on 16^th April 2002. Damage to the rear screen door is one of the subjects of Mr Eskenazi’s letter Exhibit A1, dated 6^th June 2002, but the cause of it is stated to be different from the appellant’s allegation. I am not satisfied that the damage was caused as the appellant claims or alleged, except for the slitting of the fly-wire screen but as to that it was not a defect the existence of which could possibly entitle the appellant to compensation.
The absence of fly-screens to some windows was apparent at the time the appellant inspected the premises before going into occupation. The South Australian Housing Trust report listed this among the “sub-standard defects”, but on Mr Eskenazi’s evidence the topic was resolved with the South Australian Housing Trust by the fitting of a screen to the toilet window. I do not consider that any expert evidence is needed as to the desirability of a screen in that situation, on the grounds of comfort and convenience at least.
The terms of the appellant’s tenancy agreement provided that the appellant “shall not keep any animals on the premises”. The appellant’s application for the tenancy of the premises answered “No” to the question “Will any animals be kept on the property?”. The appellant’s evidence was that Mr Hutchins told her “that as long as (her dog) doesn’t go inside that (sic) the landlord would come around, it will be alright”. That was not put to Mr Hutchins in cross-examination.
With a letter dated 19^th April 2002 from Gemini (signed by Mr Hutchins) to the appellant (Exhibit A2) the appellant was provided with a copy of her application and the tenancy agreement, and required to remove her dog from the premises. I do not accept the appellant’s evidence that she had a conversation with Mr Hutchins concerning her dog as she alleged.
Generally
The appellant’s claims included complaints about the gas heater and the hot water service. I do not accept the appellant’s evidence, or that of Mr Pieri, that complaints were made to Gemini, or the landlord, about those items before they were drawn to Mr Eskenazi’s attention at his inspection on 6^th June 2002, following which as I find, a gas repair man was sent to the premises to attend to them; as to the gas heater Mr Pieri said it was not satisfactorily adjusted or repaired, but I accept Mr Eskenazi’s evidence that no further complaint was made to him about the gas heater. Concerning the hot water service, Mr Pieri’s evidence is that it subsequently “exploded” and was replaced, as I infer without undue delay.
The claim for compensation
Although there are some particular items, or conditions, alleged to have been “defective” with which I have not specifically dealt in these reasons, I am not satisfied that they were known to the landlord, or Gemini, or that notice of them was given by the appellant to the landlord.
I have come to the firm view that the only defect in respect of which the appellant has succeeded in proving a breach by the landlord, of either the Act or the tenancy agreement, is in relation to the condition of the electrical installation and the absence of a screen at the toilet window. Clearly the first of those is the more serious.
Mr Eskenazi described the report from South Australian Housing Trust to be a precursor to the possible step of that body fixing the rent of the premises having regard to the matters listed in the second sheet to that report; it is headed “List of Maintenance Defects” and informs the landlord “These defects will be taken into consideration when assessing rent control”. I accept Mr Eskenazi’s evidence that after his discussion with a representative of South Australian Housing Trust, and the carrying out of the work he described and which I summarised earlier, no further action was taken by South Australian Housing Trust in relation to the control of the rent for the premises.
The disruption to the electricity supply to light and power outlets in the premises caused by the defective condition of the electrical installation was, in my view, more than a mere inconvenience to the appellant; I accept the substance of her evidence that her use and enjoyment of the premises was so adversely affected it was the, or a substantial, reason why she could no longer remain in the premises. However as I have said, and found, that state of affairs did not occur to any significant degree, and the landlord is not to be held responsible in relation to a time, before a date sometime in the month of July 2002.
The appellant paid rent to 15^th August 2002 and left the premises on, or soon after, that date. I have not overlooked that late in July 2002 the appellant was given notice that the tenancy agreement would not be extended, but nevertheless in my opinion, having regard to the defective electrical installation and the landlord’s unexplained delay in acting upon the information the landlord, or their agent, had in that connection, the consequences to the appellant of the defect warrants an order that the landlord pay compensation to the appellant equal to and to be set-off against the rent which accrued to the end of the tenancy on 17^th September 2002, namely $754 as calculated by the Tribunal. The appellant however, as I find, is liable to the landlord for the sum of $400 assessed by the Tribunal as the cost to the landlord of cleaning and repairing the premises and removing rubbish from them.
The order of the court is:
1.     That the order of the Tribunal be quashed.
2.That pursuant to Section 110(1)(i) of the Act, the security bond in the sum of $640 held by the Commissioner of Consumer Affairs (Bond number 3237272-5) be paid
(a)    as to $400 thereof to the landlord by their agent the respondent
(b)    as to $240, the balance thereof, to the South Australian Housing Trust
There will be no order as to the costs of the appeal.

[2004] SADC 83

28 May 2004