Lucy Groom -v- Terrence & Jennifer Moore

[2007] ACTRTT 6

Lucy Groom -v- Terrence & Jennifer Moore  ACTRTT6 [2007]

CATCHWORDS
Rental bond dispute – Cost of inspection of other premises

LEGISLATION
Residential Tenancies Act 1997 (ACT)

Sections 31 

Clause55 Standard Residential Terms

CASE LAW

CASES CITED

CASE REFERENCE NUMBER:   RT 2342 of 2006

RE: Premises at 22/22 Archibald Street LYNEHAM ACT 2602

DECISION

ORDERS

1. That the Office of Rental Bonds is directed to release $1,404.00 to the tenant forthwith.

Member:       J. A. David
Date:           5 December 2006

STATEMENT OF REASONS

BACKGROUND

1    The parties entered into a residential tenancies agreement in relation to premises at 22/22 Archibald Street, Lyneham in the Australian Capital Territory.  The tenancy was for a fixed term tenancy that converted to a periodic tenancy from month to month thereafter.  The tenant vacated the premises at the end of the fixed term.  The lessors claimed the cost of an inspection of premises adjoining the rented premises, undertaken by a plumber engaged by the lessors to ascertain the possible source of a water leak in the rented premises.  The tenant denied liability for the cost of the inspection and claimed the full amount of the bond.

2    The tenant reported a leak from the bathroom in the rented premises to the second bedroom to the lessors’ property managers on 30 august 2006.  The Property Managers organised for a representative from SOS-Saving Our Showers Pty Limited to inspect the bathroom.  The representative reported there was no leak from the bathroom causing the leak.  The Property Managers then engaged a plumber to inspect the neighbouring property to ascertain if the source of the leak was in that property.  The dispute arose when the Property Managers requested the tenant to pay the cost of the inspection of the neighbouring property.  The Tribunal notes that only a taxation Invoice for the claimed cost of the inspection, $132.00, was in evidence before the Tribunal.

3    The lessors’ Property Managers submitted that as no source for the leak has been found, and as no further leak occurred, the “most likely cause” of the leak was from the tenant’s washing machine.  The Property Managers also submitted that the tenant should be liable for all the investigation work to find the source of the leak since the tenant at no stage advised that there had not been a further leak.  The problem appeared to have resolved of its own accord. 

4    The tenant organised for an inspection by a plumber of the tenant’s washing machine in the bathroom of the rented premises and a representative from H&M Appliance Repairs stated, after inspecting the machine, that the leak could not have originated from the washing machine.  

5    At the hearing on 30 November 2006 the Tribunal determined that the tenant was not liable for the cost of the inspection of the neighbouring premises and, there being no other outstanding claims on the bond before the Tribunal, ordered the bond to be released to the tenant in full.  The Tribunal notes that the lessors’ Property Managers refused to release the balance of the bond to the tenant on the basis the company that carried out the inspection may charge interest on the amount owing.  There was no reason for the Property Managers withholding the whole amount of the bond in the circumstances of this dispute.

6    By letter dated 6 December 2006 the lessors’ Property Managers requested the following statement of reasons.   The Tribunal Member who heard the matter was absent from Australia during December 2006 and January 2007.  She apologises for the length of time taken to provide these reasons.

FINDINGS AND REASONING

Applicable Law

7 Section 31(a) of the Residential Tenancies Act 1997 (the Act) provides that a lessor is entitled to deduct from the bond paid under the residential tenancy agreement the cost of repairs to the premises as a result of damage caused by the tenant.

8    Clause 55 of the Standard Residential Terms, Schedule 1 of the Residential Tenancies Act 1997 (the Standard Terms) places an obligation on a lessor to maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the premises.  Standard Term 55 also places an obligation on a tenant to notify the lessor of any need for repairs.  Section 56 of the Act provides that the lessor’s obligation does not extend to repairing damage caused by the negligence or wilful act of the tenant.  It was not argued at the hearing that the leak was an urgent repair under Standard Terms 59 and 60.  Given that there was no further leakage, the Tribunal finds that the leak was not an urgent repair.

9    Having considered all the evidence and the arguments advanced by both the parties, the Tribunal finds that on the balance of probabilities the cause of the water leak in the bathroom of the premises was not ascertained. In fact the Property Managers stated in the lessors’ written submissions filed on 29 November 2006 that no leak was found.  There is conjecture that the leak was caused by the tenant’s washing machine but there is no direct evidence that it was so caused.   There is evidence of a representative from H&M Appliance Repairs, who did inspect the washing machine, stating that the leak could not have originated from the machine itself.   In these circumstances, the Tribunal also finds that the damage was not caused by any negligent or wilful act of the tenant.

10    The Lessors are therefore liable for the cost of repairing the damage.  The inspection carried out in the neighbouring property was carried out for the purpose of ascertaining the cause/source of the leak and was thus part of the cost of maintaining the premises in a reasonable state of repair under Standard Term 55.  The lessor did not prove on the balance of probabilities that the leak and/or any damage from the leak was caused by any wilful and/or negligent act of the tenant.    Therefore, the lessor is liable for the cost of repairs, not the tenant.

11    In the circumstances the Tribunal determined that the bond should be released in full to the tenant. 

ORDERS

1. That the Office of Rental Bonds is directed to release $1,404.00 to the tenant forthwith.

Jennifer David

Member

8 February 2007