Marcus & HODGEKISS v Walton (Residential Tenancies)
[2009] ACAT 32
•31 July 2009
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MARCUS & HODGEKISS v WALTON (Residential Tenancies) [2009] ACAT 32
RT 943 of 2008
Catchwords: RESIDENTIAL TENANCIES – tenant compensation for loss/damage of goods – property inspections by lessor without notice to tenant – lessor failure to attend to promised repairs – continuing advertisement of leased property for rent – inventory report prior to commencement of Lease
Tribunal: Ms J Lennard Senior Member
Date of Orders: 31 July 2009
Date of Reasons for Decision: 15 September 2009
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 943 of 2008
BETWEEN:
KAY MARCUS & BRUCE HODGEKISS
Applicants/Lessors
AND:
MARGARET LYNNE WALTON
Respondent/Tenant
TRIBUNAL:Ms J Lennard Senior Member
DATE: 31 July 2009
ORDER
- The claim by the tenants for compensation for loss or damage to goods is dismissed.
………………………………..
Ms J Lennard
Senior Member
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 943 of 2008
BETWEEN:
KAY MARCUS & BRUCE HODGEKISS
Applicants/Tenants
AND:
MARGARET LYNNE WALTON
Respondent/Lessor
REASONS FOR DECISION
The Applicant tenants and the Respondent lessor entered into a residential tenancy agreement in relation to premises at 18 Camfield Place, Florey in the ACT on 4 July 2008. The agreement was form a term of one year at a weekly rent of $450.
The tenants had responded to the advertisement on ‘allhomes.com.au’ and experienced delay in occupying the premises. The relationship between the tenants and the lessor has been difficult and unhappy from the beginning of the tenancy.
The advertisement on allhomes.com.au stated, inter alia:
Absolutely charming 3 bedroom courtyard home in immaculate condition. Double lock-up garage leading to secure courtyard and low maintenance garden that is gated and secure. (Garage doors and covered walkway to entrance still in progress – not yet completed at date of posting advertisement.) …
The garden shed could be used as a child’s cubby or would provide extra storage as needed.The tenants made an application to ACAT on 3 December 2008, and the written application addressed the following issues:
1. [the lessor] turning up whenever she feels like it
2. failure [by the lessor] to do promised repairs
3. compensation for property lost/damaged due to garage flooding [the word twice had been crossed out] every time it rains now
4. property still being advertised for rent on allhomes.com.au
Documentation supplied by the tenants with their application dealt with those issues and canvassed other areas of complaint by them. At the hearing on 19 December 2008 the tenants stated that they made complaints about the following issues, and, that they asked for a rent reduction and/or compensation for the damage to their personal property:
a.There was no inventory report provided by the lessor at the commencement of the tenancy
b.The lessor had failed to make requested repairs to the property
c.There were dangerous electrical faults throughout the house
d.The lessor and her agents had visited the premises without proper notice
e.The premises continued to be advertised by the lessor as available for rent
f.Their personal property stored in the garage had been damaged by rain water entering the garage
ACAT first heard the matter on 19 December 2008. The tenants were both present and represented themselves. The lessor was present and supported by friends. In the course of the hearing it became obvious that the relationship between the parties was difficult and that the tenants had adopted an aggressive and confrontational approach to problems. ACAT formed the view that while generally unable to appreciate the extent of the rights and obligations of parties to a residential tenancy agreement, the lessor had attempted, to the best of her ability and in a not unreasonable manner, to resolve the complaints by the tenants and the issues of repair as they arose. In these attempts she was met by the tenants with obstruction, abuse and general non-co-operation.
ACAT received from the lessor evidence in the form of letters written by tradesmen and workers who had visited the premises to undertake repairs requested by the lessor and/or tenants. Michael Hadly (MH Doors), Phillip Barty (Bluey’s Plumbing), Peter Binos (Belconnen Bathroom Plumbing and Irrigation Supplies) and Irene Cain (friend of the lessor acting as agent) all report being abused and threatened by the tenants.
THERE WAS NO INVENTORY REPORT PROVIDED BY THE LESSOR AT THE COMMENCEMENT OF THE TENANCY
This was asserted by the tenants in their written application stating “As at the time of lodging this application we are still waiting for the inspection report”. However in an email sent by the tenant to the lessor and dated 23 September 2008 Ms Marcus states:
Regarding the condition report: this will be actioned in the next few days and posted to your address as supplied un the Rental Tenancy Agreement.
The tenants had attached the email to the written application. The lessor asserts that she did supply a condition report for completion by the tenants after completion of the garage and several minor repairs agreed to prior to the commencement of the tenancy. It appears that the report was a blank copy of standard condition report. At all times it was within the tenant’s power to complete and return this report. Thus their assertion that the lessor had failed to supply a report cannot be supported. ACAT makes no order in relation to this issue.
THE LESSOR HAD FAILED TO MAKE REQUESTED REPAIRS TO THE PROPERTY
In their application the tenants state the “shower doesn’t work properly and the landlord has promised to fix the taps, to date [3 December 2008] this is still outstanding. The water temperature is very hard to adjust and the flow was limited. The landlord admitted that the hot water service may need to be replaced and after getting a quote for a new one, this idea seems to have been put on hold, due to the cost involved. …
When we moved in the landlord advised that all tap washers has recently been replaced, this is obviously not the case as the majority of them drip and need replacing”.
10.At the hearing on 19 December 2008 the lessor tendered a letter from Belconnen Bathroom Plumbing and Irrigation Supplies which stated that an inspection of the hot water service in July 2008 had established that the system was operating correctly. The plumber stated that “I checked the heater and found the flow to be perfectly adequate; also the size of the unit was more than big enough for normal showering needs…I found the temperature to be good and safe for domestic use”. The lessor was thus advised that there was no need to replace the hot water system. Further the plumber states “on seeing the female tenant close the tap, I told her that such rough handling was abusing the washers and they would not function with such treatment”. The plumber stated that both Ms Marcus and Mr Hodgekiss became angry, threatening and abusive towards himself and the lessor.
11.Thus it appears that the tenant’s complaint with regard to the hot water service had been dealt with by the lessor prior to the date of the application and there is no need for further action by the lessor. ACAT notes that lessors are required to undertake repairs as notified, but are under no obligation to provide improvements.
THERE WERE DANGEROUS ELECTRICAL FAULTS THROUGHOUT THE HOUSE
12.In their application the tenant’s assert that a licensed electrician who attended to install a safety switch and additional power outlets requested of the lessor by the tenants had also replaced fuses and a fuse board and that he had stated that all of the switches in the house should be replaced because they were old, dangerous and ‘flashed’ when being used. The tenants also asserted that “all light fittings are loose and need to be replaced because they are dangerous, and, we have to replace all light globes as they constantly blow due to an electrical fault with the fittings which needs urgent attention from a licensed electrician”.
13.The lessor stated that she had had all electrical repairs attended to and that the premises were safe. There was no evidence before the tribunal that the tenants had informed the lessor of the problem. Nevertheless, in order to be certain that the premises were safe ACAT ordered the lessor to organise a report from a qualified electrician. This was done at the lessor’s expense and the report from Peter Byatt stated that all tests as required by the Australian Standard AS 3000/2007 including polarity, earthing continuity and impedance tests proved to be satisfactory. All accessories and fittings showed expected signs of age, but were not considered dangerous. ACAT therefore makes no order for further electrical work as requested by the tenants.
THE LESSOR AND HER AGENTS HAD VISITED THE PREMISES WITHOUT PROPER NOTICE
14.The Tribunal was not satisfied on the evidence of the tenants that the lessor was ‘turning up whenever she felt like it’. There was some evidence that friends of the lessor had been investigating the unauthorised presence of dogs in the premises. Given the animosity between the parties, the apparent high level of stress which the lessor was suffering and her consequent inability to respond to issues, ACAT made an order requiring the lessor to give 7 days written notice of visits by tradesmen and of inspections by the lessor.
15.The lessor complained and on the evidence available ACAT accepts, that she has been unable to access the premises to determine what, if any, repairs were needed. This made it difficult to respond to the tenant’s requests for work to be done. The denial of access made it impossible for the lessor to determine whether the tenants were complying with their obligations under the tenancy agreement to take reasonable care of the premises and to keep the premises in a reasonable clean condition. The lessor asserted, but the tenants denied that up to 10 dogs were being kept in the premises and that these dogs were damaging the garden and causing damage and mess inside the house. Photographs provided by the lessor showed that the garden was in a poor and untidy state, that there were at least 2 dogs in the yard, there was an untidy collection of garbage and/or personal goods of the tenants in the garden and exterior areas. Photos of the inside of the laundry revealed it to be filthy and not properly cared for. There was thus a prima facie breach of the tenants’ obligations.
16.Anticipating that a visit by the lessor either alone or accompanied by friends would be likely to be viewed as confrontational by the tenants, ACAT ordered that the lessor organise for an inspection to be conducted by an independent real estate agent, within 21 days and that a written report of that inspection be filed with ACAT. The inspection was completed on 29 January 2009 by Melissa Keen of LJ Hooker, Kippax. Her written report was thorough, the key points were:
a.The tenants were keeping 5 dogs in the premises. This is a breach of the tenancy agreement.
b.There was minor maintenance to be undertaken by the lessor in the kitchen and bathrooms
c.The house smelled of cigarettes and dogs.
d.The laundry was in need of further repair as there was evident damage, caused by the dogs, to the walls, doorframe and screen door.
e.There were areas of the walls where some patching had been done by the tenants, this would need to be done again as it was not of a satisfactory standard.
f.The dogs had done considerable damage to the rear yard - there were ‘lots of dog holes to the gravelled areas’.
THE PREMISES CONTINUED TO BE ADVERTISED BY THE LESSOR AS AVAILABLE FOR RENT
17.The lessor admitted that she had left the advertisement on allhomes.com.au. She stated that she had paid for a year. The tenants complained that they had been contacted by prospective tenants. There was no evidence of this and the advertisement gave the lessor’s phone number as the only contact. In order to avoid any further conflict ACAT ordered the lessor to stop the allhomes advertisement.
18.The lessor made a claim for rent to be paid up to date. The tenants conceded that they were in arrears and ACAT made orders for the payment of rent and arrears.
THE TENANTS’ PERSONAL PROPERTY STORED IN THE GARAGE HAD BEEN DAMAGED BY RAIN WATER ENTERING THE GARAGE
19.At the hearing on 19 December 2008 ACAT had some evidence as to the flooding in the garage and the alleged damage to the tenants’ goods. This may be summarised as follows:
a.On 14 September rain had entered the garage. It was conceded that the goods stored in the garage had been wet by the rain, but the lessor denied that they had been damaged or ruined. The tenants allege this was due to a blocked drain, but the location of the drain was not clear.
b.The lessor was called by the tenants to the premises on 14 September and had attended in the company of her daughter and a friend. During the course of that visit there was an argument and the lessor’s friend, then her daughter, and, eventually the lessor were ordered from the premises by the tenants.
c.Nevertheless during the visit the lessor had attempted to clear the gutter to the garage and clean up the water in the garage.
d.The lessor offered to release the tenants form the agreement, but this was refused.
e.On 15 September and several days thereafter the lessor organised for work to be undertaken in the rear yard to correct a problem with the drainage. It was not clear whether this had any causal connection to the water entering the garage.
f.On 13 October there was second episode of flooding. The tenants state that the water entered from under the garage, the external side wall and a gap in the rear of the garage.
g.Photographs of the garage show it to be flat roofed, with walls made up of horizontal wooden planks. There are obvious gaps between each plank, a gap of about 30 centimetres between the top of the wall and the roof, and a gap between the bottom of the wall and the cement floor. The photos reveal a structure that would provide a secure area for parking vehicles, but which is not waterproof.
20.The tenants assert that the lessor should pay for the loss/damage caused to their goods by the water because the lessor had undertaken to:
a.Complete the facia on the garage to stop the rain coming in from the roof;
b.To install drains on the front and side of the garage to stop the water getting in from under the garage door or from pooling at the side entrance; and,
c.To board up the front side of the garage to prevent the rain from coming in from that direction.
21.Apart from their asserting it to be so, the tenants produced no evidence of any such undertaking. It appears that no claim was made either on insurance or against the lessor for months and no written demand or notice to remedy has ever been issued by the tenants. In her response to the claim the lessor states “the garage is a carport enclosed by wooden slats. This construction is clearly visible from the rental advertisement and was viewed by the tenants prior to committing to the tenancy agreement. At no time have I made any statement to the tenants that the garage is watertight or available for storage”.
22.On 19 December ACAT adjourned the issue of liability for and quantum of damages in relation to the water entering the garage. The tenants were required to make written submissions as to both. No submissions were received and the matter was set down for hearing on 24 March 2009. Following a series of adjournments, and directions from ACAT, the matter was finally dealt with on 31 July 2009. By that date the tenants and the lessors were represented by solicitors: the tenants by Ms Mbaka of Capital lawyers and the lessor by Mr Claxton of Claxton Lawyers.
23.On 30 July Ms Mbaka filed submissions on behalf of the tenants. The tenants alleged that the lessor had negligently failed to maintain the shed’s roof gutters and stormwater pipes and drains and this caused the applicants loss and damage to their property. The submission is that the allhomes advertisement represented the garden shed to be suitable for storage. This demonstrates either deliberate deception or confusion on the part of the tenants. The advertisement refers to a garden shed which is a distinct and separate structure. The advertisement clearly states that the garage is not complete.
24.The tenants assert that the lessor was negligent but do not address any of the elements of negligence, nor do they argue for any specific breach of the tenancy agreement. A lessor may be liable for loss or damage to a tenant’s goods either through a breach of the tenancy agreement or by an act of negligence. Apart from alleging that the lessor has failed to honour undertakings they claim were given, the tenants do not address either breach of contract or negligence.
25.The claims made by the tenants are vague and lacking in specific detail. In assessing the claim ACAT takes into account :
a.In all the circumstances the tenants have not been found to be reliable witnesses, and where there is a conflict between the evidence of the lessor and the evidence of the tenants, ACAT prefers that of the lessor;
b.The tenants have provided no evidence other than the presence of rain water in relation to the flooding. There is no submission as to the cause of the flooding, what action could have been taken to avoid it, whether completing the work mentioned in the undertakings they assert were given by the lessor would have avoided the flooding or which drains were blocked. While there is evidence of water in the garage, this could have been caused by blocked gutters, blocked drains or by virtue of the open nature of the garage area. There is no diagram, independent report or witness to support the tenants’ allegation of negligence.
c.There is no evidence that the lessor represented that the garage was suitable for storage of goods other than vehicles and was waterproof, nor, that she had promised to make it so.
d.Had the tenants presented any argument as to the actual cause of the water damage to their goods, the lessor would in any response have been entitled to argue that the tenants were subject to the doctrine of volentia non fit injuria – that by putting their goods in storage in a structure that was manifestly not watertight the tenants had accepted the risk of damage by rain entering the garage structure through the obvious gaps in the structure. In any event by continuing to store goods in the garage after the 14 September the tenants have failed to mitigate any loss arising form second and subsequent instances of rain damage.
e.The tenants have provided list of goods claimed to have been damaged and value is attributed to each item on the list. They have also provided some photos of goods inside the garage at the times the water entered the structure. The aim of damages is to restore the injured party to the position they were in prior to the act of negligence or the breach of contract. The tenants have not established ownership of the goods, provided details as to their date or methods of acquisition, the price paid or how the value placed on the goods was calculated. There is no evidence of comparable goods or replacement costs.
26.ACAT finds that the tenants have not established any negligence or breach of contract on the part of the lessor. If such a claim had been made out the tenants’ claim does not establish the quantum of damage otherwise than by vague estimates.
ORDER
27.The claim by the tenants for compensation for loss or damage to goods is dismissed.
………………………………..
Ms Jann Lennard
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: RT 08/943
APPLICANT: KAY MARCUS & BRUCE HODGEKISS
RESPONDENT: MARGARET LYNNE WALTON
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT: MS D MBAKA
RESPONDENT: MR D CLAXTON
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S: MS J LENNARD
DATE/S OF HEARING: 31 JULY 2009 PLACE: CANBERRA
DATE/S OF DECISION: 15 SEPTEMBER 2009 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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