Michael Nghiep an v Scott and Roslynn Jury (Residential Tenancy)

Case •

[2010] ACAT 39

•

2 June 2010

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MICHAEL NGHIEP AN v SCOTT AND ROSLYNN JURY (Residential

Tenancies) [2010] ACAT 39

RT 10/266

Catchwords:             Residential tenancy agreement – notice to vacate premises – termination of tenancy and possession of premises - costs

Legislation:ACT Civil and Administrative Tribunal Act 2008, ss. 47, 48 and 49.

Residential Tenancies Act 1997, ss.48, 49 and 59 and Schedule 1.

Case law:Coslen Pty. Ltd. (Landlord) v Woods, Raylene (Tenant), and Bunyarra Transitional Accommodation for People with Disabilities Incorp. (Tenant) [1997] NSWRT 228

O'Brien v Poole (Tenancy) [2002] NSWCTTT 399

Street v Consumer, Trader & Tenancy Tribunal & Anor

[2003] NSWSC 1109

Tribunal:                  Bill Stefaniak, Presidential Member

Date of Orders:  2 June 2010

Date of Reasons for Decision:         30  June 2010

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 10/266

BETWEEN:

MICHAEL NGHIEP AN

Applicant

AND:

SCOTT AND ROSLYNN JURY

Respondent

TRIBUNAL:            Bill Stefaniak, Presidential Member

DATE:  4 June 2010

ORDER

Re:  PREMISES AT 17 Narran Street AMAROO ACT 2914

Noting that:

Condition 4(d) of the Order of the ACT Civil & Administrative Tribunal (ACAT) made on 29th April, 2010 has been breached and after hearing further evidence from the parties and submissions from Ms Alonso for the Respondent and from the Agents representing the Applicant the ACAT makes the Order set out below

TAKE NOTICE that on Wednesday the 2nd day of June, 2010, the ACT Civil & Administrative Tribunal, Made the following ORDERS:

  1. That the Residential Tenancies Agreement is terminated and possession of the premises is to be given to the lessor at 9.00am on the 10th day of July, 2010.

  1. That the said tenant/s and any other person claiming right of possession through the tenant’s tenancy is to vacate the premises in accordance with this Order.

  1. That if the tenant/s fails to vacate the premises in accordance with this Order, the lessor may apply to the Registry of the ACT Civil & Administrative Tribunal for a Warrant for Eviction.

  1. That the tenant/s shall pay the lessor the sum of $759.80 on or before
    23rd June, 2010 for rent due to 9th July, 2010.

  1. A final inspection will take place at 4.00pm on Friday the 9th July, 2010.

  2. Previous orders made relating to this Tenancy on 29th April, 2010 are set aside and these orders are substituted in their place.

………………………………..

Bill Stefaniak

Presidential Member

REASONS FOR DECISION

  1. I have been asked by the applicant to supply written reasons for decision in the above matter.   I also refer members to the proceedings of the 2nd of June 2010 where some reasons have already been set out.  Should the parties wish to, they may take the opportunity to get the transcript or a CD disk of those proceedings.    

  1. It was common ground between parties that Scott and Roslyn Jury took out the lease of 17 Narran Street, Amaroo, ACT in 2002.   The property was new at the time.
  1. The formal tenancy agreement is dated 1st March 2003.  It appears that the Jury’s occupied this property some months before the formal agreement was signed.  The formal agreement was at a fairly low rent even then, and over the years the rent crept up to $370.00 per week.  Pursuant to an agreement made between the landlord’s agent, L J Hooker Property Management, and the tenants in 2005, the rent was paid monthly from 2005 onwards.
  1. There were always issues in relation to payment of the rent.  Evidence placed before the Tribunal indicated there had been some 31 notices to remedy.  Between 2007 and 2009 inclusive, some 24 notices to remedy had been issued.  Many of the notices on file are for amounts between $1000 to $1500.  The highest amount was $2816.00 owed on the 28th of March 2008.  Evidence placed before the Tribunal indicated the landlord had not put up the rent to keep pace with the value of rent in adjoining residential properties as the Jury’s were a young family with some five children, where Mr Jury worked and Ms Jury often did not, and the family did have trouble making ends meet. 
  1. On the 10th of July 2009, the agents met the tenants and they reached an arrangement on the 13th of August 2009 that there would be no more chances and the notice to vacate would follow any further breaches.  Unfortunately, the problems did not cease. 
  1. A valid notice to vacate for the non-payment of rent was sent to the Jury’s on 21st of October 2009.  It was sent under a covering letter which referred to the termination notice and indicating that the landlord required the possession of the property by the 6th November 2009.  On the 28th October, the notice to vacate was cancelled after the tenants paid rent and the landlord accepted the rent. 
  1. the next action in relation to this matter appears to have been as a result of a complaint by a neighbour made on the 28th of January indicating that he thought that there were more than two adults living at the property and that the tenants were putting excess garbage in the neighbourhood bins which he said was disgusting and smelt.  He said he was lodging a formal letter of complaint, which he did the same day. 
  1. There was a further issue of a notice of non-payment of rent for that month as well, on the 14th of January.  Ms Jury rang to say that her rent was coming in tomorrow and there had been some trouble with EFTPOS. 
  1. The complaint of 28 January 2010 related to household waste being stockpiled, concerns about it being unhygienic, and concerns about the excess being put in his bins and any spare bins in the street.  The complainant indicated the cause of this excess waste appeared to be a large number of people staying at the premises.  He said he had no desire to see the family move.  He would simply ask for support in observing basic hygiene. 
  1. In the course of evidence during the hearing there was not sufficient evidence for me to be satisfied that there were more than two adults living in the property.  There was evidence that Ms Jury’s mother stayed for four weeks on one occasion.  Other people would certainly come and go at the property.  When the Tribunal inspected the property on two occasions there were other people in the property assisting with tasks such as looking after the children and, in one instance, cleaning.  The Tribunal is not satisfied that there were any more than two adults regularly residing in the property as such.
  1. The agent on the 19th of February inspected the property and the inspection report is part of the documents before the Tribunal.  There were problems in nearly every room in the property.  A further inspection was arranged for the 10th of March.  This was cancelled by the tenants and rescheduled for the 12th of March where the agent indicated about “50% of the problems had been rectified”.  As the tenants had not fully rectified the problem, a notice to vacate was issued by the agent on 15th of March.  As indicated orally during the proceedings, the notice was defective in that it appears a sentence or so was actually left out and so it did not stipulate any actual breach.  I will deal with this point later. 
  1. The problems, apart from non-payment of rent, seem to have gone back to at least 2005.  On the 7th of September 2005, there was a re-inspection of the property after problems had arisen.  There appears to have been a constructive conversation, it would seem, between the parties.  The principals of
    L J Hooker visited the property and sent a letter in terms of matters agreed upon which included the carpet stains in the bedroom not being satisfactory and needed  to be addressed now rather than later.  It was noted that the tenants agreed to get the stains attended to as soon as possible and if they could not be removed the tenants stated, when they vacated the property, the carpet would be replaced at their own cost.   There were further matters which were not relevant to the current proceedings.  They were again issues relating to rent and it was at this stage the tenants went on to paying a monthly rent at that stage of $1281.00 per calendar month.
  1. The condition report on the 19th of February 2010 listed many problems.  The list included drawings on walls, painting on tiles and walls chipping, holes in walls, stairs and front door screen, writing on the floor, tiles, blinds damaged, marks in the kitchen benches, issues in relation to the stove and oven not being cleaned, patches on walls, hallway area not being painted (this was in relation to several holes which had been identified earlier (three holes had been identified in the previous 2009 inspection),  in all bedrooms -  carpets were damaged, lights missing,  hole in the wall in bedroom no. 2.  Again paintings on walls, carpet damaged in all rooms.  Bedroom 4 – there was a hole in the door, screen missing.   Again rubbish outside piled up around the back, the bins needed to be removed, maintenance was needed on the gutters and eaves (landlord responsibility), various paint marks and marks by crayons outside brick at the rear of the house, stickers on windows, marks throughout the house on doors and paint, crayons and other difficult marks on the carpet in the children’s bedrooms with also stains and marks on the carpet in the main bedroom.  One of the carpets in the house was not owned by the landlord and was not mentioned. 
  1. There were also problems with the garden and also the landlord’s agent complained about the lack of lawn out the front due to the number of cars that would park there.  This did not become particularly relevant in any of the hearings and at any rate with the drought Canberra has had since 2003, this was not an issue that needs to be considered at all in my view. 
  1. Then the agent went back on the 12th of March. The dining floor had still not been cleaned, there were still cuts on the bench, and the dirty oven racks had been removed altogether.  Again there were problems with the carpets.  There had been some attempt to paint some of the marks on walls in some of the rooms.  The agents indicated this might have been just to cover up dirty marks but at least something had been done.  Some of the holes in walls have been repaired.  The crayon and paint marks outside were still there.  On this occasion, they did not check the driveway.
  1. The notice of termination was issued on the 15th of March and as indicated during the proceedings, I found it defective.  I indicated that I was willing to allow it to be amended either by articulating what some of the issues were and particularising them or by simply referred to the particulars already given to the tenants.  The landlord opted to particularise the outstanding matters which were apparent when I on behalf of the Tribunal and the landlord visited the premises on Friday, the 23rd of April.  
  1. The tenants, on the 18th of March, responded to the notice to vacate that had been hand delivered to them on Monday the 15th of March, by disputing the termination letter in stating that they would not be vacating and said that they were not in breach of the agreement.  They quoted clause 64 of the prescribed terms and stated that “upon receiving the notice to remedy we have not only complied with rectifying the issues but also improved at our own expense the property by replacing fly screens, repairing all four bedrooms plus all living areas within the house faithfully”. 
  1. It also appears also that there was a telephone conversation between the agents and tenants on the 21st of March.  This had prompted the tenants to respond in writing which they did, setting out that they took the lease of the property by way of a tenancy agreement on the 1st of March 2003, complaining about the property management, maintaining that the damage listed was a result of fair wear and tear, going through their family situation, and stating that they had occupied the premises for some 10 years, pointing out Australian Taxation Law in relation to the carpets, listing their hardship situation and stating that L J Hooker was taking unjust and inappropriate action.  This document indicated to me that both parties were well aware of the issues that were in dispute. 
  1. This document also pointed out some discrepancies in the agents’ statements, especially, the statement which was incorrect which stated that the tenants had been residing in the property since 1992, also stating the tenancy commencement date of 15th October 2002 but noting that the actual commencement date as the 1st of March 2003.  They further complained about the fact that they had been described as being constantly in arrears and took umbrage at that.  They also issued a counterclaim which was not pursued at the hearing.  They again disputed the March 2010 condition report stating that apart from the carpets and the markings on the walls, they had effectively fixed up all other matters. 
  1. The matter was listed for hearing on the 14th of April and did not proceed.  The reasons were first, there were other matters in precedence in the list, and secondly, the documents prepared by the tenants were given to the agent at the tribunal.  The matter was set down part-heard on the 16th of April.  Unfortunately, Mrs Jury was ill and sent in a Doctor’s certificate and when spoken to, the matter was further adjourned until  4 pm on Tuesday, the 20th of April.  Mr Jury was able to appear by phone on that occasion as he was in Bega.  
  1. The matter was heard on that day and a reference was tendered by a friend of Ms Jury, Matthew Cossey, former secretary of the ACT branch of the Australian Labor Party.  He indicated a number of good works Ms Jury had done in the area but in the Tribunal he was not able to satisfactorily comment on the state of the house as he had largely talked to her in the lounge room.  He did, however, indicate that she had, among other things, being responsible for getting the school crossing put in to the benefit of many young children attending Amaroo Primary School. 
  1. Rather than decide the matter on that day, I decided to go to the property and inspect for myself the damage and the lack of repair alleged.   Accordingly, an arrangement was made to visit the property on Friday, the 23rd of April at
    4 pm.   Ms Jury was meant to be there but was not when we arrived.  I arrived and there were two representatives from L J Hooker. We walked through the property and had a good look. There were several adult persons there, assisting with the children or, in one instance, cleaning up in the kitchen.  As a result of that inspection a number of matters were listed that still needed to be attending (They are listed in the order of 29 April 2010). 
  1. The matter being resumed on Thursday, the 29th of April, at 4:30 pm.  The Tribunal sat late and I heard all the evidence.  I decided to see if an arrangement could be made whereby the tenants would be able to stay in the property, that the outstanding matters could be rectified, and steps could be put in place to ensure that the rent would rise to the market rent over a period of time and the other issues of concern to the landlord be taken into consideration and attended to. 
  1. Accordingly, a conditional termination and possession order was granted.  It is fair to say that this was granted to enable the tenants to remain in the property and because she stated she was able to meet the terms of the order.  I might say that this was accepted with some reluctance by the representatives of the landlord, who did have concerns in relation to the tenants’ ability to pay the rent at the current rate let alone an increase in rent.  It was pointed out, however, the matter would be brought back to the Tribunal on a specific date when we could all see how things were going.  It was my intention at that time to make any necessary adjustments (see the order of 29th April 2010 attached).
  1. An order was made for a number of things to occur.  These included replacing the damaged carpets in all four bedrooms with a new carpet, which was not done because subsequent events overtook it.  The order however gave due recognition to the problems that existed in relation to the carpets, it would seem to me, since the early years of the tenancy. 
  1. Specifically, a number of items were listed that needed fixing that had not been attended to as at the inspection of the 23rd of April.  In one instance there appeared to have been a new item of damage to the property.  4(d) of the agreed terms of the order indicated that the tenants would complete the repairs agreed to by Monday, the 24th May 2010 at 4 pm, namely,

“(1) Cleaning the walls and ceiling in the garage and repainting the ceilings after repairing the hole in the wall and damage to the internal wooden door.  Also, the tenants and their guests shall not smoke in the garage and the house. 

(2)The damaged flyscreen in the front door shall be replaced and the damaged timber frame on the front door shall be repaired and painted.

(3)        The lock in the laundry flyscreen door shall be replaced.

(4)The light fitting in the second bedroom shall be replaced and the toilet roll holder in the toilet shall be replaced.

(5)All ceilings in the house are to be cleaned and all stickers and glue are to be removed from windows, walls and doors and the areas they were on cleaned and repainted as necessary.

(6)All bedroom doors and walls not already cleaned and painted are to be cleaned and painted.

(7)All paint and crayon marks on the external brick work and pavers, are to be cleaned.”

  1. I noted all these on the inspection of the 23rd of April.  I also noted that there were paint and crayon marks on all the carpets in the children’s bedrooms and those carpets were simply beyond being cleaned.  There was one carpet which belonged to the tenants which had some marks on it.  No one was particularly worried about that.  The carpet in the main bedroom had a lot less marks than the carpet in the children’s bedrooms.  I might say I have looked around a number of places in the course of my life and I have not seen carpets with that many stains, crayon and paint marks.  I observed this in three of the bedrooms at least.  I also looked outside the house and saw a large amount of paint marks on pavements and on the house walls and also crayon marks, which, I would imagine, would not be that difficult to remove.  Also, I noticed marks, in particular, on windows, walls and doors and stickers on windows.  I would imagine stickers on windows would be much easier to remove than on doors and walls where they tend to take off paint when removed.
  1. I felt that the lack of attention to cleaning the house, which I noticed, was at odds with the tenants’ statement of particulars and notes given to the Tribunal on the 14th of April. In my view what I saw did not constitute a fit and proper, normal acceptable standard of tenant maintenance in accordance with what is required under the Residential Tenancies Act. The hole in the garage door and also a hole in the screen door in the front of the building were not noted in the report of the 19th of February. 
  1. As a result of the further visit of the 24th of May, on Monday, I noted that the hole in the wall and damage to the internal wooden door had been repaired but the walls and ceilings clearly did not appear to have been repainted.  The damage to the flyscreen to the front door had not been repaired – and it had not been replaced.  The damaged timber frame on the front door had been repaired but not as yet painted.  The lock in the laundry screen door was not replaced.  The light fitting in the second bedroom had not been replaced although the toilet roll holder had been replaced.  It would appear that some of the ceilings in the house had been cleaned and some of the stickers had gone, although not from the windows. 
  1. There were still marks on the walls and doors and on some of the areas where I had written a comment in terms of those areas having to be cleaned or repaired and painted as necessary.  There were still stickers internally on the ceiling.  Ceiling cleaning and repainting had not occurred in those areas.  The bedroom doors and walls certainly had not been cleaned and painted.  And, when we went outside, paint and crayon marks on the external brick work and pavers were largely still there.  (Although I did notice a couple of instances where the crayon marks appeared to have been taken off, and in one instance, an unsuccessful attempt to take off crayon marks). 
  1. On Friday, the 21st of May, Ms Alonso from the tenants’ union became the solicitor for the respondent upon receiving instructions.  She was present also at the house on  the 24th.  The matter was listed for hearing on the 27th of May, and again on the 2nd of June.  Ms Alonso indicated on the 27th of May that the notice to vacate was defective.  The matter was stood over to the 2nd of June when further argument was heard and further evidence was taken, and the matter was decided.

Observations

  1. I make the following observations in relation to this matter.  I have already set out orally in some detail, when the matter was before me on the 2nd of June, my views in relation to the various submissions made by both parties.
  1. The order of the 29th of April was a somewhat unique one in that it was prefaced basically on the landlord being prepared to keep the tenants (even after 31 notices of remedy and ongoing problems with paying the rent on time and ongoing problems of proper maintenance of the property), and the tenants, represented by Roslynn Jury indicating a willingness to make amends by rectifying the problems of rent and maintenance, including paying a market rent and fulfilling the obligations of the tenants under the agreement so as to stay in the property that had, on her evidence, been the family home for
    10 years.  As indicated earlier, this may well have been an arrangement doomed to fail and it did. 
  1. Ms Alonso upon being instructed in accordance with the order of the 29th of April relisted the matter on behalf of her client.  She quite properly pointed out the defects in the notice of terminate and vacate.  As indicated earlier, the defects were not in my view fatal.
  1. Suffice to say that the matter was now back to square one and all issues were on the table as it were.  It was quite clear that Ms Jury did not wish to abide by any of these orders and reconsideration of the whole matter was necessary. 
    I accepted Ms Alonso’s point in relation to the rent. Normally, in accordance with the Residential Tenancies Act there are some very clear rules in relation to increasing rent. The idea in this present case was to enable the rent to get up to the market rent to satisfy the landlord and to help the Jury’s remain in the property that had become their home. It was always a concern to me, having heard the L J Hooker representatives that this may well be setting them up to fail but Ms Jury assured me that the proposed increase was manageable.
  1. When challenged, clearly, there were problems with the order.  The tenants had actually obeyed part of the order of 29th April 2009.  The arrears outstanding of $2168.23 were paid up until the 23rd June.  I have already indicated that Order 4(d) had not been adhered to and I will come back to this in due course. I understand that the tenants had provided the keys, and of course, nothing had been done in relation to the carpet in terms of the order.
  1. The order also granted the lessor permission to inspect the premises from the 21st of June onwards, which is now irrelevant.  And I also found on the tenants’ behalf in relation to the tenants agreeing to pay $500 costs to cover the lessor’s cost of attending the Tribunal.  Again, by the nature of ACAT, specially ss.48 and 49, I did not feel there was a delay or anything which would take this case out of the ordinary if anyone challenges the question of costs.  Any delays were an attempt to follow the process and were largely instituted as much by the Tribunal and the parties themselves.  Accordingly, if there was to be a fight rather than a consent order continuing - the question of costs would not be something that could be sustained.  
  1. Similarly, the orders in relation to inspecting the property are also now irrelevant.  
  1. As well, in relation to the carpets, I do accept Ms Alonso’s argument and the tenants’ argument that carpets do have a shelf life of 10 years.  I indicated at the hearing on 2 June 2010 that it was common practice where carpets are so damaged that they need replacing, for the landlord to bear the cost of buying the carpet but the tenants having to bear the cost of having the carpet laid.  Where a carpet is properly cared for, there is no reason why it cannot last
    20 years or more.  If the carpets had not been so damaged by the tenants, over and above reasonable wear and tear, they could have been cleaned and not taken up.  It was impossible, however, to clean these carpets and at the very least, the tenants should, in such situations, have to bear, in my view, the cost of  labour to replace them even if the landlord would be liable for buying the carpet as such.  I indicated certain colleagues of mine, including Senior Member Anforth, had done this on a number of occasions in previous matters before the tribunal.
  1. I decided that there was no point in me deciding that issue now – that the whole tenancy question was thrown into dispute again by the tenants relisting the matter.  The question of carpets is something that can be taken up on the termination of the tenancy.  Similarly, the issue of increasing the rent is also something that does not need to be taken up now.
  1. I should say that when the matter was dealt with on the 2nd of June, I again indicated to the parties that they should see whether there was any way they could continue this tenancy and if they could come to some sort of agreement.  I was advised that was impossible. 
  1. It was unfortunate that some acceptable agreement could not be reached, but in hindsight, and looking back over the course of this matter and viewing the various documents which go back to 2005, I think the situation had been  reached where the tenancy was untenable regardless of what breaches had been made out or otherwise.  It would appear to me that there were ongoing problems with this tenancy during its entire duration.  I accept the reasons put forward by L J Hooker that the landlord did not want to increase the rent much as it would hurt a struggling young family.  These indications are borne out by the fact that a perfectly good notice to vacate issued in October was discontinued by the landlord when the rent was paid up.   
  1. It would seem in this instance, the landlord finally just got sick of all the problems and the inspection of the 19th of February seemed to have to have been the final straw and he then resolved to finally terminate the tenancy.  May be, this was brought on by complaints by the neighbour, however, it is clear that once we got into 2010, there was no going back as far as the landlord was concerned.  I also detected a reluctance by his agents, at attempts by me to see whether the tenancy could be saved.  I think events probably have borne out their concerns. 
  1. I must say that the state of the property I found on the 24th of May, gave me great concern.  I would have thought the tenants had ample opportunity from the 19th of February – ample chances - to rectify the problem.  I accept that nothing was going to happen to the carpet, but I do think the various matters that still needed to be attended to on the 29th of April and were not, indicate the real problems with this tenancy.  I find what I saw on the 29th April was clearly not acceptable in terms of normal robust fair wear and tear of a property. 
  1. I found a property, which was only about 8 or 9 years old and that looked a lot older because of the usage.  I accept, as indicated in the hearing, that it is difficult to keep a property spotless with young children aged 3 to 14, especially when one of the children has some difficulty that makes it even harder for the family to cope.  However, my real concern in this matter and the fact that it was still in an unsatisfactory state on 24 May 2010 bear this out, is that the tenants were not capable of addressing properly the issues around maintenance, with little attempt being made to rectify the problems.  I would have thought, with the tenants coming so close to being thrown out on the 29th of April, that a real attempt would have been made to rectify the issues of concern by the 24th of May. 
  1. That attempt, in my view, had not been made and I have to have regard to the fact too, over the years it seems that the tenants had made various representations to the agents that they intend to pay rent on time, look to issues in relation to maintenance, only then to go back on those commitments. 
  1. Ms Alonso indicated that the tenants found themselves in a difficult position on each occasion and they would effectively agree to anything to stay in the property.  That might be so but it only reinforces the problem if anything.  It does not give any confidence to the landlord when a reasonable agreement is reached that it will not be breached and I cannot ignore the fact that there were some 31 notices to fix up arrears of rent, 24 in the last three years, several of those being over $2000.  Whilst the order of the 29th of April was set aside as a result of my order of 2nd of June,   a part of that order that should have been obeyed, apart from repaying the rent owed, was 4(d), the order in relation to the repairs that needed to be undertaken and which the tenants favourably indicated, would indeed be undertaken.  They were not. 
  1. Had I not terminated the tenancy on 2 June and had I made a further order that the outstanding repairs be done, I would have absolutely no confidence that would actually be obeyed, as a result of the past history in this matter and the fact that the number of orders and agreements had been made only to be broken. 
  1. I do not, of course, include the need for the carpet to be replaced as part of this.  It is however indicative that an agreement had been made in relation to the carpets in 2005, and rightly or wrongly, legally or otherwise, but at the very least there was some moral compulsion for something to be done in relation to the carpets.  I also note that in relation to the carpets, the tenants indicated that if they stayed, the carpets condition did not particularly worry them and, I think it would have been quite reasonable were the tenants to stay for them to replace the carpets at some stage as quid pro quo for staying.   Landlords and tenants sometimes do make arrangements such as these for very good and fair reasons.   
  1. The rental on this property was very low.  The agents stated the market rent for similar properties in the area would be at least $500 a week.  My order of the 29th was meant to reflect that.  I further indicated on the 2nd of June that the tenants had sought public housing and the fact that that may be a much better option for them (although noting the fact that it is very difficult to get into public housing).  Whilst I tried everything I could to keep this tenancy going, at the end of the day, I think there is a lot of strength in what the representatives of L J Hooker said, not only in terms of the order of the 29th of April 2010 setting up the tenants to fail, but also the fact that various agreements had been made, various things had been said, indicating that matters of maintenance would be rectified, which did not occur, including as indicated above, the perfectly straightforward and reasonable orders of the 29th of April in 4(d), which were not adhered to, and which only some effort had been made to rectify. 
  1. I would think that if the tenants were really keen to show that they were capable of maintaining the property in accordance with the tenancy agreement, a much bigger effort would have been made between the 29th of April and the 24th of May to fix up the various issues that were listed in that order and that the tenants needed to do.  Accordingly, I am of the view that the terms of the tenancy agreement in relation to proper maintenance by the tenants had indeed been breached.  I now briefly turn to the issue of the notice to vacate.
  1. It is quite clear to me regardless of what was or was not in the notice to vacate, the issues were well and truly known to the tenants.  The problem of the carpets had been going on since 2005 at least.  The problems in relation to the bags around the house that need to be taken away had been an issue since the 28th of January.  Various other issues of damage and things that needed repairing by the tenants had been known to the tenants from the
    19th of February.  Some effort had been made by the 12th of March.  Some further effort may have been made by the 23rd of April and some further effort had been made between  the 29th of April and the 24th of May although there were still a significant portion of what needed to be done by the tenants still not done.
  1. It is clear to me by the response of the 18th of March by the tenants, also details of the conversation of the 21st of March, and the follow up letter handed to the tribunal listing the tenant’s arguments on the 14th of April, that it could not be said in any way that the notice and the defect in it place the tenants in a significantly worse position than the tenants would have been in had the notice been served in accordance with the standard residential tenancy terms.  The tenants were well aware of what they had to do and indeed were able to quote sections of various Acts in justification for their position.  It was quite correct, for example, what they said about Australian Taxation Rulings.  This indicates that the tenants were well aware of their obligations and well aware of the relevant parts of the laws that affect them, and in no way can
    I find that they are in a significantly worse position. 
  1. I doubt very much if their position is affected at all. It is unfortunate perhaps for the landlord not to have issued a proper notice but that is not fatal in my view as a result of section 59 and as a result of the Residential Tenancies Act. It is also not fatal as a result of the ACAT Act and the fact that the ACAT can inform itself anyway it wishes and the ACAT can in fact amend matters of its own volition or at the request of one of the parties (section 47 of the ACAT Act). It is clear to me that the notice to vacate as per clause 83 of the Agreement was defective. And indeed the landlord’s agent admitted that they had left out a relevant part. I gave them leave to amend it. They chose to amend it by listing all the items in 4(d). And as already indicated, on the inspection of the 24th of May, the tenants fell well short of meeting those items, certainly to my satisfaction. 
  1. A defective notice can be remedied (see, O'Brien v Poole (Tenancy) [2002] NSWCTTT 399 ; Coslen Pty. Ltd. (Landlord) v Woods, Raylene (Tenant), and Bunyarra Transitional Accommodation for People with Disabilities Incorp. (Tenant) [1997] NSWRT 228; also Street v Consumer, Trader & Tenancy Tribunal & Anor [2003] NSWSC 1109) = by the Tribunal giving leave for this to occur. Ms Alonso points that the form was not in the form approved under s.133. And the fact that s.133 does not exist is an interesting one. There was evidence that the form was one that is being used and accepted by ACAT although conceded that it did not have all the information it should. I would accept that point. I would also say that if in fact it is impossible to have a form in the form approved under s.133 because that section does not exist, then clause 83 itself would be invalid as it relates to a form required in the Residential Tenancies Act which relies on a section that does not exist.
  1. We therefore go back to whether in fact it is appropriate and proper to see whether in fact the tenants had breached the agreement as indicated.  It appears to me from the reasons indicated above that the tenants had breached those parts of the residential tenancy agreement that do in fact exist and are not in contention, namely the sections in relation to the tenant’s rights and responsibilities in relation to proper maintenance of the property.  On the basis that the form used for evicting was an approved form so far as it goes, albeit without the relevant information, it is quite appropriate to enable that form to be amended at any stage. The ACAT has the power to do that as indicated above. Whether that is necessary, however, may be debatable because it is clear to me that the tenants seemed well aware of their rights and responsibilities and well aware of why the landlord was on the 15th March 2010 attempting to evict them.  As in Street v CTTT [2003] NSWSC 1109, there seemed to be no confusion as to the issues.
  1. Having indicated that there is no option but for an eviction to take place, I feel it is important that the tenants have a reasonable time to make other arrangements.  I note that the back rent had been, in fact, paid up to the 23rd of the June and that the tenants need only pay $759.80 to take them up to Friday, the 9th of July, which I ascertain is a very convenient date not only that being when the rent period would actually end for the month but also being a time which will give them over five weeks to find alternative accommodation. 
  1. As I noted at the hearing at least in June/July there seem to be more properties for rent than there are at the start of the year and hopefully they can find a more suitable house to live in.
  1. Accordingly, I made the orders as stated on 2 June 2010.

………………………………..

Bill Stefaniak

Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A  FILE NO:      

APPLICANT:                MICHAEL NGHIEP AN      
RESPONDENT:            SCOTT AND ROSLYNN JURY

COUNSEL APPEARING:       APPLICANT:          

RESPONDENT:      

SOLICITORS:  APPLICANT:          

RESPONDENT:      Ms A Alonso

OTHER:  APPLICANT:          

RESPONDENT:      

TRIBUNAL MEMBER/S:        Bill Stefaniak, Presidential Member

DATE/S OF HEARING: 16 April 2010   PLACE: CANBERRA
20 April 2010, 23 April 2010,
29 April 2010, 2 June 2010

DATE/S OF DECISION:          2 June 2010                PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )        CASE NOTE ( )        UNREPORTED DECISION ( )

COMMENTS:

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Street v Consumer, Trader and Tenancy Tribunal [2003] NSWSC 1109