Mohammad Munir Hussain v Brian GARRINGTON & Judy GARRINGTON

[2007] ACTRTT 10

Mohammad Munir HUSSAIN -v- Brian GARRINGTON & Judy GARRINGTON  

ACTRTT10  [2007]

CATCHWORDS
Compensation
Failure by Lessor to repair premises

ISSUES

LEGISLATION
Residential Tenancies Act 1997 (ACT)

CASES CITED

CASE REFERENCE NUMBER:   RT 78 of 2007

RE: Premises at 11/6 Wilkins Street MAWSON ACT 2607

DECISION

ORDERS

1)   That the lessor is to pay an amount of $ 450.00 being compensation for failure to maintain bathroom and failure to repair refrigerator in accordance with the requirements of the residential tenancy agreement, to the tenant within 28 days of the date of this order.

Member:         Jann Lennard

Date:               13 April 2007

REASONS FOR DECISION

BACKGROUND

1)   The Respondents are the owners of premises at 11 Taylor View, 6 Wilkins Street, Mawson in the ACT.

2)   The Applicant has been a resident of these premises since 15 October 2001. The tenant as expressed in the various residential tenancies agreements tendered to the Tribunal is MM International (Australia) Pty Ltd. The Tribunal received in evidence a Certificate of Registration for that company and Mr Hussain stated that he was a Director of that company.  In other proceedings relating to this tenancy, Mr Hussain stated that he had caused the tenancy agreement to be in the name of the company for business reasons and that he had overseas investors who insisted upon this.

3)   The Tribunal accepted that the dealings and correspondence between the lessors’ agent and the tenant had always been through Mr Hussain, and there was no dispute that Mr and Mrs Hussain and their children occupied the premises as a residence, although Mr Hussain stated that he conducted his many businesses from the premises. The Tribunal notes that this application was made in the name of Mohammad Munir Hussain. Therefore in these reasons and the Orders made by the Tribunal in matter number 78 of 2007, the tenant is MM International (Australia) Pty Ltd.

4)   Mr Hussain appeared on behalf of the tenant at the hearing conducted on 8 March 2007.

5)   Peter Blackshaw Real Estate Pty Ltd has been the lessors’ agent and has managed the premises for the entire tenancy. Ms Sharon Clugston, Peter Blackshaw Real Estate appeared on behalf of the lessors at the hearing conducted 8 March 2007.

6)   The weekly rent paid by the tenant at the commencement of the tenancy was $135 at the commencement of the tenancy in 2001 and has been increased only slightly to $150 at the date of the hearing. This is a very low rent and reflects the relatively poor state of the premises.

APPLICATION BY THE TENANT

7)   The tenant made an application to the Tribunal for compensation based upon:

a)An alleged failure on the pat of the lessor to undertake necessary repairs, and

b)An alleged failure by the lessor to make requested improvements to the premises.

8)   The written application contained a list of complaints relating to the above alleged failures, but no other information or evidence.

9)   The lessor filed a defence stating that they believed that all necessary repairs had been attended to in a timely manner and that some of the matters raised by the tenant were merely requests for work, which the lessor had declined.

10)  The Tribunal heard evidence of each claim as follows:

a)Repairs to the carpet in the second bedroom:

i)       Mr Hussain gave evidence that the carpet in the second bedroom had had a hole in it, since the commencement of the tenancy. The inventory report supplied by the lessor and annotated by the tenant on 25 October 2001, makes no reference to the state of repair of the carpet, although the tenant has made the annotation not proper clean next to the typed description of CARPET MUSTARD/ GOOD CONDITION.

ii)      Attached to the Inventory Report is a receipt from Stain Busters for cleaning and deodorising the carpet on 12 October 2001. Although the receipt notes that the glue may have lifted at the edge of the kitchen carpet, no reference is made to any defects in the carpet elsewhere in the premises.

iii)     The tenant produced to the Tribunal copies of two letters, identical in content, except for the dates: one letter is dated 14 /07/2002 and the other 19/07/2002. The letters state: …As I told you about the 2^nd room carpet matter before also, when we remove that table there was a whole [sic] in the carpet and as per you request I put some tape there, so can you talk to the land lord about changing the carpet otherwise it will be more damaged in future.

iv)     In oral evidence Mr Hussain said that two letters were sent, five days apart because the lessor had not responded. Mrs Hussain stated that the letters were sent at the request of the lessors’ agent. The Tribunal formed the view that the tenants had in a conversation with Kylie Oysten the lessors’ agent, asked for the carpet to be replaced and the agent had asked for a letter to put to the lessor. Mrs Hussain gave evidence that Kylie Oysten had later informed her that the lessor had decided not to replace the carpet.

v)      The tenants gave evidence that they had covered the damaged area with plastic tape and placed furniture over it some time soon after July 2002.

vi)     An undated photograph submitted by the tenants in submissions received after the hearing shows a damaged area of carpet, approximately the size of an A4 piece of paper.

vii)    No reference is made to the state of the carpet in any of the inspection reports from 2002 to 2006 produced by the tenants to the Tribunal.

viii)   Apart from stating that one of their sons had once tripped over the damaged area of carpet the Hussains gave no evidence of inconvenience or loss of enjoyment resulting from the failure by the lessor to accede to their request to replace the carpet.

b)Repairs to leaking bathroom ceiling:

i)    The tenant ‘s application stated we asked for Bathroom ceiling and water leaking problem from upstairs several times but they didn’t fix.

ii)   The evidence given by the lessors’ agent and agreed to by the tenant was that sometime in 2003, there was a leak from the bathroom of the apartment above the premises and that this was repaired in a period of about 10 days. The tenant asserted that they had been unable to use the shower for those 10 days. The agent gave evidence that this had not been raised with them prior to the hearing, and that Mr Hussain produced to the Tribunal several copies of a letter dated 04/01/05, which appears to have been faxed to the agent on that date and again on 16 January 2005. That letter, inter alia, asks the bathroom to be painted and for the installation of an exhaust fan.

iii)     The check in condition report describes a run down and aged bathroom, with some rust, some mould and some peeling paint.

iv)     Mr Hussain tendered copies of photographs, which showed the bathroom to be in a very poor state of repair. The toilet and tub area is extremely rusty, the ceiling is damaged by water leak, mouldy and peeling and the walls are stained. The area is extremely unsightly.

v)   The state of the bathroom has deteriorated to a great extent during the tenancy. Some of this is no doubt due to fair wear and tear, some due to the damage done during the 10 days when the ceiling leaked due to problems in the unit above the premises and some due to damage by steam where four people use one bathroom, which has poor ventilation and no exhaust fan.

vi)     The standard residential terms, at clause 55, obliges a lessor to ‘maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement’, and, at clause 57, to make necessary repairs within 4 weeks of being notified of the need for repairs.

vii)   The lessor has undertaken urgent repairs as required but has failed to maintain the bathroom in a reasonable state. While the lessor has no absolute obligation to effect improvements, such as the installation of an exhaust fan, this would be a reasonable measure in these circumstances.

viii)  The tenants are entitled to compensation for breach by the lessor of the obligations imposed by clauses 55 and 57. The lessor was aware of the need for repairs in 2003 and was asked specifically for them in 2005 and this has been noted in Inspection reports at various times since July of 2002.

c)Failure to supply sot light for balcony, exhaust fan for kitchen and security door. The premises did not contain these items at the commencement of the tenancy and while they were requested, the lessor made it clear to the tenants that they would not be supplied. Given the low amount of rent being paid by the tenant, and the lack of evidence as to inconvenience or loss of amenity suffered by the tenant as a result of the refusal of the landlord to install these items the Tribunal finds that the tenant is not entitled to compensation.

d)Failure to repair the refrigerator:

i)    The premises were supplied with a refrigerator, which stopped working in 2005. The evidence before the Tribunal was that the lessor took 6 months to arrange for a new refrigerator and that the old refrigerator is still in the premises and is one the balcony. Clause 60 of the standard residential terms provides that the failure of a refrigerator supplied with the premises is an urgent repair, and clause 59 requires a lessor to remedy this as soon as is practicable. A delay of 6 months is not excused by the fact that the tenant ha access to a bar fridge pf their own.  The tenant have made no submissions as to the level of inconvenience caused or any loss suffered as a result of the failure to replace the refrigerator in a timely fashion.

ii)   The Tribunal is of the view that the lessors have failed to comply with the obligations imposed by the terms of the agreement and are therefore liable to compensate the tenant.

e)Failure to repair oven. The Tribunal heard evidence that the oven was repaired within one week of the tenant reporting the problem to the lessors’ agent. This is in compliance with the lessors’ obligations under the standard terms.

f)Damage to laptop computer, mobile phone and other goods.

i)    The tenants application stated that the hot water tank burst and the whole living room was flooded our laptop, mobile phones and some other goods damaged.

ii)    The agent conceded that there had been a burst hot water service; the uncontradicted evidence was that it had been promptly repaired. The agent stated that the tenant had made no claim at the time. Mr Hussain asked for time to establish the loss and the Tribunal made orders allowing for further written submissions and any documentary evidence relating to this damage to be filed. Mr Hussain has filed a copy of the receipts for the purchase of the computer in 2001 and undated photographs of the computer. None of these provide and evidence of damage to the computer or phones or other goods.

ORDERS

1)   That the lessor is to pay an amount of $ 450.00 being compensation for failure to maintain bathroom and failure to repair refrigerator in accordance with the requirements of the residential tenancy agreement, to the tenant within 28 days of the date of this order.

Jann Lennard

Member

13 April 2007