Sethi v Caswell
[2018] ACAT 59
•1 June 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SETHI & ORS v CASWELL & ANOR (Residential Tenancies) [2018] ACAT 59
RT 826 of 2017
Catchwords: RESIDENTIAL TENANCIES – telephone lines – uninvited visits by lessors or their agents – tenants’ damage to premises – smoke damage to ceilings – poor patching of holes in walls – the Tribunal not a venue for public defamation – unsupported claims of dishonesty by a party to the tenancy
Legislation cited: Residential Tenancies Act 1997 s 36, standard terms 21, 22, 23A, 54, 63, 75, 76, 77, 78, 79
Tribunal: Senior Member A Anforth
Date of Orders: 1 June 2018
Date of Reasons for Decision: 1 June 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 826/2017
BETWEEN:
SAT PAUL SETHI
First Applicant/Lessor
SIDDARTH SETHI
Second Applicant/Lessor
URMIL SETHI
Third Applicant/Lessor
AND:
RICHARD CASWELL
First Respondent/Tenant
MANOURI CASWELL
Second Respondent/Tenant
TRIBUNAL:Senior Member A Anforth
DATE:1 June 2018
ORDER
The Tribunal orders that:
1. The Office of Rental Bonds on behalf of the Territory is directed to release $1,359 of the disputed bond to the lessors and the balance to the tenants.
2. This order is made in satisfaction of the applicants’ claim and respondents’ counter claim.
………………………………..
Senior Member A Anforth
REASONS FOR DECISION
1.On 27 September 2017 the Office of Rental Bonds (ORB) referred the present matter to the Tribunal as a bond dispute under the Residential Tenancies Act 1997 (RTA). The full bond was $4,800 which had been remitted to the lessors except for an amount held in dispute of $1,542.86.
2.On 17 October 2017 the applicants’ agent, Peter Blackshaw, lodged an application with the Tribunal for the determination of the dispute together with a volume of annexures amounting to nearly 200 pages (Exhibit 1). The application contained a timeline and related correspondence. In the claim the lessors’ agent advised that the lessors now claimed $3,167.42 and not just the disputed part of the bond held by the ORB.
3.The dispute related to a tenancy in a three bedroom, ground floor, brand-new strata unit in Yarralumla.
4.The application annexed various documents including the residential tenancy agreement which showed that the tenancy commenced on 9 June 2017 with a fixed term of six months (7 December 2017) at a rent of $1,200 per week payable fortnightly with a bond of $4,800. There were special terms relating to pets, gardening, no smoking and the care for the polished wooden floors.
5.The special clause on smoking read:
There is to be no smoking inside the property.
If there is evidence of discolouration or odour caused by cigarettes, the tenant will responsible for rectifying the damage at his/her own expense and may result in a Notice to Remedy being issued for the breach.
6.The tenancy ended early on 12 September 2017 by agreement between the parties when the tenants returned the keys. Rent was charged to this date.
7.Also annexed to the application were the following:
(a)A copy of the ingoing condition report of 9 June 2017 at the start of the tenancy which is unsigned and undated. The report contains typed comments by the agents and handwritten annotations. The handwritten annotations are partly over the top of the typed entries for 9 June 2017 and partly in the adjacent column, intended for comments at the end of the tenancy (outgoing condition report). The ink is green and the writing the same for all handwritten entries and appear to be those of the agents at the outgoing inspection. There are also handwritten annotations in black in different handwriting which also appear to be those of the agents. The report contains a column for comments by tenants next to each item on the report. There are no entries in the tenants’ column. There are photographs of the inside of the unit appended but the photos are unclear and the dating of the photos is not apparent.
(b)A periodic inspection report of 9 August 2017 which complained of smoke stains to the ceiling of the master bedroom; scuff marks on walls; showed photos of a wood burner on the verandah called a ‘Chimenea’ with rust staining on the verandah tiles at the feet of the Chimenea; and some cleaning issues.
(c)Email correspondence of 17 August 2017, that regards marks on the wall in which the tenants said that they would repaint the ceiling of the master bedroom.
(d)Emails of 17 August 2017 and 15 August 2017 concerning the agreed termination of the lease on 12 September 2017.
(e)Email correspondence concerning a time for a final inspection, which ultimately occurred in the absence of the tenants on 25 August 2017.
(f)An email of 25 August 2017 from the agents to the tenants setting out the result of the final inspection. It raised many issues including the tenants’ poor painting (a ceiling and patching four walls), further painting required, other scuffs on the walls in most rooms, general cleaning issues, gardening issues, absence of keys and remote for garage and stain and ashes from the Chimenea on the verandah.
(g)Subsequent emails concerning the work required from the agents.
(h)Email of 15 August 2017 from the tenants to the agents asserting:
we have written documentation from ACT F&R Risk and Planning granting permission for use of the enclosed Chimnea until the fire season starts in October.
(i)An email of 15 August from the agents to the tenants asserting that the agents had contacted ACT Fire and Rescue concerning alleged advice to the tenants and ACT Fire denied any such advice was given to the tenants and furthering advising that the Chimenea had to be removed.
(j)Quotes for gardening work, carpet cleaning, general cleaning, painting, replacement remote, and repairing vanity.
(k)Emails concerning rent arrears.
(l)Invoices for carpet cleaning, window cleaning, gardening, repairing walls/ceiling and painting, garage door remote, repair of the vanity (reported to have been damaged by impact) and water accounts.
(m)Photos of the vanity damage, stained verandah, dirty tiles, rubbish left in the unit, the state of the garden, holes in walls, the tenants’ repainting of the master bedroom ceiling and patches to walls.
(n)A notice to remedy dated 1 September 2017 for rent arrears.
(o)An email from Dechen Dema of 30 August 2017 who was the end of lease cleaner retained by the tenant, setting out the cleaning that she did, and did not do. Ms Dema said she had only been contracted to do a limited job for three hours (but then extended to four hours on the day) and the tenants said they would do the rest.
(p)Emails of 5, 6 and 7 September 2017 from the cleaning business for which Ms Dema worked saying that a further 8-10 hours would be required to do the cleaning job properly. The emails also said the tenants told Ms Dema not to clean the windows inside or outside.
(q)Emails from the tenants rejecting the lessor’s claims and making multiple assertions of dishonesty on the part of the lessors’ agent: 7, 28, 31 August 2017, 1, 4, 5, 7 and 14 September 2017. In their email of 14 September 2017 the tenants said:
(i) they paid their appointed cleaner to clean for 12 hours;
(ii) they owned a carpet steam cleaner and did the carpets themselves;
(iii) plants were dead at the start of the lease;
(iv) the remaining rubbish was minor and should have been removed by the cleaner the tenants hired;
(v) the remotes for the garage were in the kitchen draw;
(vi) the only painting required was for a few picture hooks which had been repaired; and
(vii) they did no damage to the vanity.
(r)Photographs of the premises at the commencement and at the end of the tenancy.
8.The tenants vacated on 25 August 2017 and a final inspection was done on that day in the absence of the tenants. The tenancy formally ended on 12 September 2017.
9.The items of the lessors claim were set out in emails of 13, 14 and 27 September 2017 from the lessors agent to the tenant:
(a)rent arrears $3,257.14
(b)cleaning and rubbish removal $450
(c)carpets $225
(d)gardening $140
(e)damage to vanity $990
(f)lost garage remote $85
(g)painting walls and ceilings to repair the tenants poor attempts and other scuff marks $2,400
(h)water $282.37
The total was $7,744.51 minus that part of the bond released already, $3,257.14 leaving a balance of $4,487.37.
10.The matter was listed for conference at the Tribunal on 26 October 2017. It did not settle at the conference. The matter was listed for hearing on 9 January 2018 and orders were made for the parties to file and serve their evidence and submissions.
11.On 23 November 2017 the lessor filed submissions and attachments of about 200 pages (Exhibit 7). Some of the material duplicated that already filed in Exhibit 1. The submissions contained a detailed timeline of events. The submissions asserted that:
(a)the tenants had caused the damage to the new vanity by failing to keep it dry after use;
(b)there was a pile of small wood logs next to the Chimenea;
(c)the discolouration of the ceiling of the master bedroom and its curtains were caused by the soot from the Chimenea;
(d)the tenants’ efforts to paint the ceiling was poor;
(e)there had been picture holes in other walls which the tenants had attempted to patch;
(f)there were soot stains on the carpets;
(g)the unit and carpets had not been adequately cleaned; and
(h)the garden had not been cared for.
12.The lessor annexed a revised list of items claimed with supporting invoices and quotes:
(a)Water damage to vanity $990
(b)Painting walls and ceiling $2,400
(c)Clean curtains in the master bedroom $275
(d)Carpet cleaning $180
(e)Rubbish removal and cleaning outside $450
(f)Mowing and removal of grease spots $140
(g)Water account $190.28
(h)Missing manuals and appliances $nil
Total: $4,625.28
13.On 26 December 2017 the tenants filed an annotated inspection report of June 2017 (Exhibit 2). The report is signed and dated by the agent on 23 June 2017, that is, at the time of the original ingoing inspection but not at the end of the tenancy. It contains annotations that are different to those on the same report filed by the tenants at paragraph 7(b) above. It is undated and unsigned. The new version of the report contains annotations in the tenants’ column that pertain to the ingoing report with handwritten comments, none of which were not present on the version filed at paragraph 7(b) above.
14.In an email of 25 January 2018 the tenants said:
we feel the Lessor has been dishonest in not providing the proper condition reports to the tribunal. Further they have doctored and altered the reports submitted to the tribunal.
15.In their submissions of 30 January 2018 (Exhibit 3) the lessors said that the handwriting on the original ingoing report did not copy in a legible manner and so the agent replicated the original handwritten annotations on a new copy of the typed version of the ingoing condition report.
16.On 21 January 2018 the tenants sought permission to appear by video link. The Registrar declined the application. On 23 January 2018 the tenants sought adjournment on the basis of their busy work schedule which was opposed by the lessor. The Registrar sought submissions from the parties on the matter. The lessors objected to any adjournment. The tenants replied by email on 25 January 2018. They had previously advised that they were busy, visiting American medical specialists. In the email of 25 January the tenants asserted that they had “over 100 patients” scheduled on the date of the hearing. The tenants requested a video link on the premise that “our mobile phones do not work consistently because of heavy magnetic shielding for the MRI and lead walls for Radiation safety.”
17.On 29 January 2018 the tenants lodged an application for interim orders in which they sought a video conference and to fix a new date for hearing. The tenants wrote that a video conference was necessary “as the landline cannot be tied up and our mobile phone is unreliable.” The Tribunal granted the adjournment of the hearing date to 16 February 2018. The lessors were given leave to amend their application to include a claim for costs thrown away by the adjournment which the lessors did on 12 February 2018 (Exhibit 4). The tenants were ordered to particularise their claims of dishonesty on the part of the lessors or their agents.
18.On 30 January 2018 the lessors agent filed their submissions and evidence (Exhibit 3) which included:
(a)an email from the ‘The Dusk Help Team’ who are the suppliers of ‘Dusk Candles’. The email refers to photos they were provided of a ceiling in the premises which the email described as “extensive soot damage”. Dusk candles are apparently candles used indoors and were used by the tenants. The email says that the candles should not result in soot deposits on the ceiling but it can happen if the candles are not used properly;
(b)a statement from lessors addressing the various items of their claim. They said that:
(i) the tenants were invited to attend the final inspection but chose not to do so;
(ii) there were over 500 photos of the premises taken at the final inspection which were deposited on Dropbox for the tenants access;
(iii) the soot staining to the curtains was only discovered after the final inspection; and
(iv) even if the tenants had the cleaners return a second time for four hours the cleaning was still not adequate.
19.On 5 February 2018 the tenants filed their submissions (Exhibit 5). They contained:
(a)submissions on the alleged dishonesty of the lessor and agent. These submissions went to the issue of the ingoing condition report provided by the lessor;
(b)submissions on the merits of the lessors’ claims. The submissions noted that the tenants had not had a phone landline for the whole of the tenancy; the soot on the master bedroom ceiling could not have been caused by the Chimenea; the tenants were “bullied” and “terrorised” by the female lessor and agents; the female lessor attended on occasions unannounced; the final inspection was “outrageous” and was “an attempt to take money off two physicians”; denied causing damage to the vanity and attributed the damage to poor design; denied the need for curtain cleaning; and denied that the premises had not been adequately cleaned;
(c)a copy of the ingoing condition report with the green writing;
(d)a copy of the version of the ingoing condition report previously filed by the tenants;
(e)photocopies of photographs; and
(f)emails concerning Telstra connections to the property and lack of landline.
20.In response to a request by the Registrar the tenants filed a further set of the same submissions on 12 February 2018 (Exhibit 6).
21.The lessors filed a set of photographs of the damage to the premises with an index commentary (Exhibit 8) and log book of visits to the premises and the reason for each visit. The photographs were dated and contain comparative sets taken on 9 June 2017 and 9, 25, and 31 August 2017, and 10, 11, 13, 15, and 18 September 2017. The photographs showed:
(a)The damage to the vanity was clearly visible.
(b)The soot on the room of the master bedroom was extensive and obvious.
(c)Patching of walls where hooks had been removed were extensive, obvious and poorly done.
(d)Other marks on the walls were apparent.
(e)Carpets stains were extensive and obvious.
(f)The curtain staining was extensive and obvious.
(g)The tiles on the verandah were stained.
(h)The grill in the kitchen had not been cleaned.
(i)There was rubbish lying around inside and outside.
(j)There were grease marks on the outside pavers.
22.On 16 February 2018 the matter was heard. Ms Rech (real estate agent) appeared for the lessors and the tenants appeared in person by phone. Both tenants actively participated in the dialogues. The phone connection was poor and there were difficulties in hearing the tenants. Both parties asserted that they had not been provided by the other party with various documents that were in the Tribunal’s possession and referred to above. The tenants were appearing by phone and so it was not possible for them to hand up copies of the documents that the lessor said had not been served and vice versa. Notwithstanding these difficulties, the hearing commenced by telephone connection and a body of evidence was taken over approximately four hours of hearing time.
23.There was considerable disputation between the parties, and the tenants made many allegations of dishonesty of one form or another including that some documents were ‘doctored’ by the lessors’ agents and that the lessors deliberately vandalised their own property. There were difficulties in putting particular photographs to the tenants for their comment.
24.There came a point where the Tribunal determined that it was not feasible to press on with the hearing that it would need to be adjourned with the parties to re-serve the disputed documents and to appear in person. The tenants objected to this course of action on the basis that they were busy doctors. They said that they would have a lawyer appear for them on the adjourned date. The Tribunal informed the tenants that they could have legal representation but that did not obviate the need for them to be present to give their evidence.
25.The parties were given the alternative that they could file such further written submissions as they wished and the matter would then be completed on the papers having regard to the evidence already given. The tenants agreed to this course. The lessors equivocated but they agreed. Orders were made in these terms. The tenants were asked for an address for service and gave an address in the United States. The Tribunal challenged them on the disrespect indicated by this response and asked why the documents could not be serve on them at their home or office address. In the end an address for service in Sydney was provided.
26.Before the point was reached at which the Tribunal determined that the further telephone hearing was not feasible, a body of oral evidence was taken.
27.The agents indicated that the final claim was for items and sums referred to at paragraph 12 above, plus:
(a)rent arrears from 24 August -12 September $3,257.14; and
(b)out of pocket costs incurred $139.90.
28.The tenants indicated their cross claim for:
(a)breach of quiet enjoyment for unannounced visits estimated at 20 visits and bullying;
(b)rent reduction for absence of a phone landline; and
(c)rent reduction for lack of key to back gate.
29.The agents pointed to the emails concerning unsuccessful endeavours to arrange the outgoing inspection with the tenants. The tenants said only that they were busy people. The Tribunal is satisfied that the tenants had a reasonable opportunity to attend the inspection if they had wanted to.[1]
[1] Standard Term 23A
30.Ms Rech explained how the different versions of the ingoing condition report came into existence and that they are not materially different. The Tribunal was satisfied with the explanation and that there had been no dishonesty or ‘doctoring’ of those reports.
31.There was oral evidence on the agreed surrender of the tenancy on 12 September 2017 and a review of the emails. There was no fundamental disagreement between the parties on the point and the Tribunal so finds. It was explained to the tenants that the effect of this agreement was that rent was payable to this date.
32.The tenants made the point that on this agreed surrender date they remained entitled to the exclusive possession of the premises until that date. The lessors and their agents should not have entered the premises without the tenants consent prior to 12 September 2017. The Tribunal accepted this submission subject to the caveat that the lessors retained the right to enter the premises before 12 September 2017 in such circumstances as the tenancy agreement and RTA provided for.
33.The lessors argued that the vanity had been damaged by the negligence of the tenants in not drying it after use. The Tribunal explained that the tenants were entitled to use the vanity in the normal way that vanities were used. It seemed an unusual practice to have to towel wipe a vanity after a shower or use of the vanity. The Tribunal was not convinced that the tenants had used the vanity in any way that could be said to have resulted in deliberate or negligent by them.[2]
[2] Standard Term 63
34.The lessors showed photos of the rubbish left behind. The tenants said that they expected that the cleaners retained by them would remove the rubbish. The Tribunal explained that a party to a tenancy cannot escape their responsibilities under the tenancy by delegating the task to a third party. If that third party defaults then the default is that of the delegating party.
35.There was considerable attention to the soot staining to the ceiling of the master bedroom. The tenants denied that it could have been due to their use of the Chimenea on the verandah because the master bedroom was too far from the verandah and the windows to the unit as a whole were shut when the Chimenea was being used. They first suggested that it could have been caused by the air-conditioning but then accepted that it was probably caused by their use of the Dusk Candles in the master bedroom.
36.The tenants said that they had approval from ACT Fire and Rescue to use the Chimenea on the verandah. The lessors said that their contacts with ACT Fire and Rescue indicated to the contrary. The tenants said they had email evidence in support of their claim on this issue which had not been filed and served. The Tribunal asked that a copy be filed and serve forthwith.
37.The photos showed obvious and extensive staining of the master bedroom ceiling yet the tenants said that they had not noticed it when vacating. Equally, the agents did not pick it up on the outgoing condition report. Neither party had an explanation for this.
38.The tenants argued that the absence of a notation on the outgoing condition report had the effect of precluding any claim later being raised by lessors. The Tribunal explained that the condition reports were only evidence of the condition of the premises at the time of the report and were not a definitive statement thereof.[3] If in fact an item of damage existed in the premises at the time of a report, it did not cease to exist just because the report failed to note it.
[3] Standard Terms 21-23
39.The tenants admitted that they had attempted to repaint the bedroom ceiling. Photos of that attempt showed it to be poor. The tenants blamed the agents for wrong advice on the nature of the ceiling paint. The lessors repainted the whole of the master bedroom. There was dialogue about whether this was an overreaction by the lessors and the Tribunal put to the lessors that the amount claimed seemed excessive.
40.There was other painting undertaken by the tenants. The tenants admitted that they had hung large paintings and the like with hooks inserted into the walls. They attempted to repair the hook holes by a patch up. The photos showed this work to be poor. The lessors repainted the whole of the walls.
41.The tenants raised their concerns about the absence of a phone line which they said prevented them having effective internet access. The tenants went so far as to argue that a landline was a necessary facility in all tenancies, the absence of which rendered the premises unfit for use.
42.The tenants said that they were radiologists and had to download radiographs that could not be done economically via the use of hot spots on their mobile phones. The tenants had internet facilities at their offices but the absence of the landline at home restricted their capacity to work from home.
43.The Tribunal explained that the absence of a telephone line per se did not render a premises unfit for use or uninhabitable, but if it were agreed that the premises would have a line then it would be a breach by the lessors not to have it installed. The Tribunal explained that the extent of compensation for such a breach depended on the extent of inconvenience and economic loss caused to the particular tenants. The tenants said that there was no direct economic loss but that “we were unable to take care of patients for months”, notwithstanding the existence of their separate business offices.
44.The tenants said that they had raised the issue with the lessors at the beginning of the tenancy and the lessors had agreed to have the line installed. The lessors’ agent did not deny this agreement but said that they had encountered various difficulties in having the line installed including difficulties in obtaining access to the premises.
45.The tenants pressed their claim and assertions that the lessors personally entered the premises uninvited on at least 20 occasions during the 11 weeks of the tenancy. This figure was later adjusted to “several per week” in this same time period. The lessors had produced a log of visits and the alleged purposes for the visits. That log showed six visits by the lessors during the tenancy and the reasons for the visits. The visits had to do with the completion of some works at the premises by tradesmen retained by the lessors. All access was said to have been with the consent of the tenants. The lessors owned the adjacent three townhouses which were in varying stages of completion. The lessors attended those premises from time to time to supervise their construction. There were several other visits from the lessors’ agent as normal periodic inspections and several more about the phone lines. It appears to the Tribunal that there may have been somewhere between 10-15 visits in all, but this would have been the total for each of the above purposes.
46.The tenants argued that they were paying high rent and this entitled them to some leeway in their use of the premises and in what constitutes fair wear and tear.[4] The Tribunal told the tenants that the agreed rent was a matter between the parties but that it did not of itself entitle the tenants to any different rights or obligations under the RTA than applies to tenants paying lower rent. The law is the same for everyone.
[4] Standard Term 64
47.The tenants said that they had hired their own cleaners who had cleaned for 12 hours. It was submitted that the premises were clean.
48.The lessors showed photos of the curtain and carpets with stains. The tenants said that they did not have those photos but denied the claims. The photos spoke for themselves and the Tribunal was satisfied that carpet and curtain cleaning were needed.
49.During the hearing the tenants continued to level accusations of criminality and dishonesty against the lessors and their agents. The lessors and agents were accused of ‘lying’, ‘extortion’, ‘dishonesty’, ‘criminal conduct’ and ‘doctoring’ documents. The previous and differently constituted tribunal had cautioned the tenants about this kind of behaviour. That tribunal had adjourned the hearing at the tenants request and had ordered the particularisation of their allegations, noting that costs of the adjournment may be awarded against the tenants.
50.At one point the tenants accused the lessors and/or their agents of entering the premises and deliberating damaging the walls and depositing soot on the ceilings just so that the lessors could pay someone to remove the soot and damage and pass that cost onto the tenants. The Tribunal took issue with the tenants and demanded to know if they were seriously making these allegations and what the evidence for it was. There was no evidence and the tenants retreated from the allegation.
51.The Tribunal put strongly to the tenants that the Tribunal was not a vehicle for public defamation and that such irresponsible allegations reflected poorly on the tenants’ credibility. At the end of the oral hearing the Tribunal informed the parties that it did not accept these allegations.
52.On 21 February 2018 the tenants filed further submissions. The submissions contained:
(a)an email of 15 August 2017 from Brian Mexon, ACT Fire and Rescue concerning the Chimenea and saying “based on the photos and the ability to have water on site, I believe this to be safe”;
(b)a periodic inspection report of 9 August 2017 which was generally acceptable but noted the stains on the master bedroom ceiling, the verandah and the vanity issue;
(c)submissions and emails relating to the alleged unauthorised visits;
(d)submissions and emails relating to the alleged bullying by the female lessor and agent;
(e)submissions on the quote for rubbish removal;
(f)submissions on lack of use of the back gate;
(g)submissions on the validity of the ingoing condition report;
(h)submissions of lack of telephone landline; and
(i)submissions on cleaning issues.
53.On 23 February 2018 the lessor filed further submissions in response to those of the tenants. It contained:
(a)a time line relating to the telephone line issue;
(b)a bag of soot in a sealed container said to have been taken from the air conditioner grill filter;
(c)submissions on the quiet enjoyment issue;
(d)a timeline on the vanity issue.
Findings of fact
54.The Tribunal does not accept that the lessors engaged in any illegal or unconscionable conduct as alleged by the tenants. The tenants various allegations and other hyperbole were without factual foundation and reflected adversely on their credit. To the extent that there is any conflict in the otherwise uncorroborated evidence of the parties, the Tribunal prefers the evidence of the lessors and their agents. For this reason the tenants are to pay the lessors out of pocket costs of $139 caused by the adjournment sought by the tenants.
55.The tenancy ended on 12 September 2017 by operation of a surrender[5] and rent was payable to that date in the sum of $3,257.
[5] Section 36(1)(g) of the RTA
56.The Tribunal finds that there is no evidence that the tenants deliberately or negligently[6] misused the vanity or that the damage to the vanity was caused by use not normally expected of a vanity. The lessors’ claim for this item is dismissed.
[6] Standard Term 63
57.The Tribunal is satisfied the ceilings of the master bedroom were soot stained as were some of the carpets. It does not matter whether that staining was due to the Dusk Candles or the Chimenea, either is still caused by the tenants actions and is a breach of the tenants’ duty to return the premises in the state in which they received minus fair wear and tear.[7]
[7] Standard Term 64
58.The tenants attempted to remedy the problem by their own painting. The work was poor and the lessors are entitled to have it redone. The tenants blame advice from the lessors on the kind of paint to use. Whether this is true or not is irrelevant. The tenants’ responsibility is a strict one, that is, to ensure that the premises are returned in the required condition and not just to make an effort or attempt. Their choice to do the painting themselves to save money was their own.
59.There was other painting fairly required of the walls in the lounge room caused by the tenants poor attempt to remedy the damage caused by the hooks used for their wall hangings, which the Tribunal allows.
60.The Tribunal did take issue with the lessors’ quote of $2,400 to do all of the above painting work (including the master bedroom as a whole). The tenants have not availed themselves of the opportunity to obtain and put their own quotes in evidence. In these circumstances the Tribunal has little option but to accept the lessors’ quote of $2,400.
61.It was a false economy for the tenants to have undertaken this painting work themselves rather than have a trained tradesman do it. This choice is also not consistent with their assertions of how busy they were.
62.The tenants said they did their own carpet cleaning rather than hire someone. Again that may be so but the job was not to standard and the lessors were justified in having it redone. That cost of $180 is allowed. The comments at paragraph [61] apply here as well.
63.The tenants asserted that they paid for 12 hours of professional cleaning. This is not consistent with the evidence from the cleaners they retained who wrote that they did only seven hours and that the tenants said they would themselves complete the job. The cleaners retained said that their work was not up to ‘end of lease’ standard because they did not have time to do it properly. The claim for $450 is allowed and again the comments at [61] above are apposite.
64.The tenants admitted the outstanding water account of $190 but in any event the Tribunal is satisfied that it was due.
65.The mowing and grease spot removing is a little more difficult. They were done by the same person on the same call out. Garages are intended to house cars and cars usually leak some oil. The occurrence of minor grease spots on the floor of a garage would normally fall within fair wear and tear. The time for mowing would have been trivial compared to the time for removing the grease spots. The lessors’ claim for removal of the grease spots and mowing is dismissed.
66.The above gives a total of $6,616, minus that part of the bond already received by the lessors ($3,257) leaving a total of $3,359.
67.The tenants counter claim is about the absence of the telephone line and the breach of quiet enjoyment arising from the uninvited visits by the lessors, their agents and technicians.
68.A telephone landline is not essential to the habitability of a premises but if it has been promised as part of the contractual deal them its absence is a breach on the lessors’ part. It is a breach from the first day of the tenancy which is the date that it was promised to be present. For many people the absence of a landline would be immaterial. Their mobiles suffice. But there is merit in the tenants’ argument that to download large amounts of data via a mobile hot spot is expensive. The Tribunal accepts that the tenants had a right to work from home and the nature of their work made the absence of a landline a major inconvenience to them. There was no actual economic loss sustained but it did mean that they could not effectively work from home for this 11 weeks. Compensation for inconvenience of this kind is assessed by ‘comparative verdicts’, that is, the amount of compensation award to other people for similar inconvenience. The Tribunal allows a 10% rent reduction over the 11 weeks which is $1,320.
69.The breach of quiet enjoyment claim is more difficult to assess. Those visits by the lessors, the agents, and Telstra technicians concerning the landline are compensable because the landline should have been installed by the first day of the tenancy. The visits by the lessors to inspect the work of their tradesmen is also an impermissible visit.[8] In practical terms it does not matter whether the tenants formally consented to the lessors entering the premises during a ‘cold call’ by the lessors, their agents or technicians. Common courtesy on the part of the tenants would dictate not turning the lessors away, but this does not mean that the cold call was not an inconvenience. In all there were probably about 12 unauthorised visits. Allowing a nominal $50 for each gives $600.
[8] Standard Terms 75-79
70.The tenants complained that the lessors turned up at the adjacent townhouses that were under construction and were also owned by the lessors. There is no law that prevents this and of itself is not a breach by the lessors of the tenants’ quiet enjoyment.
71.The tenants complained that the attitude of the lessors and agents was one of ‘bullying’. There is no evidence of this before the Tribunal including in the contemporaneous email correspondence. There is evidence to support the converse assertion, namely that the tenants bullied the lessors but this is not a breach by the tenants because the tenancy agreement does not confer any right to quiet enjoyment on the lessors.
72.The tenants complained about the absence of the code for their back gate. This should have been provided by the lessors on the first day of the tenancy. The extent of inconvenience caused was not the subject of evidence. The Tribunal allows a nominal $80.
73.The total of the tenants claim comes to $2,000. This leaves a balance payable by the tenants to the lessors of $1,359 (ignoring cents at all points and rounding to nearest dollar).
74.The ORB will be ordered to release this amount from the retained balance of the bond and to pay the balance to the tenants.
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Senior Member A Anforth
HEARING DETAILS
FILE NUMBER:
RT 826/2017
PARTIES, APPLICANT:
Sat Paul Sethi, Siddarth Sethi & Urmil Sethi
PARTIES, RESPONDENT:
Richard Caswell & Manouri Caswell
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member A Anforth
DATES OF HEARING:
29 January 2018
16 February 2018
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