Turner v Helen Domazet Pty Limited ACN 126 084 740 (Residential Tenancies)

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

TURNER v HELEN DOMAZET PTY LIMITED ACN 126 084 740 (Residential Tenancies) [2022] ACAT 43

RT 122/2021 & RT 834/2020
Catchwords: RESIDENTIAL TENANCIES – application by tenant for compensation from lessor for loss of enjoyment and carpet cleaning – intermittent water ingress into the third bedroom – damage described to have impacted applicant’s usage and enjoyment of the third bedroom – whether the defects were made known to the real estate agents – whether the applicant is entitled to compensation – whether the lessor took all steps necessary to fix the issue – claim dismissed – application dismissed in it’s entirety

Legislation cited: Residential Tenancies Act 1997 s 71, standard terms 57, 59, 60

Tribunal:Senior Member D Mulligan
Date of Orders: 27 May 2022
Date of Reasons for Decision: 27 May 2022

AUSTRALIAN CAPITAL TERRITORY )

CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 122/2021

BETWEEN:

KIMBERLEY TURNER

Applicant

AND:

HELEN DOMAZET PTY LTD
ACN 126 084 740

Respondent

TRIBUNAL:Senior Member D Mulligan

DATE:27 May 2022

ORDER

The Tribunal orders that:

The application is dismissed
………………………………..
Senior Member D Mulligan

REASONS FOR DECISION

On 20 November 2012, Ms Kimberley Turner (the applicant) rented a three-bedroom apartment located in Trevillian Quay, Kingston (the property) from a company; Helen Domazet Pty Ltd (the respondent). The company is owned by Ms Helen Domazet.
The applicant remained living in the property until 19 December 2020.
The lease was initially for a fixed term of one year and the rent was set at $900 per week. By the end of the tenancy the rent had risen to $1,100 per week.
A rental bond of $3,600 was paid by the applicant. This sum was deposited with the Rental Bond Authority.
The essence of the applicant’s case is simply stated. She alleges that there was intermittent water ingress into the third bedroom as a result of flooding on the balcony area outside the third bedroom. She alleges that the water entered the bedroom when flood waters were high enough to overcome the base of the sliding doors which connects that bedroom to the balcony. The applicant claims:
[T]here was a major problem with water ingress into the third bedroom (which I use as both an office and guest bedroom). I raised this with the landlord and real estate agent on multiple occasions (a briefing note from my personal assistant summarising this issue is at attachment 11). It was raised at every property inspection between 2015 and 2020. However, the owner and real estate agent refused to rectify the problem which was clearly caused by a significant building defect. This defect resulted in the following:
1.       Rotted timber floorboards under the carpet, rotted underlay, rotted carpet and rotted skirting boards
2.       Waterlogged carpet following rain
3.       Continuous moisture in the room
4.       Unpleasant odour in the room
5.       Significant build-up of mould blackspots and mildew in the walk in wardrobe and along the floorboards near the floor to ceiling windows and sliding door
6.       Inability to warm the room due to moisture and build-up of condensation[1]
[1] Exhibit A2 – page 6 of the applicant’s Application for Resolution of a Dispute Under the Residential Tenancies Act 1997, which was filed at ACAT on 15 February 2021
On 15 February 2021, the applicant brought the current proceeding. She claimed that the damage described above impacted her usage and enjoyment of the third bedroom. She noted the following factors which support her claim for compensation:
1.       Health hazards associated with toxic mould spore ingestion
2.       The risk to the health of visitors, some of whom were family members with asthma
3.       My personal assistant (20 hrs/4 days per week) refused to work in this room which was set up as a home office
4.       Damage to personal belonging, soft furnishings and clothes
5.       Water damage to business and personal records and papers stored in boxes[2]
[2] Exhibit A2 – page 6 of the applicant’s Application for Resolution of a Dispute Under the Residential Tenancies Act 1997, which was filed at ACAT on 15 February 2021
As a consequence, Ms Turner sought compensation from the respondent in the sums of:
(a)$42,506.65 for loss enjoyment and use of the third bedroom between 2015 and December 2020; and
(b)$144.13 for carpet cleaning in August 2016.[3]
[3] Exhibit A2 – Attachment 14 of the applicant’s Application for Resolution of a Dispute Under the Residential Tenancies Act 1997, which was filed at ACAT on 8 February 2021
On 15 February 2021,[4] Ms Turner amended her claim so that it fell within the ACAT jurisdictional limit. She sought $24,885.87 for loss of enjoyment of the third bedroom and $144.13 for the carpet cleaning that occurred in 2016.
Was there any damage to the carpet and floorboards caused by water ingress?
[4] Exhibit A2 – page 4 of the applicant’s Amended Application for Resolution of a Dispute Under the Residential Tenancies Act 1997, which was filed at ACAT on 15 February 2021
I am satisfied from the evidence of Mr Matthew McCarthy, a man with 18 years building experience, that rainwater (not pooled water on the balcony) hit the sliding doors and entered the bedroom via weepholes in the door frames. I am satisfied that this water ingress caused some damage to the carpet and the wooded sub floor.
This damage was located under some plastic storage boxes, that had not been moved in some time, next to the sliding doors leading to the balcony and in the wardrobe.
The damage to the carpet would not be evident to a person looking into the room when the boxes and contents of the wardrobe in place.

When did the water damage occur?

Ms Turner claims that the damage was evident from 2015 and that she and her personal assistant made those defects known to the real estate agents at the regular property inspections that took place between 2015 and mid-2020.
Ms Turner claims that her personal assistant Amber Heaney could also support her claims. According to Ms Turner, it was Ms Heaney who attended the regular property inspections conducted by the real estate agent and it was Ms Heaney who advised the agent of the issues with the water ingress. Ms Turner put forward a number of extracts and documents she attributed to Ms Heaney, but did not call her to give evidence during the hearing.
Ms Turner was advised that what she attributed Ms Heaney to say was challenged and that if she wanted me to have regard to what Ms Turner was alleging that Ms Heaney did or said then she would need to call her as a witness so that she could be cross examined:
SENIOR MEMBER: So what you’ve really done is, you’ve provided Amber’s evidence, but haven’t made her available for cross-examination.
MS TURNER: She doesn’t – well this is her written submission, that’s correct, and she wasn’t asked or called.
SENIOR MEMBER: But you’re the person who calls your evidence, so you work out who your witnesses are - - -
MS TURNER: I believed that her written submission, via this briefing note prepared for the tribunal, is adequate.
SENIOR MEMBER: But you might take that view, but that isn’t the way that I look at it and that’s not the way the court or tribunal - - -
MS TURNER: So is this not relevant evidence?
SENIOR MEMBER: It’s simply a document that somebody else, you say, has prepared. And you’re attempting to adduce that as evidence without her being cross-examined. That would be like Mr Lyristakis making a statement, presenting it to me and saying - - -
MS TURNER: Okay, well let me address that.
SENIOR MEMBER: And saying that I have to accept that everything that Mr Lyristakis has said is true and correct.
MS TURNER: Okay. Let me address that. I was - - -
SENIOR MEMBER: Well here there is a conflict between whether or not there was, in fact, an inspection conducted that day. Now you’re relying on a piece of paper that you say another person, who I haven’t heard, and I haven’t been able to determine their credibility or reliability, has said, and that I must take it to be true and correct. And that’s not how it works.
MS TURNER: Yes.
MR LYRISTAKIS: There is nothing here - - -
MS TURNER: So I will – hang on, just let me finish, let me respond - - -
SENIOR MEMBER: Let’s go to page 8.
MS TURNER: Let me respond to what the Member’s just outlined to me. I will address that; would an email be satisfactory? With that date, saying that the inspection took place.
SENIOR MEMBER: No, again, you missed the point, you’d be asking her to give evidence about a matter without being available for cross-examination.
MS TURNER: All right, okay, yes.
SENIOR MEMBER: That’s not how we run things, people who are bringing a case, prove their case. And they prove all matters that are relevant to it.
MS TURNER: No problems.
SENIOR MEMBER: So that’s how – so you’ve simply presented me a document that you say somebody else has written - - -
MS TURNER: That’s fine, I wasn’t aware of that.
SENIOR MEMBER: And that I must accept it as being true and correct. And the way you’re asking your questions of Mr Lyristakis are based on that premise, that what is being said in her statement is true and correct.
MS TURNER: That is right, okay, I will action this.[5]
[5] Transcript of proceedings 11 November 2021 page 195, line 37
During the hearing I indicated to Ms Turner that, notwithstanding the fact that her case had closed, I would allow her the opportunity to call Ms Heaney as a witness.
I extended that opportunity for the final time at the beginning of the final day of the hearing, when I again offered Ms Turner the opportunity to call Ms Heaney. This offer was made even though her case had concluded, and the respondent was in the process of putting forward her case. On that occasion the following exchange took place:
SENIOR MEMBER: Whilst you’re unpacking, Ms Turner, what thought have you given in relation to your colleague Amanda?
MS TURNER: Amber?
SENIOR MEMBER: Amber, I beg your pardon.
MS TURNER: Well, I didn’t ask her to write the witness statement so I
didn’t call her as a witness.
SENIOR MEMBER: All right. Are you proposing to call her today?
MS TURNER: No, I’m not, and I’ll explain why in my closing argument.
SENIOR MEMBER: All right. Well, I’ve explained to you that there are limitations to - - -
MS TURNER: I understand.[6]
[6] Transcript of proceedings 12 November 2021 page 2, line 6
Ms Turner declined to call her and consequently I take little notice of what Ms Heaney is alleged to have said or have done.
Mr Bill Lyristakis from Beverly Residential, was the managing agent (the agent). He and Ms Roxanne Ebina (an agent previously employed by the agent) both gave evidence during the course of the hearing and both stated that neither during the regular property inspections nor on any other occasion did Ms Turner nor Ms Heaney alert them to any issue with water damage to the carpet in the third bedroom or any other issues such as mould or odour, nor were those issues observed during the routine inspections.
I note that none of the inspection reports tendered during the hearing made any reference to the issues complained of in the third bedroom.
I also note that Mr Lyristakis, in response to a subpoena sought by Ms Turner, undertook an extensive examination of his company’s systems and was unable to find any material supportive of the proposition that there had been any written or verbal notice relating any issue with the third bedroom, during the course of the tenancy prior to 3 June 2020.
I accept the evidence of the agent and Ms Ebina that no verbal or written complaints about the third bedroom were made to them either during the routine property inspections or at any other time prior to 3 June 2020.
I also note, as highlighted during Ms Turner’s cross examination that she had made a number of complaints about the property and requests for repairs over the years. These include emails dated: 7 January 2013, 13 March 2013, 11 March 2013, 1 May 2014, 17 October 2016, 21 March 2017 (complaining about an issue with the balcony drain nearest the living room) and 15 May 2017.
Ms Turner was clearly capable of making complaints to the agent about defects and was practiced in doing so.
Ms Turner is an intelligent and driven woman who was paying a substantial rent for the property. I do not believe that she would have allowed an issue relating to the third bedroom to have gone unrepaired and unresolved between 2015 and June 2020.
Ms Turner concedes that the first written communication occurred on 3 June 2020 when she sent an email to the agent setting out the issue of concern to her. The email in part stated:
Carpet and third bedroom – I have had a condensation problem in this back room (much colder than all other rooms) over the last few years, and the glass gets very bad condensation on it in winter. As a result, any furniture/items that have been on close to the windows have experienced very heavy moulding on the carpet and under the items. The mould has been causing great problems and an ongoing smell. I have had the carpets cleaned a few times and it remains an issue, the area where the mould has been is very damaged. The carpet really needs to be replaced. Could you please assist me with this one asap? It is restricting me using the bedroom at the moment. I have friends and family stay when they visit and it is now not able to breath with the doors closed in here. I know this issue has been raised over the years during the property inspections.[7]
[7] Exhibit A2 - Attachment 12 of the applicant’s Application for Resolution of a Dispute Under the Residential Tenancies Act 1997, which was filed at ACAT on 8 February 2021
I believe the final line of the portion I quoted; “I know this issue has been raised over the years during the property inspections.” to be disingenuous and an attempt by Ms Turner to suggest that the issue was one which the agent had known about for years, but had failed to resolve.
I also note that Ms Turner produced video and photographic evidence of the damage in the third bedroom, all of those images were taken in 2020, there were no images of damage from 2015 to mid-2020. If there was damage during that period, I would have expected it to have been recorded and produced at the hearing.
Ms Turner accepted the fact that she could not point to any document sent by her or her assistant Ms Heaney, detailing the existence of the damage before the email of 3 June 2020.
As a matter of fact, I am satisfied that the first notification of the issues with the flooring in the third bedroom occurred on 3 June 2020.
I cannot be sure of exactly when the damage occurred, but I conclude it became noticeable in early June 2020, when Ms Turner first wrote to the agent about the issue.
The owner’s obligation to undertake repairs
It is trite to say that a landlord needs to be aware of any defect in the property before he or she is liable for any compensation flowing from that defect. The defect may be apparent during a routine inspection, or the tenant may tell the owner of the damage.
Urgent repairs are addressed in section 59 of the Standard Residential Tenancy Terms[8] (the standard terms), which are imputed into each residential tenancy in the ACT. Section 59 provides:
The tenant must notify the lessor (or the lessor’s nominee) of the need for urgent repairs as soon as practicable, and the lessor must, subject to clause 82, carry out those repairs as soon as necessary, having regard to the nature of the problem.
[8] Found in the first schedule of the Residential Tenancies Act 1997
Section 60 defines what types of repairs are urgent repairs. The present circumstances do not rise to that level and the owner was not required to repair the carpets and subfloor “as soon as necessary”.
Section 57 of the standard terms deals with non-urgent repairs. It provides:
Subject to clause 55, the lessor must make repairs, other than urgent repairs, within 4 weeks of being notified of the need for the repairs (unless otherwise agreed).
Having been notified of the issue, the owner should have completed the repairs within a month of having been notified of the issue on 3 June 2020.
Ms Turner is entitled to compensation for the period after 6 June 2020 until the time of her departure from the property on 19 December 2020.
The quantum of the compensation due to Ms Turner
The calculation of the compensation due to Ms Turner is complicated by two factors:
(a)her conduct after June 2020; and
(b)the fact that she launched other proceedings against the owner in ACAT on 11 December 2020.[9]
Ms Turner’s conduct
[9] RT 834/2020
In June 2020 Ms Turner was willing to let the owner and the agent attend the property to inspect the damage. Ms Domazet confirmed this fact:
MS TURNER: Okay. And your agent went in and inspected it in June 2020?
MS DOMAZET: After receiving this email.
MS TURNER: Took photos and didn’t give you a report?
MS DOMAZET: No. He told me that I should come and see it.[10]
[10] Transcript of proceedings 12 November 2021 page 92, line 36
Later Ms Turner was not prepared to allow either the owner into the property so she could inspect the damage and try and work out what caused the issues that had been identified. The following exchange took place relating to that issue:
MR LYRISTAKIS: Yes. Ms Domazet wanted to have a look through the property because I put it on her that she might have to pay for the carpet. She said, ‘Okay, well let’s go and have a look at it.’ We were never given an opportunity. Not in October. Not in November. Not in December.
MS TURNER: But you were in June.[11]
[11] Transcript of proceedings 12 November 2021 page 91, line 32
It is clear that the owner wanted to look at the property in order to try and determine the cause of the issues. Between October and the end of the tenancy on 19 November 2020 Ms Tuner would not allow her to do so. An owner cannot be held liable to pay compensation in circumstances where the tenant will not allow a reasonable request to inspect the area that requires repairs in order to determine the cause of the water ingress issues and to have them fixed before undertaking the relevant repairs.
As a consequence, I find that the period for which Ms Turner is owed compensation is for the period 3 June 2020 – 30 September 2020; a period of roughly three months. I fix the amount of compensation due to Ms Tuner at the rate of $150 per month, a total of $450.
Other proceedings – RT 834/2020
On 11 December 2020, Ms Turner launched proceedings against the owner at ACAT. The proceedings were given the file number RT 834/2020.
Ms Turner’s claim in RT 834/2020 was for a total of $7,754.36 (of which $4,620 was for loss of use and amenity).
On 9 February 2020, Ms Turner settled her case with the owner at a preliminary hearing at ACAT. The matter was settled for the sum of $5,500.
By 11 December 2020, Ms Turner had given notice and knew that she was leaving the property on 19 December 2020.
It is surprising that notwithstanding Ms Turner’s claim that the issues with the third bedroom were longstanding, dating back to 2015, and still had not been resolved, that she did not include her complaints about the third bedroom in that proceeding.
Ms Turner articulated seven principal complaints relating to rectification works that were being carried out on her apartment relating to drainage defects on her balcony and the balconies of other apartments. According to her application the issues started on 16 September 2020 and were completed on 10 December 2020, a period of approximately three months.
The seven issues Ms Turner complained of were:
1.       I have been unable to use the balcony at all for a period the scaffolding has been in place
2.       I have been unable to work from home due to the disruption and excessive noise. This has posed difficult issues in this time of Covid as my company has introduced a rostered work from home system
3.       My concierge/personal assistant has been unable to work from the premises for much of the past three months causing disruption to my business activities and management of my personal affairs
4.       I have been unable to entertain executive guests, a key purpose for which I rented this particular property
5.       I have been unable to receive family visitors from Sydney due to the disruption
6.       My privacy has been severely compromised with workers accessing my balcony at any time during the day. My bedroom/bed and walk in wardrobe faces directly towards the balcony.
7.       My security has been compromised [errors in the original]

Given Ms Turner’s third complaint that Ms Heaney was unable to use the third bedroom for the “past three months” it is very difficult to understand why Ms Turner did not argue that the third bedroom was largely unusable for the past five years because of the issues she is currently complaining about.
Ms Turners submission that Ms Heaney was unable to work in the third bedroom for the “past three months” grounds, in part, why compensation was payable; the loss of the use of that room for three months. Implicit in that submission is a recognition that before that three-month period (September – December 2020) the room was available and usable by Ms Heaney. That is to say the third bedroom could be used by Ms Heaney before 16 September 2020.
That submission is contrary to Ms Turner’s claim in this case. In this case her claim is that[12] “[m]y personal assistant (20 hrs/4 days per week) refused to work in this room which was set up as a home office.”
[12] See paragraph 6.3 above
In any event a two of Ms Turner’s complaints in RT 834/2020 overlap her current claim. Those include the issue relating to family members being unable to use the third bedroom and the issue of Ms Heaney being unable to use the room. Ms Turner has been compensated for the third bedroom being unusable for a three-month period. She is not entitled to be compensated twice for the same issues, in separate proceedings before ACAT.
It seems to me that Ms Turner has already been compensated at ACAT, for the third bedroom being unusable for a three-month period.
For that reason, I offset the $450 I awarded to Ms Turner,[13] against the award she received in RT 834/2020 and reduce the compensation due to her in the present claim to zero.
[13] Paragraph 41 above
The result is that I dismiss the application and award no compensation to the applicant under this head of the claim.
The respondent’s submission relating to section 71 of the Residential Tenancies Act 1997
I should note that the respondent made a submission to the effect that pursuant to section 71 of the Residential Tenancies Act 1997 limits ACAT’s ability to award compensation for loss of amenity to a period of not more than 12 months and that as consequence the most the applicant could seek would be for a period of 12 months, not for the period between 2015 and 19 December 2020. Section 71(3) of the Act provides;
A reduction in the rental rate ordered under subsection (1)—
(a)takes effect from the day the tenant’s use or enjoyment of the premises diminished, or the later date that the ACAT specifies; and
(b)remains in force for the period, not longer than 12 months, specified by the ACAT.
I accept the respondent’s submission.
I also note that the scheme outlined in section 71 envisages a tenant seeking relief at ACAT for loss of amenity during the course of the tenancy (as Mr Turner did in RT 834/2020). It does not envisage a situation where a tenant quits the property at the end of the lease and seeks to litigate a matter that covered an extended period of about five years.
The 2016 carpet cleaning claim
Ms Turner seek repayment for a $144.13 carpet cleaning bill that she paid in August 2016.[14]
[14] Exhibit A2 - Attachment 14 of the applicant’s Application for Resolution of a Dispute Under the Residential Tenancies Act 1997, which was filed at ACAT on 8 February 2021.
A tenant is not entitled to engage somebody to undertake a repair or provide a service on their own initiative, without the owner of her agent’s prior permission, other than in very limited circumstances relating to urgent repairs as defined by section 60 of the Standard Residential Tenancy Terms.[15]
[15] Found in the first schedule of the Residential Tenancies Act 1997
There is no suggestion that the carpet cleaning was an urgent repair or that Ms Turner obtained the agent’s permission before instructing the carpet cleaning company.
For those reasons this claim is dismissed.

Summary

The effect of this decision is to dismiss the application in its entirety.
………………………………..
Senior Member D Mulligan

Dates of hearing:	28 June 2021 12 August 2021 11 & 12 November 2021
Applicant:	In person
Respondent:	In person

[2022] ACAT 43

27 May 2022

Key Legal Topics

Areas of Law

Residential Tenancies

Legal Concepts

Standing

Appeal