VICTORSEN & HARRISON (Residential Tenancies)
[2013] ACAT 61
•4 September 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
VICTORSEN & HARRISON
(Residential Tenancies) [2013] ACAT 61
RT 13/580
Catchwords: RESIDENTIAL TENANCIES termination of residential tenancy agreement during term of agreement - unpaid rent - compensation –
List of legislation: Residential Tenancies Act 1997, ss 38, 79(1). 83, 84
Tribunal: Ms E. Symons – Presidential Member
Date of Orders: 4 September 2013
Date of Reasons for Decision: 18 September 2013
AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL)
RT 13/580
DAMIEN VICTORSEN
Applicant/Lessor
RACHEL HARRISON
Respondent/Tenant
Tribunal : Ms E. Symons, Presidential Member
Date : 4th September 2013
Having heard sworn evidence from the applicant
ORDER
Judgment for the applicant in the sum of $2,597.93 being compensation of $4,057.93 less bond of $1,460.00.
The respondent pay the applicant the sum of $2,597.93 on or before Friday 20th September 2013.
Respondent to pay judgment monies of $2,597.93 to the applicant’s bank account (number redacted).
Ms E Symons
Presidential Member
ACT Civil & Administrative Tribunal
REASONS FOR DECISION
On 16 February 2013 the Applicant lessor and the Respondent tenant signed a Residential Tenancy Agreement (“the Agreement”) for a term of 12 months ending on 15 February 2014 in respect of premises located at Bruce in the Australian Capital Territory (“the property”). The rent due under the Agreement was $730.00, payable every two weeks starting on 16 February 2013.
On 4 June 2013 the Respondent notified the Applicant in writing that she intended to vacate the property by 8 June 2013. On 5 June 2013 she changed the intended vacation date to 29 June 2013.
On 14 June 2013 the Applicant lodged an Application in the ACT Civil and Administrative Tribunal (the tribunal) against the Respondent seeking orders inter alia, for payment of rental arrears and compensation.
On 8 July 2013 the Applicant lodged an Application for Interim Orders for rent arrears, vacating and cleaning the property and return of keys.
On 11 July 2013 the Respondent filed a Response and made her own claim for rent reduction and compensation.
On 16 July 2013 Ex Parte Orders were made when the Respondent did not attend a scheduled tribunal conference. These Orders stated:
1.Compensation for stated lack of hot water at certain times during the lease is allowed at 5% of the rent for 12 weeks, i.e. $219.00
2.Tenant compensate the lessor for breach of lease as follows:
a. Rent component $5,000
b. Advertising $ 365
c. Cleaning $ 300
d. New keys $ 309
e. New remote $ 95
f. Filing Fee $ 127
Total$6,196
Less$ 219 allowed Order 1
Total $5,977 to be paid by tenant to lessor
3.Order Office of Rental Bonds disburse bond held ($1,460.00) to the lessor to compensate for unpaid rent from 8th June 2013 to 6th July 2013.
4.Copy of this Order be served on tenant by email to (Email address redacted).
On 31 July 2013 the Respondent applied to set aside the Ex Parte Orders. Her application was granted on 28 August 2013. The Application and the Respondent’s claim were set down for hearing on 4 September 2013.
The Respondent lodged a Witness Statement by Colin Kish on 27 August 2013.
The Applicant lodged an amendment to his Application on 3 September 2013.
The Hearing
On 4 September 2013 the Respondent lodged a request to participate in the hearing that day by telephone. She provided a mobile telephone number. There is no right to participate in a hearing by telephone. A party must ask the permission of the tribunal to do so. Section 45 of the ACT Civil and Administrative Tribunal Act 2008 gives the tribunal a power to permit a person to participate in a hearing by means other than in person. It is expected that any application for permission will be made at least two days before a hearing.
Nevertheless, the tribunal made four attempts to speak with the Respondent on the mobile telephone number she had provided. Each attempt was unsuccessful. In the first call at 10.38 am the tribunal received the following answering service:
“Hi, you’ve called the phone of Rachel. I’m unavailable to take your call right now. Please leave your name, number and a brief message and I’ll get right back. Thank you.”
The tribunal left the following message for the Respondent:
“This is a message for Rachel Harrison. This is the Civil and Administrative Tribunal in Canberra, expecting to speak to you for a hearing now. Thank you.”
At 10.39am the Tribunal telephoned the Respondent and the following exchange took place:
Ms Harrison: Hello?
President Symons: Hello?
Ms Harrison: Hello, its Rachel.
President Symons: Is that Rachel Harrison speaking?
Ms Harrison: That’s correct.
President Symons: Yes, is there any other –this is the Administrative and Civil Tribunal in Canberra. Is there any other number we can speak to you on?
Ms Harrison: (No audible response)
President Symons: Hello? Hello? Is it still connected?
Associate: (Indistinct)
President Symons: Yes, we will try again.
At 10.41 am the tribunal, again attempted to telephone the Respondent and received the same recorded message it had received at the first attempt.
At 10.42 am on the fourth attempt, the tribunal received the same recorded message it had received in the first and third attempts. The tribunal left the following message for the Respondent:
“Ms Harrison, this is the Civil and Administrative Tribunal. The time in Canberra is now almost 10.45am. The matter was set down for hearing at 10.30 so I’m proceeding with the hearing. If you get this message you can return the call. Thank you. Goodbye.”
The tribunal proceeded to hear the matter and at the end of the hearing made the following orders:
a. Judgment for the applicant in the sum of $2,597.93 being compensation of $4,057.93 less bond of $1,460.00.
b. The respondent pay the applicant the sum of $2,597.93 on or before 20 September 2013.
c. Respondent to pay judgment monies of $2,597.93 to the applicant’s bank account BSB 062692 Account No. 15320230.
On 10 September 2013 the Respondent requested a Statement of Reasons for the tribunal’s orders. These are those Reasons.
The Applicant gave evidence at the hearing on 4 September 2013 after making an affirmation. The tribunal considered his evidence. The information provided to the tribunal by the Respondent in her written material was put to the Applicant and his response to that material sought.
The Applicant claimed that the Respondent should pay him:
·four weeks rent that was not paid by the Respondent before she vacated the property - $1,460.00;
·the cost of advertising for a new tenant - $311.93;
·the cost of cleaning the property - $300.00;
·the cost of a locksmith - $309.00;
·the cost of a replacement for the garage remote control - $95.00;
·two weeks’ rent from the date that the Respondent vacated the property until the date that a new tenant was in place on 27 July 2013 - $730.00;
·foregone rent from 27 July 2013 to 15 February 2014, (203 days at $3.57 per day) - $725.00; and the
·the tribunal application fee - $127.00.
The Law
Subsection 79(1) of the Residential Tenancies Act 1997 (“the RTA”) states:
A party to a residential tenancy agreement may apply to the ACAT for resolution of a tenancy dispute.”
Pursuant to subsection 83(d) of the RTA the tribunal may, in a tenancy dispute, make an order requiring the payment of compensation for loss of rent or any other loss caused by the breach of a residential tenancy agreement.
Section 84 of the RTA relates to awards of compensation when the lessor has received a Notice of Intention to Vacate before the end of a fixed term agreement and the date nominated to vacate is before the end of that agreement.
In the present matter, the Applicant applied to the tribunal under subsection 84(1)(b) for loss of the rent that he would have received if the agreement had continued to the end of its term and his reasonable costs of advertising the premises for lease. Subsection 84(3)(b) limits the amount that may be claimed for the reasonable costs of advertising to not more than one week’s rent.
Section 38 of the RTA imposes on the party seeking compensation a general duty to mitigate. A party is not entitled to compensation, or part of it, if the loss, or part of the loss to be compensated, could have been reasonably avoided.
The Issues
The issues for the tribunal are:
(a)whether the Applicant is entitled to compensation as sought; and
(b)whether the Respondent is entitled to compensation in relation to the hot water issue.
The unpaid rent
The Applicant produced his bank statements which showed that the Respondent last paid rent on 25 May 2013 for the fortnight ending on 8 June 2013. The Respondent owed rent from 8 June 2013 to 6 July 2013, a period of four weeks.
The Applicant said that he received the bond of $1,460 from the Office of Rental Bonds after the Ex Parte Orders were made. The Bond and the unpaid rent were the same amount. He said the Bond compensated him for the four weeks rent.
The tribunal noted that the Respondent acknowledged in her Response that rent was paid on 25 May 2013.
Having considered the available evidence, the tribunal was satisfied on the balance of probabilities that the Respondent had not paid rent to the Applicant after 25 May 2013 and that she owed rent from 8 June 2013 to 6 July 2013.
The cost of advertising for a new tenant - $311.93
The Applicant told the tribunal that he initially advertised the property on allhomes.com.au for $360.00 per week on 5 June 2013; the same day the Respondent had advised him she would break the lease. He also advertised the property on the ANU University Accommodation Services website and the website ‘Gumtree’ for $360.00 per week. He said that he advertised the property for $5.00 per week less than the Respondent was required to pay because the market in June 2013 was less buoyant than in February 2013 when the Respondent entered the lease. He received one inquiry and showed that tenant through the apartment on 7 June 2013. He gave this prospective tenant an application form but never heard back from her.
In response to a question from the tribunal, the Applicant said that the Body Corporate did not allow posting of signs, such as “unit to rent”, in the building.
The Applicant then lowered the asking rent to $350.00 per week and received a few inquiries. He had tried unsuccessfully on several occasions to arrange times with the Respondent to show these prospective tenants through the property. He said that when he was unable to arrange inspections, these people lost interest.
On 20 June 2013 the Applicant advertised on Gumtree as a “Top Ad’; he bumped up the advertisement on Gumtree on 26 June 2013; he bumped up and highlighted the advertisement on 10 July 2013 and he bumped up and paid ‘Top Ad’ fees to advertise the property on 13 July 2013.
He held open homes after the Respondent left the property and he had the property cleaned.
After an open home when only one person turned up and was not interested in applying, he reduced the asking rent to $340.00 per week. He then secured a tenant and was able to let the property at $340 per week from 27 July 2013.
The Applicant provided the tribunal with copies of the advertisements (Exhibit A1) and copies of the receipts for advertising on Allhomes ($245.00) and Gumtree ($66.93). There was no fee for the ANU advertisement.
The tribunal noted that the weekly rent payable under the agreement was $365.00 and was satisfied that the amount claimed for advertising costs is less than one week’s rent as required by section 84 of the RTA.
The Tribunal was satisfied, on the balance of probabilities, having considered the available evidence, that the Applicant had incurred advertising costs of $311.93 and is entitled to be compensated for these costs.
The cost of cleaning the property - $300.00
The Applicant said the tenant who rented the property immediately before the Respondent had the carpets in the property professionally cleaned on 13 February 2013. He tendered invoice 504723/EFT receipt from Burley Griffin Carpet Care dated 13 February (Exhibit A2) as evidence of this.
He also tendered the Condition Report for the property signed by the Respondent on 16 February 2013 (Exhibit A3).
The tribunal put to the Applicant that the Respondent stated she had cleaned the property when she moved out. The Applicant tendered a bundle of 15 photographs date stamped 10 July 2013 (Exhibit A4) which he had taken that day.
The photographs showed scuff marking on a wall; cardboard stuck to the kitchen bench top; water marks on kitchen bench top and bench top uncleaned; debris and stain mark in the kitchen cupboard and on the bottom shelf; dirty and marked cutlery drawer; dirt and scum behind the tap in the vanity unit; streak marks on the glass of the shower screen; uncleaned and dusty extraction vent in the bathroom; debris on the living room carpet; debris on the bedroom carpet and scuff marks and paint coming off the wall where the washing machine was.
The Applicant referred to two photographs of sinks the Respondent had provided to the tribunal (which the tribunal marked Exhibit A10) and said that, unlike his photographs, they were undated. He contended that the Respondent’s photos were taken when she entered the apartment.
In response to a question from the tribunal asking whether, to his knowledge, anyone had been in the property between 7 July 2013 and 10 July 2013, the Applicant said that the Respondent was still at the property on 7 July 2013 and, to his knowledge, no one else had been in the property between then and the time for final inspection.
Final inspection was arranged for Wednesday, 10 July 2013 initially between 9.00am and 10.00am and subsequently, at 6.00pm. The Applicant said he had reminded the Respondent of the inspection arrangements via email and text the day before the inspection and on the day of the inspection. The Respondent failed to attend the final inspection.
The Applicant said he had filled in and signed a condition report himself on 10 July 2013. His friend, Mr Hall, was present at that time and Mr Hall had also signed this condition report. He tendered this report (Exhibit A8).
He arranged for Miss Merry Clean Services to inspect the property and clean it and the carpet on 12 July 2013. He tendered that businesses’ invoice ZB1482387 for $300.00. (Exhibit A6). The invoice also stated –
“In my opinion this apartment need cleaning. kitchen, bathroom, walls, cupboards, doors, carpets, balcony etc, benchtop. Merry 12/07/2013”
The tribunal considered the available evidence in relation to the condition of the property at the nominated date for final inspection, 10 July 2013.
Notwithstanding that the Respondent submitted that she had cleaned the property, the tribunal was satisfied, on the balance of probabilities, that the property had not been cleaned to a satisfactory standard when the Respondent left the property and the Applicant is entitled to compensation as a result. The tribunal was satisfied that the amount claimed of $300.00 was a reasonable amount for cleaning the property.
Claim for two weeks rent ($730) between the Respondent vacating the property and the commencement of the new tenancy on 27 July 2013
The Applicant claimed two weeks’ rent while the property was empty.
The tribunal considered the evidence about the steps the Applicant took to find a new tenant as soon as he became aware of the Respondent’s notice to vacate. The tribunal is satisfied that he took reasonable and appropriate action to minimise his loss by advertising on Allhomes, the ANU accommodation website and on Gumtree.
The tribunal is satisfied, having considered the available evidence, that it was reasonable for the Applicant to reduce the asking rent in the circumstances. The Applicant was able to secure a tenant and to limit his loss from unpaid rent to two weeks in the amount of $730.00. The tribunal is further satisfied, on the balance of probabilities, that the Applicant is entitled to $730.00 for rent claimed for two weeks after the Respondent vacated the property.
The cost of a locksmith - $309.00 and the garage remote control - $95.00;
The Applicant said that after the Respondent failed to attend the final inspection on 10 July 2013, he emailed the Respondent asking her to return the keys to him before 9.00am on 11 July 2013 and advised her that he would pursue her for the cost of changing the locks if she did not return the keys. The Respondent did not return the keys to him or the garage remote control as requested. The locks were changed by Canberra Locksmiths at a cost of $309.00. He tendered the receipt from Canberra Locksmiths dated 11 July 2013 (Exhibit A5).
The Applicant said he had to get a replacement remote control for the garage through ACT Strata Management Services. It cost $95.00. He tendered the invoice for this amount. (Exhibit A7).
The tribunal showed the Applicant the photograph of keys provided to the tribunal by the Respondent (Exhibit A9). The Applicant said that the keys looked like his apartment keys but he had no idea when or where the photograph was taken; it was undated and he was not present when it was taken. He said he has no record of the Respondent attempting to contact him to return the keys.
The tribunal noted that the Respondent stated that she left the keys outside the apartment door. The tribunal is not satisfied, in all the circumstances, that this action was either reasonable or safe. The Respondent had an obligation to return the keys to the property to the Applicant. The tribunal accepts the Applicant’s evidence that the Respondent did not contact him to return the keys.
The tribunal finds, on the balance of probabilities, having considered all of the available evidence, that the Applicant is entitled to the costs he incurred in engaging a locksmith ($305) and obtaining a new remote control for the garage door ($95) from ACT Strata Management.
Foregone rent 27 July 2013 – 15 February 2014
The Respondent signed a lease for a fixed term of 12 months pursuant to which she was required to pay fortnightly rent of $730 to the Applicant until 15 February 2014.
The Applicant said that when he received the Respondent’s notice to vacate, he emailed her that day saying that he would incur a financial loss and he would be seeking to recover it from her. When the tribunal asked about his email to the Respondent, which appeared to indicate that he was quantifying the financial loss ‘for the period from 8 June 2013 and when he could find a new tenant’, the Applicant said he was not intending to limit the compensation to this period. The email also stated “My understanding is that I am entitled to reasonable compensation for losses incurred as a result of an early termination. This includes rent that I would have otherwise received...” He said his intention was to get financial compensation for the loss as he had a fixed term lease with the Respondent until 15 February 2014 which required her to pay him rent of $365 a week until then. He lodged his claim for compensation with the Tribunal on 14 June 2013.
He worked out that he was incurring a loss of $25 a week ($365 rent payable by the Respondent less $340 rent payable by the incoming tenant) which was $3.57 per day. He claimed this amount for the 203 days remaining on the Respondent’s lease, a total of $725.00.
Having considered all of the available evidence, the Tribunal is satisfied, on the balance of probabilities, that the Applicant is entitled to compensation for the foregone rent in the amount of $725.00.
The Respondent’s claim for compensation by way of rent deduction for the hot water issue.
The tribunal asked the Applicant about this claim. The Applicant said that he was not satisfied that there was ever a hot water issue because he had not been provided with any evidence independent of Ms Harrison that there was a hot water issue. He said he had not received any statement from a plumber of Ms Harrison’s choosing, nor from the plumber he nominated for her to contact. He said that when he attended the property himself, he had tested the hot water and at that time, it was fine.
The Applicant told the tribunal that the Respondent had not notified him about her having an issue with the hot water until 25 May 2013, about a month after she claimed it become a problem. This led him to conclude that the problem was not urgent. As the hot water system was the responsibility of the strata manager, ACT Strata Management, on 27 May 2013 he contacted Mr Hamilton, the Manager of ACT Strata, who informed him that they had not received complaints from any other tenants and, accordingly, Mr Hamilton was not inclined to investigate the “problem” further.
The Applicant said that on 31 May 2013 he asked the Respondent for details including where the hot water was not available, how long the problem lasted, how hot the water was and the nature of the problem so he could determine the best course of action. In the meantime he contacted the Village Building Company, who had built the property, about the hot water system.
It took the Respondent 10 days to get the requested information to the Applicant. The Applicant said he found the information quite confusing and conflicting because at first she said the problem was only in the shower and then she said the problem was in the rest of the apartment. She also claimed other tenants in the building had similar problems.
The Applicant said that he gave the Respondent the name of a plumber, Mr Pat Blanchard of Pat’s Plumbing. It took the Respondent 13 days to contact Mr Blanchard and the appointment took place a couple of days before she was due to vacate. Mr Blanchard told the Applicant that an appointment had been made. The Applicant spoke with Mr Blanchard after the appointment however he did not receive a written report or an invoice from him.
In response to a question from the tribunal, the Applicant said that a water saving device had been installed in the shower head when the apartments were built and that the device in the shower in his property had now been removed.
The Applicant drew to the tribunal’s attention that the day the Respondent notified him about her hot water problem, she was ‘a little bit late in paying her rent.’ He thought she might be having some financial problems and was looking for reasons to not pay her full rent, which she ended up not doing for four weeks from 8 June 2013.
The Respondent stated in her Response in relation to her claim for compensation:
·“Rent was paid in full until 25/05/2013 when it was evident that there were problems with an essential service to the apartment, being hot water. It was noted earlier than this date that there were major problems evident with the hot water service to the apartment, and this was provided to the landlord, however after several weeks, Mr Victorsen failed to identify the problem and identified the incorrect problem many times and also accused me of not paying my gas bill and used this as an excuse, when in fact I paid it on time.
·As time went on, the hot water problem was not remedied by Mr Victorsen and every time a shower was taken in the apartment, there was a large shortage of hot water, not hot enough to take a shower.”
Notwithstanding that the Tribunal had been provided with a number of emails between the parties about the hot water, the Respondent did not file any evidence in the form of a plumbing report to substantiate her claim that there was a problem with the hot water. In the absence of such evidence and in light of the Applicant’s evidence that he tested the hot water on 7 June 2013 and found it to be working, the tribunal cannot be satisfied on the balance of probabilities that the Respondent has established her claim for compensation against the Applicant. Her claim must therefore be dismissed.
Conclusion
The Tribunal has found that the Applicant is entitled to compensation of $1,460.00 from the Respondent for four weeks unpaid rent prior to her vacating the property; $730.00 for two weeks rent claimed to 27 July 2013; $300.00 for cleaning; $309.00 for the locksmith; $95 for the garage remote, $725.00 for foregone rent for the balance of the agreement with the Respondent and the advertising cost of $311. The Applicant also seeks that the Respondent pays the filing fee of $127 in accordance with section 48 of the ACAT Act. As the Applicant’s claim is successful, the Tribunal will include the payment of the filing fee in the final orders. The total amount payable by the Respondent to the Applicant is, therefore, $4,057.93.
The Applicant has received the rental bond of $1,460 which must be deducted from the $4,057.93. The balance payable by the Respondent is therefore $2,597.93
The Tribunal entered judgment accordingly.
........……………..
Ms E. Symons
Presidential Member
PUBLICATION DETAILS
FILE NUMBER: | RT 13/580 |
PARTIES, APPLICANT: | Damien Victorsen |
PARTIES, RESPONDENT: | Rachel Harrison |
TRIBUNAL MEMBERS: | Ms E Symons, Presidential Member |
DATES OF HEARING: | 4 September 2013 |
PLACE OF HEARING: | ACAT, Canberra |
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