Wilks v Pejic (Civil Dispute)

[2019] ACAT 6

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WILKS & ANOR v PEJIC (Civil Dispute) [2019] ACAT 6

XD 1027/2018

Catchwords:                CIVIL DISPUTE – co-tenants – joint purchases – burden of proof – break lease – end of lease

Tribunal:Senior Member J Lennard

Date of Orders:  14 December 2018

Date of Reasons for Decision:         17 January 2019

AUSTRALIAN CAPITAL TERRITORY  )          

CIVIL & ADMINISTRATIVE TRIBUNAL       )          XD 1027/2018

BETWEEN:

GEORDIE WILKS

First Applicant

JYE HUAH FOO

Second Applicant

AND:

TANJA PEJIC

Respondent

TRIBUNAL:Senior Member J Lennard

DATE:14 December 2019

ORDER

1.The respondent shall pay to the applicants $399.91, by transfer to Mr Wilks’ bank account on or before 21 December 2018.

…………Signed………...

Senior Member J Lennard

REASONS FOR DECISION

Background

1.The respondent and another person, referred to as the first tenant, were co-tenants in a residential tenancy agreement with a third party as the landlord. On or about 1 February 2018 the first tenant moved out. The respondent advertised for someone to share the tenancy and the applicants agreed to become her co‑tenants. In May 2018 the respondent gave notice to the applicants that she intended to leave the premises and that she would vacate the premises at the end June 2018. In earlier residential tenancy proceedings the Tribunal declared that the tenancy had terminated on 11 June 2018.[1] The applicants had, by way of counter claim in those earlier proceedings, made claims relating to cleaning, ownership of goods, rent, damaged personal goods, and household bills. Those claims were not dealt with in the residential tenancy matter but were instead transferred to the civil jurisdiction of the Tribunal.

[1] RT 544/2018

2.This is a civil application for damages arising predominantly from the termination of the residential tenancy agreement under which the current parties were co‑tenants. The parties entered into negotiations after the conclusion of the hearing in RT 544/18, and attended a conference in this matter, but have not been able to reach any agreement. The claims made by the applicant were detailed in their written submissions, which are not always clear and where there appears to be some ‘double counting’ of damages/claims.

3.I outline each claim, the relevant evidence and my findings below.

The claim relating to ownership of goods

4.The first tenant and the respondent jointly purchased household goods, including a washing machine, refrigerator, and bucket, at the commencement of their tenancy. Those goods remained in the premises after the first tenant vacated. The goods claimed included a washing machine and refrigerator. The applicants claim an amount of $610.00, being the value of goods the say they owned but which were removed from the premises they rented as co-tenants with the respondent. The applicants assert that the respondent gave them a half interest in the various household goods in return for the applicants doing the ‘end of lease cleaning’ of the first tenant’s room. In the alternative the applicants say that the first tenant was obliged to leave her room clean and they seek compensation for the cost of that cleaning, done by them, from the respondent.

5.The applicants did not provide any evidence to establish that the lessor or the lessor’s agent required any end of lease clean by the first tenant. There is no evidence that the applicants discharged some liability or obligation of the first tenant by undertaking cleaning. The first tenant gave evidence that she left the premises in the same state as she had found them and that the lessor made no request with regard to any extra cleaning. The applicants provided an email from the agent to support their claim; that email was dated 14 June 2018 and related to the vacation of the respondent, not the first tenant. I accept the evidence of the first tenant on this issue. The first tenant gave thorough and consistent evidence; though there were some facts about which she was unsure, she was a witness of credit.

6.The first tenant gave evidence that she sold all the household goods which she had jointly purchased with the respondent to the respondent. The first tenant gave evidence that she never agreed to pass any interest to the applicants in the goods in return for cleaning. There is no evidence of any direct communication whatsoever between the first tenant and the applicants. The respondent gave evidence that she had not entered into any agreement with the applicants to pass to them any interest in the household goods, but that she had told the applicants that they could make use of all the household goods. The email and text message correspondence in evidence before the Tribunal indicates that on several occasions the respondent informed the applicants that she would be removing her white goods and furniture from the premises when she vacated. There is no evidence that the applicants, at any time prior to the making of this application, raised with the respondent their claim to be part owners of the white goods. There is, however, correspondence from the second applicant, Ms Foo, to the respondent informing the respondent that the applicants have emptied the fridge and finished using the washing machine and so these items may now be removed from the premises.

7.The onus is on the applicants to provide to the Tribunal relevant, reliable and probative evidence, and the purpose of that evidence is to establish at the civil standard of proof – that is on the balance of probabilities – the facts and the claims that they assert. The respondent does not have to disprove something.  The entire burden of this is on the applicant.

8.On the evidence before me, I am not satisfied that the applicants have any claim to the household goods, which I am satisfied are the property of the respondent; nor am I satisfied that the applicants have any legal basis for a claim of compensation from the respondent for any cleaning they performed upon moving in. I have considered the issue of the plastic bucket claimed by the applicants and have determined on the evidence before me that the plastic bucket was included in the household goods sold by the first tenant to the respondent in the above‑mentioned transaction.

9.In relation to a further claim for compensation for blackout curtains which were removed by the respondent, I am satisfied on the evidence before me that this was raised between the parties at about the time that the respondent vacated the premises and that the respondent paid compensation in the amount of $50 to the applicants.

10.This part of the claim is dismissed.

The claim for electricity

11.This claim was not clearly articulated by the applicants and their documentation is either difficult to read or confusing or both. After questioning by the Tribunal it emerged that there were two parts to the claim:

(a)The first part was an unpaid electricity bill for the last period of time in which the respondent resided at the premises, plus a special reading fee, for a total amount of $181.33. The respondent agreed that she was liable to pay her share of this electricity bill and, although the calculations were not clear, agreed to pay the amount claimed. The Tribunal notes that the respondent had consistently offered to pay this amount.

(b)The second part relates to a daily concession made to Mr Wilks as a result of his Centrelink entitlements. It appears that the concession was applied on a daily basis against the entire electricity consumption. The evidence before the Tribunal is that all monies owed to the electricity supplier were paid; and that the costs of electricity were divided in accordance with the terms of an agreement between the parties as co-tenants. There is no evidence before the Tribunal that the respondent is indebted to the applicants in relation to a benefit that she received from the application of the concession to the entire electricity bill.

12.The respondent is liable to pay to the applicants the amount of $184.33.

The claim in relation to a break lease fee

13.The respondent gave notice at the end of May 2018 to the applicants that she would be vacating the premises at the end of June 2018. The respondent had paid her share of the rent up to 30 June 2018. The applicants found a replacement co‑tenant to commence paying rent from 14 July. The applicants claim an amount of $499.39 being, they say, the amount of extra rent they paid until the replacement co-tenant arrived.

14.The Tribunal accepts that the respondent is in breach of the agreement between the parties, that is that they would each remain as co-tenants with the other until the end of the fixed term of the residential tenancy agreement. At the time that the respondent indicated that she would be vacating the premises in breach of that agreement, the applicants were informed by the agent that they had a choice between either vacating the premises at the same time as the respondent and this would be treated as a break lease situation by the landlord – and a week’s rent would be sought by the landlord as compensation – or remaining in the premises as tenants. The correspondence in evidence before the Tribunal indicates that the respondent was told by the applicants, on 30 May 2018, not to advertise for anyone to replace her on the lease as they were still considering whether they would stay or move out. The applicants eventually made a decision to stay and to find a replacement co-tenant.

15.The respondent has breached the agreement between the parties, and is liable to compensation for any loss suffered by the applicants as a result of that breach. As a matter of fact the tenancy ended on 11 June 2018; and the respondent has paid her share of rent until 30 June 2018. The applicants have an obligation to take steps to mitigate their loss, and they chose to remain in the premises rather than vacate. The Tribunal is of the view that the rent paid by the respondent from 12 June 2018 to 30 June 2018 is in all the circumstances sufficient compensation for the breach of the agreement.

16.This part of the application is dismissed.

The claim for end of lease cleaning

17.The applicants arranged for a professional cleaning company to clean the carpet in the premises and spent some time cleaning the whole premises, including the respondent’s room. The applicants gave evidence, which the Tribunal accepts, that this work was done in order to facilitate finding a replacement co-tenant, by presenting the premises in a clean state.

18.The respondent has an obligation to leave the premises in a reasonably clean state upon vacation. I have determined that the respondent should pay a proportion of the costs of cleaning the carpet and cleaning her room, and of the cleaning products purchased by the applicants. I have determined that the appropriate amount, based upon the receipts produced by the applicants, is $137.58.

The claim relating to the damaged penguin cookie jar

19.The respondent concedes that she damaged a cookie jar belonging to the second applicant, Ms Foo, and agrees that she should pay compensation. The Tribunal notes that the respondent has always offered to pay compensation in relation to the cookie jar. It appears from the evidence before me, and an independent internet search, that similar cookie jars are readily available for purchase: prices range from $35 - $120, plus postage and handling. After some discussion, it was determined that the respondent should pay an amount of $78 to the applicants as compensation for the damaged cookie jar.

Conclusion

20.The respondent is liable to pay to the applicants the amount of $399.91. The Tribunal notes that the respondent consistently offered to pay compensation in relation to the items claimed in this matter. The Tribunal further notes that in any areas of dispute the applicants failed to provide relevant, reliable or probative evidence to support their claims. I have therefore determined that it is not appropriate to exercise my discretion to award the Tribunal filing fee to the applicants in these circumstances.

………………………………..

Senior Member J Lennard

HEARING DETAILS

FILE NUMBER:	XD 1027/2018
PARTIES, APPLICANT:	Geordie Wilks and Jye Huah Foo
PARTIES, RESPONDENT:	Tanja Pejic
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	Senior Member J Lennard
DATES OF HEARING:	14 December 2018