Withers-Norris v Pastrello - [2016] ACAT 95

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WITHERS-NORRIS v PASTRELLO (Residential Tenancies) [2016] ACAT 95

RT 6/2016
Catchwords: RESIDENTIAL TENANCIES – fixed term tenancy agreement – premises in executive apartment complex owned by the lessor – failure of security system and the lift – notice given to managing agent – breach by lessor of standard term to conduct urgent repairs as soon as practicable –– damaged secure storage unit with broken lock at commencement of tenancy – request for repair to managing agent – breach by lessor of standard term to repair damaged storage unit and lock within four weeks of notification or at all – compensation

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48

Residential Tenancies Act 1997 ss. 8, 38, 71, 72, 76, 79, 83; standard terms – 1, 2, 3, 52, 54, 55, 57, 59, 60, 61

Cases cited:But v Baldwin (Residential Tenancies) [2016] ACAT 9
Craigie v Moore [2012] NSWCTTT 444
Kerai v Miller [2011] NSWCTTT 325
Maione v Vescovo [2006] SARTT 2
Salem & Gizgeez and Abeygunasekara & Jeevanthan [2011] ACAT 9
Truswell v Minister for Communication and the Arts(1996) 42 ALD 275
Worrall v Commissioner for Social Housing (2001) ACTSC 7

Tribunal: President E Symons

Date of Orders:  19 August 2016
Date of Reasons for Decision:         19 August 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 6/2016
BETWEEN:
STEPHEN WITHERS-NORRIS
Applicant

AND:
LAURIE PASTRELLO
Respondent

TRIBUNAL: President E Symons

DATE:19 August 2016
ORDER

The Tribunal Orders that:

The lessor pay to the tenant compensation for the lessor’s breaches of the residential tenancy agreement of $2,017.11 and the filing fee of $68.00, totalling $2,085.11.
The compensation and fee in Order 1 is set off against the rent payable by the tenant of $475.00 per week or $67.85 per day commencing from 1 September 2016 for a period of 31 days. The tenant’s rent payable during this period is reduced to $nil.

………………………………..
President E Symons

REASONS FOR DECISION

Summary

This matter is a tenancy dispute between the applicant/tenant (‘the tenant’) and respondent/lessor (‘the lessor’) concerning breaches of a residential tenancy agreement between the parties for a fixed term from 21 October 2015 to 20 October 2016.
The tenant seeks compensation of $3,642.15 for the lessor’s failure to repair the lift, security system, intercom and the security shed and compensation for the lack of cleanliness of the common areas. The tenant also seeks ongoing compensation for the lessor’s continuing failure to repair the damaged security shed. The tenant relies on the lessor’s breaches of clauses 52 (interference with the tenant’s reasonable peace, comfort and privacy), 54 (premises to be in a reasonable state at the start of the tenancy), 55 (lessor to make repairs), 57 (lessor to make non-urgent repairs within four weeks of notification), and 59 (lessor must carry out urgent repairs as soon as necessary) of the ‘Prescribed Terms’ in the residential tenancy agreement.
The Tribunal finds that the lessor breached:
(a)Clause 52 in that the tenant’s reasonable peace, comfort and privacy were interfered with;
(b)Clause 54(1)(c) and (d) in that at the commencement of the tenancy the storage shed leased as part of the premises was not in a reasonable state of repair and not reasonably secure;
(c)clause 55 in that the lessor did not make repairs to the storage shed, not being urgent repairs, within four weeks of notification as required by clause 57; and
(d)clause 59 in that the lessor did not carry out urgent repairs to the lift and to the security system as soon as necessary having regard to the nature of the problem.
There was largely no dispute between the parties as to the facts. The issue was whether the applicant was entitled to compensation.

Background

On 13 October 2015, the tenant and lessor’s agent entered a residential tenancy agreement (the agreement) for the premises in Red Hill in the Australian Capital Territory (the premises). The premises are in an apartment complex comprised of ten executive apartments. The lessor owns the apartment complex (the complex) and is responsible for the maintenance of the complex. The complex is not subdivided into strata title. There is no building manager or body corporate for the complex.
The agreement contained the standard terms set out in the Residential Tenancy Act 1997 (RT Act). Standard terms included the duration of the tenancy for twelve months, from 21 October 2015 until 20 October 2016, and rent of $475.00 per week. The tenancy agreement also included a ‘No Pet Clause’ and a ‘No Smoking Clause’.
The property management agency at the commencement of the tenancy was LJ Hooker Belconnen. The property manager was Sue Mortimer.
On 4 November 2015 the tenant completed the Condition and Inventory Report in which he wrote “Lock on storage shed is broken, metal threshold and surrounding area dented. Cannot be locked” and returned it to the managing agent together with photographs of the premises which included a photograph of the broken storage shed latch and a note which stated “The only issues we need remediated are: - repair storage shed latch; and ...”.
On approximately 21 December 2015 the security system in the complex failed. This caused the garage door to be permanently open; the electronic swipe pads to fail thereby preventing entry to the building through the front door and the garage; the lift to cease to function; the intercom to cease to function and the CCTV security cameras to cease to function. At around the same time the lighting in the fire stairs ceased to function. The tenant notified the managing agent by telephone of these issues on 21 December 2015 and the managing agent emailed the lessor’s son, Mr Robert Pastrello, and asked “can you send someone to repair.”
On 22 December 2015, the tenant notified the managing agent, LJ Hooker Belconnen, by email of these issues and that the storage sheds in the garage appeared to have been accessed by an intruder. The managing agent advised the tenant that they were attempting to contact the lessor and had engaged an electrician. The tenant again emailed the managing agent on 23 December 2015.
When no-one had attended to these issues, on 27 December 2015 the tenant contacted the electrician identified in the ‘Urgent Repair Schedule’ (URS). The electrician advised the tenant that it was not an electrical issue, but to do with the security system itself. The tenant then contacted Anthony from SmartDesign Security, the company identified on the security system circuit board as no security company was identified in the URS. Anthony advised the tenant that he would not be able to attend the premises to correct the issue until 4 January 2016.
On 4 January 2016 at 9.28 am the tenant issued a notice to remedy the issues in paragraph 9 above. The tenant requested the managing agent forward the notice to remedy to the lessor. The tenant stated in the notice to remedy:
-   I consider the landlord to be in breach of its obligation under clause 55(1) of the lease to maintain the premises in a reasonable state of repair;
-   If the issues with the building are not rectified within 48 hours of this email, I will be lodging an urgent application for rectification in the ACT Civil and Administrative Tribunal (ACAT) seeking orders against the landlord;
-   I will be seeking a rent reduction due to the significant diminution of my enjoyment of the property over the past two weeks. If the owners think they can charge $475 per week for an apartment without a working security system or elevator, and to have people rummaging through our possessions in the garage, then they are mistaken.
On 4 January 2016 Anthony from SmartDesign Security attempted to telephone the lessor. The same day the tenant, pursuant to clause 61 of the residential tenancy agreement, then authorised SmartDesign Security to attend the premises to address the malfunctioning security system. SmartDesign Security was able to reset the system and all swipe passes and the garage door became operational.
The lift was still not working. On 4 January 2016, pursuant to clause 61 of the residential tenancy agreement, the tenant engaged Len Smart, the tradesperson from Maritex Electrical which was identified in the URS, who attended the property and reset the circuit board for the lift. The lift remained inoperative. Len Smart advised the tenant that a lift technician will be required.
On 4 January 2016 Ms Mortimer emailed the tenant and stated, inter alia:
...
I am aware of the intermittent issues that have been happening and have referred the problems as urgent to the owner as there is no building manager nor body corporate at this complex.
...
When tenants have reported issues with the lift or security access I have each and every time reported this to the owner for repair.
I am concerned with the ongoing issues with the security side of the building and have done everything in our power to arrange with the owner for someone to go out and repair the issue.
Even this morning I had a call from a security company asking for a key to the security box which I do not have nor ever had. I have referred this again to the owner to have this fixed today. I know this is of no consolation to you but just want you to understand the complexity of what I do have control over and what I don’t.
I am sorry for the inconvenience to you and your plans over the Christmas break and can only hope that this is resolved quickly now that Christmas is over.
The owner has also decided to take the properties from our office (probably due to my insistence to have the matter urgently rectified) to another office but please keep me posted as to the outcome of the repair today.
The tenant emailed Ms Mortimer again on 4 January 2016 stating:
...
I have spoken to Schindler, who appear not to have a current service agreement in place for this building. There is no elevator technician identified in the urgent repair list.
Can you please advise whether there is a current service agreement in place for the elevator, and if so who it is.
...
On 4 January 2016 Ms Mortimer sent an email to the tenant stating:
... I cannot help with the lift as I do not know who the current service agent is ... all I can do is refer this back to the owner as this is something he must attend to.
I do understand your frustration and I will refer the current issue with owner’s sons who have authority to act on his behalf. They must understand that this is to be rectified today.
On 4 January 2016 the tenant emailed Ms Mortimer and stated:
I completely understand the impossible situation you’re in. I regret that it has come to this, however after two weeks its just intolerable.
Can you please mention in your communication with the landlord’s representatives that if there is not a plan to engage a qualified elevator technician in place by COB tomorrow (notified to me), then I will exercise my right under clause 62(b) to engage a tradesperson of my own choosing to effect the repairs. While I know that I’m only authorised to engage up to 5% of our annual rent, I’m certain the other tenants would be willing to add their 5%’s also.

Tribunal proceedings

On 6 January 2016, the tenant filed an application with the Tribunal for resolution of a dispute under the RT Act in which he sought the following orders:
(1)     the lessor be ordered to engage a qualified technician to repair the elevator immediately, and in any event no later than within 24 hours of the order being made;
(2)     the lessor be ordered to enter into a service agreement with an elevator technician for ongoing maintenance of the elevator, and this be notified to the tenants for the purposes of engaging urgent repairs;
(3) the lessor be ordered to advise when the elevator was last serviced (in accordance with its obligations under the Work Health and Safety Act);
(4)     the lessor be ordered to enter into a service agreement with the vendors of the security system and this be notified to the tenants for the purposes of engaging urgent repairs;
(5)     the lessor be ordered to repair the lighting in the fire stairs;
(6)     the lessor be ordered to reimburse the tenant for the application fee for this application or that the tenant be authorised to offset the amount against the rent payment for the month of February; and
(7)     that a time limit for complying with these orders be set by the Tribunal.
The tenant also filed an application for interim or other orders on 6 January 2016 in which he sought an “Urgent hearing of the application to resolve a tenancy dispute.”
On 6 January 2016 the tenant advised Ms Mortimer by email that he had lodged the application in the Tribunal. Ms Mortimer notified the tenant by email dated 6 January 2016 that LJ Hooker Manuka were now handling the entire complex and to direct the application to them. In a subsequent email from Ms Mortimer to the tenant dated 6 January 2016 Ms Mortimer stated, inter alia:
I have spoken with Schindler regarding going out to fix the lift but they refuse to go out unless the owner signs a management agreement with them. I have forwarded the document from Schindler to the owner but he is already aware of this and still hasn’t signed off on the agreement. He has had this paperwork since 2014 when the building was completed but to date Schindler still has not received it. Therefore my hands are tied because no other company will fix Schindler lifts.
On 7 January 2016 the Tribunal notified the parties by letter that the application had been listed for a conference on Monday 25 January 2016 at 2.00pm.
On 12 January 2016 the security system again failed and was out for five days.
On 22 January 2016 the lessor’s solicitors requested that the conference be adjourned. The tenant opposed the adjournment. The request for an adjournment was refused.
At the conference on 25 January 2016 the application was referred to the residential tenancy hearing list that day. The tenant appeared for himself at the hearing. Ms Mulherin of DibbsBarker, Solicitors, appeared for the lessor. At the conclusion of the hearing President Daniel made the following orders:
(1)The lessor must, by 5:00pm Wednesday 27 January 2016 have the lighting in the fire stairs examined by an appropriate technician and take all necessary steps to ensure it is operative from that time.
The Tribunal notes: failure to comply with an order of the ACAT may be grounds for a penalty.
(2)By 12:00 noon on Thursday 28 January 2016 the lessor must have had the lift inspected by an authorised technician/repairer; and file with ACAT by that time a short written report from the technician/repairer explaining whether the lift is able to be used safely, or if not, confirming that it has been rendered safely unusable until such time as it can be repaired.
(3)The respondent’s representative is to file with the Tribunal and give to the applicant a notice of contact details by 5:00pm Wednesday 27 January 2016.
(4)The matter is otherwise adjourned to 4:30pm Thursday 28 January 2016 for mention and further orders/directions.
On 27 January 2016 the lessor’s solicitors advised the Tribunal by email that an electrician had attended to and restored the lighting in the fire stairs at the complex that day. The tenant emailed the tribunal and the lessor’s solicitors on 27 January 2016 stating that “the lighting in the stairwell continues to be inoperative and the fire doors wedged open.” The lessor’s solicitors emailed the Tribunal on 28 January 2016 and stated that the electrician had also attended the complex that day; that the fire stairs were again lit and the agent had closed the doors.
On 28 January 2016 Mr Jurgen Hirche, Service Manager OTIS Elevator Company, attended the complex and managed to get the lift running and provided a short report and a supplemental report to the lessor’s solicitors. The lessor’s solicitors provided these two reports to the Tribunal on 28 January 2016. The lift failed again on 28 January 2016.
At the adjourned hearing on 28 January 2016 Senior Member Lennard made the following orders:
(1)The lessor must by 5pm, 5 February 2016 have the entire electrical system/wiring of the premises inspected by an appropriate technician.
(2)The lessor is to provide to the ACT Civil and Administrative Tribunal and Applicant a brief report on the results/conclusions of such inspection, within 24 hours of inspection.
(3)At the next hearing the lessor is to provide a report setting out the nature of the repairs undertaken and a timetable for any necessary future repairs.
(4)The matter is adjourned to Thursday, 11 February 2016 at 10:00am before President Daniel.
On 4 February 2016 the lessor’s solicitors emailed the Tribunal and attached a report from John Patafta of JP Electric & Security dated 4 February 2016 which stated that he installed the lights and control gear and did the inspection on the Tuesday [2 February], and on 3 February 2016 he inspected the ACTEW power board and “the power to the site is in good order and working well.”
On 10 February 2016 the lessor’s solicitors informed the Tribunal by email, in relation to Orders 1 and 2 dated 28 January 2016, that Mr John Patafta, electrician, had inspected the premises on 3 February 2016 and provided his report on 4 February 2016 which had in turn been provided to the Tribunal and the tenant. In relation to Order 3 the email stated:
In relation to the elevator, Mr Jurgen Hirsch (OTIS) was called to site to attend to the elevator in January 2016. He confirmed it was running without issue. He subsequently certified the safety of the lift (later on 28 January 2016). Since those attendances the lessor has had the opportunity to liaise with Schindler Lifts (the manufacturer). The lessor has also been able to obtain Schindler’s maintenance contract. The lessor advises that Schindler have agreed to attend to the lift and restore it to working condition. While it is not expected that on-going repairs will be necessary, we will confirm as soon as we able as to the lift status after Schindler have attended the premises.
On 11 February 2016 President Member Daniel made the following orders:
(1) Pursuant to section 83(b) of the Residential Tenancies Act the lessor is to repair the lift as soon as possible with regard to the nature of the problem.
(2) The lessor is to provide to the tenant by 18 February 2016 an updated list of qualified tradespersons for the purpose of clause 62 of the prescribed terms, including a nominated lift repairer with whom the lessor has an arrangement to conduct urgent repairs.
(3) The tenant’s claim for compensation for failure to effect urgent repairs in a timely manner is listed for a preliminary conference on Thursday 24 March 2016 at 9.30 am.
(4) The tenant is to give the Tribunal and to the applicant[sic]by 17 March 2016 a document setting out the amounts sought by way of compensation.
On 15 February 2016 the security system failed for three days. The elevator was restored to working order on 15 February 2016. The tenant claimed it had been inoperative for 88 days.
By letter dated 29 February 2016 to the Tribunal the lessor’s solicitors stated:
The respondent has undertaken the following:
(a) Pursuant to order 1 of the Orders [dated 11 February 2016], on 17 February 2016 an email was sent to all tenants by the managing agent firm LJ Hooker Manuka which advised that the lift had been repaired and a service agreement entered.
(b) Pursuant to order 2 of the Orders, on 17 February 2016 LJ Hooker Manuka contacted tenants of [the premises] by email and provided the 24 hour contact telephone numbers for repairs to the lift. On 19 February 2016, a list of qualified tradespersons for the purpose of clause 62 of the prescribed terms was updated to include a nominated lift repairer who can conduct urgent repairs and provided to Mr Withers-Norris and other tenants.

On 18 March 2016, following an exchange of emails between the parties, the following orders were by General President Crebbin:
(1) Order 4 of the orders made on 11 February 2016 is varied by deleting ‘17 March 2016’ and substituting ‘31 March 2016’.
(2) The conference listed for 24 March 2016 is vacated.
(3) The application is relisted for conference on Tuesday 19 April 2016 at 11:00 am.
On 12 April 2016 the tenant filed a statement of claim which included the quantum of his claim. In addition to the issues raised in his application he claimed that he had reported to LJ Hooker Belconnen in the entry report completed on 4 November 2015 that the internal storage shed in the garage had been forced before he took up occupation and the lock was broken. He claimed, because of the open garage door, an intruder had gained access to the garage and his storage shed pillaging and emptying his boxes; the intercom ceased functioning from 20 December 2015 to 4 January 2016 and from 22 February 2016 to 29 February 2016, a cumulative period of 22 days; because of the elevator not functioning for 88 days he needed to use the fire stairs to access his property which were non compliant as there was an absence of lighting in the fire stairs for approximately 88 days and the front doors were permanently wedged open; and that the common areas of the complex had been cleaned once in almost six months notwithstanding that he had raised the cleanliness of the building with LJ Hooker Manuka on 2 March 2016.
The applicant quantified his compensation claim as follows:
Loss of use of the elevator, $24 a day for 88 days  $2,112.00
Inoperative Security System, for 22 days at $27.14 a day
(being 40% of daily rent of $67.86)  $   597.08(sic)
Loss of amenity of storage shed from 22 December 2015,
112 days at $2.04 a day (being 3% of daily rent)  $   230.72
Intercom - 3% of weekly rent, $14.25, for 3 weeks  $     42.75
Cleanliness - 5% daily rent of $67.86 for 174 days               $   591.60(sic)
Plus ACAT filing fee  $     68.00
Total  $3,642.15
At the conference on 19 April 2016 the application was set down for hearing on 14 June 2016 at 10:00am and directions were made for the filing of further material.
The inspection report of the premises dated 21 April 2016 completed by the property manager, Christine Pfeiffer, stated under Closing Remarks “Latch in storage doesn’t work - with padlock won’t work.”
On 13 May 2016 the tenant filed another claim which he described in his email as “not substantially changed”. On 16 May 2016 the tenant filed the Entry Report/Inventory and Condition Report dated 4 November 2015, photographs and copies of diagnostic imaging from Life Span Medical Imaging dated 10 October 2006 and from National Capital Diagnostic Imaging dated 24 January 2012.
On 6 June 2016 the lessor’s solicitors filed the following:
(a)Response disputing the application on the following grounds:
(1) The Respondent denies that any actions (or inactions) of the Respondent have resulted in any loss of the Applicant’s use or enjoyment of the premises described as [the premises];
(2) The Respondent denies that the Applicant’s use or enjoyment of the premises has been diminished as a result of the security system, the elevator, the internal storage shed, the intercom, the cleanliness, the fire stairs the Premises in part or at all; and
(3) The Respondent denies that the Respondent is indebted to the Applicant in the amount alleged or at all.
(b)Report from Jurgen Hirche dated 28 January 2016;
(c)Colour photographs dated 28 January 2016 in respect of the fire stairs;
(d)Report from JP Electric & Security dated 4 February 2016;
(e)Letter addressed to tenants at [the premises] dated 10 February 2016; and
(f)Letter addressed to ACAT dated 29 February 2016.
On 8 June 2016 the lessor’s solicitors filed a copy of the agreement between the lessor and the tenant dated 13 October 2015.
On 10 June 2016 the lessor’s solicitor requested that the hearing date of 14 June 2016 be vacated. The request was opposed by the tenant and not granted by the Tribunal.

The Hearing

The application was heard on 14 June 2016. The tenant represented himself; gave sworn evidence and was cross examined. The content of this evidence is addressed below. The lessor was represented by Ms Mulherin of McInnes Wilson (formerly DibbsBarker), Solicitors. The lessor did not give evidence or call evidence and did not attend the hearing. After hearing submissions from the tenant and Ms Mulherin the Tribunal reserved the decision.

The claims

The applicant’s claim, as amended, totals $3,642.15. The particulars of the applicant’s claim are set out in [36] above.
Ms Mulherin informed the Tribunal that there was no real dispute as to the periods for which the applicant claimed that the security system, the lift, the intercom and the lighting in the fire stairs were not operating, and that the storage unit was broken. However, the lessor disputed the applicant’s claims for compensation on the basis of the matters set out in the response in [40] above.
While the applicant had included, as part of his compensation claim, the impact on his medical condition of the lift not operating for the 88 days he alleged, he did not pursue that at the hearing.

Jurisdiction

The ACT Civil and Administrative Tribunal is a statutory body with exclusive jurisdiction to hear and decide any matter arising from residential tenancy agreements under the RT Act.[1] Section 79 of the RT Act permits a party to a residential tenancy agreement to apply to the Tribunal for resolution of a tenancy dispute. Section 72 of the RT Act describes a tenancy dispute as a dispute between parties to a residential tenancy agreement that arises from the agreement. It includes an application for compensation made under the RT Act. Section 83(d) of the RT Act gives the Tribunal power to make an order requiring the payment of compensation from any loss caused by the breach of a residential tenancy agreement. Section 71 allows tenants to apply for a reduction in the rental rate payable under a residential tenancy agreement if the tenant’s use and enjoyment of the premises has diminished significantly as a result of, for example, the failure of the lessor to maintain the premises and any appliance, furniture or facility supplied with the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement, the loss of use of all or part of the leased premises, interference with the tenant’s quiet enjoyment of the premises or interference with the tenant’s ability to use the premises in reasonable peace, comfort and privacy.
[1] Section 76 of that Act
In an earlier tribunal decision, Salem & Gizgeez and Abeygunasekara & Jeevanthan[2] General President Crebbin said:
This tribunal and the former Residential Tenancies Tribunal have taken the approach that compensation should be awarded by way of rent reduction under section 71 of the RTA while the tenancy is still in existence and that lump sum compensation payments under section 83(d) ... should be considered where the tenancy has terminated.
[2] [2011] ACAT 9 at [8]
The matter does not exceed $25,000.00, the maximum amount for which it has jurisdiction under section 76(2)(a) of the RT Act.
The Tribunal has jurisdiction in this matter.

Legislation

The Residential Tenancies Act 1997

The RT Act governs residential tenancy agreements in the ACT. Key terms relevant to this matter are set out below.
Section 8 requires residential tenancy agreements to contain the standard terms set out in Schedule 1 of the Act.
A party has a duty to mitigate their loss under section 38, which provides that a person who would be entitled to compensation under this Act is not entitled to the compensation, or part of it, if the loss, or part of the loss, to be compensated could have been reasonably avoided.
Schedule 1 of the RT Act sets out the standard terms contained in residential tenancy agreements.
Clause 1 states that the tenancy agreement is made under the RT Act.
By signing the agreement, the parties agree to be bound by its terms (clause 2) and cannot contract out of it except as provided for by the RT Act (clause 3).
Clauses 52 sets out what is known in common law as the tenant’s right of quiet enjoyment and states:
the lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.
Clause 54(1) states:
At the start of the tenancy, the lessor must ensure that the premises, including furniture, fittings, and appliances (unless excluded from the tenancy agreement) are fit for habitation, reasonably clean, in a reasonable state of repair, and reasonably secure.
Clause 55(1) states:
The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement.
Pursuant to clause 55(2) the tenant must notify the lessor of any need for repairs.
Clause 57 states:
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)
Clause 59 states:
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.
Clause 60 lists the following relevant urgent repairs:
(k) a fault or damage that causes the residential premises to be unsafe or insecure and
(m) a serious fault in any door, staircase, lift or other common area that inhibits or unduly inconveniences the tenant in gaining access to and use of the premises.
Pursuant to clause 61 the tenant may authorise urgent repairs to a maximum value of up to 5% of the rent of the property over a year if the lessor cannot be contacted or fails to effect the urgent repairs within a reasonable time.

ACT Civil and Administrative Tribunal Act 2008

The applicant has claimed for recovery of the Tribunal application filing fee.
Section 48(1) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) states that “the parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders.”
Section 48(2) provides that if the Tribunal decides in favour of the applicant, the Tribunal may order the respondent to pay the applicant (a) the filing fee, and (b) any other fee incurred by the applicant that the Tribunal considers necessary for the application.

Consideration of issues

The lessor’s solicitor told the Tribunal that it was uncontroversial that there were issues with the security system, the garage door, the lift, the intercom, the defective lock on the storage unit and the lighting in the fire stairs and that the period that these issues arose was unfortunate as the agent had been on leave and it included the Christmas period.
Ms Mulherin submitted that (i) any claim for compensation should be limited to urgent repairs, namely to the security system, lift and the garage door and only for the period from 20 December 2015 to 4 January 2016; and (ii) if the Tribunal is considering the fact that the lift was out until 15 February 2016 then it should also take into consideration that the lessor complied with the Tribunal’s orders.
Ms Mulherin also submitted that ‘compensation’ in section 71 of the RT Act meant compensation for economic loss. Further she referred the Tribunal to the ACT Supreme Court decision in Worrall v Commissioner for Social Housing[3] and submitted that the tenant should demonstrate a significant impact on himself for him to be compensated.
[3] (2001) ACTSC 72
In that decision the Supreme Court considered a number of cases which considered the term ‘significant’. At [41] the Supreme Court referred to Truswell v Minister for Communication and the Arts(1996) 42 ALD 275 where Matthews J said at [121], after considering the meaning of the term in both the Oxford English Dictionary and the Macquarie Dictionary, that:
One thing is very clear, namely that there is necessarily a fair degree of value-judgment involved in attributing significance to something. Significance must also depend upon context. The very use of the term must frequently involve the subsidiary question significant for what?
The Supreme Court also stated at [42] and following:
42. The importance of the contextual setting was also stressed by Stein J in Drummoyne Municipal Council v Roads and Traffic Authority [1989] NSW LEC 19, who suggested that a significant effect "must be an important or notable affect . . . as compared with an affect which is something less than that, ie, non-significant or non-notable".
43. In Jarasius v Forestry Commission of NSW (No 1) (1990) 71 LGRA 79 Hemmings J held at 93-94 that in considering whether developments had a significant impact upon the environment the term "significant" meant something of "importance" or "more than ordinary".
44. In the context of a statutory provision which authorises the Tribunal to intervene in contractual rights and to order a reduction in the agreed rent the term should not be taken to mean merely sufficient to prevent the issue being brushed aside as de minimus. See Lambeth London Borough Council v Grewal (1985) 82 Cr App R 301 at 306. On the contrary, I think it is most unlikely that the legislature intended to permit the Tribunal to be flooded by claims for relatively minor incursions into the use or enjoyment of leased premises and that something of "importance" or "more than ordinary" must be established.

Tenant’s claim for breaches of the residential tenancy agreement

The tenant told the Tribunal that the property he had leased had been advertised as an executive apartment which was less than two years old and had a sophisticated security system and included underground parking and storage and a functioning internal lift. He is paying $475.00 rent a week. The building is located next to the Red Hill shops and surrounded by public housing. Because of its location near public housing the functioning security system was “key for him”. He also said that one of the beauties of living in an apartment with a lift was that it was easy to move furniture in and out and to carry purchases from the basement garage to his apartment on the third floor. To access his apartment from the garage by stairs he had to climb two flights of stairs, one being the fire stairs from the basement and the second being the stairs in the complex to his apartment.
On about 21 December 2015 numerous issues arose in relation to the complex’s security system, intercom, garage door and lift. Other issues in relation to building maintenance arose subsequently. These issues are detailed in the email exchange set out under ‘Background’ above. The tenant asserted that each of these issues has substantially diminished his use and enjoyment of the premises.
He further asserted that:[4]
while the building maintenance issues have been significant, it is the failure of the Lessor to attend to the issues and effect urgent repairs in a timely manner that has led to the issues being protracted, and to the proceedings I initiated in the ACAT on 6 January 2016.
He had originally limited his application to urgent repairs but when it became clear to him that even getting urgent repairs attended to required an order from the Tribunal, he included in his claim all other items which were remiss with the property, namely the broken storage unit and latch and the lack of cleanliness of the common areas. He added, in the hearing, that it was a significant burden for him as the tenant to try to effect the repairs when the lessor had the legal and contractual obligation to do so and that it was not until the Tribunal hearing on 25 January 2016 that a process commenced to fix the various issues.

Breach of clause 55(1)

[4] Tenant’s statement of claim filed 13 May 2016 at [6]

Under clause 55(1) the lessor is required to maintain the premises in a reasonable state of repair, having regard to their condition at the commencement of the lease.
The tenant claims the following breaches of clause 55(1) – the failure of the security system which caused the garage door to the basement being permanently open and then permanently closed; the electronic swipe pads failing, the intercom failing, the CCTV cameras failing and the lift failing. The tenant also claims that the storage door to the shed had been forced and the latch broken and remained unrepaired from the commencement of the tenancy and had not been repaired at the date of the hearing notwithstanding he had given the required notice in November 2015 and in April 2016. At around the time the security system failed the tenant claims that lighting in the fire stairs also failed.
The tenant also claims that the lessor breached clause 59 – 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.
The tenant relies on his evidence including the inventory and condition report and photographs, the routine inspection report, his statement of claim, the emails between the managing agent and the tenant and his submissions.
Security System
The Tribunal is satisfied that the failure of the security system met the criteria in Clause 60(k) – a fault or damage that causes the residential premises to be unsafe or insecure – and should have been dealt with as an urgent repair.
The Tribunal accepted the tenant’s evidence of the failure of the security system and the consequences of that as detailed in [9] above. His evidence was not successfully challenged. The lessor did not call any evidence to rebut the tenant’s evidence.
The Tribunal is satisfied that, as required by clause 59, the tenant brought this issue and other matters to the managing agent’s attention the day this issue arose, 21 December 2015, by telephone and by email on 22 December 2015, and that the lessor did not take any or any immediate action to have the repairs fixed notwithstanding that the managing agent had referred the problems to the lessor as urgent.
On 27 December 2015, when the urgent repairs had not been attended to, the tenant took action. As no security system tradesperson was named in the URS the tenant contacted the electrician named in the URS about the repairs. The tenant also contacted the company identified on the security system circuit board and found out that they had not been informed that there was an issue at the lessor’s complex.
Pursuant to clause 61 the tenant arranged for and authorised Smart Design to repair the security system on 4 January 2016. The security system again failed on 12 January 2016 for five days and the tenant had, again, to instigate an urgent repair by the technician. The security system also failed on 15 February 2016 for 3 days. The Tribunal finds that the security system was inoperative for a total period of 22 days.
The Tribunal accepted the tenant’s evidence that as a result of the failure of the security system the garage door to the basement was left open from 21 December 2015 to 4 January 2016 and the lighting in the garage was on and unable to be turned off. The tenant’s belongings, which were in his storage shed in the garage, had been rummaged through during this period. Further, the front door to the complex was kept open with a stick and the complex could be accessed through it and through the basement garage and fire stairs as the swipe pads had also failed. The door to the fire stairs had also been chocked open. The tenant told the Tribunal that none of the keys provided by the lessor opened any of the external doors to the building. It was no longer a secure complex.
After the security system failed again on 12 January 2015 the garage door was down and the tenant’s car was inside the garage and, effectively, impounded. The tenant said that the tradesperson from Smart Design Security installed a switch on the inside of the circuit box and told the tenant to rub a live wire from the box on one of the screws to open the garage door. The tradesperson assured him this was ‘perfectly safe’ and as he was desperate to retrieve his car the tenant opened the garage door this way and then left his car outside until the garage door was fixed.

In considering whether the lessor failed to carry out urgent repairs to the security system as soon as necessary the Tribunal notes that the tenant provided notice of the failure of the security system and the lift two business days before Christmas 2015 as the managing agent’s office was closed from 23 December 2015 for the Christmas period.
In Kerai v Miller[5] (Kerai) the NSW Consumer, Trade and Tenancy Tribunal (CTTT) considered a claim for compensation by the tenant for non-urgent repairs where the tenant had provided notice of defects to the air conditioner and the garage remote two business days before Christmas and the notice included 19 defects. While the lessor in that case had taken 31 days to fix the defective remote and 18 days to fix the air conditioner the CTTT took into account that the notice included 19 defects and was given two days prior to Christmas as well as evidence that there was a shortage of air conditioner technicians at that time as there had been a heat wave. The CTTT found that the lessor had acted with reasonable diligence. The Tribunal notes that the CTTT had evidence from the lessor’s agent in Kerai and the repairs the subject of the hearing were not urgent repairs.
[5] [2011] NSWCTTT 325
In the present matter the decision in Kerai can be distinguished. The repairs in the present matter were urgent and the Tribunal did not have the benefit of any evidence from the lessor or any other person on his behalf which may have assisted the Tribunal. While notification of the urgent repairs was given some two business days before the then managing agent closed for the Christmas period, the lessor did not take any action to have the urgent repairs carried out. The URS did not have the relevant contact information for such an emergency. It was the tenant who contacted the relevant tradespeople.
The Tribunal has taken into account the scope of the repairs, the urgency of the work and the time of the year and is satisfied and finds that the lessor failed to carry out urgent repairs as soon as necessary to ensure the premises were secure and safe as required by clause 59.
The Tribunal has also considered the decisions of earlier tribunals in relation clauses 54 and 55 of the Standard Residential Tenancy terms in Brogan Prestige Properties v Strand & Black [2010] ACAT 60 (Brogan) and Salem & Gizgeez v Abeygunasekara & Jeevanthan [2011] ACAT 9 (Salem & Gizgeez). In Brogan at [68], the tribunal said:
In Irena Peters v Commissionner for Housing for the ACT [2006] the then Residential Tenancies Tribunal decided that a lessor's obligation to repair under standard residential tenancy terms 54 and 55 is framed in mandatory terms, i.e. the lessor “shall” maintain the premises in a reasonable state of repair. It is therefore not a defence to any landlord to plead that reasonable steps were taken to rectify either patent or latent defects. The test is whether these defects were in fact remedied such as to maintain the premises in a reasonable state of repair.
In Salem and Gizgeez at [44] the tribunal said:
The obligation to maintain premises in a reasonable state of repair, imposed by clause 55 of the standard terms on the lessor, is a mandatory obligation that is not diminished by the fact that the need for repairs is due to fault on the part of a third party, or by reliance on a third party to undertake repairs.
The Tribunal agrees with those views.
Having considered all of the evidence and the submissions the Tribunal finds, as well as breaching clause 59, that the lessor breached clause 55(1) in failing to maintain the security system in a reasonable state of repair having regard to the condition of the premises at the commencement of the tenancy. The tenant had complied with his mandatory obligation under clause 55(2) and notified the lessor’s agent of the need for repairs. While the lessor did eventually have the repairs to the security system carried out there was a period of 22 days when the security system remained inoperative and it required action by the tenant pursuant to clause 61 to bring about the repairs.
The Tribunal finds that, as well as breaching clauses 55(1) and 59 the lessor has also breached clause 52. The Tribunal accepted the tenant’s evidence that, when the garage door was permanently open from 21 December 2015 an intruder obtained unauthorised access to the garage and building generally, and rummaged through the tenant’s property in the storage shed in the garage. This made him feel violated. When the garage door was initially repaired and then permanently closed, the tenant’s car was impounded.
The Tribunal also accepted the tenant’s evidence that the lessor and/or his failure to provide the managing agents with the necessary authority to engage a technician in a timely manner to conduct urgent repairs meant that the tenant spent his own time corresponding with the agents and then researching and engaging the technicians to undertake the urgent repairs and attending the premises while the repairs were being undertaken.
The Tribunal does not accept the lessor’s submission above that ‘compensation’ in section 71 of the RTA means compensation for economic loss.
In a recent tribunal decision, But v Baldwin (Residential Tenancies) [2016] ACAT 9, President McCarthy considered an application for compensation for, among other repairs, failing to make non urgent repairs within four weeks of notification pursuant to clause 57. He said at [31] and [32]
31.Where the lessor was in breach of her obligation to make repairs to the shower within four weeks of being notified of the need for the repairs, even if the breach did not arise from neglect on her part or Ms Reid’s part, the tenant should be compensated for the breach. Compensation is payable not because of any neglect on the lessor’s part but because the lessee continued to pay the weekly rent of $700 but did not have the use of the property to the extent of the deficiency.
32.Assessment of appropriate compensation is a question of judgement about which reasonable minds may differ. I assess compensation for the inconvenience of the unusable shower in the circumstance of this case from 1 April 2015 (being a date four weeks after the leak was reported) until its repair towards the end of May 2015 (being a period of approximately eight weeks) in the sum of $400.
The Tribunal agrees.
The Tribunal is satisfied that the lessor’s breaches have had a significant impact on the tenant. The Tribunal finds that the impact of the failure of the security system was a significant incursion into his use and enjoyment of the premises he had leased as an executive apartment. The Tribunal finds, in relation to the security system, that the tenant is entitled to compensation for these cumulative breaches assessed as follows, namely 25% of daily rent of $67.85, namely $16.85 for 22 days, $373.23.
The Lift
The Tribunal is satisfied that the failure of the lift met the criteria in Clause 60(m) – a serious fault in any door, staircase, lift or other common area that inhibits or unduly inconveniences the tenant in gaining access to and use of the premises - and should have been dealt with as an urgent repair.
The Tribunal accepted the tenant’s evidence and is satisfied that the lift, effectively, remained out of service from around 21 December 2015 until 15 February 2016.
The tenant’s efforts to arrange for the urgent repair of the lift pursuant to clauses 61 and 62 were stymied because the lessor had not entered into a service agreement or retainer for the lift notwithstanding that he had had the necessary paperwork since 2014 and he had not included the name of a lift service company in the URS.
It took the tenant commencing proceedings in the Tribunal on 6 January 2016 and subsequently seeking urgent orders on 25 January 2016 to have orders made requiring the lessor to have the lift inspected. While, in compliance with the tribunal orders, technicians did attend the premises and restore the lift to working order on 28 January 2016 it ceased functioning again on the same day and was not restored to working order until 15 February 2016.
The Tribunal is satisfied and finds that the lessor breached his mandatory obligations pursuant to clause 55(1) by failing to maintain the lift in a reasonable state of repair having regard to its condition at the commencement of the tenancy. The lessor also breached his mandatory obligations pursuant to clause 59 by failing to carry out urgent repairs to the lift as soon as necessary.
The tenant said that the absence of a functioning lift impacted on him significantly. While no longer pursuing compensation because of his spinal injury which made using stairs a difficult proposition he said that he had to reschedule his family Christmas due to the loss of wheelchair access to the premises precluding his grandmother from attending. He was unable to do his grocery shopping because of the lack of the lift and his inability to carry the shopping up two flights of stairs, one of which was unlit.
As with the repairs to the security system, the inaction of the lessor and/or his failure to provide the managing agents with the necessary authority to engage a lift technician in a timely manner to conduct the urgent repairs meant that the tenant spent his own time corresponding with the agents and calling multiple lift vendors including Schindler, the manufacturer of this lift, to arrange for the lift repair. Due to the lessor’s failure to have a service agreement in place for the lift none of the lift vendors contacted agreed to attend the complex. The tenant then initiated the application for resolution of a tenancy dispute in the Tribunal, which again took time as did his attendance at the conferences and hearings.
The tenant’s unchallenged evidence was that he believed if the lessor had had a service agreement in place for the lift it could have been repaired on 22 or 23 December 2015 or at the latest on 4 January 2016. Instead it was not repaired until after the Tribunal made orders on 25 January 2016 and then the repairs did not last more than a few hours. It was not properly repaired until 15 February 2016. The Tribunal is satisfied that the lift was not in working order from 21 December 2015 to 15 February 2016, a period of 56 days. The tenant claimed compensation in relation to the lift for a period of 88 days. The Tribunal is not persuaded from the evidence that the lift was inoperative for 88 days.
The Tribunal is also not persuaded by Ms Mulherin’s submission above that, if the Tribunal finds that the lift was out until 15 February 2016, the Tribunal should take into consideration that the lessor complied with the Tribunal orders. The lessor had a contract with the tenant, a term of which was to carry out urgent repairs as soon as necessary, having regard to the nature of the problem (clause 59). The contract provided for non-urgent repairs to be carried out in four weeks, or 28 days. The lessor did not even meet the timetable for non-urgent repairs when having the lift repaired.
The Tribunal is not satisfied that the lessor’s liability should be reduced because he complied with the Tribunal’s orders. The lessor should comply with such orders. The fact is that it should not have been necessary for the tenant to institute these proceedings in the Tribunal in the first place and it would not have become necessary if the lessor had met his mandatory contractual obligations. The lessor had had the service agreement for the lift since 2014 and not signed and returned it to the service provider. Had he had a service agreement in place, as the tenant was entitled to expect when renting an executive apartment, the lift may have been able to be repaired on 22 or 23 December or on 4 January 2016.
The Tribunal is satisfied that the lessor’s breaches have had a significant impact on the tenant. The Tribunal finds that the impact of the failure of the lift system was a significant incursion into his use and enjoyment of the premises he had leased as an executive apartment.
The Tribunal now turns now to the question of the quantum of compensation. The tenant claims $24 per day compensation. He referred the Tribunal to the decision by the South Australian Tenancy Tribunal (SATT) in Maione v Vescovo[6] (Maione). In Maione the rented premises were on the 6^th floor. The tenant was paying $450 rent per week ($64.28 a day). The escalator broke down for 25 days. The SSAT found as the premises were located on the 6^th floor of the building it was totally unreasonable to expect any occupant to climb six flights of stairs to get to the premises. The SSAT took into consideration that the tenant spent some time in a hotel and resided with friends. The SSAT also took into account the fact that the tenant’s children occupied the premises for part of the time which justified reducing the amount of compensation which would have otherwise been payable. The SSAT awarded the tenant compensation of $1,200 which amounts to $48 per day or 75% of the daily rental.
[6] [2006] SARTT 2
The tenant, in the present matter, seeks half of the daily amount awarded in Maione, $24 per day. The Tribunal notes that the tenant continued to occupy the premises while the lift was not working.
The Tribunal has also considered the decision of Craigie v Moore [2012] NSWCTTT 444 (Craigie) which concerned a lift failure for 12 days. In that case the tenant lived on the sixth floor and accessed his flat by using the fire stairs during that period. The Consumer Trader and Tenancy Tribunal said at [20] and [21]
20.The undisputed evidence is that the lift failure for 12 days necessitated the applicant and his flatmate to enter and leave the premises located on level six of the building by the fire stairs.
21.The Tribunal is satisfied that there should be an order that the respondent pay the applicant the sum of $300.00, representing an amount equal to 25% of the rent payable under the lease during the 12 days of the lift’s inoperation. In making this assessment, the Tribunal takes into account that the premises themselves were still habitable but, nevertheless, considers that a compensation order is appropriate for the inconvenience of access to the premises which spanned those 12 days of the lift’s failure.
Having considered the matter, and in particular noted the fact that the lift was not repaired for 56 days, more than double the time the lift was broken down in Maione and 43 days more than the lift was inoperable in Craigie the Tribunal finds that the compensation of $24 a day sought by the tenant is the appropriate amount of compensation for this matter. It represents 35% of the tenant’s rent.
The Tribunal finds that the tenant is entitled to compensation for these cumulative breaches of clauses 55 and 59 in relation to the lift in the amount of $24 per day for 56 days, $1,344.
Fire stairs
The tenant told the Tribunal the fire stairs were unlit for most of the time the lift was not functioning. Although he was not seeking compensation for this defect he said that the fire stair lighting was not satisfactorily repaired until around 2 February 2016.
As well, he claimed that the lessor had only provided him with one practical entry and egress point in the building from the basement garage which was through the chocked open door to the fire stairs and the fact that the door was chocked open and the fire stairs were unlit was inconsistent with the lessor’s obligations under the relevant health and safety legislation and the lease agreement. For the tenant the lessor’s failure to comply with Health and Safety Regulations was indicative of the lessor’s unresponsive attitude to his contractual obligations to carry out urgent repairs and maintenance at the premises in a timely manner.
Storage
Clauses 54(1)(c) and (d) provide that the lessor must ensure that the premises, including furniture, fittings and appliances are in a reasonable state of repair and reasonably secure.
Clause 57 provides that the lessor must make repairs, other than urgent repairs within 4 weeks of being notified of the need for repairs.
The Tribunal accepted the tenant’s evidence, which was corroborated by the condition report, maintenance request dated 22 December 2015, routine inspection report 21 April 2016 and photographs of the broken lock and storage shed doorframe.
While the tenant did not claim that anything of value was taken when the storage shed was accessed while the garage door remained open due to the security system failure the tenant said that he found his storage shed in a state of total disarray as boxes had been pillaged and emptied. He claimed that the intrusion left him feeling violated and that his privacy had been significantly impinged upon. He subsequently removed all items from the storage shed from 22 December 2015. He has lost the use and enjoyment of the storage shed since 22 December 2015 and this loss continued to the date of the hearing as the shed and the lock had still not been repaired.
The Tribunal finds that the lessor failed to carry out the repairs to the storage shed doorframe and lock within four weeks of being notified on 22 December 2015 and has been in breach of clause 57 since 19 January 2016, being four weeks after 22 December 2015. The Tribunal also finds that the lessor continued to be in breach of clause 57 at the date of the hearing, a total period of 147 days.
The tenant claims compensation of 3% of the daily rental of $67.85, or $2.04 per day since 22 December 2015. The Tribunal assesses compensation from 19 January 2016 at $2.04 for 147 days, namely $299.88.
Intercom
The Tribunal is satisfied that the premises had a fully functioning intercom at the commencement of the lease. The Tribunal accepted the tenant’s evidence that the intercom ceased functioning from 21 December 2015 to 4 January 2016 and again for seven days in February making a cumulative period of 21 days.
The tenant also told the Tribunal that he was quite apprehensive about opening the front door to visitors while the intercom was not working as undesirable individuals frequented the front of the premises. He said he did not feel as secure as he should have been renting an executive apartment.
Pursuant to clause 55(1) of the lease the lessor is mandatorily required to maintain the premises in a reasonable state of repair having regard to the condition of the premises at the commencement of the lease. Pursuant to clause 57 the lessor is mandatorily required to make the repairs within four weeks of being notified of the need for repairs.
While the Tribunal is satisfied that the lessor has breached clause 55(1) in relation to the intercom the Tribunal is also satisfied that the repairs were carried out within four weeks in accordance with clause 57.
For these reasons the Tribunal does not assess any compensation payable by the lessor for the period the intercom had failed.
Cleanliness
The tenant raised the lack of regular cleaning of the common areas with the managing agent on 2 March 2016. He told the Tribunal that there was a significant build-up of dead insects, spider webs, dirt and grime over the tiled floors, ceiling, gutters and walls as the corridors are open to the elements. Birds are able to access the common areas and have left faeces, feathers and detritus on the floor and the bin room has not been cleaned and has a powerful odour. He described a build-up of waste in the garage comprising cardboard boxes, leaves, foliage and dirt. He said that there had been one clean of the common areas in the almost six months he had been a tenant at the premises. He described the common areas as unhygienic, putrid and embarrassing and told the Tribunal that his visitors had commented to him on the disgusting nature of the common areas. A regular cleaner had been engaged from 13 April 2016.
The tenant submitted that as the property was advertised as an Executive Apartment, the absence of a cleaning schedule for the common areas was inconsistent with the representations of the quality of the apartment and unacceptable for an executive apartment complex.

The tenant claimed that the lessor’s failure to implement a regular cleaning schedule before April 2016 had substantially reduced his use and enjoyment of the property. He claimed compensation of 5% of the weekly rental value of the property for 174 days. It appears that the tenant is claiming compensation for the lessor’s failure to implement a cleaning schedule for approximately 25 weeks.
However, the tenant did not notify the managing agent of this issue until 2 March 2016 and a regular cleaner was engaged from 13 April 2016. The tenant also said that the common areas had been cleaned once between his entering the agreement on 13 October 2015 and 13 April 2016. In these circumstances the Tribunal is not satisfied that the tenant has established that he should be compensated for the lessor’s failure as alleged.
Mitigation
The Tribunal notes that under section 38 of the RT Act, the tenant must take reasonable steps to mitigate his losses; he is not entitled to compensation for losses which he could have been avoided but failed to avoid due to unreasonable action, or inaction.
In this matter the Tribunal is not satisfied that the tenant could have taken any further action than he had already taken to mitigate or avoid any loss.

Tribunal Fee

Under section 48(2) of the ACAT Act, a successful applicant may recover the filing fee from the other party.
The tenant claims $68.00 for the filing fee. As the tenant application has been successful, the Tribunal will make an order that the lessor also pay to the tenant the filing fee.

Conclusion

For the reasons set out above, the Tribunal assesses the compensation payable by the lessor to the tenant for the various breaches and the filing fee as follows:
The security system  373.23
Lift  1,344.00
Storage shed  299.88
2,017.11
Plus Filing fee    68.00
Total  $ 2,085.11
As the tenancy agreement is continuing the Tribunal determines that the compensation is to be awarded by rent reduction under section 71. The daily rent payable is $67.85. $2,085.11 represents 30.73 days. The rent payable by the tenant to the lessor is to be quantified at $nil for 31 days from 1 September 2016.
………………………………..
Presidential Member E Symons
HEARING DETAILS

FILE NUMBER:	RT 6/2016
PARTIES, APPLICANT:	Stephen Withers-Norris
PARTIES, RESPONDENT:	Laurie Pastrello
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	Ms Mulherin, McInnes Wilson Solicitors
TRIBUNAL MEMBERS:	President E Symons
DATES OF HEARING:	14 June 2016