WOOLFE & ALBEKAA (Residential Tenancies) - [2011] ACAT 22

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WOOLFE & ALBEKAA (Residential Tenancies) [2011] ACAT 22

RT 517 of 2010
Catchwords: RESIDENTIAL TENANCIES – condition of the tenanted property before and during tenancy– lessors’ obligations – reduction of rent

List of legislation: Residential Tenancies Act 1997 (ACT), ss.71 and 86 and
Schedule 1

List of Regulations: ACT Civil and Administrative Tribunal Procedural
Directions 2010 (No 1), clause 7

Tribunal: Mr P.R Thompson, Member

Date of Orders: 17 August 2010
Date of Reasons for Decision: 18 March 2011

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 517 of 2010

BETWEEN:

COREY WOOLFE
Applicant

AND:

SAFI & SAMIRI ALBEKAA
Respondents

TRIBUNAL: Mr P.R Thompson, Member

DATE: 17 August 2010

ORDER

The Tribunal orders in respect of premises at 27 Palmer Street GARRAN ACT 2605

I find that the heater is non functional and therefore Order:

That the rent be reduced by $168.00 per week being 30% of the contrite weekly rent for the period of the lease.
That the applicant is entitled to a rent reduction in the form of damages in the sum of $3192.00 being 19 weeks at $168.00 per weeks which is to be credited against future rent .

Mr P.R Thompson

Member

REASONS FOR DECISION

On 25 June 2010, Ms Corey Woolfe, then of 27 Palmer Street, Garran in the Australian Capital Territory, made an application to the ACT Civil and Administrative Tribunal (the ACAT) for the resolution of a tenancy dispute.
The respondents to the application were named as Safi and Samira Albekaa, with their address given in the application as C/- of Richard Luton Properties of 1/58 Corrina Street, Woden, ACT.
The main issues in dispute were listed in the application as a broken heater and the general cleanliness of the property rented by her from the respondents. In particular, the applicant was seeking orders that the lessors repair the broken heater and clean the premises. She was also seeking compensation and/or damages for what was stated to be the “Diminished use and enjoyment” of the rented property.
Attached to the application was a document headed ”Statement of Particulars” in which was set out a more detailed account of the issues claimed to be in dispute between the parties to the tenancy agreement. Whilst I do not intend to reproduce that document in full, I have included a list of the problems said to be in existence at the commencement of the tenancy. Those problems were stated to be as follows:
a.The property was very dirty, in particular the kitchen which was putrid;
b.The yard was very untidy and over-grown;
c.The shed and garage were full of rubbish;
d.The twin sliding doors to the living room were broken;
e.The front step was cracked and loose;
f.The carpet was very dirty and stinks;
g.Power points were broken;
h.The spa did not work:
i.There were exposed copper wires in a light fitting in the bedroom:
j.Dishwasher was broken –leaking water;
k.Heater ducts were full of rubbish –very dirty;
l.Almost all of the curtains were broken-hanging off not functionable;
m.Fence missing entire panels in places;
n.Only one of the three burners on stovetop working properly;
o.Bedroom door (3) does not close at all-wrong size door;
p.Two windows broken –do not lock;
q.Back sliding door lock broken;
r.Smoke alarms do not work;
s.Bathroom fixtures were broken:
i.   Light switch broken and un-safe;
ii.    Cover for Tastic in ensuite;
iii. Railing in ensuite was broken;
iv. Toilet seat not attached and cistern leaks;
v.    Ensuite bathroom door does not close properly.

According to the applicant, the majority of these problems were brought to the attention of the managing agent, Richard Luton Properties in an e-mail dated

8 April 2010. Since then, further problems were brought to their attention, with some items being repaired, whilst others still required attention.
The expanded Statement of Particulars also set out in some detail over

45 paragraphs, the problems encountered by the applicant in respect of the ducted gas heating installed at the rented premises, which evidently did not work and was invested by vermin. The broken heater was claimed to be the first and most important issue that she had with the rented premises.
Attached to Ms. Woolfe’s application were a number of documents marked as annexures and numbered 1 to 20. Annexure 1 was a copy of the residential tenancy agreement entered into between the parties on 7 April 2010 in respect of the residential premises situated at 27 Palmer Street, Garran ACT.

Rent was payable at the rate of $560.00 per week, due and payable at the rate of $2,433.33 per calendar month payable in advance, commencing on 1 May 2010.The first payment was to be a pro-rata payment covering the period from 8 April 2010 to 30 April 2010.
That document also contained a more detailed statement of the relief being sought by the applicant that included the following;
·An order under s84 of the Residential Tenancies Act 1997 that the lessor comply with clause 54 (1) of Schedule 1 and ensure that the ducted heating system is both reasonably clean and in a reasonable state of repair.
·Compensation for the heater not working in the form of a rent reduction of $250.00 per week under s71 (a)(ii) of the Residential Tenancies Act 1997
·Compensation for the applicant’s high electricity bill as a result of the gas ducted heating not working.
·Compensation in the sum of $570.00 for the time spent by the applicant cleaning the premises before she could move in, calculated at the rate of $30.00 per hour (19 hours).
·An order that the venetian blinds and the carpets be [professionally] cleaned.
·Compensation in the form of a rent reduction under s71 (a) (c) of the Residential Tenancies Act 1997, in respect of other issues outlined in her application, namely the inability to use one of the bedrooms until an electrical problem could be fixed, lack of privacy in the bathroom, a broken dishwasher together with a number of other problems which arose out of the general cleanliness, or lack of it, in the rented premises. The amount of the rent reduction sought was $150.00 per week.
·Finally, because it was claimed that the lessor was in breach of the tenancy agreement, the applicant was seeking an order that the lessor pay the costs of her relocation and also compensate her for the stress and duress of having to relocate after only two months of signing her tenancy agreement and moving into the premises, and “if so ordered that a further order be made under clause 90 of Schedule 1 of the Residential Tenancies Act 1997 terminating the tenancy for breach by the lessor.
The matter was subsequently listed for a conference before the Registrar on Monday 12 July 2010 with the respondents/lessors being asked to file a response to the application by close of business on 12 July 2010.
That response which was filed in the tribunal on 12 July 2010 as requested by the tribunal was as follows.
5a. Property was professionally cleaned by Jims Cleaning on 8/3/10,
invoice attached
b. Garden was mown, weeded, pruned 17/2/10, invoice attached and re
    attended to 9/3/10, invoice attached.
c. Rubbish from shed and garage removed 16/4/10, invoice attached
d. No instructions have been given from the landlord.
e. Repaired 17/5/10, invoice attached.
f. Carpets vacuumed as per invoice 8/3/10.
g. Repaired 27/4/10, invoice attached.
h. Repaired 27/4/10 invoice attached.
J. Dishwasher was not broken, leaking water at base. Owner arranged
    replacement through the Good Guys, Dishwasher was replaced.
k. Please see further response in answer
l. Tenant reported at first inspection
m Repaired 17/5/10, invoice attached.
n. Gas hotplates work, however ignition switch does not work.
o. No instructions from owner.
p. Window locks repaired, invoice attached 11/6/10.
q. Repaired 15/5/, invoice attached.
r. No legal requirement.
s. Repaired 11/6/10, invoice attached.
Whilst I have reproduced in full the lessors’ response to the issues raised by the applicant in her paragraph numbered 5 without further comment at this stage, additional comments made addressing each and every one of the issues raised by the applicant do require certain clarification from me as the 79 paragraphs of the original statement of particulars have not been reproduced in full in these reasons.
In Paragraph no.7, the applicant claimed that 4 days after taking possession, it became so cold so she attempted to turn on the ducted gas heating unit to find that it did not work and, additionally, that it was full of rats, or some kind of vermin, and the very small amount of air that emitted, was putrid smelling.
In response it was submitted that the property was never advertised or discussed with any party that ducted heating was provided with the property. A copy of the advertisement was attached.
In response, to the applicant’s claims in respect of the non functioning ducted heating, the respondents merely state that the reason it wasn’t working was because there were too many items around the inlet valve, and that when the technician left the property he advised that the heater was in working order.
There is no response whatsoever to the applicant’s assertion that when the heater was turned on it was emitting a putrid smell, nor to her claim that the technician advised her that there was evidence of rats in one of the ducts repaired by him. In fact of the 37 paragraphs under the heading ‘First issue – Heating’, in which the applicant outlined all her problems with the ducted heating and the attempts made by her to have the heater repaired, the respondents have chosen to address only the visit by the technician on

31 May 2010 (Para 34 of the response refers).
In response to the applicants claim that the twin sliding doors to the living room were broken, in that neither door would slide and that, in particular, the left door runner was not attached to the wall and thus presented a safety hazard, the respondents advised that the door was in its casing and was not a safety hazard. No response was made to the considerable inconvenience the broken doors created for the applicant, nor was any indication given that the doors would be fixed.
In response to claims by the applicant that the dishwasher was broken and leaking water, a fact initially reported to the agents on 29 April 2010, the respondents advise that a new dishwasher was delivered and installed on

9 June 2010. No reference is made to the claim that the applicant was without a dishwasher for 23 days.
In response to a litany of other issues set out in some detail by the applicant and to which the respondents answer was that it either was never reported to the property manager, or that there were ‘no instructions from owner’, the final paragraph of the response states that:
“We believe the compensation is excessive as a majority of repairs have been rectified in a timely manner by professional contractors.”
On 19 July 2011, the matter came before the Registrar, Mr A Morris who made a number of consent orders. Those orders were as follows:
1.Matter stood over generally.
2.Applicant to obtain independent assessment of installed Brivis Heating potentiality.
3.Leave to parties to relist, for Hearing. If parties request a case Management Conference, this can be facilitated.
4.
Order that owners or either of them to be in personal attendance at any future listing (Hearing or Conference).
On 28 July 2010, the applicant wrote to the Tribunal requesting that the matter be listed for hearing pursuant to paragraph 3 of the orders of 19 July 2010. Attached to that letter were copies of three independent assessments commissioned by the applicant pursuant to paragraph 2 of those orders.
Attached to the report prepared by Monaro Air was an e-mail sent by the company’s manager in which it was recommended that a duct clean be done on the system and further inspection carried out at the same time. He also recommended that the system should be ‘Air Balanced’ and that he had found that some of the dampers on the floor boots were damaged and needed to be replaced. Finally he recommended that the system should be serviced and checked. Monaro Air’s Tax Invoice /Statement numbered BC 333418 and dated 22 July 2010 contained the following notations;
“ found ducted heating system was rated to deliver 430 L/S at free air and found actual at 323 L/S at Return Air.”
The second report was prepared by Mr John Hudson, a licensed advanced gasfitter and plumber of Geo Energy Gas Services. That report was dated

27 July 2010. That report was as follows;
“Brivis 85 buffalo EMS2. Electronic control boards are faulty as heater has to be reset via 240 volt power (new electronics need to be installed).
Ducting under the house has holes where vermon[sic] can gain access, also smelling of this.
Suggest ducting be replaced and repaired.
Approx cost to repair heater $860 - This does not include Ducting.”
The third and final report was prepared by Capital Duct Cleaning. Their initial report was dated 26 July 2010 and was as follows:
“Inspection of duct vermon [sic] damage. Needs to be complete [sic] replace. Letter to follow with report details”
Subsequently, Mr Allan Sims, the Manager of Capital Duct Cleaning forwarded a letter to Ms Corey Woolfe, dated 27 July 2010. The contents of that letter are reproduced hereunder and were as follows;
“Dear Corey
On inspection of the deducted heating system at 27 Palmer Street, Garran on 26 July 2010 I found the ducting to have extensive damage due to rats nesting in ductwork, all ductwork leading into unit has holes due to rats chewing through and excretion from rats was also noted.
I recommend the system not to be used. If the heating is turned on contaminated materials found in the ductwork will be circulated in the family home.
Ductwork is beyond cleaning and repair.
We recommend a thorough extermination of rodents.
Heating unit itself can be cleaned but all flexible ductwork would need to be replaced to comply with Australian Health and Safety Standards and continual baiting and monitoring of rat infestation would need to be adhered to.
Yours sincerely
Allan Sims
Manager
Capital Duct Cleaning”
The matter was subsequently listed for a Hearing before the Tribunal at 10.00 AM on 17 August 2010 with the parties being advised by letter dated 2 august 2010.
On that date the matter came on for hearing before me with Ms Woolf appearing in person, with the respondents being represented by Mr Rick Dickson, Ms Lisa Hyland and Ms Bethany Hosking, all employees of the managing agent, Richard Luton Properties.
Also in attendance was Ms Dina Albekaa who purported to represent Dr Safi Albekaa and Mrs Samira Albekaa in accordance with the terms of an authorisation handed up by her to the Tribunal at the start of proceedings.
The procedures governing the representation of parties to proceedings are set out in clause 7 of the ACT Civil and Administrative Tribunal Procedural Directions 2010 (No 1). That clause is set out in full hereunder and reads as follows:
7. Representation of Parties

7.1 A party can start and conduct a proceeding in the tribunal in person or
by a representative who is –
7.1.1 a lawyer admitted to practise; or
7.1.2 if the party is a corporation – an officer or employee who
files an affidavit verifying that they are authorised to represent the corporation. The affidavit should be in the approved form; or
7.1.3 a person who is authorised to represent the party by a Power of Attorney made under the Powers of Attorney Act 2006. A sample power is provided by the tribunal.

7.2 The tribunal will register a Power of Attorney or an affidavit
authorising a person to represent a corporation when asked to do so.
The registration number can be provided on subsequent documents
lodged with the tribunal provided the representative is able to establish
on request that the relevant the Power of Attorney or authorisation is
current.

7.3 A representative can sign and file documents and attend conferences
and hearings on behalf of a party. The tribunal may however require a
party to attend a preliminary conference or a hearing in person whether

or not they are represented.
7.4 A representative must have sufficient knowledge of the matter to
enable effective participation in an application and to discuss
settlement or resolution of the dispute where appropriate.
A representative must be able to contact a party during any tribunal
conference or hearing at which the party is not present in order to
receive or confirm instructions

Ms Albekaa was not authorised to represent her parents under an approved Power of Attorney made under the Powers of Attorney Act 2006, and the authorisation she did possess was insufficient for that purpose. Asked by me why the owners were not in attendance as required by the ACAT order,

Ms Albekaa, stated that Dr Albekaa was “...just too busy, you know he cannot come. That is why he insisted that I come.”
I again asked why she hadn’t been properly authorised to represent the owners, Ms Albekaa advised me that they were in the process of getting legal advice, and that they “.. just haven’t had the time.”
After reading the independent reports submitted by the applicant I asked her if anything had been done to repair the ductwork and was advised by Ms Woolfe that it hadn’t been repaired. Submitted along with Ms Woolfe’s application were 45 photographs that according to her evidence were taken on 9 April 2010, the day after she signed the lease.

Looking at those photographs, it would be hard to accept that the condition of the rented property at the commencement of the lease was in accordance with what one expect having regard to Clause 54 of the Standard Residential Terms as contained in Schedule 1 of the Residential tenancy Agreement.

Clause 54 (1) provides that

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—


(a) fit for habitation; and


(b) reasonably clean; and


(c) in a reasonable state of repair; and


(d) reasonably secure.
Clause 54(2) provides that
An exclusion must be in writing and may, but need not, be
included in the tenancy agreement (if in writing).
I was satisfied on the evidence before me that the premises were not clean when the tenant moved in, nor were they in a reasonable state of repair. Whether they were also not fit for habitation, was a borderline issue, having regard to the reports of vermin infestation.
It was also quite clear to me that the agents were well aware of the state of the premises when they lease the premises to the applicant. A series of e-mails substantiated this fact.
On 8 April 2010, an e-mail was forwarded to Ms Bethany Hosking under the hand of Corey and Graham Woolfe, in which it was stated that the applicant and her husband had just returned from inspecting the house at 27 Palmer Street, Garran “and, although you did warn us about the dirty condition of the house,

I must say that we were completely taken aback at the condition of the place. It is appalling...”

The e-mail then went on to detail a litany of faults including broken bathroom fittings, filthy carpets, a stove covered in grease and a broken exhaust fan. The last two paragraphs of that e-mail were as follows:
“If the owners feel that they needn’t bother cleaning the places, can you please at least arrange someone to fix the doors and fittings. If you provide a bin skip, we will get rid of the junk that is lying around.
What an unfortunate start we have had to our tenancy.”
Ms Hosking replied advising that she would forward the e-mail to the owners and organise action.”

On 9 April 2010, an e-mail under the hand of Graham Woolfe was forwarded to Ms Hosking advising her that the tenants were moving in the next day and that any cleaning that was to be done would need to be done that day. Mr Woolfe warned that if the owners did not arrange anything then they would get professional cleaners in and then seek a rent reduction
Once more Ms Hosking replied that she would contact the owner.
In the end, professional cleaners were not engaged and Mrs Woolfe cleaned the premises herself.
I am also satisfied that Ms Woolfe was truthful in her assertions that she spent 15 hours cleaning the interior of the premises and a further 4 hour cleaning in the yard.
I was not however of a mind to reimburse her for her own time spent on cleaning the house to a standard she found acceptable.
During the hearing, I stated that it was acknowledged that the premises were not clean when the Woolfes moved in. None of the three employees of Richard Luton properties present in the hearing room saw fit to voice otherwise, at that particular time, although later in the proceedings some attempt was made to justify the state of the premises.
Asked by me that having regard to the general condition of the house, why she actually moved in, Mrs Woolfe replied that that they only had about 10 minutes to have a quick look at the house. She had noticed that the lawns needed mowing, “…but I guess I just assumed that it would be cleaned before we moved in.”
Mr Dickson stated that they were in receipt of invoices from the owner for cleaning of the property before the tenants moved in. Pressed by me that the house was not up to standard, he added the following explanation. “Look, obviously we attempt in every way. We were told that the place was going to be all cleaned up and ready to go.”
Ms Albekaa advised me that in her opinion the place was ready to be rented. The house had been painted and cleaned. If the cleaners hadn’t done a good job, they were prepared to have them come back.
Attached to the response were a number of invoices detailing the work done on the subject property to prepare it for leasing. The tax invoice from Jim’s Cleaning was dated 8 March 2010 and was for a standard home cleaning. There was also an invoice from Jill of All Trades for gardening and lawn mowing on 21 February 2010 and 9 March 2010. The dates are important bearing in mind that the tenants did not sign the lease or move into the property until a month later.
In addition there is an invoice dated 29 April 2010 from a Mr Ian Murphy invoicing the Albekaas the sum of $180 for the removal and disposal of rubbish and belongings from the garden shed and garage on 16 April 2010. There were a number of other invoices showing work carried out after the commencement of the lease to fix appliances and other fittings the subject of complaint from

Mrs Woolfe. They included fixing the spa, replacement of broken power points, fixing exposed electrical wires, replacement of the broken dishwasher, and repairing the fence.
There were however, a substantial number of other fixtures needing repairs and which had been brought to the managing agents attention by Mrs Woolfe but which were still outstanding at the date of hearing, including that only one out the three burners on the stove were working properly, bedroom doors didn’t close, broken smoke alarms and lack of privacy in the ensuite bathroom due to the door not closing properly.
In fact, on the evidence the house was in a poor state of repair and extremely dirty at the commencement of the lease. This of course must be balanced up by the fact that the house was old and the tenants willing entered into a tenancy agreement at least knowing some of the faults.
Despite Ms Albekaa’s assertions that the ducted heating was not advertised as a feature of the house, and, presumably not an inclusion, it was certainly not excluded in writing as required and thus, in my view was covered by the Residential Tenancy Agreement.
In relation to the gas ducted heating and whether or not Mrs Woolfe had a chance to inspect it before she moved in, Mrs Woolfe stated the following;
“Well I went to an open house with Bethany, but I guess I was there for about 10 minutes which didn’t really give me the opportunity to check the ducts, I just assumed the heating would work.’
According to Ms Albekaa, her father Dr Albekaa had had a continual problem with rats and he had continually tried to fix it. “So as to protect his own kids, he put a whole new –brand new air conditioning system in there which we didn’t have trouble, being warm and being comfortable we put some heaters in the rooms, it’s an old house but we weren’t going to renovate it to rent it out.”
Ms. Albekaa added that they had cleaned the ducted heating system and “.. we did as much as we can for that particular mice and rodent problem, but it could never be fixed.”
The three independent expert reports commissioned and paid for by Mrs Woolfe painted a picture of a system badly in need of extensive repairs but none of those reports suggested that the system could not be fixed. I did not accept

Ms Albekaa’s assertions that the ducted heating system was beyond repair. Certainly the ducting needed to be entirely replaced, but the heating unit itself just needed some servicing.
Clause 55 (1) of the Standard Tenancy Terms provides that “ The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement”. Clause 55 (2) of the Standard Tenancy Terms provides that “The tenant must notify the lessor of any need for repairs”.
Whilst I am satisfied that the tenants in this case notified the lessors through their agents of the need for repairs, in some instances the lessors refused to carry out those repairs.
Mrs Woolfe gave evidence that she took the photographs on file the day after she moved in. When I asked her why she didn’t get out of the lease the next day, but Mrs Woolfe was interrupted by Ms Albekaa who stated the following;
“Well we wanted that but she wanted to stay. We knew this was going to happen so we wanted her to go.” And then following on from that she added: “We still want her to go.”
Eventually, Mrs Woolfe was able to inform me, that the rental market was very tight and that there were not a lot of properties on the market. The house they were living in had been sold and they had to get out. They had to live somewhere and the rent was comparable to other rental properties in the area. In fact she had four children and no family in Canberra, and I would agree that, on her evidence, her situation left her little choice at the time.
The tenants’ and the lessors’ obligations in relation to urgent repairs are contained in clauses 59 and 60 of the Standard residential tenancy terms. Those clauses are as follows:
Urgent repairs
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.
60    The following are urgent repairs in relation to the premises, or
                  services or fixtures supplied by the lessor:
                   (a) a burst water service;
                   (b) a blocked or broken lavatory system;
                   (c) a serious roof leak;
                   (d) a gas leak;
                   (e) a dangerous electrical fault;
                   (f) flooding or serious flood damage;
                   (g) serious storm or fire damage;
                   (h) a failure of gas, electricity or water supply to the
  premises;
                   (i) the failure of a refrigerator supplied with the premises;
                   (j) a failure or breakdown of any service on the premises
  essential for hot water, cooking, heating or laundering;
                   (k) a fault or damage that causes the residential premises to
  be unsafe or insecure;
                   (l) a fault or damage likely to cause injury to person or
  property;
                   (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.
Mrs Woolfe informed me that the only heating in the house that worked was a wall mounted air conditioning unit in the living room but that was inadequate to heat the whole house and she had heaters running in all the bedrooms.
It was agreed by both Mrs Woolfe and Ms Albekaa that the ducted heating unit did not work at all with Ms Albekaa adding, “It won’t work and we are not getting it fixed because we can’t, we’ve tried.’. I have already stated that I did not accept that that was a true reflection of the state of the gas ducted heating system.
I was also satisfied that the lessors failure to carry out urgent repairs to the heating system as required under the terms of the residential tenancy agreement was a clear breach of that agreement and that as a result, the tenants were entitled to a rent reduction in accordance with the terms of section 71 of the RTA. That section is set out in full and provides as follows:
71 Reduction of existing rent
(1)    On application by a tenant, the ACAT must order a reduction in the
  rental rate payable under a residential tenancy agreement if it
  considers that the tenant’s use or enjoyment of the premises has
  diminished significantly as a result of any of the following:
(a)the loss or diminished utility of an appliance, furniture, a
facility or a service supplied by the lessor with the premises as
a result of—
(i)the withdrawal of the appliance, furniture, facility or;
(ii)     the failure by 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 residential tenancy
  agreement; or
(iii)    the failure by the lessor to provide and maintain the locks
  or other security devices necessary to ensure that the
  premises are reasonably secure;
  (b)     the loss of the use of all or part of the premises;
  (c)     interference with the tenant’s quiet enjoyment of the premises
  or the tenant’s ability to use the premises in reasonable peace,
  comfort and privacy by the lessor or anyone claiming through
  the lessor or having an interest in, or title to, the premises.
(2)    To remove any doubt and for subsection (1), a tenant’s quiet
  enjoyment of premises is interfered with if there is substantial
  interference with, or a significant lessening of freedom in
  exercising, the tenant’s rights.
(3)    A reduction in the rental rate ordered under subsection (1)—
  (a)    takes effect from the day the tenant’s use or enjoyment of the
  premises diminished, or the later date that the ACAT specifies;
  and
(b)remains in force for the period, not longer than 12 months,
specified by the ACAT.
(4)    The ACAT may order a lessor to pay to the tenant the difference
  between the rent paid and the rent payable as a result of an order for
  a rental rate reduction.
(5)    Any purported increase in the rental rate in relation to premises for
which a reduction order is in force is void and any amount paid above and beyond the reduced rental rate in accordance with a purported increase is a debt owing by the lessor to the tenant.

Whilst it could be argued that the condition of the heating unit at the commencement of the agreement between the parties hadn’t changed, the true condition of that unit was hidden from the tenants who were entitled to be believe that it was fully functional. Unfortunately it wasn’t, but that did not, in my view, lessen the obligation of the lessors to maintain that unit in a reasonable state of repair.
I was however of the view that the $250 per week rent reduction being sought by the applicant for the lack of adequate heating as a result of the lessors’ failure to maintain the heating unit, to be excessive, and some of her other claims unreasonable in view of the age of the house and the fact that the tenants were prepared to lease the premises notwithstanding it’s general state of disrepair and uncleanliness.
In view of all the evidence, and the fact that the heater was non functional,
I found that there was a case to award compensation to the applicant in the form of a rent reduction of 30% of the weekly rent over the period of the tenancy. This amounted to a weekly rent reduction of $169.00 per week. At the date of hearing that amounted to $3,192.00.
I further ordered that this amount was to be credited against future rent payments.

………………………………..

Mr P.R Thompson
Member