Zhang v Manhas - [2023] ACAT 32

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ZHANG V MANHAS & ANOR [2023] ACAT 32

RT 922/2022

Catchwords: RESIDENTIAL TENANCY – co-tenancies – sections 35, 35A and 38 of the Residential Tenancies Act 1997 – whether lessor can give conditional consent to a co-tenant who wants to leave a residential tenancy agreement – whether the Tribunal is allowed to make differential payment orders – second respondent removed from the lease

List of Legislation: Residential Tenancies Act 1997 ss 35, 35A, 35B, 35G, 71AE, 83, Schedule 1 Standard residential tenancy terms

List of Cases: Deng v Managh [2013] WADC 58
Verma v Chilukuri [2017] ACAT 12
Wild v Wild and Anor [2022] ACAT 29
Bartholomew v Pitman-Keys and Ors [2022] ACAT 26

Tribunal:Member W Hawkins
Date of Orders:  31 May 2023
Date of Reasons for Decision:      31 May 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 922/2022
BETWEEN:
MIAO ZHANG
Applicant/Lessor

AND:

NAVIN MANHAS
First Respondent/Tenant
HARPREET KOUR
Second Respondent/Tenant

TRIBUNAL:Member W Hawkins

DATE: 31 May 2023

ORDER

Ex-parte the first respondent
The Tribunal orders that:

The second respondent is removed from the lease pursuant to section 35A of the Residential Tenancies Act 1997 on and from 7 November 2022.
The respondents are to pay to the applicant the sum of $7,207, being unpaid rent $7,040 and water consumption $167.
Subject to order 5, the respondents are to pay the applicant the sum of $3,116 comprised of:
(a)$3,036 for cleaning and rubbish removal; repair damaged driveway, garage floor and concrete slab in backyard; repair ceiling, wall flyscreens and door; repair master bedroom and carpet damage; repair tools (flyscreen); and paint; and
(b)$80 for ACAT filing fee.
In relation to the amounts owed by the respondents to the applicant, the respondents are to receive credit of $1,320 each on the basis that the bond of $2,640 was paid in equal shares by each of them and has already been released in full to the applicant and thereby reduces the overall amount of the amounts that the respondents are to pay to the applicant as set out below.
In addition to the bond of $2,640 that has already been released to the applicant, the first respondent is to pay the applicant $6,225, and the second respondent is to pay the applicant $1,458. Such amounts are to be paid within 28 days.

………………………………..

Member W Hawkins

REASONS FOR DECISION

Introduction

This was an application heard by me on 24 February 2023. The application concerned a claim for damages arising from a residential tenancy agreement between Zhang (the applicant or lessor) and Manhas (the first respondent or tenant) and Kour (the second respondent or tenant). The applicant and the second respondent appeared in person. The first respondent did not appear. Manhas previously had not appeared at the conference and had minimal engagement with the application. After a short adjournment and after satisfying myself that Manhas had been informed of the hearing, the hearing proceeded in his absence. The applicant was self-represented, and the second respondent was represented by Stephanie Kelly, a solicitor. Key issues at the hearing included whether Kour had ceased being a co-tenant pursuant to the operation of section 35A of the Residential Tenancies Act 1997 (the Act) and if she had not, whether I could make differential payment orders pursuant to section 83 of the Act. At the conclusion of the hearing, I directed the parties to file and exchange submissions in relation to those sections particularly in the event that the Tribunal was to make findings in favour of Kour, and especially given that the bond of $2,640 had already been released in full to Zhang following consent orders made at the conference and where no counter claim had been filed. At the time of the conference, Kour had not been legally represented and as previously stated Manhas did not appear.

Background

In about July 2019, Zhang and Manhas entered into a fixed lease of the subject property in Throsby, ACT. The property was relatively new at the time and a condition report was done but not returned by Manhas. By about late 2019, Manhas’ wife, Kour, had moved into the property. Initially, Kour was not named on the lease, however on about 27 September 2020, a new lease was entered into, and both Manhas and Kour were now named as lessees. No further condition report was done at this time. On 26 March 2022, the respondents signed a further lease for 12 months ending 24 March 2023. The rent was $770 per week with $3,080 monthly payable by electronic transfer in advance. The bond remained at $2,640 having been based upon the earlier weekly rent of $660. The bond was lodged with the Office of Rental Bonds (ORB). The bond had originally been paid by Manhas, and during the course of the hearing, Kour could not recall whether she had paid half the bond. The rent was split between the respondents, and Kour would transfer $400 each fortnight from her bank account to Manhas’ account, and Manhas would then make payment in full into the Zhang’s account.[1] This meant that Kour was paying more than half the rent but this was not explored at the hearing, so ultimately, I can make no finding about this.
[1] Kour’s statement dated 13 February 2023, page 3
On 25 June 2022, Zhang emailed Manhas and Kour about oil stains on the driveway. He provided photographs and requested they be cleaned on or before 10 July 2022. He also said that if the stains were not cleaned that he would arrange for the cleaning to be done.[2]
[2] Zhang’s statement dated 9 March 2023, Annexure ‘A’
On 1 August 2022, Zhang again emailed Manhas and Kour about the stains. He said that the stains were still present and requested that the driveway be “reverted” to its “original condition”. Alternatively, he suggested that Manhas could pay the reasonable costs to have the stains removed by Zhang and Zhang estimated the cost to be about “$200 to $400 depending upon what needed to be done”. He then imposed a further deadline of 16 August 2022, and failing the repair being done, he would take steps to “terminate the tenancy”.[3]
[3] Zhang’s statement dated 9 March 2023, Annexure ‘B’
On 14 October 2022, Kour informed Manhas by text that she was separating from him and had left the property and that she had told her family and friends. She said that it was a formal separation and that she would file for divorce in 12 months’ time. Regarding the property, she asked whether he wanted to take over the lease or sublet and whether she should speak to the agent. Manhas responded by text on the same day and said that he respected her decision and that she should “not worry about the rest of the stuff”, and that he “will manage it.”[4]
[4] Kour’s statement dated 13 February 2023, Annexure ‘B’
On 16 October 2022, Kour emailed Zhang and said that she had separated from her husband and that she no longer lived at the property. She asked for her name to be taken off the lease.[5] Zhang responded that day saying:
Thanks for letting me know your intent.
For the bond refund, removing a tenant from an existing lease is to terminate the existing lease. Then the new lease is signed and the new bond paid. I will have the old bond refund to you and Navin.
To have a clean cut, I will like to inspect the property to get all repairs fixed, before the existing lease is terminated, which I have been contacted Navin several times and it has been either ignored and delayed in last minute.
Can you please advise would you like to go ahead with terminate the lease as above and advise and inspection time [sic].[6]
[5] Kour’s statement dated 13 February 2023, Annexure ‘C’
[6] Kour’s statement dated 13 February 2023, Annexure ‘C’
On 23 October 2022, Zhang emailed Kour and said:
Yes-I agree to remove your name on the basis that he would fix the damage, cleaning, take the lease for the rest of the term.
I will send relevant docs later on today.[7]
[7] Kour’s statement dated 13 February 2023, Annexure ‘D’
On 24 October 2022, Zhang emailed both Manhas and Kour and provided photographs of an inspection conducted on 19 October 2022. He asked for things to be fixed and cleaned and for them to notify him once completed so that he could arrange a further inspection. He also advised that he was prepared to carry over the “minor damage” to the next lease if “Manhas agreed to take responsibility for all damage” and to get them fixed to “a professional standard”. In relation to the stained concrete, he said that due to the level of damage and damage caused by previous attempts at repair that he needed to get the driveway resurfaced. He said that he would source the contractor and advise them of the contractor’s quote before proceeding and concluded by seeking their agreement with his proposal.[8]
[8] Zhang’s statement dated 9 March 2023, Annexure ‘C’
On 29 October 2022, Zhang emailed Kour asking her to advise of her plan for the cleaning and the resurfacing of the driveway.[9]
[9] Zhang’s statement dated 9 March 2023, Annexure ‘E’
On 30 October 2022, Zhang emailed Kour and advised her that he had been informed by Manhas that cleaning had been done and that Manhas had asked to see the quote for the driveway.[10]
[10] Zhang’s statement dated 9 March 2023, Annexure ‘E’
On 7 November 2022, Kour emailed Zhang and asked whether Manhas was continuing to pay rent and for an update on the driveway.[11]
[11]Zhang’s statement dated 9 March 2023, Annexure ‘F’
On 10 November 2022, Kour emailed Zhang and requested an update on any communications he had with Manhas concerning the driveway.[12]
[12] Zhang’s statement dated 9 March 2023, Annexure ‘F’
On 13 November 2022, Zhang emailed both Manhas and Kour and advised that rent had not been paid and pressed for payment.[13]
[13] Zhang’s statement dated 9 March 2023, Annexure ‘G’
On 14 November 2022, Kour emailed Zhang and sought an update on whether Manhas had paid the rent.[14]
[14] Zhang’s statement dated 9 March 2023, Annexure ‘G’
On 5 December 2022, Zhang texted Kour and advised her that he would be happy to settle with her if she agreed to bear the cost to fix the damage and cleaning and that he would pursue Manhas for the rest.[15]
[15] Kour’s statement dated 13 February 2022, Annexure ‘E’
On 11 December 2022, Manhas emailed Zhang and informed him that he had vacated the property. A short while later, Manhas emailed Zhang again and advised him that he was moving overseas permanently in a few weeks and said that he was happy to pay any outstanding amount after “using my bond $2,640”.[16]
[16] Zhang’s statement dated 9 March 2023, Annexure ‘J’
On 12 December 2022, Zhang texted Kour and advised her that Manhas had vacated the property and that there was still stuff there and that he would have it cleaned and rented. He further said that Manhas has advised him by email that he (Manhas) would pay for “all cost” and that Zhang will contact Manhas for the full cost so that Kour would not have to “pay for anything.”[17]
[17] Kour’s statement dated 13 February 2022, Annexure F
The applicant originally filed an application on 15 November 2022 claiming damages for the tenants’ breach of the tenancy agreement. A further application was filed on 25 November 2022 seeking termination of the tenancy, rental arrears, and damages. On 30 January 2023, following Manhas’ vacation of the property, Zhang filed a further amended application claiming rental arrears and damages. Zhang after factoring in the release of the bond to him, claimed a total of $11,093. On 22 December 2022, Zhang filed and exchanged his material included a particularized claim table which after rounding totalled $13,824.[18] The amount in the table did not take into account the bond that had already been released to him. He claimed:
[18] Applicant’s Index of Documents, page 19
(a)outstanding rent for period 5 November 2022 to 7 January 2023 being nine weeks and one day including allowing period for repair and to obtain new tenants): $7,131
(b)water consumption for period 8 September 2022 to 29 November 2022: $167
(c)cleaning: $700
(d)rubbish removal including skip bins: $543
(e)repair damaged driveway from motor oil damage: $1,320
(f)repair damaged garage floor from motor oil damage: $1,800
(g)repair concrete slab in backyard from motor oil damage: $528
(h)repair ceiling, wall, flyscreens and door: $660
(i)repair wall holes: $286
(j)repair master bedroom carpet: $132
(k)replace 3 blinds: $222
(l)repair tools: $146
(m)odour removal: $19
(n)paint: $90
(o)ACAT filing fee: $80
Manhas did not file a response. Kour’s solicitors filed a response on 14 February 2023. She disputed the claim and alleged that she was not jointly and severally liable with Manhas for rent arrears and damage. She argued that she moved out of the property on 14 October 2022 as she had separated from Manhas and on that day and sought his consent, and on 16 October 2022 sought the applicant’s consent to stop being a party to the lease pursuant to section 35A of the Act. She further said that on 14 October 2022, Manhas responded telling her not to worry and that he would manage it. Kour did not receive any further messages from Manhas refusing consent. On 23 October 2022, the applicant communicated to her that he consented to removing her name on the basis that Manhas would fix the damage, clean, and take the lease for the rest of the term. In essence, Kour argued that by 6 November 2022, being 21 days from the date she wrote to the applicant and the first respondent seeking their consent for her name to be removed from the lease, that they had either given consent for her to leave the tenancy or had failed to refuse consent within 21 days meaning they would be taken to have consented to her request pursuant to section 35A(4)(a) of the Act. As a result, Kour’s rights and obligations under the lease ended on or around 6 November 2022 being one day after rental arrears commenced accruing.
As a result of the forgoing, Kour argued that as she was a leaving co-tenant under section 35A of the Act and to the extent that she was responsible for any rental arrears or any damage, it was open to Manhas to deduct from her portion of the bond any monies that should have otherwise been repaid by her in relation to any unpaid rent or other reasonable costs in relation to the premises within 14 days of her ceasing to be a co-tenant pursuant to section 35B(3) of the Act. Kour accepted that at least between her and Manhas, she would be liable for unpaid rent and water consumption until 6 November 2022.
In the alternative, she said that if it was found that she did not leave the co tenancy on or around 6 November 2022, there should be different orders with respect to the liability of herself and Manhas pursuant to section 83 of the RTA so that there could be differing payment orders.
For outstanding rent for period 5 November 2022 to 7 December 2023, Kour argued that she should have no liability as she had moved out some weeks before rental arrears began accruing and that Manhas had agreed in writing to “manage it”. At most, her arrears should be limited to 50% of the arrears that accrued on 5 and 6 November 2022 which she allowed at $102.
For water consumption for period 8 September 2022 to 29 November 2022, Kour argued that she accepted 50% of the liability up to 9 November 2022 which she allowed at $60.82.
For cleaning, Kour conceded 50% of the fee as she would have split the fee of the end of lease clean and she allowed $350.
For rubbish removal including skip bins, Kour rejected the claim arguing that when she left the property, she took all of her possessions and that the products left at the premises did not belong to her.
For repair damaged driveway from motor oil damage; repair damaged garage floor from motor oil damage; and repair concrete slab in backyard from motor oil damage; Kour denied liability as any damage caused by oil was fair wear and tear and, in any event, she parked her car in the street.
For repair ceiling, wall, flyscreens, and door; Kour conceded 50% of the fee for the ceiling repair and as this was $155, she allowed $77.50 and denied any further liability.
For repair wall holes; Kour rejected the claim as any damage was not intentionally or negligently caused by her.
For repair master bedroom carpet; Kour conceded 50% of the costs which she allowed at $66.
For repair/replace three blinds, Kour denied liability as any damage was not intentionally or negligently caused by her and in the alternative, it was fair wear and tear.
For repair tools, odour removal, and paint; Kour denied liability on the basis that the claim was not adequately particularised.
For ACAT filing fee: $80; Kour conceded 50% of the fee which she allowed at $40.

The evidence of the applicant

Zhang gave evidence and tendered a number of documents. The tendered documents included the relevant lease and five special conditions. The most relevant condition required the tenants to arrange for professional cleaning before vacating the premises. He also tendered a bundle of relevant email communications; an index of documents including photographs, a bundle of quotes/receipts; rental ledger; a timeline and his witness statement; and the previously mentioned itemised table of his claim.
In brief, Zhang’s evidence was as follows:
(a)The property was built in June 2019, and Manhas moved in soon after in July 2019. A condition report was done but not returned by Manhas.
(b)He became aware that Kour had moved in by late 2019, but she was only added to the lease when a new lease was entered into.
(c)No formal outgoing condition report was done at the end of the tenancy. He said that this was because the property had been sublet without his consent and that the respondents did not return to the property after vacating the property so he could not inspect it with them.[19]
(d)On 8 January 2023, the property was relet.[20]

The evidence of the second respondent

[19] Zhang’s statement dated 9 March 2023 at [6]
[20] Applicant’s timeline at [7]

Kour gave evidence and tendered a number of documents. The tendered documents had some overlap with Zhang’s tendered documents but also included a timeline; and her witness statement.
In brief, Kour’s evidence was as follows:
(a)She agreed with the basic chronology set out by Zhang.
(b)     On 22 December 2022, Zhang emailed her and Manhas with a claim of unpaid rent and damages totalling $13,824. He said that he would seek the amounts from Manhas in the first instance and that he had provided the documents to the tribunal.
(c)     In relation to the damages claimed by Zhang, she said:
(i)      Rent: She paid her share of the rent up until the time she left the property and calculated she had paid up to 25 October 2022.
(ii)     Rubbish removal: When she moved out she took all of her belongings and that none of the items in the photographs belonged to her.
(iii)    Motor oil stains: She and Manhas had separate cars. She parked her car in the street and did not park her car either in the driveway, in the garage or on the slab. In so far as a stain outside the front door, she had never used oil of any kind near the door. In the alternative, she argued that whatever damage there was, she said was fair wear and tear and relied up a Western Australian decision of Deng v Managh (Deng).[21]
(iv)    Ceiling: She understood the damage was caused by brackets installed into the ceiling whilst she lived in the property.
(v)     Doorframe: She did not recall any damage to the door frame and that if the frame was the garage door it did not shut properly during her occupancy.
(vi)    Flyscreen: She did not recall any damage to the flyscreen by the time she moved out.
(vii)   Wall holes: She was not responsible for any holes.
(viii) Blinds: She was not responsible for any damage and did not recall if they were damaged by the time she moved out.

Applicant’s submissions

[21] [2013] WADC 58

Zhang’s primary submission was that the respondents as co-tenants pursuant to a lease were jointly and severally liable for payment of rental arrears and other amounts owing under the agreement and compensation/damages for breach of the tenancy agreement.
Kour had requested to Zhang to be removed from the lease, and Zhang had conditionally agreed subject to the fulfilment of stated conditions.
In relation to section 35A of the Act and particularly for a fixed term lease, Zhang submitted that the section allowed the giving of consent that did not take effect immediately after it is stated, but at some time in the future when certain events have taken place. He submitted that this was consistent with the intention of the legislature. He referred to the explanatory memorandum and said that section 35A was inserted to facilitate a co-tenant leaving a tenancy and that a tenant could leave subject to the consent of the other parties to the tenancy in order to withdraw from the agreement. The leaving co-tenant may give notice at least 21 days before the leaving day of the co-tenant. The remaining co-tenant and the lessor may refuse consent whether or not it is reasonable to do so. Further, should the remaining co-tenant and lessor not respond within 21 days of receiving the consent application, then the remaining co-tenant and lessor will be taken to have consented to the consent application. Zhang argued that section 35A was not intended to create an exhaustive list of the kinds of responses a lessor may give. Similarly, the remaining co-tenant might also impose a condition for example, the remaining co-tenant might say to the leaving co-tenant that they would agree to let them go provided they fix the carpet or pay the repair cost and not to do so might otherwise be absurd.[22] This interpretation, he argued, allows time for the remaining co-tenant and lessor to consider possible consequences of the leaving co-tenant’s actions. Zhang argued that if consent is refused, then the leaving co-tenant’s remaining option is to apply to ACAT for an appropriate order pursuant to section 35G of the Act or to wait until the fixed term lease ends. He argued that s35A contemplates conditional consent and to exclude if from consideration would prevent the amicable and effective collaboration between lessors and co-tenants in dealing with a co-tenant’s departure.[23]
[22] Applicant’s submissions filed on 9 March 2023 at [14]
[23] Applicant’s submissions filed on 9 March 2023 at [19]
The applicant then argued that if the Tribunal was satisfied that the lessor can give conditional consent, then the Tribunal should also consider if such conditions were reasonable. The applicant argued that imposing a condition which requires the repair of alleged damage was reasonable in circumstances where same is a clear obligation pursuant to the lease. As to whether, in circumstances where Kour had moved out of the premises it might be unreasonable to require her to repair damage, but it would not be unreasonable to require the remaining co-tenant Manhas to do so.[24]
[24] Applicant’s submissions filed on 9 March 2023 at [33]
The applicant argued that although he was sympathetic to Kour’s situation, he was not prepared to release her completely from her continuing obligations. and he also emphasised his goodwill towards her.[25]
[25] Applicant’s submissions filed on 9 March 2023 at [34]-[37]
Zhang, in the alternative, submitted that should the Tribunal find that conditional consent could not be validly given under section 35A, he, any purported conditional consent was not consent at all.[26]
[26] Applicant’s submissions filed on 9 March 2023 at [43]-[55]
The applicant submitted that if the Tribunal found that consent was given on 23 October 2022, then it follows that the earliest date that Kour could leave the tenancy pursuant to section 35A was 7 November 2022.[27]
[27] Applicant’s submissions filed on 9 March 2023 at [56]
As a result, Kour was still jointly liable with Manhas for damage done to the property and for rubbish left as any damage or property on the property occurred before Kour’s leaving of the tenancy. Zhang referred to the oil stains and submitted that these had been raised by him with Manhas since June 2022.[28]
[28] Applicant’s submissions filed on 9 March 2023 at [59]-[60]
In relation to section 83 of the Act and what orders can be made by ACAT, he submitted that there could be no apportionment of co-tenants’ joint liability under the section[29] and that there was no precedent which contemplated the tribunal’s power to do so.[30] He further argued that to do so would not be in the interests of tenants or lessors.[31] He provided a number or authorities that he said supported his argument that tenants should be jointly liable for damages including Verma v Chilukuri.[32]
[29] Applicant’s submissions filed on 9 March 2023 at [64]
[30] Applicant’s submissions filed on 9 March 2023 at [65]
[31] Applicant’s submissions filed on 9 March 2023 at [67]-[68]
[32] [2017] ACAT 12
In the alternative, Zhang argued that if the Tribunal was to find that Kour was responsible for only 50% of the damage, then Kour should not receive any of the bond because pursuant to section 35B of the Act, which concerned repayment of bond to a leaving co-tenant, there was no evidence that Kour had in fact paid any of the bond and indeed at the hearing she could not recall having done so.[33]
[33] Applicant’s submissions filed on 9 March 2023 at [72]-[73]
Finally, he submitted that the damages claimed by him in his further amended application filed 30 January 2023 reflected the amount after the bond had been released to him that is, $11,093, whereas if the bond was not regarded as having been released to him, the total damages claimed would be $13,823.[34]

Second respondent’s submissions

[34] Applicant’s submissions filed on 9 March 2023 at [76]-[77]

Kour argued that section 35A of the Act should not be interpreted as contemplating conditional consent and submitted that the meaning of the term ‘respond’ in section 35A (4) of the Act needed to be read in light of section 35A as well as the Act as a whole. In that regard, she noted that the balance of section 35A refers to both the refusal of consent and to the consequences if consent is given and as a result both giving and refusing consent are expressly contemplated by the section. Kour submitted that section 35A sits in contrast to other provisions of the Act and gave the example of section 71AE of the Act which deals with consent applications to keep an animal, where the legislators had made it clear that in dealing with that section, a condition can be imposed on consent provided by the lessor.[35]
[35] Second respondent’s submissions filed on 24 March 2023 at [4]
Kour stressed the importance of section 35A(4) of the Act which provides the default mechanism whereby a lessor and a remaining co-tenant are taken to consent if they do not respond to the leaving co-tenant’s request within 21 days of receiving the request. She argued that reading section 35A(4) so that the lessor or remaining co-tenant to either give or refuse consent within the 21 days provides clarity, as in the event that consent is refused the co-tenant can decide whether they will remain on the lease or whether they should make an application to the tribunal pursuant to section 35G of the Act.[36]
[36] Second respondent’s submissions filed on 24 March 2023 at [4(a)-(c)]
Kour referred to the explanatory statement to the amending legislation and said that the statement makes it clear that the purpose of part 3A was to simplify the legal arrangements for share housing and that the purpose of section 35A was to facilitate a co-tenant leaving a co-tenancy. As a result, the interpretation of the section as set out in the preceding paragraph best promoted the purpose of the Act and referred to Wild v Wild and Anor (Wild).[37]
[37] [2022] ACAT 29; Second respondent’s submissions filed on 24 March 2023 at [4(d)]
In the event that the Tribunal accepted the applicant’s submission that section 35A of the Act contemplates conditional consent, Kour then argued that the Tribunal must then consider whether the conditions were reasonable in the circumstances. For this step, Kour submitted that the factual circumstances in which the condition was imposed are relevant. In the circumstances where Zhang was aware that Kour had separated from Manhas and moved out of the premises by the time she sought consent for her name to be removed from the lease, it would be unreasonable to make consent conditional on Manhas facilitating access to the premises to her for the purposes of inspection and making certain repairs.[38]
[38] Second respondent’s submissions filed on 24 March 2023 at [5]
Kour also referred to the conditions purportedly imposed by Zhang and said that they appeared to be based on a mistaken assumption (albeit probably innocently made), that in removing Kour as a tenant would terminate the lease as a whole and that an inspection was required.[39]
[39] Second respondent’s submissions filed on 24 March 2023 at [6]
In the event that the Tribunal was to find that Kour did not leave the co-tenancy on or about 6 November 2022, then in relation to section 83 of the Act and in particular whether there could be apportionment of co-tenants joint liability, she argued that although differential payment orders might be exceptional, she submitted that not to do so would be contra to the recognition of an intra-tenancy contract as described in Bartholomew v Pitman-Keys and Ors[40] and that in the instant application there would be valid reasons for adopting such an approach.[41] Kour submitted that it would be appropriate for the Tribunal to make no order for her to make payment to Zhang. Kour relied upon section 35A (4) and (5) and said that when read in conjunction with section 35B, that it was apparent that the Act provided for the co-tenants to resolve any liabilities that may arise at the end of the co-tenancy amongst themselves, rather than accounting to the lessor at the end of the tenancy and again referred to Wild.[42]
[40] [2022] ACAT 26
[41] Second respondent’s submissions filed on 24 March 2023 at [10]
[42] Second respondent’s submissions filed on 24 March 2023 at [12]-[13]
Kour submitted that there was no basis for the Tribunal making an order that the respondents are to pay the amount of $6,569 for damages to the applicant and in relation to the bond further submitted that the most appropriate order would be for 50% of the bond, that is, $1,320 to be repaid to her.[43]
[43] Second respondent’s submissions filed on 24 March 2023 at [14]-[15]
Kour conceded that she was not able to recall whether she made a payment to the first respondent for the bond. However, she said that the bond was registered in her name with the ORB, and therefore a presumption arose that a refund to the tenants should be on a 50/50 basis. She also conceded that the bond pursuant to the consent order made at the conference, had already been released in full to the lessor and that no application had been made to set that order aside. She argued that in those circumstances, the appropriate order for the Tribunal to make would be no order in relation to the repayment of the bond.[44]
[44] Second respondent’s submissions filed on 4 March 2023 at [11]
Finally, the second respondent submitted that if the Tribunal found that she ceased being a co-tenant on or around 6 November 2022, then it should order that the first respondent should pay the applicant $6,413 and the applicant pay her $1,320 being her half share of the bond. Alternatively, the second respondent submitted that if the Tribunal accepted that differential payment orders should be made as between the respondents, then the first respondent should pay the applicant $5,716 and the applicant pay her $624.[45]

Consideration and findings

[45] Second respondent’s submissions filed on 24 March 2023 at [19]

The starting point for the Tribunal is the joint lease entered into by both respondents with the applicant on 27 September 2020, and the renewal of the joint lease on 26 March 2022 and ending 24 March 2023. Both tenants shared the rights and obligations under the lease towards the lessor and ordinarily both tenants are equally responsible for the property. If the tenants had remained in the property until the end of the lease or the lease was terminated early, then in the event of arrears or damage, any claim by Zhang would have proceeded in the usual way against Manhas and Kour as explained in the various authorities the applicant referred to.
As it was, Kour commenced steps to remove herself from the lease pursuant to section 35A of the Act. In writing she notified Manhas on 14 October 2022 and Zhang on 16 October 2022 and sought their consent. In my view, the responses by Manhas, (although not specifically affirmative) are clearly positive in relation to Kour’s request, and he sought to reassure her by indicating that he will “manage it”. I therefore find that Manhas consented to Kour to stop being a party to the residential lease within 21 days pursuant to section 35A(1).
What then of Zhang? It is clear from the evidence that he provided consent but upon certain conditions. The applicant argued that at most his consent to her to stop being a party to the residential tenancy agreement was conditional and that the conditions were reasonable. The question arises whether a lessor can impose consent conditions when they respond to a leaving co-tenant’s request for consent? The second respondent argued that the relevant section did not envisage that consent could be conditional and referred to other provisions of the Act such as section 71AE which relates to a tenant seeking the consent of a lessor to keep an animal on the premises. In that section, the lessor may impose a condition on consent if the condition is a reasonable condition about the number of animals kept on the premises or the cleaning of maintenance of the premises.[46] Indeed, if conditional consent was envisaged as a response to a leaving co-tenant’s request, then it would have been a simple matter for the drafters of the legislative change that introduced the section to have clearly stipulated same. The Tribunal is mindful that the explanatory statement to the relevant legislation makes it clear that the purpose of Part 3A was to simplify the legal arrangements for share housing and particularly section 35A to facilitate a co-tenant leaving a co-tenancy. Moreover, the earlier decision of the tribunal of Wild taken as a whole supports this view. If Zhang had refused Kour’s request, although the legislation provided that as it was a fixed term lease, his refusal did not have to be reasonable, Kour could have filed an application in ACAT pursuant to section 35G of the Act for the tribunal to make orders for her to stop being a co-tenant. At no time did Zhang refuse Kour’s request. If Zhang had refused consent, then the onus would have then been upon Kour that in order for her to cease being a co-tenant she would have to apply for an order by the tribunal pursuant to section 35G(1)(a) of the Act. Similarly, if Zhang had not responded to Kour’s request for consent within 21 days, then section 35A(4)(a) of the Act provides that Zhang would be taken as having consented to Kour’s request.
[46] See Residential Tenancies Act 1997, section 71AE(4)(a)-(b)
Having regard to the foregoing, I find that consent was given and the fact that it was conditional does not alter this finding. Further, even if conditional consent was possible, then in my view to require a leaving co-tenant who had just separated from their husband and moved out of the property to then have the remaining co-tenant facilitate access to his now separated wife for the purposes of inspection and the making of certain repairs would not in my view be reasonable. Pursuant to section 35A (2), Kour’s leaving could not be less than 21 days after notifying Manhas and Zhang. Zhang’s was the later notification being 16 October 2022. The result of which is that the 21 days runs from that date. Although Zhang responded that day and expressed an erroneous view that amongst other things, that removing her name from the lease would mean that the existing lease would be terminated. Although his view was incorrect, his email of 23 October 2022 clearly provided consent albeit conditional. Be that as it may, pursuant to section 35A(5), the leaving co-tenant stops being a party to the lease, on the proposed leaving day and that day cannot be less than 21 days after the request for consent is made. Even though she had already moved out, I find that the 21 days runs from the date she gave notice to Zhang being 16 October 2022. On this basis, the first day would be 17 October 2022 and the date for her name to be removed from the lease would be 7 November 2022.
It follows then that on and from 7 November 2022, although Kour’s name could be removed from the lease, Manhas’ name remained on the lease. I find that Manhas did not vacate the property until 11 December 2022. What then is the amount of Zhang’s claim for damages?

Unpaid rent

The applicant tendered a limited ledger and there was no objection to the tender. The ledger was not in the form that a real estate agent may have used. The standard lease sets out the minimum requirements and the Tribunal notes that rent was paid electronically into the lessor’s bank account and finds the minimum requirements are met.[47] Zhang claims $7,040 being the total of rent unpaid to 7 January 2023. The applicant has allowed an interval for repairs before the new lease, and I find the interval reasonable. I find the claim is made out and I allow $7,040.

Unpaid water consumption

[47] Residential Tenancies Act 1997, Schedule 1 Standard residential tenancy terms 29-33

The applicant tendered invoices and there was no objection to the tender. The actual amount is difficult to determine from the invoices but after considering the invoices and that the overall amount was not challenged, I find that the amount is made out and I allow $167.

Cleaning and rubbish removal

The applicant tendered invoices and there was no objection to the tender. I find the claim is made out and the amounts claimed reasonable, and I allow $1,243.

Repair damaged driveway, garage floor and concrete slab in backyard

The applicant tendered invoices for the driveway and garage floor but not for the concrete slab. For the slab, he provided his own calculations based upon the driveway costs. There was no objection to the tender and little or no cross examination concerning reasonableness of the claim. In Kour’s response, the claims were denied either on the basis that she was not responsible as she parked her car in the street and/or whatever stains present were fair wear and tear. Zhang gave evidence that previous attempts to remove the stains by Manhas had been unsuccessful and caused further damage. There was no expert evidence as to the alleged past damage and why further cleaning without resurfacing would not resolve the issue. It was clear that the damage occurred before Kour moved out, and although I accept the oil stains may not have been caused by her car, she would be jointly and severally liable in any event. The matter of Deng is of some assistance. In that case, the lease was a similar period and overall cost and there was some discussion concerning the difficulty in removing oil stains from concrete and especially if the concrete was unsealed. In that case, there was also a special condition requiring the tenants to use drip trays, but such a special condition was not in place here. In Deng, the tribunal significantly reduced the amount claimed by the lessor on the basis that if the tribunal allowed in full the lessor would obtain a new surface on the driveway.[48] It was not clear here whether the concrete surfaces were sealed, but be that as it may, the applicant has the burden of proof on the balance of probabilities and I find that he has not made out his claim in full, but I am prepared to allow a cushion or buffer for some further cleaning and some possible rectification costs. I have also made a limited allowance for fair wear and tear. In the circumstances I allow a cushion or buffer of $1,000.

Repair ceiling, wall, flyscreens and door

[48] Deng at [35]

The applicant tendered invoices totalling of $792 but made some deductions. The invoice included garage door replacement seal for $30, tightening door handles for $120. These two items are in my view fair wear and tear, and I have not allowed them. Similarly, there is a second call out fee of $50 and I have not allowed that as well. This reduces the invoices to $592. I have reduced the costs for removing, patching and spot painting from $155 to $100 as I consider the labour costs excessive. On this basis I allow $537.

Repair master bedroom carpet damage

The applicant did not tender a quote and provided an estimate only based upon another property. There is some concession of some damage by Kour and to which she attributes a value of $66 being half. On this basis, I allow $132.

Repair blinds

The applicant provided an invoice for three blinds and there was minimal or no evidence concerning the alleged damage beyond fair wear and tear. Kour did not recall if there was damage by the time she moved out. I find the claim is not made out.

Repair tools

The applicant provided an invoice for various items totalling the amount claimed. The items included tools for painting and preparation, caulking gun, pruner, tile adhesive, door seals and screen mesh presumably for the flyscreen repair. Given he had utilized trades people it was not clear why the amounts were claimed. Further he would continue to have the benefit of the items purchased. I find the claim is not made out with the exception of the screen presumably for the flyscreen repair. That amount is $34.25, and I allow $34.

Odour Remover Product

The applicant has provided an invoice but there is little or no evidence why it was needed. I find the claim is not made out.

Paint

The applicant provided supporting invoices and it includes ceiling paint and paint that was presumably used on the walls to patch by the handy person. I find the claim is made out, and I allow $90.

Filing fee

I find the claim is made out, and I allow $80.
The amounts I have allowed come to a total of $10,323.

Determining the individual liability of Manhas and Kour

In the ordinary course of events, at the end of the lease, Manhas and Kour would have jointly and severally owed Zhang $10,323. The bond would have been released to him in full and the balance owing to him would then have been paid equally by Manhas and Kour. However, given my findings above in relation to section 35A of the Act, Kour ceased being a co-tenant on 7 November 2022 and it therefore follows from that date that any damage caused to the property by the remaining tenant Manhas would not be her responsibility. I will therefore first determine the liability of Kour and following that, determine the liability of Manhas. His liability will then be the balance or remainder of the amount I have found owing to Zhang. Consideration will then have to directed to the bond, bearing in mind that it has already been released to Zhang. Kour and Manhas had an arrangement in place for her payment of the rent and it was not contested that ORB had her listed as paying the bond together with Manhas. Kour conceded that she did not remember paying the bond but given the strict payment arrangement that she had in place with Manhas and the ORB requirements more generally, I am satisfied that it is more likely than not that Kour has paid half the bond and I find that she paid the bond in equal shares with Manhas.

Unpaid rent

I accept Kour’s evidence that she paid her share of the rent until leaving the property on 14 October 2022 and that her last payment was on 11 October 2022. The rent ledger was an extract from March to October 2022 and showed consistent payments of monthly rent of $3,080 (being $770 per week). It showed the last payment of $3,080 on 11 October 2022 being 4 weeks rent. Kour’s unchallenged evidence was that she transferred $400 each fortnight from her bank account to Manhas’ bank account. That would make a monthly payment of $800 which was greater than what her share of the rent alone each month would be. If she was to pay half of $3,080 per month it would be $1,540 for her each month whereas she was paying $1,600 each month. This may have been to cover incidentals or possibly the arrangement was that she paid more. Whatever the situation was, because the rent was paid in advance, she paid beyond 11 October 2022 for two weeks would take it to 25 October 2022. On this basis, she owed rent to 7 November 2022 being 13 days and at $110 per day amounts to $1,430. As to water consumption, Kour accepted 50% of the liability up to 9 November 2022 which she calculated to be $61 and given the proximity of dates and amounts, I accept her calculation and I allow $61.

Cleaning cost

Special Condition 1 of the lease required professional cleaning of the property at the end of the lease, and Kour would have been responsible for half of this. Kour also conceded the half liability, and I allow $350.

Rubbish removal including skip bins

I accept Kour’s evidence that she removed all of her items, so she has no liability for this and all of the liability for the amount rests upon Manhas.

Repair damaged driveway, garage floor and concrete slab

Given that I have found the damage occurred before Kour moved out and I have allowed a cushion or buffer of $1,000, I find that Kour is responsible for half, and I allow $500.

Repair ceiling, wall, flyscreens, and door

As stated above, I allowed the claim at $537. Although Kour conceded some responsibility for the ceiling repair, she denied the remainder generally on the basis that she did not recall damage; and/or she could not recall if it occurred before she moved out; or she was not responsible. I find that it was more likely than not that the damage was caused before she moved out and not being personally responsible does not absolve her from liability. On this basis, I find that Kour is responsible for half, and I allow $269.