18 December 2019, 22 January 2020, 15 May 2020 and 30 September 2020

Boyce v Gao (Residential Tenancies) [2020] VCAT 1404

1. The landlords are ordered to pay the tenants the sum of $5,276.95 in compensation for loss arising from the failure to repair and the interference with quiet enjoyment proved by the tenants.
2. All other claims made by the tenants are dismissed for the reasons given in these reasons, and given orally in the hearing.

1. In this proceeding, the tenants, Hannah Boyce and Leith Booker, seek compensation from the landlords, Baolian Gao and Zitao Li, for breach of the landlord's duty to maintain the premises in good repair under s 68 of the Residential Tenancies Act 1997 (RTA), for breach of s 87 of the RTA which requires that a person who exercises a right of entry under the RTA must do so in a reasonable manner, and for breaches of the Australian Consumer Law (ACL) and the Australian Consumer Law and Fair Trading Act 2012 (ACLFTA).
2. The tenants occupied the premises from 21 March 2014 until 1 August 2019, when the tenancy terminated in accordance with an order for possession made by the Tribunal on the grounds of rent arrears.[1]
3. I conducted two days of hearing, on 25 October 2019 and 27 November 2019. I heard evidence from both the tenants, from one of the landlords, Zitao Li, from Mr Robinson, an employee of Ray White Real Estate, who was the landlords' agent from April 2017 until the end of the tenancy, and from Chris Kontossis who is the Rental Manager at Barry Plant Real Estate, and was the landlords' agent prior to Mr Robinson.
4. The tenants represented themselves at the hearing. The landlords were represented by a legal representative. At the close of the parties' evidence, I adjourned the proceeding, part heard, to enable the parties to file and serve final written submissions in relation to the proceeding, including in relation to the legal issues raised under the ACL. The timeline for making written submissions was drawn out over a longer period than usual, due to the impact of COVID-19 restrictions.
5. In written submissions, the landlords' legal representative asserted that because the tenants sometimes gave evidence together, or assisted each other in giving evidence, the Tribunal should give little weight to their evidence. I note that ss 97 and 98 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) state that the Tribunal is not bound by the rules of evidence, and the Tribunal is entitled to inform itself as it sees fit. I note, also, that the tenants were not legally represented, and the Tribunal affords considerable leniency to unrepresented parties before it. In any event, contrary to the submissions, the landlords' legal representative was afforded an opportunity to cross examine the tenants, and did so.

1. The tenants' claim for compensation for loss or damage arising from the landlords' breach of their duty to keep the rented premises in good repair, or failed to act on requests for repairs to be undertaken is made under s 210 of the RTA. Section 68 of the RTA imposes a duty on a landlord to ensure that rented premises are maintained in good repair.
2. The Tribunal has the power to award compensation to a tenant for inconvenience,[2] loss of amenity[3] or loss of quiet enjoyment[4] under s 210 of the RTA if a landlord has failed to comply with the landlord's duties under the RTA.
3. In determining an application for compensation, the Tribunal may take into account the factors set out in s 211 of the RTA. Those factors include:
   • whether the person from whom compensation is claimed has taken all reasonable steps to comply with the duties under the RTA, or under the tenancy agreement;[5]
   • in the case of a breach of a tenancy agreement, whether or not the applicant has consented to the failure to comply with the duties in respect of which the claim is made;[6]
   • whether or not money has been paid to or recovered by the applicant by way of compensation, including money recovered or entitled to be recovered from the bond;[7]
   • whether any reduction or refund of rent or other allowance has been made to the applicant;[8]
   • whether or not action has been taken by the applicant to mitigate the loss or damage;[9] and
   • any offer of compensation.[10]
4. In this proceeding, there was no evidence before me of any compensation or reduction or refund of rent or other allowance having been made by the landlords to the tenants. There was no evidence of the tenants having "consented" to the alleged failures to comply with the duty to repair.
5. The threshold issue to be determined therefore is whether there was a breach of the duty to repair by the landlord, including whether the landlord took all reasonable steps to comply with the duty to repair. If a breach of the duty to repair has occurred, I may then consider whether the loss or damage claimed was capable of mitigation, and, if so, whether the tenants' took or were able to take any action to mitigate the loss or damage.
6. I note that it is well established in common law that an applicant does not have a "duty" to mitigate, but rather that

[an applicant] cannot be said to have really incurred any loss which might have been avoided by his taking such steps as a reasonably prudent man in his position would have taken to avoid further loss to himself; and the best test is, what would such a man do to avoid such a further loss to himself, supposing that, from insolvency of the other party, or from some other reason, he could not get any damages.[11]

1. For some time this Tribunal has often taken the view that a tenant, who makes a claim for compensation for loss arising out of a failure to maintain, will not have mitigated that claim if they did not actively pursue repairs, or issue a Notice of Breach or take action at the Tribunal in relation to the breach.[12]
2. In this proceeding, the tenants did not issue a Notice of Breach in respect of many of the repair items, or if they did so, it was in the last months of the tenancy. The tenants appear to have been otherwise quite knowledgeable about their rights as tenants, and the options open to them under the RTA. When their rent was substantially increased, they applied to the Director of Consumer Affairs, and were successful in having the increase reduced. There were a number of proceedings commenced by the landlords in respect of rent arrears, where the tenants were initially successful in negotiating payment plans. It cannot be said that they were naïve about protecting their interests.
3. The procedures available to a tenant to enforce breaches of the landlord's duty to repair can be time consuming, and involve further loss to the tenant in time away from work, which is not, of itself, generally compensable in this Tribunal. Such action may, in many cases, be disproportionate to the loss or damage suffered by the tenant. That this may be so does not mean that the tenant will not suffer any loss or damage by the breach of the duty to repair, nor does it justify a landlord or an agent disregarding the repair which has been brought to their attention.
4. Unlike a landlord, for whom time taken to maintain the rented premises is, by definition, part of the business of the landlord, the tenant is in quite a different position in relation to the rented premises. The RTA only requires the tenant to ensure that care is taken to avoid damaging the rented premises; see s 61 of the RTA. In many situations, that obligation will be adequately acquitted by notifying the landlord of the disrepair.
5. In the hearing, the landlords' agents gave evidence that on many occasions they did not act on repair requests because they thought the issue was not significant, or that the tenants would not press the issue, or because the tenants were in rental arrears. The landlord's duty to ensure the rented premises are maintained in good repair is a "strict and absolute" duty that places on the landlord an obligation to "identify and rectify any defects of which they are aware or ought to be aware": see Shields v Deliopoulos.[13] That duty is not abrogated, or even diminished, by rental arrears, or by the perceived insignificance of the repair.
6. Nevertheless, a tenant who reports a repair issue and then sits back, effectively acquiescing in the breach, cannot be said to have suffered great inconvenience or loss of amenity. This is not because the tenant could be said to have "consented" to the disrepair, in the sense meant in s 211(b). Consent requires express action, and acquiescence is not "consent. However, the extent to which a tenant is motivated to seek resolution of a repair issue can be one indicator of the extent to which the tenant is inconvenienced or has experienced a loss of amenity, warranting compensation for that loss.
7. The evidence before me shows that the tenants did raise a number of repair issues with the landlords' agent during periodic property inspections. In the hearing, it was suggested by the landlords' legal representative that a periodic property inspection "is for the landlord and not for the purposes of tenant's complaints". The landlords' legal representative asserted that a landlord is not obliged to carry out repairs unless they are reported in writing. I consider those submissions to be at odds with the principles in Shields v Deliopoulos, referred to above. A landlord has a duty to repair all defects of which they are aware or ought to be aware. A landlord is to be taken to be aware of all maintenance issues that are brought to its agent's attention, whether at a periodic inspection, via an online maintenance app or by email or other writing.

1. The tenants claim $1,997.06 in respect of the broken front fence, calculated as 2% of daily rent from 5 April 2014 to 1 August 2019, a period of just under 5 years and 4 months, or 277 weeks.
2. The tenants gave evidence that at the start of their tenancy, the letter box for the property was built into a low brick front fence. In April 2014 a car had backed into the letter box and fence at the front of the rented premises, destroying the letter box and damaging surrounding parts of the brick fence. The tenants reported this damage to the agent, and the letter box was replaced with a metal letter box on a pole. A year or so later a tree fell on the front fence at the other end of the property, damaging the fence. This was also reported to the agent, and the landlords arranged for the tree to be removed. The tenants say that as a consequence of these two events, many of the bricks in the front fence were loose, regularly falling into the street, so that the tenants often had to restack the loose bricks to avoid danger to passers-by.
3. The tenants produced emails between themselves and Mr Kontossis dated 5 April 2014 and 25 June 2014, in which the tenants reported these issues.[14] The tenants say that Mr Kontossis told them that the loose bricks would be repaired shortly. The tenants did not raise the issue again until after Mr Robinson became the property manager. The tenants say they raised the issue with Mr Robinson at routine property inspections on 13 June 2017, on 15 January 2018, on 23 July 2018 and on 5 June 2019. On 28 June 2019 they issued a breach notice to the landlords in relation to the failure to repair.[15]
4. Mr Kontossis did not dispute the tenants' evidence as to notifications in 2014. He conceded that he did not have any records of regular property inspections during the period that he was property manager.
5. Mr Robinson acknowledged that he took 2 photographs of the fence on 13 June 2017,[16] and a further 3 photographs on 23 July 2018.[17] Mr Robinson did not dispute that those photographs were taken because the issue was raised with him by the tenants. Although the photographs are not of a high quality, they do show that the top course of brickwork is in disrepair. [18]
6. The landlords' legal representative asserted that the brick fence was not in disrepair because Mr Booker had reported, in an email dated 11 April 2018, that the bricks were safe. That assertion is disingenuous. It is clear from the email exchange, which was between Mr Booker and Mr Kontossis, that they both understood the bricks were loose and the fence in disrepair. Mr Kontossis asked: "Also, what has happened to the bricks that were knocked over, have these been put somewhere safe?" Mr Booker replied: "Bricks are safe".[19] Plainly, Mr Kontossis understood that the bricks were not secured by mortar in the fence.

1. I accept the tenants' evidence that the bricks were not securely mortared back in position after the two incidents. I accept that the fence was in need of repair from 2014. I accept also that the tenants felt obliged to restack the bricks when they fell onto the footpath. I accept that the tenants felt an additional responsibility because the rented premises were next to a park where children played.
2. In the hearing, the landlords' agents conceded that the repair issue was first raised on 5 April 2014 and they acknowledged that the repair issue was brought to their attention on a number of occasions after that date, as detailed above. The fence was not repaired for over 5 years from the time that the landlords' agent was first made aware of the need for repair. The landlord's obligation to repair arises when the landlord is or ought to be aware of the issue. I find, on the tenants' uncontested evidence, that the landlords' agent was aware of the need to repair the fence from 5 April 2014.
3. I find that the landlords did not take all reasonable steps to comply with the duty to repair, and I find that the tenants did not consent to the failure to repair by the landlords.
4. I note that the tenants did not issue a breach notice until 28 June 2019, when the end of the tenancy was imminent. As I have noted above, the landlord's duty to repair is not "conditional" on the tenant issuing a breach notice. The duty to repair is a strict and absolute duty.[20] A landlord, or landlord's agent, that defers attending to repairs assumes a risk that the landlord may be found in breach of the duty to repair.
5. I consider the tenants' actions in repeatedly bringing the need for the repair to the attention of the landlords sufficient indication of their concern, and their attempts to have the repairs attended to.
6. However, I do not accept that the failure to repair resulted in a loss to the tenant equivalent to 2% reduction in rent for the relevant period. The rented property was a 3 bedroom home on a large suburban block. The tenants had the use of all rooms in the house, and their access to the property and its outdoor area was not affected by the condition of the fence.
7. I accept that the amenity of the rented premises was affected by the failure to repair. I consider the impact of the unrepaired front fence to be 0.5% over the period. I find the relevant period to be from 5 April 2014 to the end of the tenancy on 1 August 2019. Working from the tenants' figures, which were not contested by the landlords, this amounts to compensation of $499.25, and I find that this amount is appropriate compensation for the inconvenience and loss of amenity the tenants experienced. I will order the landlords to pay the tenants this amount.

1. The tenants claim $2,018.83 calculated as 5% of the daily rent from 13 June 2017 to 1 August 2019, a period of just over 25 months.
2. The tenants informed Mr Robinson on 13 June 2017, that the side fence was beginning to collapse. This was the first property inspection after Mr Robinson commenced as property manager. Mr Robinson recorded the issue in his Routine Inspection Report dated 13 June 2017 as follows "Apparently the neighbour to the right has been in touch with the tenants and said he'll have a look at repairing the back (sic) fence that the properties share but the tenant and the neighbour not too worried about it".[21] Mr Robinson took photographs of the side fence at that inspection.
3. The tenants deny that they were "not too worried about it". They say that the state of the fence was discussed at subsequent property inspections with Mr Robinson. On 2 January 2018 the tenants sent an online maintenance request. Despite having taken photographs at the property inspection on 13 June 2017, Mr Robinson requested further photographs.
4. The tenants say that the side fence was not safe, and its condition compromised the security of the property, and meant children of friends who visited had to be closely supervised in the back garden.
5. The landlords agreed that the fence was not repaired before 1 August 2019.
6. Mr Robinson agreed that he took photographs of the damage to the side fence on 13 June 2017 and acknowledged that he was aware of the repair issue from that date. The landlords gave evidence, and Mr Robinson agreed, that the landlords approved quotes for repair of the side fence in early January 2018. Mr Robinson conceded that he did not inform the tenants of, or act on, the landlords' approval before 1 August 2019. Mr Robinson said that he didn't follow up the repair because the tenants were in rental arrears.

1. I find that the landlords were or ought to have been aware of the disrepair of the side fence on 13 June 2017. I accept that the fence was not repaired before 1 August 2019.
2. I find that the landlords did not take all reasonable steps to comply with the duty to repair.
3. The landlords' legal representative suggested, in the hearing, that the condition of the fence was affected by the storage of the tenants' goods near the fence. The photographs tendered in evidence do not support that contention. I note that there is no mention of the storage of the tenants' goods in the agent's notes in either June 2017 or January 2018. Further, I note, from the photographs tendered, that although a number of items were stacked up in front of the fence, they did not appear to be leaning against the fence. I find that the tenants did not contribute to the disrepair of the side fence.
4. The landlords' legal representative asserted that the landlords had acted consistently with the principles in Sheilds v Deliopoulos.[22] As I have noted above, that case confirmed that a landlord's duty to maintain is "strict and absolute" and that there is an obligation on a landlord to "identify and rectify any defects of which they are aware or ought to be aware". I accept the landlords' evidence that they authorised repairs to the side fence immediately on being informed by their agent, in January 2018. However, the landlords' obligation to repair arose when the landlord ought to have been aware that repairs were required. That occurred when the landlords' agent became aware of the problem. Further, that authorisation was not acted upon by the landlords' agent. The obligation to repair is not affected by the existence of rent arrears. A landlord's agent who puts off maintenance works on the grounds of rental arrears is not acting consistently with the landlord's duty to maintain. The landlords' agent acted inappropriately in failing to action maintenance issues on the grounds that there were rental arrears.
5. As the disrepair of the fence had only a minimal impact on their use of the rented premises, I consider the tenants' claim to be disproportionate to the inconvenience created. However, I accept that the side fence was in disrepair for over 2 years, the tenants were put to the trouble of drawing it to the agent's attention repeatedly, and the disrepair of the side fence limited, to some degree, the freedom with which they could use the garden area. I find that the tenants suffered inconvenience and a loss of amenity as a result.
6. I consider compensation at the rate of 0.5% of rent for the period, which, again working from the tenants' figures, means a total of $513.38 is appropriate. I will order the landlords to pay this amount to the tenants.

1. The tenants claim $475.35 calculated as 2% of daily rent from 13 June 2017 to 15 September 2018 for faulty door handles on internal doors.
2. The tenants gave evidence that the handles on the doors between the kitchen and the hallway and between the hallway and the third bedroom, which was used as a study, did not work properly for the duration of the tenancy. They said the effect of this was that the doors would not remain closed. This meant that cooking smells could not be contained in the kitchen, it was hard to heat the house due to draughts, and there was no privacy in the back room.
3. The tenants say they raised the issue with Mr Robinson at the property inspections on 13 June 2017 and 15 January 2018. Mr Robinson's Routine Inspection Report dated 13 June 2017 records that "Some of the door knobs are loose and turn without affecting the tongue. The tenants are not worried about it". The tenants deny that they had said they were not worried about the faulty door handles.
4. No action was taken by the landlords' agent after either the June 2017 or the January 2018 property inspection.
5. The tenants then made an online maintenance request regarding the doors on 18 April 2018. Mr Robinson responded by email the same day asking for more detail. The tenants say they did not receive that email. The tenants say that they raised the issue again at the next routine property inspection on 23 July 2018. The tenants say that on 29 August 2018 Mr Robinson informed them that he had not actioned their request because they had not replied to his earlier request. I consider Mr Robinson's second request for further information to have been disingenuous, given the intervening discussion on 23 July 2018. Nevertheless, it appears that the landlords reviewed a property inspection report in late August or early September 2018 and authorised a number of repairs to be carried out, including the door handles. On 3 September 2018 Mr Robinson informed the tenants that he would send a tradesperson around. The problem was resolved on 15 September 2018.
6. The landlords did not dispute that an online maintenance request was made on 18 April 2018 and agreed that the door handles were repaired on 15 September 2018. The landlords' agent sought to rely on his notation in July 2017 that the tenants were not worried about the door handles being faulty. The tenants denied having said such a thing. In any event, the note was made prior to the maintenance request in April 2018. Any relevance it may have had was overtaken by the later request.

1. The Routine Inspection Report of 13 June 2017 is the first record of the repair issue with the door handles. I find that the landlords was or ought to have been aware of the repair issue from that date.
2. The parties agree that the door handles were repaired on 15 September 2018. I note that the landlords' approval was given in response to the property condition report dated 3 September 2018. There was no appreciable delay on their part. However, there was a delay of 15 months on the part of the landlords' agent.
3. I accept that it is possible that doors that would not close or stay shut may have made it more difficult or costly to heat the house. However, I note also, on the evidence before me,[23] that heating was provided by a split system in the lounge, which is unlikely to have heated the whole house. There were sliding doors between the lounge and the hallway which could have contained the heat in the lounge. Clearly, rooms had to be heated individually, and it is unlikely in that circumstance, that the hall would be heated.
4. I am not satisfied on the evidence before me that there was an appreciable loss of amenity or inconvenience arising from cooking smells from the kitchen.
5. I find that, while there was reduced privacy in the back bedroom, that room was being used as a study or work room, rather than as a bedroom. The tenants' evidence was unclear about the impact on them in relation to that room.
6. Accordingly, on the evidence before me, I am not satisfied that there was a compensable loss of amenity or inconvenience. The claim for compensation in relation to the failure to repair the door handles is dismissed.

1. The tenants claim $1,191.99 calculated as 5% of daily rent from 13 June 2017 to 15 August 2018, a period of 61 weeks.
2. The tenants gave evidence that on 13 June 2017 they notified the agent that they had tried to replace several down-light globes but had found that the transformers required replacement. The tenants say that four lights were faulty, 1 out of 6 in the lounge, 1 of 2 in the kitchen and 2 in the dining area.
3. Mr Robinson recorded in the Routine Inspection Report dated 13 June 2017 "one of the transformers in the lounge room has broken, tenant says he would fix that himself". The tenants deny that they offered to fix the transformers themselves.
4. In the hearing, the landlords' legal representative conceded, appropriately, that the replacement of transformers is a task for a licensed electrician, and it would not have been appropriate to rely on the tenants undertaking that work. I note that the agent would have been placing his landlords' asset at risk if he had contemplated such repair being carried out by unqualified personnel.
5. The tenants say that they notified the agent again, on 18 April 2018. At the routine inspection conducted on 23 July 2018 Mr Robinson took photographs which show down-lights not functioning.[24] The tenants say that Mr Robinson emailed them on 29 August 2018 asking them to check the lightbulbs again. They say it was not until 15 September 2018 that the down-light transformers were repaired.
6. The tenants say that because the lights were not working the rooms were not well lit at night, and the pantry was very dark.
7. Mr Robinson agreed that he received the maintenance request made on 18 April 2018. He agrees that he responded to that maintenance request by seeking more information, and that he re-sent that request on 29 August 2018.
8. Given that a landlord has a duty to repair any defects of which they are aware or ought to be aware, the landlords' obligation was triggered as soon as the issue had been brought to Mr Robinson's attention. Again, I consider Mr Robinson's request for additional information on 18 April 2018 to have been a delaying tactic, intended to shift responsibility, which was properly on the landlords, back to the tenants.
9. It appears that the landlords reviewed a property inspection report provided to him on or around 3 September 2018, and immediately authorised repairs to be carried out. The agent contacted an electrician on 10 September 2018, who completed repairs on 15 September 2018.

1. I find that the landlords' agent was made aware of the faulty down lights on 13 June 2017 and again on 18 April 2018. I find that there was an unreasonable delay in actioning repair items which had been brought to the attention of the landlords' agent during the regular property inspection.
2. I find that the landlords did not take all reasonable steps to comply with the duty to repair.
3. I agree that the inconvenience of the faulty lights, given that they were in the main living areas of the rented premises, amounts to 5% of the daily rent. Again, working on the tenants' figures, which were not disputed by the landlords, I will order the landlords to pay $1,191.99 to the tenants.

1. The tenants claim $780, calculated as 10% of daily rent from 18 April 2018 to 15 September 2018.
2. The tenants say that at the property inspection on 18 April 2018 they alerted Mr Robinson that the door of the oven did not close properly. They say no action was taken, and they drew it to Mr Robinson's attention again at the property inspection on 23 July 2018. They say Mr Robinson took 2 photographs of the oven door that day.
3. The photographs taken by Mr Robinson on 23 July 2018 are of the interior of the oven and the oven door. [25]
4. The tenants say that they were concerned that the oven would be costly to run, and would not cook reliably because it did not close properly, and so did not use the oven while it was faulty.
5. Mr Robinson says that he asked the tenants to supply details of the oven door fault after he attended the property inspection on 18 April 2018. He says that he took no further action because the tenants did not reply to his request. Once again, it appears that the landlords were informed of the repair issue sometime around 3 September 2018. On 3 September 2018 Mr Robinson informed the tenants that he would send a tradesperson, and the oven door was repaired on 15 September 2018.
6. For the landlords it was submitted that, if compensation were to be awarded for the failure to repair the oven, it should be limited to 2% of rental for the period, on the grounds that the tenants had a microwave which gave them an alternative means of preparing meals. That submission is plainly vacuous. The landlord is obliged to maintain the fixtures and fittings provided in the rented premises. Facilities for cooking provided by the landlord are essential services. A microwave does not have the same functionality as an oven.
7. I note that the tenants could have made an application to VCAT for urgent repairs to the oven. Applications for urgent repairs are listed for hearing by the Tribunal within 2 business days, and such an application might have reduced the period during which the oven was not functional.
8. Of course, there is no obligation on the tenants to make such an application, however, the assessment of compensation payable for the failure to repair the oven has to take into consideration the fact that the tenants were not so inconvenienced by the oven's disrepair that they were prompted to apply to VCAT for urgent repairs to the oven.

1. I find that the landlords were aware of the need to repair the oven door from 18 April 2018. I find that the landlords did not take all reasonable steps to comply with the duty to repair, and I find that the landlords' agent acted unreasonably in not actioning the oven door maintenance issue promptly.
2. I do not consider the oven to represent 10% of the rented premises in this case. I consider the loss suffered by the tenants due to the oven being in disrepair to represent 5% of the rented premises. Working from the tenants' calculations, which were not disputed by the landlords, I will order the landlords to pay the tenants $390.00

1. The tenants claim $858 calculated as 10% of daily rent from 18 April 2018 to 15 September 2018, a period of 21 ½ weeks, for a faulty dishwasher.
2. The tenants say that they sent an online maintenance request for repair to the dishwasher on 18 April 2018. The documentary evidence shows that, in reply, on the same day, Mr Robinson asked the tenants for details about the fault in the dishwasher, and the model number of the machine. The tenants say they did not receive this email at the time that it was sent.
3. At the routine property inspection on 23 April 2018, the tenants say they raised the issue again, and photographs were taken by Mr Robinson. Despite taking photographs on 23 April 2018, nothing was done, until 29 August 2018 when Mr Robinson requested a response to the email he had sent on 18 April 2018. The tenants did not follow up again with the landlords' agent during this period.
4. On 3 September 2018 Mr Robinson confirmed that the landlords had seen the routine inspection report and wanted action on all of the repair items listed. It was not explained why the maintenance issue was only brought to the landlords' attention in September and not earlier. The dishwasher was repaired on 15 September 2018.
5. The landlords agree that the dishwasher was out of action from 29 August 2018 to 15 September 2018, but says that they acted promptly on receiving a request to approve repairs.

1. I find that the landlords' agent was aware of the need to repair the dishwasher on 18 April 2018.
2. I find that the landlords did not take all reasonable steps to comply with the duty to repair, and I find that the tenants did not consent to the failure to repair by the landlords.
3. I accept that the landlords themselves acted promptly when the issue was drawn to their attention, however, I accept also that the tenants first raised the maintenance issue on 18 April 2018, with the landlords' agent, but the machine was not repaired until 15 September 2018.
4. I accept that the dishwasher was out of service from 18 April 2018 to 15 September 2018. I accept also that a faulty dishwasher has a significant effect on the smooth running of a household, despite not qualifying for an urgent repair order. I consider 5% to be an appropriate measure of compensation, and, working from the tenants' calculation, which was not disputed by the landlords, I will order the landlords to pay the tenants $429.

1. The tenants say that there were two separate problems with window coverings in the property. In respect of first blind maintenance issue, the tenants claim $7,172.83 calculated as 10% of daily rent from 11 April 2014 to 2 March 2018, a period of 203 weeks. The tenants claim $378.45 for the second blind issue, calculated at 5% of daily rent for the period 18 April 2018 to 10 September 2018.
2. The first blind maintenance issue related to the timber venetian blinds in the lounge room, dining room, master bedroom and side bedroom. These were the only window coverings in those rooms. The tenants say that the timber venetians were old, several slats would not tilt shut, and some blind units could not be raised. The tenants also say that, as a result, privacy and security of the property was compromised. They say that in July 2016 the property was burgled, and cameras and other photographic material used by Mr Booker in his business were taken.
3. This problem was reported to Mr Kontossis by email on 11 April 2014.[26] A handyman was sent around, and on 11 July 2014 Mr Booker reported to Mr Kontossis that the handyman had said that specialist tradespeople were required.[27] It seems that nothing further was done, either by the agent or the tenants for some time after that. The problem was again drawn to Mr Robinson's attention at the routine property inspection on 13 June 2017. Mr Robinson advised the tenants by email that there would be no action on the maintenance issues until the rent arrears were brought up to date.
4. Eventually, the landlords' agent agreed that the blinds required replacement, and this was done by 2 March 2018. For the landlords it was asserted that the period between the complaint about the timber venetians and their repair should be taken to be 13 June 2017 to 2 March 2018. While it was not disputed that the faulty blinds had been raised with Chris Kontossis in 2014, I note that the tenants did not agitate the issue again until 13 June 2017. I consider this to be the relevant start date for this aspect of the tenants' claim, as they took no action in the period between 2014 and 2017, suggesting any inconvenience was minor and there was no appreciable impact on their enjoyment of the property that might prompt the to take the matter further. Significantly, Mr Robinson conceded that he had declined to follow up maintenance issues while he was managing agent for the property, and that he did so for the reason that the rent was in arrears. This was not consistent with the landlord's obligations under the RTA.
5. The second blinds issue concerned a roller blind in the lounge room which the tenants reported as broken on 18 April 2018. The roller blind had been installed by the landlords in place of one of the previously faulty timber venetian blinds referred to above. The roller blind could not be raised, and, as a consequence, the lounge room was in darkness during the day. Again, it was on 3 September 2018 when Mr Robinson advised the tenants that this would be repaired. The parties agree that the repair was fixed by 10 September 2018.

1. I find that the landlords were in breach after they became aware, or ought to have been aware of the issue. I find that the relevant period for assessment of compensation for loss in respect of the first blinds issue is 13 June 2017 to 2 March 2018, that is, thirty-seven weeks and three days. I consider, given the impact on privacy and security of the property, 5% of daily rent is appropriate for the first blind issue. Again, relying on the tenants' figures, which were not disputed by the landlords, this comes to $1,325.03. I consider that $200 is appropriate compensation for the second blind issue. I will order the landlords to pay the tenants $1,525.03 for this part of their claim.

1. The tenants claim $2,261.05 calculated as 10% of daily rent from 5 July 2016 to 15 October 2017, a period of over 15 months.
2. On 5 July 2016 the tenants made a maintenance request advising that the concrete driveway had cracked, become uneven and developed "mud holes". Inspection photographs show that the concrete was cracked, and the path had developed a dip.
3. The condition of the driveway continued to deteriorate, creating a sizable puddle in wet weather, and splashing mud on their car. The tenants made repeated email requests for the driveway to be repaired. On 15 July 2016 they emailed Chris Kontossis reporting that the broken concrete in the driveway was "floating on mud when it rained" and their car was constantly covered in mud. On 5 December 2016 the tenants offered to repair the driveway and provided a quote for materials.[28]
4. The tenants say Mr Robinson informed them that the driveway would not be attended to until they had resolved their rent arrears. The parties agree that the driveway was fixed on 15 October 2017.
5. The landlords' evidence showed that they had authorised repair of the driveway by their handyman on 26 June 2017. The landlords said, in the hearing, that they approved the repairs because they didn't want there to be any risk of injury to the tenants. The landlords' agent did not dispute that he had delayed action on the driveway repairs and that he had done so because of the rental arrears.

1. I am satisfied that the landlords acted appropriately. However, the delay by the landlords' agent is inconsistent with a landlord's obligations under the RTA, and as a consequence, the landlords are in breach of their obligation to repair the driveway. Once again, the agent's conduct has exposed the landlords to liability.
2. While I am satisfied that the deterioration in the concrete driveway caused inconvenience, on balance, I do not consider this maintenance issue to represent 10% of the rented premises. Compensation of $678.30, or 3% of rental for the period is appropriate in the circumstances, and I will order the landlords to pay this amount to the tenants.

1. The tenants claim that the landlords' agent acted unreasonably in his manner of entry to undertake periodic property condition inspections. In particular, the tenants say that the landlords' agent took excessive photographs, took photographs of their personal possessions; and took photographs unrelated to the condition of the property.
2. Section 87 of the RTA requires a person exercising a right of entry to do so in a reasonable manner.
3. Section 67 of the RTA requires a landlord to take all reasonable steps to ensure that the tenant has quiet enjoyment of the rented premises during the tenancy agreement.
4. The photographs tendered in evidence included photographs showing
   • the tenants' laundry basket filled with clothes waiting to be washed;
   • the tenants' groceries on the kitchen table;
   • belongings such as mountain bike, lawnmower, home brew kit, and photographic equipment;
   • the tenants' vehicles and boat, with the registration plates clearly visible; and
   • the tenants' beds and clothing.
5. The landlords' legal representative conceded that it was not appropriate to have taken photographs of the tenants' vehicles, boat, bedroom areas or other personal belongings.
6. The landlords' agent asserted that the photographs were accessible only by him, his manager, and the landlords. I note that the photographs did not form part of a condition report. I note also that some of the photographs taken show that the premises were in good condition. Many of the photographs are taken from angles which prevent any useful assessment of the condition of the premises. Most of the photographs would have been of limited value in the event of any claim against the tenants. They tend to suggest a lack of understanding by the photographer of the purpose of such photographs in an application to VCAT under the RTA.
7. The tenants gave evidence that they felt their privacy had been unreasonably breached. The tenants noted that the agent's privacy policy states that photographs taken of rental properties will always respect the tenant's privacy. The tenants say that the agent failed to comply with his own employer's policies in taking the photographs. I note that the tenants made a complaint to the Commissioner for Privacy and Data Protection, who found there had been no breach of the Privacy and Data Protection Act 2014.
8. I find that many of the photographs taken by the landlords' agent unreasonably breached the landlords' duty, in s 87(a) of the RTA, to exercise the right of entry in a reasonable manner. The landlords have conceded that some of the photographs were not appropriate. The landlords has proposed that the tenants should receive $1 in compensation. That proposal tends to trivialise the obligation on landlords and their agents to act reasonably when recording the condition of the rented premises. I note also that the tenants were not provided with copies of the photographs at the time that they were taken, but only received copies as part of the document exchange in proceedings before the Tribunal. The landlords have conceded that some compensation is appropriate. It is well established that the power to award compensation includes the power to award compensation in respect of non-economic loss for distress, hurt or humiliation.[29] In all the circumstances, I consider that it is appropriate to compensate the tenants for the non-economic loss for distress and humiliation they say they experienced on becoming aware of the extent of the photographs. I will order the landlords to pay the tenants $50 in compensation for that non-economic loss.

107A The tenants also sought compensation for the conduct of contractors engaged by the landlord's neighbours who entered the rental property to effect repairs to the back fence of the property. In the hearing, I accepted the evidence of Mr Robinson that they had not been made aware of the neighbour's engagement of the contractors. The landlord is not responsible for the conduct of the neighbour's contractors.

Claims made under the Australian Consumer Law

1. The tenants claim damages in relation to the following claims under the ACL and the ACLFTA:
   1. the landlords engaged in misleading and deceptive conduct contrary to s 18 of the ACL;
   2. the landlords' agent failed to provide services with due care and skill, contrary to s 60 of the ACL;
   3. the landlords' failure to repair caused the property not to be fit for purpose, contrary to 61 of the ACL; and
   4. the landlords' agent engaged in prohibited debt collection practices contrary to s 45 of the ACLFTA.

Claim based on s 18 of the ACL

1. Section 18 of the ACL prohibits misleading and deceptive conduct in trade or commerce. Section 236 of the ACL enables a person who suffers loss or damage because of the conduct of another person to claim compensation, where that conduct contravened a relevant provision of the ACL. Those relevant provisions include s 18.
2. Section 18 of the ACL provides:

A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

1. The misleading or deceptive conduct complained of by the tenants is the conduct of Mr Robinson, in relation to the issuing of Notices to Vacate under the RTA, and representations made by Mr Robinson to the tenants in connection with, or in the course of, hearings before this Tribunal in relation to the tenancy. In particular, they say that Mr Robinson, as the landlords' agent, repeatedly issued Notices to Vacate that were not in accordance with the RTA, misled the Tribunal and misled the tenants.
2. In order to succeed in their claim for compensation under s 236 of the ACL for breach of s 18 of the ACL, the tenants must prove that representations were made, that those representations were misleading or deceptive; establish that they relied on those representations to their detriment; establish that by relying on those representations, they suffered loss or damage; and quantify that loss or damage.
3. The tenants' assertion that Mr Robinson engaged in misleading and deceptive conduct in relation to the issuing of Notices to Vacate, is, in effect an attempt to challenge the outcome of decisions of this Tribunal in previous proceedings. The Tribunal's determination of those proceedings will have been made on the evidence before the Tribunal at the time in relation to the relevant Notices to Vacate. The time for the tenants to challenge the Notices to Vacate relied upon by the landlords in those previous proceedings, was in those previous proceedings, by presenting evidence of the defects or errors in the Notices. The Tribunal's decisions in those previous proceedings are final, and may only be reviewed, as provided for in s 148 of the VCAT Act, with leave, in the Supreme Court or the Court of Appeal.
4. To the extent that the tenants seek to rely on representations that they say were made by Mr Robinson in Tribunal hearings, it would have been the Tribunal itself that relied upon the representations made by Mr Robinson, and those representations would have been relied upon as evidence before the Tribunal. To the extent that the tenants suggest that Mr Robinson may have perjured himself before the Tribunal, that is a very serious allegation, but is a matter for criminal prosecution, and not a matter that can be determined in these proceedings. To the extent that the tenants assert that they relied, to their detriment, on representations made by Mr Robinson in purporting to agree to payment plans, those were evidentiary matters before the Tribunal in the previous proceedings. For the reasons I have given earlier, this is not the forum for review of past decisions of the Tribunal.
5. For these reasons, the tenants do not succeed in their claim for compensation for breach of s 18 of the ACL.

1. The tenants claim under s 60 of the ACL is that

The service 'tenancy agreement' has not been rendered with due care and skill. Terms outlined in the tenancy agreement have not been met on multiple counts. The property was in disrepair for long periods of time.

There have been countless examples of unactioned maintenance requests which have caused the property to be unsafe (both for the tenants and the general public).

Unauthorised access by the landlord's agent to the property on numerous occasions has hindered the tenants' quiet enjoyment of the property.

The tenant's privacy and quiet enjoyment has also been invaded after numerous photos were taken at routine inspections without their consent, including photos of the tenants and their personal possessions.

1. The tenants claim that "the substantial and ongoing breaches of the [RTA] and ACL [are] a major failure". They seek to "recover money paid for the services from 10/12/2018 till 1/08/2019".[30]
2. A claim for breach of the consumer guarantee in s 60 of the ACL, that services be provided with due care and skill, may be made by a consumer under s 267 of the ACL.
3. The relevant provisions of section 267 of the ACL are
   • (1) A consumer may take action under this section if:

(a) A person (the supplier) supplies, in trade or commerce, services to the consumer; and > > (b) A guarantee that applies to the supply under [provisions including s 60 of the ACL] is not complied with;

• (2) If the failure to comply with the guarantee can be remedied and is not a major failure:

(a) the consumer may require the supplier to remedy the failure within a reasonable time; or > > (b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time - the consumer may: > > > (i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or > > > > (ii) terminate the contract for the supply of the services.

• (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may

(a) terminate the contract for the supply of those services; or > > (b) by action against the supplier, recover compensation for any reduction in the value of the services below the price paid or payable by the consumer for the services.

1. I do not consider the breaches identified by the tenants to amount to a major failure. As the tenancy has already terminated, the remedies provided by subsection 267(2) are no longer of assistance to the tenants. Even if the breaches had amounted to a major failure, I have determined, in relation to the claim brought under the RTA, that compensation is payable for the loss, which equates to the reduction in value of the services below the price paid. There is, accordingly, no further loss that could be claimed by the tenants under s 265(3). For these reasons the tenants' claim for breach of s 60 of the ACL is dismissed.

1. The tenants assert that the services for the purposes of their claim were the rights and entitlements arising under the tenancy agreement. On the evidence before me I am not satisfied that they have proved their contention that the services were not "fit for purpose". The premises were leased under the terms and conditions implied into the tenancy agreement by the RTA. To the extent that premises rented under the RTA are "services" under the ACL, as long as there is compliance with the procedures set out in the RTA, including the procedures for addressing breaches by the landlord of his duty to maintain, and barring the premises becoming uninhabitable, the "services" continue to be "fit for purpose". The tenants' claim under s 61 of the ACL is dismissed.

1. The tenants claim that the landlords' agent engaged in prohibited debt collection practices, contrary to s 45 of the ACLFTA. Section 45 of the ACLFTA is a provision creating a criminal offence, with a maximum penalty of 240 penalty units for a natural person. The landlords submitted that landlords and their agents are not subject to s 45 of the ACLFTA. That is incorrect. However, the enforcement of that provision is the responsibility of the Director of Consumer Affairs, and such enforcement action is a criminal proceeding, that would be taken in the Magistrates' Court, not in this Tribunal. The Tribunal's powers under the ACLFTA are to determine consumer and trader disputes.[31] Allegation of contravention of a criminal provision such as s 45 of the ACLFTA is not a consumer and trader dispute within the meaning of the ACLFTA. The tenants' claim under s 45 of the ACLFTA must be dismissed.
2. For completeness, I note that the tenants also made claims that the landlords' conduct in issuing Notices to Vacate under the RTA amounted to unconscionable conduct contrary to s 20 of the ACL, and accessing the property with spare keys amounted to unfair contract terms contrary to s 23 of the ACLFTA. The tenants conceded in the hearing, that the regime of the RTA applied to that conduct and was, in effect, authorised by the RTA. The claims relating to unconscionable conduct and unfair contract terms are dismissed for those reasons.

[1] The tenancy ended on 1 August 2019, and, on 6 September 2019, in proceeding R2019/28242, the Tribunal made orders directing the Residential Tenancies Bond Authority to pay the bond of $1,517.00 to the landlord, and directing the tenants to pay the landlord compensation of $4,701.02, being the balance of compensation owed to the landlord by the tenants for arrears of rent, cleaning and removal of rubbish at the premises.

[2] EL v. EA [2006] VCAT 2049, following Reardon v. Ministry of Housing (unreported, Supreme Court of Victoria, 13 November 1992).

[3] See for example Davies v Tereke [2015] VCAT 92 and Micallef v Todio [2014] VCAT 976.

[4] See for example Randall v De Fraga [2015] VCAT 458.

[11] Driver v War Service Homes Commissioner (1923) 44 ALT 130 at 134 per Irvine CJ, cited with approval by Acting Justice of the Queensland Court of Appeal Margaret Wilson, with whom President Margaret McMurdo agreed, in Pialba Commercial Gardens Pty Ltd v Braxco Pty Ltd & Ors [2011] QCA 148 at [97].

[12] See for example, Ball v Gavin [2016] VCAT 286.

[13] [2016] VSC 500.

[15] That breach notice was issued after the application in proceeding R2019/16136 had been made.

[16] Tenants' photographic evidence 2.1.1, being photographs supplied by the Agent to the Tenants.

[17] Tenants' photographic evidence 2.1.3.

[18] Photograph 13954_25419_img_0537-9.JPG.

[19] Tenants' Emails 4.2 and 4.3 emails dated 11 April 2018 between Leith Booker and Chris Kontossis.

[20] Shields v Deliopoulos [2016] VSC 500, where it was stated that the duty can be breached if a condition report identifies repair issues.

[21] Documentary evidence submitted by Mr Robinson, page 22. Mr Robinson confirmed in the hearing that he was referring to the side fence in this email.

[22] [2016] VSC 500.

[23] Photos taken by the landlord's agent 23 July 2013 489 and 535.

[24] Images 13954_25216.IMG_505.JPG and 13954_25245.IMG_513.JPG.

[25] Images 13954_5260_IMG_0510.jpg and 13954_25235_IMG_0511.jpg.

[26] Tenants' Emails item 4.2 emails dated 11 April 2014 between Leith Booker to Chris Kontossis.

[27] Tenants' Emails item 4.9 email dated 11 July 2014 from Leith Booker to Chris Kontossis.

[29] Fair Work Ombudsman v Maritime Union of Australia (No 2) [2015] FCA 814; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 33.

[30] Tenants' Claim under ACL Part 9 page 1.