Legislation cited: Residential Tenancies Act 1997 ss 72, 79, 82; standard residential tenancy terms cl 57, 59, 60

Cases cited: Brogan Prestige Properties and Strand & Black (Residential Tenancies) [2010] ACAT 60

Salem & Gizgeez v Abeygunasekara & Jeevanthan [2011] ACAT 9

_Watson v Gaudo_n [2009] ACAT 15

1. The lessor's claim for the cost of replacement of a black powder-coated gate in the sum of $1,595 is dismissed.
2. The Office of Rental Bonds pay the amount of the bond held in dispute, being $1,595, to the tenant.
3. The lessor pay the tenant compensation in the amount of $2,167.45 made up of the following amounts.
   • (a) Unusable downstairs shower - $400;
   • (b) Unusable deck - $500;
   • (c) Inoperative heating - $400;
   • (d) Inoperative dishwasher - $400; and
   • (e) Early vacating of the premises at the lessor's request - $467.45.
4. The lessor pay the tenant the filing fee for the tenant's counter-claim in the sum of $140.

1. On 29 December 2014, Ms Angela But and Ms Kathleen Baldwin commenced a residential tenancy of premises at 98 Gurrang Avenue Ngunnawal in the Australian Capital Territory as lessor and tenant, respectively. The rent was $700 per week. The tenant paid a bond of 4 weeks' rent ($2,800) that was lodged with the Office of Rental Bonds.
2. Between 29 June 2015 and 10 August 2015, the lessor's agent, Ms Alana Reid of InStyle Estate Agents, and Ms Baldwin exchanged emails regarding a proposal from the lessor that Ms Baldwin vacate the property early. The lessor offered payment towards Ms Baldwin's cost of removal and compensation in consideration for Ms Baldwin leaving the premises early. Arising from those negotiations, the tenancy terminated by agreement on 21 August 2015.
3. A dispute then arose regarding return of the bond to the tenant. $976 and $229 were paid by agreement to the lessor and the tenant, respectively, however the balance of $1,595 is in dispute and remains in the Office of Rental Bonds trust account. This sum represents an amount that the lessor wishes to be paid to her by way of compensation for damage to a security gate at the leased premises.
4. The tenant disputed and continues to dispute liability to pay for the damage to the gate. This dispute caused the lessor to lodge an application dated 26 November 2015 with the Tribunal under section 79 of the Residential Tenancies Act 1997 (the RT Act) for compensation in the sum of $1,595 for the damage to the gate.
5. On 21 December 2015, the tenant lodged a response to the lessor's claim in which she set out her reasons for disputing liability to compensate the lessor for the damage to the gate. The tenant also made a counter-claim for compensation in relation to several matters that (she says) occurred during the tenancy:
   • (a) harassment by a 'handy person' who allegedly made unscheduled visits and interfered with the privacy of the tenant;
   • (b) the downstairs shower being unusable;
   • (c) the deck being unusable;
   • (d) the heating system being inoperative;
   • (e) the dishwasher being inoperative; and
   • (f) the lessor's failure to honour an agreement to compensate the tenant up to $2,000, less her removal costs, for her early vacating of the property.
6. It is clear, in my view, that each of the six issues raised in the counter-claim constitute a tenancy dispute under section 72(1) of the RT Act because each entails a dispute between the parties to the residential tenancy agreement and each is about, arises from, or relates to, the agreement. I therefore have power to hear and determine each of the claims.
7. The dispute about liability for damage to the gate and the dispute about each of the items which are the subject of the tenant's counter-claim arose after the tenancy agreement was terminated. However, under section 82 of the RT Act, the Tribunal may determine a tenancy dispute where the agreement is no longer in force provided the provisions of the RT Act applied to the agreement while the agreement was in force and the application to the Tribunal was made within six years after the conduct giving rise to the dispute. Those circumstances apply in this case.

1. Ms Reid conducted the lessor's case although Ms But was present. Ms Reid, on behalf of the lessor, did not call any witnesses and relied on the following documents which I received in evidence:
   • (a) three colour photographs of the gate which were taken on 28 December 2014, being the day before commencement of the tenancy;
   • (b) seven colour photographs showing 'close up' portions of the damage to the gate, which the parties agreed were taken during the final inspection on 21 August 2015;
   • (c) a final inspection report dated 21 August 2015 that notes the words 'front gate damage' and 'gate - damage', which I take to be a reference to the damage depicted in the seven photographs taken on that day;
   • (d) a quotation dated 27 August 2015 from Pelican Panels Australia Pty Ltd for supply of a replacement gate at a quoted cost of $1,295 inclusive of GST;
   • (e) an undated and unsigned quote of $300 inclusive of GST that Ms But told me was from a tradesman for the quoted price for installing or hanging the gate; and
   • (f) a quote dated 2 September 2015 from Capital Doorworks Pty Ltd for $1,815 for carrying out repairs to the gate.
2. The lessor contended, with reliance on the photographs tendered in evidence, that the entry gate was so badly damaged that the tenant should pay for its replacement. Ms Reid relied on the quote for $1,815 from Capital Doorworks to say that it was cheaper to replace the gate than to repair it. The quote described the proposed works as follows:

To carry out repairs to existing gate including cut and shut vertical frames. Repair dents on hinge end and replace electric lock and repaint.

1. The tenant does not contend that the gate was damaged when she took possession of the property and told the Tribunal that she had no understanding that the gate was damaged until it was brought to her attention during the final inspection.
2. In order to find the tenant liable for replacement of the gate, the lessor must satisfy me on the balance of probabilities that, among other things, damage occurred to such a degree that replacement was the only practicable means of making good the damage and that the damage was not fair wear and tear.
3. Ms But was present at the hearing but did not give evidence. Nor did anyone else about the nature or extent of the damage. I note that the quote from Capital Doorworks refers to dents on the "hinge end" of the gate where photographs four, five and six on which the lessor relies as evidencing dents to the gate are at the opposite end of the gate. Also, the quote includes in its description "replace electric lock", yet at hearing Ms Reid agreed that the gate was working "perfectly" when tested at the final inspection. I had no evidence from Capital Doorworks or from anyone else as to what was intended by "cut and shut vertical frame", or why that was necessary where Ms Reid and Ms Baldwin agreed at hearing that the gate was working perfectly at the final inspection.
4. The only evidence of actual damage present at the final inspection was the photographs.
5. Among other things to which I will return, the photographs display peeling of the black powder coating paint in several places. Ms But told the Tribunal that the gate was installed in 2008. In the absence of evidence to the contrary, it is illogical that the tenant could have caused the peeling and no one suggested that she did. In my view, the peeling occurred naturally as a consequence of normal weathering and was therefore fair wear and tear. In accordance with clause 64(b) of the standard residential tenancy terms, the tenant is not liable for this damage.
6. Photographs eight and nine show missing paint at the hinge end of the gate that I accept is more likely to be scratches and scrapes than natural peeling. However these scratches were not the focus of Ms Reid's submissions at hearing, nor am I persuaded that they are scratches beyond fair wear and tear for a seven year old powder-coated outdoor gate. There was no evidence to suggest otherwise.
7. In addition to the peeling paint, Ms Reid contended that the gate was bent. She referred me to photographs four, five and six that, she said, illustrated or proved this damage. I informed Ms Reid at hearing that the photographs did not, by themselves, persuade me that the gate was bent. Photograph six shows a straight edge. I am not persuaded that the other photographs display a bend or dent in the gate, and I received no evidence from anybody that the gate was bent or the extent of the bend.
8. Ms Reid disagreed with my opinion of what the photographs depicted but led no further evidence to establish the damage. She acknowledged that she was not the managing agent when the property was let and so could not say whether the gate was bent or, if so, the extent to which it was bent or dented at the commencement of the tenancy. Whether the gate was bent or dented came down to opinion of what the photographs depicted. I am not persuaded that the photographs evidence bends or dents at all, much less of a seriousness that would or should justify replacement of the whole gate as the only practicable way in which to make good the damage.
9. For these reasons, I am not persuaded that the tenant is liable to the lessor for damage to the gate, and the lessor's claim for compensation for the cost of the replacement gate will therefore be dismissed.
10. The bond monies in dispute should be returned to the tenant.

1. The leased premises was a four bedroom home. Ms But told the Tribunal that there are two bathrooms upstairs, which I understood to include two showers. Downstairs, there was a bedroom and another bathroom that included a basin, toilet and shower. Ms Baldwin told the Tribunal that these rooms were used by her daughter and her daughter's partner.
2. The parties agreed and I find that the downstairs shower was unusable from at least 3 March 2015 to late May 2015 because it would have caused extensive water leaking into the storage area/wine cellar. The tenant properly avoided damage to the lessor's property by not using the shower.
3. Ms Reid explained that the delay in repairing the shower arose from practical difficulties in identifying the cause of the leak and deciding upon an effective but cost-efficient means of repair. I accept that Ms Reid, on behalf of the lessor, took all reasonably practical steps to rectify the leak and to rectify it in a timely manner having regard to the common interests of the tenant and the lessor.
4. I pause here to note that from reading the correspondence between Ms Reid and Ms Baldwin during the tenancy, and from Ms Reid's conduct of the matter on behalf of the lessor at hearing, I am of the view that Ms Reid performed her role as the lessor's managing agent in a balanced and professional manner. She impressed me as an honest and reliable person who fairly represented the facts of what occurred.
5. Likewise, Ms Baldwin impressed me as an honest and reliable person who did not over-state defects concerning the property during the tenancy.
6. Ms Reid and Ms Baldwin's conduct of the matter meant there were no material facts concerning the tenant's cross claim that were left in dispute, and I thank the parties for their co-operation.
7. Returning to the issue of the unusable shower, the fact that it was unusable whilst Ms Reid and the lessor sought a means of making a cost-efficient repair does not excuse the lessor's liability. During this period, the tenant's adult daughter and her daughter's partner were obliged to use an upstairs shower, as were all the other adult occupants of the premises for approximately three months. It was a significant inconvenience for all the occupants of the premises.
8. I accept that the two upstairs showers meant the repair of the downstairs shower was not as urgent or significant as it might have been, but the lessor still had a mandatory obligation under clause 57 of the standard residential tenancy terms to repair the unusable shower within four weeks of being notified of the need for repairs.
9. In Brogan Prestige Properties v Strand & Black [2010] ACAT 60 at [68], the Tribunal said:

In Irena Peters v Commissionner for Housing for the ACT [2006] the then Residential Tenancies Tribunal decided that a lessor's obligation to repair under standard residential tenancy terms 54 and 55 is framed in mandatory terms, i.e. the lessor "shall" maintain the premises in a reasonable state of repair. It is therefore not a defence to any landlord to plead that reasonable steps were taken to rectify either patent or latent defects. The test is whether these defects were in fact remedied such as to maintain the premises in a reasonable state of repair.

1. In Salem & Gizgeez v Abeygunasekara & Jeevanthan [2011] ACAT 9 at [44] the Tribunal said:

The lessors acted promptly to persuade the builders of the unit to carry out repairs. The need for repairs was not caused by any action, or inaction on the part of the lessors. The obligation to maintain premises in a reasonable state of repair, imposed by clause 55 of the standard terms on the lessor, is a mandatory obligation that is not diminished by the fact that the need for repairs is due to fault on the part of a third party, or by reliance on a third party to undertake repairs.

1. I agree with those views.
2. Where the lessor was in breach of her obligation to make repairs to the shower within four weeks of being notified of the need for the repairs, even if the breach did not arise from neglect on her part or Ms Reid's part, the tenant should be compensated for the breach. Compensation is payable not because of any neglect on the lessor's part but because the lessee continued to pay the weekly rent of $700 but did not have the use of the property to the extent of the deficiency.
3. Assessment of appropriate compensation is a question of judgement about which reasonable minds may differ. I assess compensation for the inconvenience of the unusable shower in the circumstance of this case from 1 April 2015 (being a date four weeks after the leak was reported) until its repair towards the end of May 2015 (being a period of approximately eight weeks) in the sum of $400.

1. The tenant contends that a significant part of the property was a rear entertainment timber deck. Having considered photographs of the deck, I agree with that assessment. It extends from the first level of the house. It is covered to provide shelter from the wind and rain. It has an area that the parties estimated to be eight metres by five metres. It affords generous views of distant hills.
2. On 3 March 2015, Ms Reid conducted an interim inspection of the property. In her comments to the owner, Ms Reid wrote:

The back deck and pergola has a lot of dry and rotted wood. Would have it looked at and repaired.

1. On 10 April 2015, Ms Baldwin sent an email to Ms Reid in which she stated, among other things:

Not sure what's happening with the deck, but we have been advised that the decay is so bad we should not use it.

1. Ms Baldwin told the Tribunal, and I find, that from 20 April 2015 (at least) Ms Baldwin and the other occupants of the premises accepted the advice not to use the deck, and did not do so until it was fixed on or about 27 May 2015. In my view, where the deck extended from the first floor of the house overhanging an area of approximately 2.4 metres below and its collapse might have led to serious injury, it was reasonable for the occupants not to use the deck having been advised not to do so. I accept Ms Baldwin's claim that the inability to use the deck meant that a "major feature" of the house was not available to the tenants.
2. Ms Reid submitted that the deck was not so unsafe that it could not be used. She relied on an email from Mr Angelo Nardi from AE Property Maintenance sent to Ms Reid on 12 May 2015, where Mr Nardi stated:

I went to have a look at the post at 98 Gurrang Ave. I found evidence of timber rot in the two posts in question however it is minimal and don't believe it to affect the structural integrity of the deck.

I don't think replacing these post (sic) is the best option because I believe it would be too costly. Trying to remove these post (sic) would create more work and would mean replacing other parts of the deck as well.

An easier and more cost effective option would be to cut out the rotting area's (sic) and fill them with a resin based filler and sealing the area preventing moisture from entering which would prevent the rot from spreading.

1. On 13 May 2015, Mr Nardi sent another email to Ms Reid in which Mr Nardi stated, among other things:

These are the post (sic) the tenant showed me were the problem. The deck is ageing I only had a brief look overall because you only asked me to look at the posts. But nothing stood out as being a serious concern.

1. The conflicting opinions might have placed the tenants in a dilemma as to whether the deck was safe. However that never arose because Mr Nardi's opinion was not relayed to the tenant. Ms Reid acknowledged that she never provided any further information to the tenant about the deck, who therefore remained with the unchanged understanding that the deck was not safe. Under those circumstances, the occupants understandably continued not to use it.
2. Assessment of appropriate compensation is a matter of judgement for the Tribunal. In my view, where the property was occupied by five adults and where the deck was a major feature of the house's amenity, the inability to use the deck significantly reduced the use and enjoyment of the property. Where the lessor was notified of the need for repairs on 3 March 2015, I assess compensation from 10 April 2015, when Ms Baldwin informed Ms Reid of the inability to use the deck, to 27 May 2015 when it was repaired (being a period of approximately seven weeks) at $500.

1. On 21 April 2015, Ms Baldwin reported by email to Ms Reid as follows:

With the colder weather it seems the heating system has decided to turn itself on, it appears to be thermostatically controlled. The only problem is that it does not work and has spent the last 24 hours turning itself on (with much pipe banging and electrical noises) every 5 minutes, during in which it blasts 30 seconds of freezing cold air before settling down to gather its strength for the next 5 minutes. We have tried switching it to off but that has had no effect.

We have dragged out the guide that was thoughtfully left for us in the kitchen draw (sic) but no amount of programming has dissuaded it from providing cold blasts every five minutes. Aside from the cold, it is the noise that has made it impossible to even sleep, so could you please organise to look at it today.

1. The circumstance so described was regrettable but in my view it was not foreseeable by anyone. In my view no compensation should be paid for this event in circumstances where Ms Reid engaged a tradesman without delay, who turned off the heater the day after Ms Baldwin provided her report. Ms Baldwin wrote to Ms Reid acknowledging "the first company were very prompt, they have turned the heater off up in the ceiling, so at least it tries not to turn itself on anymore."
2. However, this meant that the central ducted gas heating - being the only source of heating provided in the house - was inoperative from 22 April 2015. It remained inoperative until mid June 2015.
3. Ms Baldwin told the Tribunal, and I so find, that she and the other occupants dealt with the absence of any heating by purchasing an electric heater for the main living area of the house and electric blankets for the beds. Nevertheless, at that time of year the detriment to their use and enjoyment of the house would have been significant.
4. I accept that neither Ms Reid nor the lessor ignored the need to repair the heating system as quickly as practicable. The landlord first obtained advice that the heating system was not repairable and needed to be replaced. I accept that replacement would have been an expensive exercise for the lessor. I accept it was reasonable for the lessor to seek a second opinion, which resulted in repair of the heating system for a cost of $785 on 17 June 2015.
5. Whilst the lessor may have acted reasonably, these circumstances are no answer or defence to the tenant's claim. In Brogan Prestige Properties at [67] the Tribunal said:

Clauses 57, 59 and 60 of the standard residential tenancy terms set out the lessor's obligation to repair in the circumstances of this part of the cross-claim. Clause 57 provides that a lessor must make repairs (other than urgent repairs) within 4 weeks of being notified of the need for the repairs by the tenants. Clause 60(j) defines a failure or breakdown of any service for heating of the premises as an urgent repair and Clause 59 provides that the lessor carry out urgent repairs 'as soon as necessary' having regard to the nature of the problem.

1. In Brogan at [82a], the Tribunal determined that the lessor should pay the tenants $625 in compensation for the "non-repair of the heating in the premises for the period from 21 May 2008 to 31 August 2008 of the winter of 2008, totalling 12½ weeks." The house in question in Brogan was let for $700 per week.
2. In an endeavour to provide a measure of parity with Brogan, and allowing for the time of year, modest inflation since 2008 and the shorter period of approximately eight weeks in this case when the heating was inoperative, I assess compensation payable to the tenant at $400.
3. I decline to make an allowance for the tenant's purchase of the heater or electric blankets, which remain useful assets for the tenant. Nor do I make an allowance for the increase in the tenant's electricity costs in circumstances where there was no evidence to quantify the increase or that allows for the tenant's reduction in gas usage.

1. Ms Reid accepted at hearing that on 15 June 2015 the tenant reported that the dishwasher was not working, and that it remained inoperative through to when the tenancy terminated on 21 August 2015. This was a period of approximately 10 weeks. Ms Reid accepted that nothing was done to repair or replace it.
2. In a house occupied by five adults, I regard an inoperative dishwasher as a significant disadvantage to their use and enjoyment of the property. In _Watson v Gaudo_n [2009] ACAT 15 at [43] - [44], the Tribunal awarded $100 compensation for a dishwasher that was inoperative for two weeks. The house in that case was described as a three bedroom, executive style residential premises leased for $650.00 per week. Having regard to the decision in Watson v Gaudon and that the dishwasher in this case was inoperative for 10 weeks, I award compensation in the sum of $400.

1. The lease was to expire on 11 January 2016. On 29 June 2015, Ms Reid sent an email to the lessee in which she stated among other things:

Also, the owner has asked me to mention that things have changed and they will be returning to Australia next month. If there is a chance you are interested in vacating early then please let me know as the owner would be happy to move back in now?

1. Ms Reid and Ms Baldwin then exchanged several emails about early vacating of the premises on mutually agreeable terms, culminating in an email from Ms Reid to Ms Baldwin sent on 10 August 2015 in which Ms Reid stated:

The owner will cover the costs up to $2000 for the removal, if there is funds outstanding from that money she will actually be giving it to you as compensation.

1. I am satisfied that Ms Baldwin accepted that offer and took steps to vacate the property on that basis.
2. Ms Reid provided the Tribunal with an invoice dated 17 August 2015 from the removalist for the relocation of the tenant's household furniture and contents in the sum of $1,532.55.
3. Relocation involved significant inconvenience to Ms Baldwin in addition to relocating her household furniture and contents. She told the Tribunal and I accept that she moved many smaller items herself using a utility vehicle. She packed items herself and therefore avoided those removal costs. She incurred the cost and inconvenience of terminating and connecting utility services for electricity and gas at the leased premises and at her new premises, respectively. She needed to notify numerous third parties of her new address.
4. In these circumstances in my view, the lessor should be held to her agreement pursuant to which the tenant agreed to vacate the property. In particular, the lessor should pay the tenant anything beyond the cost of the removal "up to $2000... as compensation", which I calculate to be $467.45.

1. For completeness, as stated in paragraph 5a above, the tenant's counter-claim included a claim for harassment during the tenancy. However this claim was not pressed at the hearing and I have therefore not taken it into account.

1. Based on the above reasons and findings, the Tribunal's orders are as follows:
   1. The lessor's claim for the cost of replacement of a black powder-coated gate in the sum of $1,595 is dismissed.
   2. The Office of Rental Bonds pay the amount of the bond held in dispute ($1,595) to the tenant.
   3. The lessor pay the tenant compensation in the amount of $2,167.45 made up of the following amounts:
      • (i) Unusable downstairs shower - $400;
      • (ii) Unusable deck - $500;
      • (iii) Inoperative heating - $400;
      • (iv) Inoperative dishwasher - $400; and
      • (v) Early vacating of the premises at the lessor's request - $467.45.
   4. The lessor pay the tenant the filing fee for the tenant's counterclaim in the sum of $140.