Legislation: Residential Tenancies Act 1997 ss 72, 71, 79, 82, 83(d)

Cases_: Kiternas v Watts_ [2006] ACTRTT 4

Peters v ACT Housing [2006] ACTRTT 6

Watson v Gaudion [2009] ACAT 15

Ohman v Matsea [2009] ACAT 23

Worrall v Commissioner for Housing [2002] FCAFC 127

McPartlan & Anor v Ashton [2010] ACAT 82

Authorities: Anforth and Christensen_, Residential Tenancies Law and Practice_ 4th ed. at 2.16.1 and 2.16.2.

CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 832 of 2010

1. The Respondent/Lessors are to pay the Applicant/Tenants an amount of $3,000.00 by way of compensation.
2. The Lessors may pay the award of compensation by instalments in the sum of $1,500.00 to be paid on or before 25 February 2011 and the balance of $1,500.00 to be paid on or before 25 March 2011.

1. This application was made to the tribunal under the provisions of the Residential Tenancies Act 1997 (RTA). Section 79 of the RTA permits a party to a residential tenancy agreement to apply to the tribunal for resolution of a tenancy dispute. Section 72 of the RTA describes a tenancy dispute as a dispute between parties to a residential tenancy agreement that arises from the agreement. It includes an application for compensation made under the RTA.
2. Section 82 of the RTA allows the tribunal to decide a tenancy dispute even though the agreement is no longer in force, provided that the provisions of the RTA applied to the agreement and that the application is made within 6 years after the date the conduct giving rise to the application occurred.
3. In this case, the RTA applied to the agreement which came to an end about one month before the application was lodged with the tribunal.
4. The applicants ticked a box on the front of the application form indicating that they were applying for orders for compensation/damages. In response to a question on the form about the nature of the relief they sought or the type of order they wanted the tribunal to make, the applicants wrote "seeking compensation i.e. return of rent".
5. Several provisions of the RTA allow applications for compensation to be made; for example when a tenant fails to vacate premises on the date required by a termination or possession order (section 56), or when a person enters leased premises to try to recover possession without a warrant or order of the tribunal or court (s37). Section 83 (d) gives the Tribunal power to make an order requiring the payment of compensation for any loss caused by the breach of a residential tenancy agreement.
6. Section 71 of the RTA allows tenants to apply for a reduction in the rental rate payable under a residential tenancy agreement if the tenant's use or enjoyment of the premises has diminished significantly as a result inter alia, of loss of the use of all or part of the leased premises, interference with the tenant's quiet enjoyment of the premises or interference with the tenant's ability to use the premises in reasonable peace, comfort and privacy. This section has the effect of providing tenants with relief in the nature of compensation by means of rental reduction where an agreement has been breached in particular ways and to a significant extent.
7. The applicants did not (nor are they expected to) specify the section of the RTA under which their claim was made. Section 81 of the RTA imposes a statutory obligation on the tribunal to actively assist parties to a tenancy dispute to present their case. This may require the tribunal (within the bounds of procedural fairness) to assist parties to frame a claim they wish to make, or a response to a claim made against them, in accordance with the relevant statutory provision, so that the Tribunal can determine the substance of the dispute.
8. This tribunal and the former Residential Tenancies Tribunal have taken the approach that compensation should be awarded by way of rent reduction under section 71 of the RTA while the tenancy is still in existence and that lump sum compensation payments under section 83 (d) (previously section 104(1)(d)) should be considered where the tenancy has terminated[1]. That is, in my view, an appropriate course to adopt in this case.
9. The application lodged by the tenants is a little difficult to follow in places - this is because English is not their first language and they are reasonably new arrivals to Australia. They are not familiar with the legal system. Mr Salem indicated that he had obtained legal advice but had not sought further assistance or representation. Mr Salem completed the application form. He also presented the case on behalf of the tenants at the hearing. Ms Gizgeez was present, but did not speak. Mr Salem indicated that while her understanding of spoken English was reasonable, his wife was not as confident in her use of English as he. Notwithstanding this, I was satisfied that through a process of questioning, seeking explanations of things written and said by Mr Salem and by checking back with him as to my understanding of his evidence and his submissions, Mr Salem had an appropriate opportunity to present the tenants' case. At the end of the hearing on 3 November 2010 both parties were given an opportunity to file further material and written submissions and to then make further oral submissions on 19 November 2010.
10. To be successful in their claim, the applicants must prove on the balance of probabilities that they suffered loss as a result of a breach or breaches of the residential tenancies agreement. It is established that claims for compensation in tenancy disputes can be made for both economic loss and non-economic loss and that tribunals can award compensation for distress, inconvenience or anxiety as well as for physical or mental injuries arising from a breach of a residential tenancies agreement.[2]

1. Mr Salem and Mr Abeygunasekara gave evidence at the hearing. In addition, the parties provided the tribunal with documents that include copies of emails relevant to the case. The facts set out below are drawn from the oral evidence of the parties and the documents. With the exception of three issues, the parties agree about the circumstances that led to the application.
2. The tenants, Mr Salem and Ms Gizgeez, entered into a standard residential tenancies agreement with the lessors, Mr Abeygunasekara and Ms Jeevanthan, for the lease of a one bedroom unit located near the University of Canberra. The unit is in a development called "Proximity".
3. The agreement commenced on 5 June 2010 and was for a fixed term of 12 months. The rent for the unit was $400 per week. A bond of $1,600, representing rent for 4 weeks, was lodged with the Office of Rental Bonds.
4. The tenants are husband and wife. They are international students and both are undertaking a 3 year course of study at the University of Canberra. They arrived in Australia shortly before the lease commenced. They received assistance and support from an adviser in the International Students Support Service unit at the University. This person is referred to in these reasons as 'the adviser'.
5. The tenants' university course commenced on 7 June 2010, just after they moved into the unit. They had classes for four hours each day in 2 hour blocks with a 2 hour break in between. Mr Salem's classes were scheduled at different times from those of Ms Gizgeez. They had the use of the student facilities on campus - the library, concessions area, health services - during the day when not in class.
6. The lessors finalised their purchase of the unit from a previous owner on 4 June 2010, the day before the tenants moved in. The unit was inspected just before settlement. The lessors' evidence was that no problems were apparent at the time of inspection other than a small, dry mark in a corner of the bedroom. They were not aware of any defect in the unit.
7. The tenants said that a few days after they moved into the unit, they noticed an offensive smell coming from the bedroom. The smell became so bad that it was intolerable. The bedroom could not be used. The applicants had to sleep in and use the living area as a bedroom. Mr Salem telephoned Mr Abeygunasekara on Sunday, 13 June 2010 to tell him about the smell. Mr Abeygunasekara went to the unit to have a look. He saw that the carpet in the corner of the bedroom was wet. Water could be seen coming through the carpet and there was what Mr Abeygunasekara described in an email as a "stench". The stench apparently came from the wet carpet. It was apparent that there was excess water in the unit.
8. The lessor immediately contacted the manager of the owner's corporation to draw attention to the problem and to ask for it to be rectified. The manager, in turn, made contact with a representative of the builder of the unit complex. Thereafter, the lessors appear to have been in direct contact with the builder's representative and a building supervisor. Investigations to work out the cause of the problem and attempts to rectify it, started within two days.
9. It is clear from copies of emails provided to the tribunal, that this was not an easy task. The builder of the unit complex said that it would undertake repairs to waterproof the unit, but did not accept that it was responsible for any defect, or that it had any legal liability to undertake any rectification work. The builder's representative wrote of its willingness to undertake rectification work as a "gesture of goodwill".
10. On 29 June 2010, that is some 16 days after the problem was brought to the attention of the lessors, the building supervisor wrote to Mr Abeygunasekara:

I have been there today with the waterproofers and the concrete is too wet still. The condensation from inside of the wall is leaking onto the courtyard so it needs to dry for a full day with towels. I will go tomorrow morning to put towels down and hopefully by after lunchtime it will be dry enough to put the membrane down.

We were unable to do anything with the leak today. I went there to dry it out this morning and by the time the waterproofer got there, more water had come outside from the inside.

If you could please ask your tenants on Monday morning to wipe the entire door down to get rid of the condensation and then hopefully well (sic) have some better luck.

1. By this time, the walls in the bedroom were mouldy. Things were no better by the following Monday. On 5 July, the building supervisor wrote:

After visiting the unit this morning, the tile area has filled up with water again. This is going to be a bigger process than I hoped. I will need to gain access to your apartment for half a day and I will need to take a full wall down to see where the water is getting in. Unfortunately, due to this it is likely that the tiles and carpet may not be done until next week. The mouldy walls will have to be replaced..."

1. The work was not finished in the following week.
2. On 14 July 2010, the building supervisor told the lessors that a solution had been identified. He did not detail the solution but said that the work required would take up to a week. On the next day, the building supervisor and the tenant told the lessor that "the leakage problem (due to heavy condensation) is now happening in the living room" and that remedial work would be needed in that area as well. An agreement was reached to re-locate the tenants while the work was undertaken.
3. On 18 July 2010, the lessors assisted the tenants to move from the unit into what was described as a 2 bedroom "luxury" self contained suite in a nearby motel. The tenants lived in the motel for three weeks and continued to pay rent to the lessors of $400 each week. The cost of the motel suite was met by the builder. The tenants returned to the unit on 8 August. Again, the lessors assisted them to move. The unit had been given new carpet. Some walls had been replaced and all had been re-painted. The rectification work was not complete with further work to be done in the courtyard of the unit.
4. There is some disagreement between the parties about events after that date.
5. The tenants say that the unpleasant smell was still there when they returned. They say that workmen continued to come in and out of the unit and to work in the vicinity of the unit - in the external courtyard and apparently on neighbouring units - for some time. It is apparent that the problem affected several units and not just the unit the subject of this application.
6. The tenants said that the work was noisy and disruptive. Workmen had to access the unit and the bedroom in order to access the external courtyard. The tenants could not specifically say how long the work continued but estimated it to be weeks rather than days with workmen coming and going from time to time and noise related to work, including loud music from radios and loud voices, coming both from their own courtyard and from units around them.
7. The lessors disagree that the smell continued. When Mr Salem complained of the on-going smell shortly after his return to the unit, Mr Abeygunasekara immediately wrote to the builder's representative about it. But he said that when he attended the unit himself, he could not notice the smell. He said no one else seemed to notice the smell and that the tenants who succeeded the applicants have never complained about the smell. An email provided to the tribunal by Mr Salem refers to Ms Gizgeez being troubled by the smell of the paint and the new carpet in the unit but makes no reference to a continuation of the original "stench". The lessors say that if there was a smell related to damp and water, it was caused by condensation which the tenants did not manage appropriately.
8. Ultimately, the applicants bear the burden of establishing their case. I cannot determine from this evidence whether the offending smell was still there after 8 August 2010. I cannot be satisfied to the requisite degree that the smell continued.
9. The lessors agree that some work continued around the unit after 8 August 2010. They submit that it would not have been unduly disruptive because it was external to the unit and because it continued for 4 days only. The lessors provided the tribunal with email exchanges, including with the builder's representative, relating to the further work. On 3 August the lessor was told that the tenants could return to the unit on 8 August and that last minute issues that may not be complete, such as external tiling and double glazing, should not affect the return. On 12 August, 4 days after the tenants returned, the lessor was advised that the exterior tiling and an awning in the courtyard would be completed that afternoon. However, almost three weeks later on 1 September 2010, the lessor wrote to the adviser saying:

...I have also ordered a dehumidifier online ...which should be here in about a week, & would help the foggy windows (condensation) in the bedroom.

I am also pushing...to get the sash window in within the next two weeks. They are also putting up a structure above the outer bedroom window (construction is in progress now), which would act as a shade/protector against extreme weather conditions.

1. This email provides strong support for a finding that a range of tasks continued around the unit for some time after 8 August. The tribunal accepts that there would have been noise associated with that work and with workmen being in the immediate vicinity of, if not actually in, the unit. Further, while it is not possible to determine the extent of the disruption, I am satisfied that the noise and general activity would have been annoying and distressing to some extent for the tenants.
2. On about 30 August, the adviser asked the lessors if they would consider agreeing to terminate the tenancy agreement because the tenants were "struggling to cope with the continued problems". The lessors said they would do so but that they would appreciate a minimum of 2 weeks' notice. On 1 September the adviser acknowledged that the tenant knew that he would "need to give you some notice". The lessor re-iterated to the adviser that he would agree to an early termination of the tenancy "if he gives me at least two weeks' notice".
3. On 6 September 2010, Mr Salem and Mr Abeygunasekara had a conversation by telephone about the termination of the agreement. Mr Salem gave evidence that he had intended in that telephone conversation to convey to Mr Abeygunasekara that he and his wife were looking for another place and would leave the unit. He thought he was giving notice. He said that he was told that he would have to pay 2 weeks rent. He said that he understood that to mean two weeks' rent from the date of the conversation.
4. Mr Abeygunasekara understood the conversation differently. He gave evidence that Mr Salem indicated that he was looking around for another place. They discussed a friend of Mr Salem's who might have been interested in the unit but who had decided to go elsewhere to study. Mr Abeygunasekara said that he repeated his request for two weeks' notice, expecting that the notice would be given once Mr Salem had found another place to live. He did not think that the conversation constituted the notice that he sought. There was no discussion about the date on which the premises would be vacated or about when a final inspection would take place. No arrangements were made for the tenants to hand over the keys in their possession.
5. The tenants moved out 9 days later on 15 September 2010, without contacting the lessors. Mr Salem telephoned Mr Abeygunasekara the next day and told him that they had vacated the unit. Exchanges of emails between the adviser and Mr Abeygunasekara make it clear that the lessors were taken by surprise by this. The keys were not returned for several days. The lessors insisted that rent be paid for a further 2 weeks from 16 September 2010, the date they were advised that the premises were vacant. The tenants said that any additional payment for rent would have to be taken from the bond.
6. I am satisfied that the lessors made it clear that they would agree to an early termination of the agreement if they were given 2 weeks' notice. I am further satisfied that the conversation between the tenant and lessor on 6 September did not constitute, and could not reasonably be interpreted as constituting, the giving of notice by the tenants given the lack of any detailed discussion about arrangements for the vacation of the premises, inspection and handing over of the keys. Notice cannot be regarded as having been given by the tenants in accordance with the agreement made with the lessors, until 16 September 2010.
7. The bond held by the Rental Bonds Office was paid out on 15 October 2010 with $500 going to the lessors and $1,100 to the tenants. The calculation of the respective payouts is explained further below.

1. The facts set out above establish that the residential tenancy agreement was breached in several respects.
2. Tenants have a right to use the premises they lease. Clause 53 of the standard terms of agreement residential tenancy terms provides a right to exclusive possession of the whole of the leased premises. For some weeks, at least from 13 June 2010 until 8 August 2010, the tenants could not use the only bedroom in the unit. For three weeks, they were unable to use the premises at all and were required to re-locate. This constitutes a breach of clause 53. I accept that the tenants had full use of the premises and its facilities after 8 August 2010 until they left the premises.
3. Clause 52 of the standard residential tenancy terms provides a right to use leased premises without interference with the reasonable peace, comfort or privacy of the tenants. I am satisfied that there was substantial interference to the tenants' privacy and to their comfort and peace from at least about 15 June 2010 when workmen commenced entering the premises to investigate and attempt to remedy the problems, until 18 July 2010 when they temporarily re-located. The process of re-location - moving out and moving back in again - also constituted an interference with their peace and comfort. I am satisfied that substantial interference continued for 4 days on their return to the premises. Even though work was being undertaken in the external courtyard of the unit rather than in the unit itself, the need for workmen to access the external courtyard by entering the unit, and the undertaking of work in the immediate vicinity of the door leading from the bedroom to the courtyard, would have caused substantial disruption to the privacy and comfort of the tenants.
4. I am further satisfied that there continued to be some interference with the comfort and peace of the tenants, although to a lesser degree, after 12 August as it is clear that some work continued in the immediate vicinity of the unit until at least the beginning of September 2010.
5. The interference constitutes a breach of clause 52 of the standard terms and thus, of the residential tenancies agreement. This is the case even though the interference related to work necessary to meet the lessors' obligation to carry out repairs. This issue was considered by the Full Court of the Federal Court in Worrall v Commissioner for Housing [2002] FCAFC 127 where the court said at paragraph 75:

... interference with the normal use of premises arising from failure to repair will breach the covenant of quiet enjoyment (see Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd [1976] 2 NSWLR 15), it is no answer to a complaint of breach of the covenant that it was a result of work required by statutory or other lawful authority (see Reid House Pty Ltd v Beneke (1986) 5 ACLC 451).

1. 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. In its decision in the matter of McPartlan & Anor v Ashton [2010] ACAT 82, the tribunal noted with approval the consideration of this issue in the earlier decision of Peters v Commissioner for Housing for the ACT [2006] ACTRTT 6 as follows:

In Irena Peters v Commissioner for Housing for the ACT [2006] ACTRTT 6 the then Residential Tenancies Tribunal decided that a lessor's obligation to repair under standard 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. Clause 57 of the standard terms requires that repairs be undertaken within 4 weeks of the notification of the need for repairs unless otherwise agreed. There was no evidence of an agreement to the repairs being carried out in any longer period.
2. I am satisfied that there was also a breach of the residential tenancy agreement by reason of the failure to comply with the obligation to maintain the premises in a reasonable state of repair by ensuring that the repairs were carried out within 4 weeks.
3. These breaches of the tenancy agreement enliven the tribunal's power under section 83(d) of the RTA to make an order requiring the payment of compensation for any loss caused by the breaches.

1. The tenants raised the issue of compensation in early August, before returning to the unit. Some payments were made to them. The builder gave them an amount of $800, said to represent a refund of half of the rent they had paid for the 4 weeks from the date the tenants notified the lessors of the problem, to the date that they were re-located to the motel. This payment was said to be connected to the inability of the tenants to use the bedroom in that period. It was, in effect, a rent reduction. The builders also paid for the temporary accommodation at the motel and an amount of $200 being the cost of electricity that was calculated to have been used by workmen in the period they were repairing the unit. In addition, the lessors reduced the amount to be taken from the bond for rent for the two week period after 16 September 2010, by $300 as an additional payment. In total, the tenants received an amount of $1,100 and a payment of $200 for electricity used by workmen. The evidence available to the tribunal indicates that at all times the tenants indicated that they sought further payment and that they were not satisfied that they had been adequately compensated.
2. The lessors submitted that the amount paid to the tenants was adequate compensation for any loss they had sustained.
3. In their written application, the tenants asked for the return of the amount paid for rent during the period of approximately 17 weeks that the tenancy agreement was in place (this includes the two week period after the tenants vacated the unit) less the amount they had received. While the application referred to this as an amount of "around $6,000", it was agreed at the hearing that the net amount the tenants sought was $5,700.
4. The application and submissions of the tenants can be summarised as follows:

• (i) the problems in the unit caused them a lot of suffering. It affected their life, their health and their study;
  • (ii) the very bad smell caused discomfort and disruption;
  • (iii) they could not use the whole unit and were forced to sleep in and use the living room as their bedroom;
  • (iv) the presence of workmen in and around the unit, coming and going, and the noise of their work was disruptive both before the relocation to the motel and after the return to the unit. Workmen came into the unit during the day while Mr Salem and his wife were present and also entered at other times when they were not present. This affected their privacy and comfort;
  • (v) the damp conditions in the bedroom were unhealthy and contributed to a skin condition that Mr Salem developed;
  • (vi) the whole situation caused significant worry, stress and anxiety. They had just arrived in Australia, looking forward to commencing their studies and found themselves in this bad situation. As a result, both tenants felt ill all the time about what was happening. Both had to seek professional assistance from doctors and counsellors. Mr Salem attended a psychologist at the university 3 times. Ms Gizgeez also attended counsellors. The first visit occurred before the re-location to the motel. Even when they were in the motel they felt unsettled and they suffered from worry about what had happened and what might happen in the future. Mr Salem said that Ms Gizgeez felt unwell all the time and was crying and upset all the time. Mr Salem asked her to be patient but the situation they were in was horrible;
  • (vii) when they left the motel they thought that everything had been fixed but were further shocked and distressed to find that there was still work to be done and that workmen were still working in and around the unit;
  • (viii) the stress and worry affected their ability to concentrate on their studies. In the first couple of weeks they were doing well but teachers then noticed that they were not doing so well. At one stage Mr Salem said that they had failed their course, but it appeared after further questioning that Mr Salem was using the term failure in a general, rather than literal, sense. They did not do as well in their grading as they hoped or expected of themselves. However, they had not failed modules in the sense that they had to re-do them or were delayed in completing courses. Mr Salem said that colleagues and others from their home area would know that they had not achieved at the highest level and that this would affect their ambition and reputation. This knowledge added to their stress.

5. While there may be cases in which it is appropriate to award a return of rent paid by way of compensation, it is not an appropriate measure of damages in this case. The tenants did have the use of the whole of the premises for the period from 8 August until they left on 15 September 2010. They had partial use of the premises before then. There is no necessary connection between the breaches of the agreement, loss suffered and the net amount of rent paid that could allow the tribunal to conclude that it should simply order the lessor to re-pay that sum. The tenants have to establish that there was loss and the tribunal has to assess how that loss should be valued including by reference, if necessary, to comparable decisions.

1. In their written application, the tenants asked for a refund of what they had spent on doctors and on study costs. This appeared to be a claim for reimbursement of out of pocket expenses, or economic loss, caused by the breaches of the tenancy agreement. It was conceded at the hearing, that the tenants' study costs had been met by the government of their country of origin and that there were no additional costs associated with studies that they had had to pay. Further, while it was not disputed that the tenants had seen doctors and counsellors, they had not paid for those services. The medical services they accessed were either free or covered by health insurance maintained by their government.
2. Mr Salem said that he had to pay for cream for his skin condition and that those costs were not covered by health insurance. He did not produce any receipts for those costs and in any event, the tribunal is not satisfied, for reasons set out below, that the causal connection between the skin condition and the problem with the unit is established.
3. At the hearing, Mr Salem submitted that he had met some of the cost of electricity used for repair work. While a payment was made for what was calculated to be the electricity used by workmen when the tenants were staying at the motel, Mr Salem said that workers continued to use electricity from the unit when working on the tiling and awning in the courtyard after their return from the motel on 8 August 2010. Mr Salem produced a copy of the electricity account for the unit for the six week period from 31 July to 17 September 2010. The consumption charges were $164.46. There is insufficient evidence to allow a calculation of the extent to which the electricity used after 8 August 2010 related to repairs as distinct from the personal use of the tenants. The overall charge suggests that the cost of any electricity used for repairs was small.
4. The tenants have not established that they suffered any economic loss as a result of the breaches of the tenancy agreement.

1. The tenants lost the use of the bedroom of the unit for 4 weeks and of the whole unit for 3 weeks. They had to temporarily re-locate to appropriate accommodation without additional cost, but still paid rent as though they had the use of the unit. The lessor submitted that it would not be fair to award compensation for the period of time the tenants were in the motel because they were provided with what was said to be superior accommodation. Such an approach ignores the fact that there was a direct and substantial loss of that for which they had contracted. Compensation should be paid both for the loss of use of a substantial part of the unit and for the whole of the unit itself notwithstanding that alternative accommodation was provided. I find that the amount of $1,100 received by the tenants is an appropriate sum in total to compensate for this loss.
2. I am not satisfied that the tenants have established, to the requisite standard, that they suffered a loss in the form of any diagnosable physical or mental injury or that the lower than anticipated assessment results were a loss caused by the breaches of the agreement.
3. Mr Salem gave oral evidence that his wife was ill all the time and that his physical health was also affected. Emails from the adviser to the lessor described both tenants as "very depressed". Mr Salem said that the studies of both he and his wife were affected because they were stressed and unable to concentrate, but there was no clear evidence about how the studies were affected.
4. The tenants provided no evidence that showed a causal link between the breaches and ill health or poor assessment results. I adjourned the hearing of the application to allow the tenants to obtain further reports but the documents provided did not assist.
5. There was no evidence concerning Ms Gizgeez other than one certificate from a Dr Rona Hiam dated 22 September 2010 indicating that Ms Gizgeez attended the health centre at the university on eight occasions between 21 June and 22 September 2010. There was no information about the reason for her attendance.
6. In relation to Mr Salem, there was a certificate from a Dr Newberry dated 21 September 2010. The document listed seven dates between 30 June and 24 August 2010 on which Mr Salem attended the university health centre for "treatment of a skin condition and health maintenance". There were seven pathology reports relating to Mr Salem attached to the application that identified some health issues that were clearly not related to the subject of this application including in particular, a vitamin D deficiency. One report confirmed that small spots on Mr Salem's back were caused by a fungal infection.
7. Mr Salem submitted a further report on the resumption of the hearing from a Dr Mater dated 8 November 2010. The report says that Mr Salem was diagnosed with the skin condition on 19 July 2010. It asserts that the condition affected Mr Salem's study because he was worried about it and its treatment. It makes no comment concerning the likely cause of the skin condition. There were no reports and no other evidence linking the fungal infection to the conditions in the unit.
8. The further report also confirmed a vitamin D deficiency that "would have made him very tired and hence contributed to his difficulty studying". Mr Salem concedes that his vitamin D deficiency has no connection to this matter.
9. There were no reports from counsellors or psychologists confirming that either tenant had depression or some other mental illness.
10. Mr Salem tendered an email from the adviser to support his claim. In the email the adviser, quite appropriately makes the point that he is not in a position to provide any professional opinion about what the email describes as "the impact that the incident has had on Mr Salem's physical and mental well being or on his studies". It was not suggested that the adviser has any medical or other professional expertise that would allow him to express an opinion. At its highest, the email corroborates some facts that are not otherwise in dispute. It does not assist this aspect of the applicant's claim.
11. There were no academic reports or formal information about assessment results that demonstrated a problem with the academic results of either tenant.
12. Although the evidence falls short of establishing that either tenant had a diagnosable physical or mental health problem that was caused by or contributed to by, the breaches of the agreement, I am satisfied that both tenants suffered anxiety and distress to such an extent that compensation should be ordered.
13. Documents provided to the tribunal by both parties include emails between the lessors and the builder's representative, the lessors and the adviser, the lessor and the tenants and the tenants and the adviser. The emails provide strong evidence of the fact of, and the extent of, the tenants' distress and worry from the time that the problems were reported to the lessors to the time they vacated the premises.
14. Apart from the inability to use the whole unit, they experienced substantial discomfort for a period of approximately 4 weeks as a result of the stench in the unit. There was substantial interference with their privacy and with their comfort as a result of workmen entering the unit and working in and around the unit and there was substantial interference with their peace as a result of those same things as well as the need to temporarily move. This must have been very unsettling. It is reasonable to conclude that the tenants did experience considerable distress and that they were anxious about what was happening and what would happen with the unit in the future.
15. Considering comparable awards of compensation[3], I am satisfied that it is appropriate to award compensation in the sum of $3,000, representing a payment of $1,500 for each tenant. I stress that this amount is in addition to the sum of $1,100 already received by the tenants.
16. If the lessors are unable to pay the award of compensation in a lump sum, they may pay by instalments with the sum of $1,500 to be paid on or before 25 February 2011 and the balance of $1,500 to be paid on or before 25 March 2011.
17. Finally, I note that it is outside the scope of this matter for the tribunal to make any determination as to whether any third party is liable to the lessors for the loss they will incur as a result of this decision.

TRIBUNAL MEMBER/S: Ms L.K Crebbin, General President

DATE/S OF HEARING: 19 November 2010 PLACE: CANBERRA

DATE/S OF DECISION: 24 January 2011 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[1] See for example Kiternas v Watts [2006] ACTRTT 4, Peters v ACT Housing [2006] ACTRTT 6, Watson v Gaudion [2009] ACAT 15, Ohman v Matsea [2009] ACAT 23

[2] See the cases referred to above and the discussion of this issue in Anforth and Christensen, Residential Tenancies Law and Practice 4th ed, at 2.16.1 and 2.16.2.

[3] See the list of comparable verdicts in Anforth and Christensen, 4th ed, op. cit at 2.16.2 and reported decisions of this and the Residential Tenancies Tribunal