1. The Tribunal determines that the Director of Housing is not required, at its own expense, to lay SDN 29 carpet and underlay in two bedrooms of the rented premises.

1. The Tribunal determines that the applicant tenant will be liable to pay $645.07 for the cost of laying that carpet in the two bedrooms if:

(a) the Director of Housing has that carpet laid there with the applicant tenant's consent, or

(b) the Tribunal determines, in a proceeding brought by the Director of Housing following the giving of a notice to her under s78 of the Residential Tenancies Act 1997, that she is so liable.

1. I am deciding issues which, during a hearing on 24 June 2016, were ones which the parties agreed were the only outstanding issues between them and which I recorded, in the order I made at the hearing, as follows:

(a) whether the Director of Housing must, at its own expense, lay SDN 29 carpet and underlay in two bedrooms of the rented premises, and

(b) if the Director of Housing is not required to lay that carpet at its own expense, whether the tenant is required to pay $645.07 for the cost of laying the carpet (although she will not be required to pay for the underlay).

1. On 24 December 2014 the tenant Ms Fishlock had lodged what was, in effect, an application for an order that the landlord, the Director of Housing, must repair the carpet at rented premises at 2 Kingfisher Lane, Roxburgh Park.

1. There have been many hearings in the course of the proceeding. The last, before the hearing on 24 June 2016, was a hearing before Judge Dyer, Vice-President of the Tribunal, on 12 May 2016. His Honour made an order which included the grant of a right to Ms Fishlock to renew the proceeding.

1. Ms Fishlock exercised that right and applied for a renewal of the proceeding. On 24 June 2016 I heard her application for renewal. I allowed it but only for the purpose of a determination of the two issues which I have identified above. The parties agreed that I could hear evidence about those issues then and there, at the hearing on 24 June 2016, and could proceed to determine them after the hearing. I reserved my decision, for reasons which I shall give below.

1. Two earlier hearings, both before Member Josephs, are relevant to the determination. So was the hearing before Judge Dyer.

1. The first of those earlier hearings before Member Josephs took place on 18 February 2015. Following the hearing, the Member made an order which set out two findings (emphasis added):

1. The tenant has issued this application principally seeking replacement carpet in the hallway and lounge room of the rented premises due to various problems she has encountered recently with the carpet.

1. The landlord agrees to replace the carpet in the hallway and lounge room as it agrees that the carpet has been stained by contractors and can no longer be steam-cleaned or power-stretched and it further agrees that the replacement carpet will be more appropriate and suitable for the tenant's use of her wheelchair.

1. On or before 18 March 2015, the landlord at its expense will:

• purchase new carpet which will be short pile and made of solution-dyed nylon and will be the same as the carpet sample (except for colour which will be the tenant's choice) produced to the Tribunal today and as previously provided by the tenant to the landlord, and

• engage and utilise the services of Melbourne Carpets to remove and dispose of the existing carpet and underlay in the hallway and lounge room, undertake the necessary preparatory works including any required floorboard sanding and then lay the new carpet by means of it being adhesively bonded to the timber floor.

The order went on to include a right of renewal, which Ms Fishlock in due course exercised.

1. The renewal led to the second of the two earlier hearings before Member Josephs on 17 July 2016. Following the hearing, the Member made an order which set out twelve findings: the first three of them were (emphasis added):

1. The tenant has sought in this application replacement of the carpet in the hallway and lounge room of the rented premises.

1. The landlord agrees to the replacement of the carpet in the hallway and lounge room of the rented premises.

1. The outstanding issues for determination are the proper identification of the type of carpet to be laid by way of replacement and the method of its installation after having regard to the landlord's obligations to maintain the premises in good repair, the circumstances of the parties to the tenancy agreement, and the nature and condition of the rented premises.

The Member proceeded to make orders, the first three of which were (emphasis added):

1. Order 1 of the Tribunal made 18 February 2015 is vacated.

1. By 31 August 2015, the landlord at its expense, is to:

• Engage the services of Melbourne Carpets to lift up, remove and dispose of the existing carpet in the hallway and lounge room of the rented premises, to inspect and recommend to the landlord the nature and extent of required preparatory works for the installation of the replacement carpet by direct adhesion to the floor surface, to undertake the preparatory works approved by the landlord, to supply short pile solution-dyed nylon carpet for installation in the hallway and lounge room of the rented premises and to install such carpet by adhesively bonding it directly to the surface of the floor in the hallway and lounge room.

1. By 31 July 2015, the tenant is to advise the landlord of her choice of colour of the replacement short pile solution-dyed nylon carpet provided that if the tenant does not make and communicate her colour choice within this stipulated time, the landlord will be at liberty to proceed to complete the works required by order 1 of these orders by purchasing and installing the short pile solution-dyed nylon carpet in such colour as it chooses.

1. Those findings and orders, both on 18 February 2015 and 17 July 2015, mentioned carpet in the hallway and lounge room only. They did not make any mention of carpet in the bedrooms of the rented premises.

1. For reasons which are not presently material there was the hearing before Judge Dyer on 12 May 206. The first paragraph of the order made by Judge Dyer on that day was (emphasis added):

1. The tenant, not later than 27 May 2016, advise the landlord in writing addressed to Eamon Redmond, Broadmeadows Housing Office, 56-58 Coleraine Street, Broadmeadows 3047 of a date or date and times at which the landlord and its agents, contractors and/or sub-contractors may inspect the rented premises for the purposes of pre-installation inspection of floor levels throughout the premises for the purpose of a dual bond, installation method of 4 mm pile height carpet over a solid firm slab, latex underlay of 4.7 mm thickness within the hallway and living areas of the premises and for potential installation in the bedroom areas abutting the hallway and the living areas. The dates and time for inspection shall be not later than on or before 14 June 2016.

1. By a letter dated 31 May 2016 to Ms Fishlock and her husband the Broadmeadows office of the Department of Health and Human Services set out a proposal, and a suggested date, for the laying of carpet and underlay in the hallway, lounge room and bedrooms of the rented premises. The letter included the following paragraph:

Charges will be applied to you for the cost of the carpet only in the bedrooms, as you have removed the carpet without consent. The Department will not apply charges to you for the cost of the underlay, the preparation of the floor and installation of the carpet in the bedrooms, as agreed to at the VCAT hearing on 12 May 2016.

At the hearing on 24 June 2016 the Director of Housing's representatives gave evidence that the amount that the Director proposed to charge Ms Fishlock is $645.07, being the amount that its contractor has quoted for installing carpet (but not the underlay) in the two bedrooms.

1. Ms Fishlock represented herself at the hearing and gave evidence. Arton Lockman, a field service officer, represented the Director. Hatie Ozirmak, a team manager for the Director, was also present. They both gave evidence.

1. Ms Fishlock is disabled. She uses a wheelchair. The Director's representatives were of the view that the carpet in the hallway of the rented premises was affected by the wheelchair use and that the carpet in the lounge room had become marked. So, at the hearing on 18 February 2015, at which Ms Fishlock, Mr Lockman and Ms Ozirmak were all present, Mr Lockman and Ms Ozirmak agreed on behalf of the Director to replace the carpet in the hallway and in the lounge room. Ms Fishlock alleges, but they deny, that Mr Lockman and Ms Ozirmak agreed on that day also to replace the carpet in the two bedrooms at the Director's expense.

1. At first Ms Fishlock gave evidence that the Director's agreement to replace the carpet in the two bedrooms at its expense, as well as to replace the carpet in the hallway and lounge room, had occurred during the hearing before Member Josephs on 17 July 2015. Later she corrected herself and gave evidence that the agreement had occurred during the earlier hearing before Member Josephs on 18 February 2015. Mr Lockman and Ms Ozirmak each gave evidence that both of them had attended both hearings and that, as the Member's findings and orders on both dates had been correctly recorded, their agreement had been to replace the hallway carpet and lounge room carpet only. They went on to give evidence that Ms Fishlock had made no request for the replacement of carpet in the two bedrooms, which was why the Member's findings and orders made no mention of the matter of carpet in the two bedrooms.

1. Despite the evidence of the two representatives of the Director, and despite the wording of the two orders made on 18 February 2015 and on 17 July 2015. Ms Fishlock insisted that the two representatives had agreed, during the course of the hearing on 18 February 2015, that the Director would at the Director's own expense replace the carpet in the two bedrooms. I told the parties that, if they agreed to my doing so, I would listen to the Tribunal's audio recordings of the two hearings and would reserve my decision until I had listened to them. Both parties agreed to my doing so.

1. I have listened to the audio recordings. I listened to the recording of the hearing on 17 July 2015 as well as to the recording of the hearing on 18 February 2015 in case Ms Fishlock was right the first time when she said that the hearing on 17 July 2015 was the one during which the agreement was made.

1. Having listened to those recordings, I find that Ms Fishlock's version of what was agreed is wrong and that the Director's representatives' version is right.

1. During the hearing on 18 February 2015, Ms Fishlock gave evidence about "the carpet" without ever identifying the rooms in which the carpet was present. Her evidence was that white markings had been left on "the carpet". Mr Lockman in his evidence said that carpet in the hallway and lounge room had to be replaced and that, to facilitate wheelchair traffic over it, a "direct stick" method of installation was preferable. Ms Fishlock then mentioned the bedrooms, saying that they had a concrete floor but there were no problems with the bedrooms. Mr Lockman said that there was no need to replace the carpet in the bedrooms, to which Ms Fishlock responded: "I am not asking that it be done in the bedrooms". The Member then asked her to confirm that it was only for the hallway and lounge room that she was seeking a replacement of the carpet. She replied "yes".

1. The audio recording of the hearing on 17 July 2015 reveals that Ms Fishlock's husband was present during the hearing. Paul Kaufman, a director of Melbourne Carpets, the contractor engaged by the Director of Housing to supply and install carpet in the rented premises, gave evidence about how the contractor proposed to do the installation. Ms Fishlock cross-examined him and queried whether the level of the carpet in the hallway and in the lounge room could be made to be consistent. At various points, either during her cross-examination or during her own evidence, Ms Fishlock made these statements:

• "Not the carpet in the bedroom. That is different altogether. You would not get the same shade".

• "I'm not asking you to change the carpet in the bedroom. I am changing that".

• "I've never asked the Department to bear the cost of that [i.e. carpet in the bedroom]".

• "The bedroom is not an issue, I'm going to pay over $1,000.00 for carpet for the bedroom".

1. Not surprisingly, therefore, the Member's findings and orders, made after each of the hearings, were of an agreement to replace the carpet in the hallway and in the lounge room and of a requirement for the Director to replace, at the Director's expense, the carpet in the hallway and in the lounge room. There was no omission by mistake of a reference to carpet in the bedrooms. There was no

agreement by the Director's representatives to replace the carpet in the bedrooms at the Director's expense or at all. On the contrary, Ms Fishlock herself took the bedroom carpets off the agenda of matters she was wanting the Director to attend to.

1. Ms Fishlock gave evidence before me that she had indeed spent $1,000.00 on purchasing carpet for the bedrooms and in taking up the existing carpet. She told me that she had discarded the carpet that she had bought, having taken it to the tip, because she believed that the Director would be replacing the carpet in the bedrooms. Her evidence of what took place during the two hearings before Member Josephs is contradicted not only by the orders the Member made but also by the contents of the audio recordings. The view I take is that her disappointment and regret at having wasted $1,000.00 in the purchase of carpet had distorted her memory of those hearings. I prefer to take that view and do not find that she deliberately gave false evidence before me.

1. The Director's letter to Ms Fishlock dated 31 May 2016 indicated that the Director would have carpet installed in the bedrooms as well as in the hallway and lounge room although it proposed to charge her for the cost of carpet "as agreed to at the VCAT hearing on 12 May 2016": the hearing before Judge Dyer. Evidently something had occurred before or during that hearing which prompted that letter. Ms Fishlock did not allege that any agreement to replace all carpet at the Director's expense, not at hers, was made during that hearing, so I have not listened to the audio recording of that hearing.

1. I find that the Director of Housing did not agree to replace the carpet in the two bedrooms of the rented premises at the Director's expense.

1. Ms Fishlock alleged that there was another reason why the Director ought to be required to replace the carpet in the two bedrooms at the Director's expense. The reason is that the Director has a duty to repair and maintain the rented premises, and that - in accordance with the Director's own guidelines for reletting standards - performance of that duty obliges the Director to replace substantially damaged carpet, i.e. where more than 30% of the total area of laid carpet is damaged. She produced to me a copy of the relevant reletting standards.

1. Under the Residential Tenancies Act 1997 ("the Act") a tenant and a landlord each has duties with respect to the state of the premises. Section 61(1) of the Act provides:

1. Tenant must avoid damage to premises or common areas

(1) A tenant must ensure that care is taken to avoid damaging the rented premises.

Section 68(1) and (2) of the Act provides:

(1) A landlord must ensure that the rented premises are maintained in good repair.

(2) A landlord is not in breach of the duty to maintain the rented premises in good repair if -

(a) damage to the rented premises is caused by the tenant's failure to ensure that care was taken to avoid damaging the premises; and

(b) the landlord has given the tenant a notice under section 78 requiring the tenant to repair the damage.

1. The audio recordings of the hearings on 18 February 2015 and 17 July 2015 do not include anything by way of an allegation, or evidence, by Ms Fishlock that the carpet in the bedrooms was not in good repair. During the hearing before me, however, she gave evidence that the carpet in one of the bedrooms had become water-affected after a gardener, whom she (not the Director) had engaged to attend to the garden, had struck and broken a water pipe with his shovel. Although she did not tell me exactly when that incident had occurred, I infer that it happened between the date of those two hearings in 2015, because she told me that her carpeting contractor had taken up the carpet after the first of those hearings and before the second, and because Mr Lockman's evidence, which I accept, was that he had looked at the carpet in the bedrooms before the first of those hearings and had seen that it had not been affected by wheelchair traffic or by anything else. Ms Ozirmak told me that her department had not been aware of any allegation that a broken pipe had resulted in damage to the carpet in a bedroom until Ms Fishlock made the allegation during the hearing before me.

1. I am not satisfied, on the balance of probabilities, that the Director of Housing breached the landlord's duty to ensure that the carpet in the bedrooms was maintained in good repair. On the evidence, it was in good repair at the time of the hearing on 18 February 2015. After that date Ms Fishlock had the carpet taken up without making, and giving the Director the chance to investigate, any complaint that there had been water damage to the carpet. The Director's written reletting standards are merely a guide to how the Director will usually exercise a judgment about whether to replace floor coverings. They cannot and do not determine the Director's duty to repair and maintain floor coverings or whether the Director is in breach of that duty. At all events, I accept Mr Lockman's evidence, and find, that when he inspected the carpet throughout the rented premises the area that was damaged was less than 30% of the total laid area of carpet.

1. My conclusion is that the Director has no legal obligation to replace the carpet in the bedrooms of the rented premises at its own expense. The carpet is missing because on Ms Fishlock's own initiative it was taken up. I am not satisfied that the state of repair of the carpet required it to have been taken up.

1. Nevertheless, the Director has indicated a willingness to have new carpet laid in the bedrooms if Ms Fishlock agreed to pay $645.07 being the cost of the carpet. The second issue I am determining is whether Ms Fishlock will be obliged to pay the Director $645.07 if the Director has SDN 29 carpet laid in the bedroom.

1. There are two ways in which Ms Fishlock could become legally obliged to pay that sum. The first occurs if Ms Fishlock consents to the carpet being laid in the bedrooms, in the knowledge, which she now has, that the Director is not agreeing to bear the expense of obtaining the carpet and that I have decided that it is not liable to bear that expense. If she consents to the carpet being laid in these circumstances, she will be unjustly enriched if she does not pay for the cost of it.
2. The second way in which she could become legally liable to pay for the cost of the carpet, even if she does not consent to it being laid in the bedrooms, is through the operation of ss78 and 79 of the Act, if the Director chooses to trigger their operation. So far as it is presently relevant, s78 provides:

(1) A landlord may give a repair notice to a tenant if damage is caused to the rented premises because of a failure of the tenant to comply with section 61(1).

(2) The repair notice must be in writing and must state -

(b) that the damage was caused by the failure of the tenant to ensure that care was taken to avoid damaging the premises; and

(d) if the landlord wishes to repair the damage, that the landlord is undertaking the repairs and the tenant is liable for the reasonable cost of the repairs.

So far as it is presently relevant, s79 provides:

1. Landlord may do repairs and tenant liable for costs

(2) If the landlord gives the tenant a repair notice under section 78 stating that the landlord is undertaking the repairs, the landlord may repair the damage at the tenant's expense as soon as practicable after giving the tenant the notice.

(3) The tenant is liable to the landlord for the reasonable costs of repairs undertaken by the landlord under this section if the landlord gives the tenant particulars in writing of the cost of the repairs.

1. For the Director to give a notice under s78 and to rely upon s79 in order to lay the carpet without Ms Fishlock's consent and to claim the cost of doing so, the Director would have to accept Ms Fishlock's assertion that the carpet in the bedrooms had been damaged but prove that the damage was caused by her failure to ensure that care was taken to avoid the damage. In view of Ms Fishlock's evidence that her gardening contractor, not she, caused the damage, such proof may be difficult. At all events, in the absence of Ms Fishlock's consent to the laying of the carpet in the bedrooms, she cannot become liable to pay the cost of the carpet until the Director has given her notice under s78. The Director would have to begin, and succeed in, a proceeding brought against Ms Fishlock in order to establish a liability under s79(3).
2. For the above reasons I determine the two issues, set out in paragraph 1 above, as follows and shall make an order accordingly:

(a) The Director of Housing is not required, at its own expense, to lay SDN carpet and underlay in two bedrooms of the rented premises.

(b) Ms Fishlock will be liable to pay $645.07 for the cost of laying the carpet in the two bedrooms if the Director lays it there with her consent or if the Tribunal determines, in a proceeding brought by the Director of Housing following the giving of a notice to her under s78 of the Residential Tenancies Act 1997, that she is so liable.