I attended the Premises on 17 February 2007 in order to ascertain the state of the premises and to address the issues of non-payment of rent by the sub-tenants ... the Premises was in a shocking state - with garbage bags in the front lawn, various pieces of hardware in the from lawn, the kitchen a mess and various bedrooms a mess...

I gave a verbal warning to the Tenants. On 21 February I caused a Breach of Duty Notice to be sent to each tenant.

1. By the time the matter first came before me on 16 April 2007, the application was that the Tenant pay the Landlord $9897.53, to in part be satisfied by payment of the bond of $1,084 to the Landlord. The claim was based on alleged rent owed, rubbish removal and repairs to damage to the Rented Premises by the sub-tenants.
2. The Landlord represented himself. He was accompanied by Ms Dianne Fletcher of Hocking Stuart, Glen Iris. Mr Darren Cass, an employee of the Tenant represented the Tenant.
3. A number of preliminary issues were raised and are discussed below. The bulk of the Landlord's submissions and evidence were heard and as the end of the hearing day approached, the matter was adjourned to 7 May 2007. The remainder of evidence and submissions were heard on 7 March 2007. I reserved my decision.

1. On 16 March 2007 the Tenant raised a number of preliminary issues.
2. He submitted that the Tribunal did not have jurisdiction to hear the matter because the Tenant entered into the Agreement with the intention of using the Rented Premises for business purposes (of sub-letting it to students who would use for residential purposes). The Tenant at no stage intended to use it in any way as his residence. This being the case he said that under sections 7 and 8, the Act did not apply.
3. Section 7 says,

This Act applies to a tenancy agreement if the rented premises are used primarily for residential purposes even if a trade, profession or business is also carried on by the tenant on those premises.

This Act does not apply to a tenancy agreement if the rented premises form part of a building in which other premises are let by the Landlord to the tenant for the purpose of a trade, profession or business carried on by the tenant.

1. I rejected the submission. The plain meaning of section 7 is that the Act is to apply if the rented premises are used primarily for residential purposes (which was the case), no matter whether a tenant or sub- tenants use it for that purpose. The section states no requirement that the tenant be the user of the premises. Section 8 does not apply. The rented premises did not form part of a building in which other premises were let by the Landlord to the Tenant for the purpose of a trade, profession or business carried on by the Tenant
2. In an unsigned letter to the Tribunal dated 12 April 2007, the Tenant had applied to join the sub-tenants as parties to the proceeding. The letter provided nine names, "last known mobile phone numbers" and "last known email addresses. The letter also said, "Current addresses not known for all of the above. All of the above have refused to provide current address details to VHS."
3. The Tenant sought an adjournment to enable him to join the sub-tenants as parties to the proceeding and to allow them the opportunity to attend. I refused observing this would cause unreasonable delay and the Tenant could pursue any claim against sub-tenants in a separate proceeding.
4. The Tenant had caused the Tribunal's principal registrar to issue witness summonses against the Tenant's wife and a tradesperson, to both give evidence and produce documents, returnable on 16 March 2007. Neither attended. With the agreement of the parties, I excused the Tenant's wife from attending, as it appeared unlikely she could contribute relevant evidence. I ordered the tradesperson to attend the next hearing.
5. The Tenant sought an adjournment of the proceeding as he said he was not prepared to proceed on the day. He said correspondence between the parties led him to believe that only preliminary issues would be considered on the day. The Landlord had some reservations about proceeding on the day, but agreed he could be prepared to proceed after some preparation over the lunch break. I refused the adjournment request. I noted this gave the Tenant an opportunity to consider the submissions and evidence of the Landlord before presenting his case on another day.
6. The Tenant requested that I provide written reasons.

1. The Landlord contended that the Rented Premises was in good condition at the start of the tenancy and that at the end of the tenancy, rent was unpaid and much damage had been done by sub-tenants for which the Tenant was responsible. He said that at the start of the tenancy he and his wife were considering whether to redevelop either the rented premises or another property (where they then lived) as their family home. In late December or early January 2007, they decided to redevelop the other property and while doing so move to the Rented Premises and later rent it out as a long term investment, in much the same condition, as it was when it was rented to the Tenant. They gave the Tenant notice to vacate as they intended to move into the Rented Premises. The Landlord visited the property and found it in a disgracefully dirty and damaged state. The sub-tenants were in occupation. The sub-tenants moved out on or about 26 March 2007. The Tenant offered and the Landlord gave him opportunity to clean the property. However, after an unreasonable delay the Landlord engaged contractors to clean the property. At the time of the hearing, the Landlord and his family had moved to the Rented Premises and redevelopment of the other property was underway.
2. The Tenant contested most of the claims and made very strong allegations that the Landlord in making the application as a "malicious device" to, "finance the renovation and/or redevelopment of his premises without any true regard to the damage caused by VSH to the property". He alleged that the Landlord was acting unethically (he is a solicitor) and that he was attempting to commit a contempt of and mislead and lie to the Tribunal[4]. The Tenant contended there was evidence that the Landlord had intended to and still intended to demolish or substantially renovate the Rented Premises and his claim was intended to achieve more than be compensated for any damage caused. He also contended the Landlord had not given the Tenant a reasonable opportunity to clean the Rented Premises
3. Given the seriousness of the allegations by the Tenant, before discussing the claims I state that I found the Landlord to be honest and to have made a reasonable application directed only at seeking unpaid rent and compensation for damage suffered. I accepted without reservation his evidence about his family's accommodation plans. I do not consider the Landlord to have in any way attempted to act unethically or to mislead the Tribunal. His conduct at both hearings was professional and reasonable, particularly in the face of the allegations made against him. I found the evidence presented by him to be reliable.

1. The relevant sections of the Act are:
   1. Application to Tribunal by Landlord

(1) A Landlord may apply to the Tribunal for a determination directing the Authority to pay an amount of bond to or on account of the Landlord if -

(a) the Landlord is unable to obtain the tenant's agreement to make an application to the Authority for a refund; and

(b) the Landlord considers that the Landlord is entitled under section 418 or 419 to a refund of that amount of bond.

(2) An application under this section must be made within 10 business days after -

(a) the tenant delivers up vacant possession of the rented premises; or

(b) the Landlord becomes aware that the tenant has abandoned the rented premises.

A Landlord may apply to the Tribunal under section 417 if -

(a) the tenant has delivered up vacant possession of, or abandoned, the rented premises; and

(b) an amount of rent has accrued due and is unpaid.

(1) A Landlord may apply to the Tribunal under section 417 if the Landlord believes that the Landlord is entitled to an amount of bond as compensation for loss or damage suffered by the Landlord on account of any one or more of the following -

(a) damage caused to the rented premises or common areas by the tenant or the tenant's visitor, other than fair wear and tear;

(b) any act or omission of the tenant or the tenant's visitor, other than fair wear and tear, that occasioned the loss of goods belonging to the Landlord;

(c) the failure by the tenant to keep the rented premises in a reasonably clean condition, fair wear and tear excepted;

(d) the abandonment of the rented premises by the tenant;

(e) the liability of the Landlord for charges payable by the tenant that are or may be recoverable by the person to whom they are owed from the Landlord.

The Tribunal must determine any application made to it under section 416 or 417.

210. Application to Tribunal for compensation order on other grounds

(1) A party to a tenancy agreement may apply to the Tribunal for an order for payment to the applicant by the other party to the tenancy agreement of compensation for loss or damage suffered by the applicant because -

(a) the other party failed to comply with the tenancy agreement or that party's duties under this Act relating to the tenancy agreement;

1. Matters which may be considered by Tribunal

The Tribunal, in hearing an application under section 209, 210 or 210A, may take into account -

(a) whether or not the person from whom compensation is claimed has taken all reasonable steps to comply with the duties under this Act or under the tenancy agreement in respect of which the claim is made; and

(b) 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; and

(c) 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; and

(d) whether any reduction or refund of rent or other allowance has been made to the applicant; and

(e) whether or not action has been taken by the applicant to mitigate the loss or damage; and

(g) if a claim is made with respect to damage to property, any action taken by the person from whom compensation is claimed to repair the damage at that person's own expense.

• (2) In the case of an application under section 210, if the Tribunal is satisfied that compensation should be paid it may make an order directing a person to pay compensation as specified in the order.

(1) A Landlord is not entitled to claim compensation under this Act for a failure of a tenant to pay rent under a tenancy agreement unless the rent is unpaid for at least 14 days after it has accrued due.

1. Reduced period of notice of intention to vacate in certain circumstances

(a) the tenant has been given a notice to vacate under section 255, 256, 257, 258, 259, 260, 262 or 263; or

(2) A tenant to whom this section applies may give a Landlord a notice of intention to vacate rented premises under a fixed term tenancy agreement specifying a termination date that is on or after the end of the term of the tenancy agreement if the period between the date on which the notice is given and the termination date is not less than 14 days.

1. The most relevant sections of the Victorian Civil and Administrative Tribunal Act 1998 are sections 97 and 98. They in part require the Tribunal to conduct the hearing fairly and according to the substantial merits of the case, accord all parties natural justice, inform itself as it sees fit and "conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit."[5]

1. The evidence presented by the Landlord included the Tenancy Agreement, a condition report[6], photographs (before and after the tenancy), correspondence between the parties, quotes and invoices, evidence by Mr Peter Schofield, a tradesman engaged by the Landlord (in writing and via telephone on 7 March 2007[7]) and oral evidence from the Landlord.
2. The evidence presented by the Tenant included photographs, correspondence between the parties and oral evidence from Mr Cass on behalf of the Landlord.
3. The evidence showed the Rented Premises to have been at the beginning of the tenancy a well used family home in clean liveable condition. At the end of the tenancy, it was in a disgustingly dirty and, in places, damaged state.
4. I now turn to the individual claims of the Landlord as set out in his application, to which the Tenant responded in the same order.

1. Unpaid rent of $1,340.77 was claimed based on rent of $1,084 per calendar month, with rent paid until 6 January 2007 and rent not paid from 7 January to the end of the tenancy on 26 February 2007. I ordered the Tenant to pay the Landlord the claimed $1,340.77, being lower than my calculation that the Tenant owed the Landlord rent of $1,351.64[8].
2. The Landlord also claimed 12 days rent ($427.66) from the vacation date to the date to vacate specified on the notice to vacate, 10 March 2007, as the Tenant had not given 14 days notice. He cited section 237 as support for this submission.
3. Section 237 applied to the situation because a notice to vacate was given under section 258 (see section 237(1)). Therefore, section 237(2) applied which says a minimum of 14 days notice of intention to vacate must be given by the Tenant to the Landlord. No notice under section 237 was given to the Landlord by the Tenant. I ordered the Tenant pay the Landlord the $427.66 claimed as damages caused by a breach of the Tenancy Agreement.

1. The Tenant alleged the entire kitchen fit-out had been demolished. I found that only one bench in the kitchen had been demolished. The rest was repaired and remained in use.
2. I allowed:
   • a claim for $145 being 10% of the cost of a new stove which was not disputed;
   • 40% of the cost replacing damaged vinyl floor covering which I found was approximately five years old ($195.80) (60% was claimed); and
   • a claim for 30% of the cost of replacing a damaged bench top ($73.50) as was claimed. The Tenant alleged this claim related to a bench, which in fact had been demolished. I found that it related to another bench and that no claim had been made for the bench that had been demolished.

1. I allowed:
   • 40% of the cost replacing damaged vinyl floor covering which was approximately five years old ($195.80) (100% was claimed);
   • 50% of the cost of replacing a damaged vanity unit ($280) (100% was claimed; and
   • the cost of replacing a missing towel rail and toilet roll holder ($160) as was claimed.

1. I allowed $1,750 for the removal of an extraordinary amount of rubbish and old mattresses and furniture, etc. I found the Landlord had allowed the Tenant time to remove the rubbish and the Tenant had not done so. The Tenant had removed the rubbish from the inside of the house to the outside. I rejected the Tenant's claim that, "Almost all of the work undertaken at the property post vacating was due to renovations - including the replacement of the entire kitchen". I deducted $50 from the claim (my estimate of the marginal cost to remove the one demolished bench from the kitchen).

1. I allowed 30% of the cost to replace five year old carpet (with some pre-existing staining) which I found had been damaged by the sub-tenants ($1,250.70) (60% had been claimed). I rejected the Tenant's claim that the carpet had been damaged while the Landlord commenced repainting in the house. The photographs offered as evidence showed paint flakes from wall scraping which were not the cause of the damage and in all probability could be vacuumed up.

1. I allowed $100 to replace a tree which photographs revealed and I found had been cut down by the sub-tenants and $100 for general cleaning up of the garden to its previous state. I rejected the remainder of the claim for a further $350.

1. I found the gas heater had been damaged by the sub-tenants and allowed 10% of the cost of replacement ($148.40), as was claimed.

1. I found the front door Lock had been damaged by the sub-tenants and allowed the claimed cost of replacement ($272.30), as was claimed.

1. I disallowed a claim of $462 relating to alleged damaged by the sub-tenants to some small wall areas. The cost of this painting was a small proportion of the cost of the repainting of the interior of the house, which was done at the end of the tenancy, before the Landlord and his family moved into it. Irrespective of any damage caused, it appears likely that the repainting would have been done.

1. I allowed the $352 claimed for general repairs including pressure cleaning and laundry, repairs to a built in robe and replacing fly screens.

1. I ordered that the Tenant pay the Landlord a total of $6,791.93 and ordered that the Residential Tenancies Bond Authority pay the bond to the Landlord in part satisfaction of the order.

[1] Which was extended by order of the Tribunal dated 27 March 2007.

1. [2] Unless otherwise stated all references to legislative sections are to sections of the Residential Tenancies Act 1997 (Vic).

[3] The Tribunal received the application to amend and receipted payment of the application fee on 23 March 2007. My order of 16 April 2007 amended the application.

[4] See paragraph five of the unsigned "Summary of Arguments to be Put at Hearing" dated 12 April 2007 over the name of the Tenant and paragraphs one to five of the Tenant's Outline of Argument - Damages Compensation" handed to the Tribunal on 7 Match 2007.

[5] Section 98(1)(d)

[6] Which Hocking Stuart, Glen Iris had posted to the Tenant but which Hocking Stuart had no record of a signed copy being returned to them.

[7] Contrary to my orders of 16 April 2007, Mr Schofield did not appear in person. I decided to hear his evidence via conference telephone call from the hearing. Mr Cass cross examined Mr Schofield.

[8] Based on the dates cited above as 51 days at $35.64 a day minus $456 on account.