Linton-Smith v Director of Housing [2020] VCAT 1355 | Case summary

Linton-Smith v Director of Housing [2020] VCAT 1355 | Case summary | Zoe

[11]

On 28 March 2018, VCAT received an application from the tenant seeking orders for urgent and non-urgent repairs and for compensation concerning the rented premises.
On 23 March 2018, she had served a breach notice under s.208 of the Residential Tenancies Act 1997 (RTA). The notice alleged failure to repair, referred to damage by rats and required repairs and payment of compensation. The tenant referred to the loss caused as being "enormous" and "refer to my letters."
Before this occurred, on 2 January 2018 the Director had by application to VCAT sought a possession order under s.322(1) and s.246 of the RTA on the basis of unpaid rent (the Possession Application). The Possession Application is the subject of a separate proceeding in which orders and directions have been made for a further hearing.
Returning to this proceeding, on 8 June 2018 it first came to hearing.[1] The Tribunal found that urgent repairs were required to be carried out at the rented premises. The Director was ordered to replace the cooker, replace kitchen cupboards as necessary, investigate damage due to rat infestation and white powder residue, and repair as necessary, and remove old footings for the old clothesline. These repairs were required to be completed by 6 July 2018. Access for the purpose of the Director complying with the orders was to be under s. 85 of the RTA. The tenant was to ensure that all rugs, mats and coverings were removed as well as any tripping or other hazards. VCAT ordered the tenant to specify any compensation sought by 6 July 2018. The proceeding was adjourned.
On 11 July 2018, VCAT held a second hearing. The Tribunal ruled that a 3 July 2018 letter from the tenant to the Director failed to specify the compensation she sought and the basis for the claim. VCAT further adjourned this proceeding to a date no later than 10 August 2018 by which date, if the tenant wished to continue with her compensation claim, she was to write to VCAT requesting renewal and setting out full details of the amount of compensation claimed, how it had been calculated, and providing copies of supporting documents.
On 10 August 2018, the tenant requested that her claim, in excess of $10,000, be amended to be included under the Australian Consumer Law and Fair Trading Act 2012 (ACLFTA). She described her claim to be for reimbursement of rent of $47,513.11, for loss, repair and replacement of household and personal goods of between $40,000 and $50,000 and that she would be making claims for increased smoking, petrol costs and meals. On 22 August 2018, VCAT amended her claim as requested.
On 18 September 2018, VCAT held a compulsory conference, which did not result in settlement.
Rat infestation of the rented premises was a major concern. VCAT adjourned the proceeding. By 2 October 2018, the tenant was to provide to the Director the name(s) of one or more specialist contractor(s) qualified to investigate the reported rat infestation. The Director was to then select and appoint the specialist contractor after considering any contractors nominated by the tenant in addition to the Director's own contractors.
The Tribunal also directed that the roles of the specialist contractor were to determine the extent of rat infestation, if any, and, if so, to identify the source and cause of it, the areas contaminated or damaged because of it, and to make recommendations for treatment of it and future prevention. The time for the Director to comply with the repair order of 8 June 2018 was extended to 13 November 2018.
The tenant was directed to file and serve by 16 October 2018 her complete and full list of compensation claims and supporting documents. By 30 October 2018, the Director was to serve on her copies of all documents upon which he intended to rely at any hearing, including records of requests for repairs made by the tenant from January 2014 onwards. The next hearing was scheduled for 22 November 2018. However, shortly before then, the tenant again amended her claim and provided additional documents which raised further issues for the Director to consider. The hearing was converted to another compulsory conference. When this again did not settle the dispute, further directions were made for the Director and the tenant to provide copies of documentation upon which they each intended to rely at hearing. Hearing dates of 15 and 16 January 2019 were fixed together with an extension of time for the Director to comply with the repair orders of 8 June 2018.
Over 15 and 16 January 2019, 15 February, 13 to 15 May and 18 and 19 June 2019, I conducted the final hearing of this proceeding and hearing the Possession Application. The tenant represented herself.[2] HWL Ebsworth, Lawyers represented the Director with Mr Bruno of Counsel appearing. I describe the hearing in some detail below.

[14]

Mr O'Day is employed by Traps Pest Control Pty Ltd (Traps) as a Pest Manager. He has worked at Traps for 14 years.
On 5 July 2017 at the request of the tenant, he attended the rented premises, which were then vacant, to check for rodent activity. He observed high levels of rat activity throughout the rented premises. There was visible damage in every room of the unit. Live rats were inside the walls and roof. He saw rats running around in the kitchen. His photographs support his observations.
After his attendance, he provided a service report addressed to the tenant which confirmed evidence of high rat activity in all rooms of the house and in the roof void and included recommendations to deal with the issue. However, he did not hear further from the tenant.
On 1 November 2018, Traps received an email from Mr Erfani, who is a Housing Services Officer of the Director. Mr Erfani was seeking an inspection of the rented premises to establish whether there was then any rat infestation and, if so, a quotation for fumigation and eradication works which could be undertaken to resolve the issue.
On 8 November 2018, Mr O'Day attended the rented premises with Mr Erfani for the inspection and again took photographs. These photographs were also attached to his statement.
In contrast to the photographs from the initial visit, they bore little similarity. They showed only minimal damage. However, Mr O'Day made the following observations during this second visit. There were signs that rats had recently been at the rented premises. Although he did not see any live rats, he saw rat droppings and smear marks. Inside the unit, the condition of the kitchen was messy and sub-standard with food scraps present. There was also dog food in bowls around the interior which attract rats and other pests. There was recent rat activity inside the roof void. He noted that this area should be treated with a poison, Racumin 8 dust rodenticide.
Concerning rodent access, damage to fly screens would allow pest entry and holes in outside walls would allow rodent entry. There was a photograph of one screen with a hole in the mesh and photographs of two external holes which Mr O'Day noted would need to be fixed by a builder. He noted dog food, bones, bedding and mattresses in the yard attract pests as does weeds and plant matter and neighbouring homes had composts and open bins.
On 8 November 2018, Mr O'Day wrote to Mr Erfani setting out Traps' proposal for rat control at the rented premises. The proposal was for treatment and thereafter three-monthly maintenance covering the roof void, external yards and inside the house. The initial service cost would be $654.50 for the treatment. For the four visits over the next year, each visit would cost $269.50. There would also be a one-off supply cost of $224.40 for eight tamper resistant bait stations. The fixed rodent bait stations would be installed outside the fence line so that the tenant's dogs would not have access, and only first generation bait without secondary poisoning would be used. He attached safety data sheets and directions for use for the various treatments.
On 9 November 2018 he emailed Mr Erfani to provide his views as to the possible factors contributing to the return of rats to the rented premises. He said areas become infested when rodent activity is not managed or monitored on a regular basis and where safe harbourage, food and water is provided. Additionally, control is not possible using only traps and similar deterrents. Regular baits and poison controls need to be used. He regarded the cleaning and maintenance of the rented premises including the weeds and garden as poor, leading to hygiene issues which would attract other pests. He was also concerned that the rented premises had full gutters, rubbish, old bedding and mud against the outside walls. He could not identify the origin of a white powdery residue which had been shown to him by the tenant as a small sample in a clear bag.
When he had first seen the rented premises in July 2017 before eradication works were undertaken, he had then regarded the unit as having one of the worst rat infestations that he had seen in a domestic home.
He suspected the source of further infestation was most likely that rodents had bred inside the rented premises and maintained residency after treatment of the initial infestation.
On 13 November 2018, Mr Loncar of Traps emailed Mr Erfani to explain the rat treatment which Traps proposed to undertake at the rented premises the next day hoping that his explanation would alleviate the tenant's apprehensions about the products to be used.
Mr Loncar noted that the tamper resistant, hard plastic, lockable rodent bait stations that Traps would use throughout the roof void and other appropriate areas would be out of reach of domestic animals. Additionally, he advised that the multiple dose anti-coagulant bait to be used posed a very low secondary poisoning risk to non - target animals such as the dogs because the active ingredient of Racumin is metabolised by the rodent as it takes effect which results in much lower residue levels.
On 14 November 2018, Mr O'Day attended the rented premises with Mr Erfani to undertake the rat eradication works but was unable to carry out these works as the tenant refused any baiting treatment as she only wanted a non-chemical option to be used.
On 15 November 2018, Mr O'Day sent a letter to the Director about his findings from the previous day. Although no rat treatment works were undertaken, he had used a ladder to assess the roof above the laundry. He took photographs which were also attached to his statement. They showed quite a clean internal roof cavity.
He reiterated that the baiting system would be much more effective than a non-chemical option as it would more efficiently bring the rodent population under control and it would take much longer for the rodents to again re-establish a colony.
However, the tenant was difficult to communicate with and was unwilling to provide access for the proposed baiting. He viewed the tenant as needing to be relocated until works could be completed.
An information sheet issued by the then Victorian Department of Primary Industry in August 2009 was attached to Mr O'Day's statement. It confirmed that glue traps could not be used as a pest control measure at domestic premises.
Mr O'Day said that to treat the rat problem at the rented premises, the works required to be performed were proofing, gardening, general cleaning, and baiting on a regular basis. Baits are the most effective method of treating rat infestations. The baits did not present a threat to the tenant's dogs. To have been a threat, the dogs would have had to consume large amounts of bait and an extreme number of rats which had themselves consumed the bait.
In his view, the tenant's preferred methods to treat rats, being non-chemical options such as the use of stray cats, glue traps and snake droppings in the roof void, would not be effective or humane.

[17]

In relation to the second infestation issue, attempts were made on 4 October and 14 November 2018 to gain access to the rented premises. On 4 October 2018, the tenant refused access as she did not agree with the methods and materials intended to be used for the treatment of the rats. The Director then agreed to choose the contractor whom the tenant believed suitable and trustworthy to carry out the work, who was Mr O'Day from Traps. On 14 November 2018, the tenant again did not permit eradication works to be completed when she became aware that Traps intended to use baiting. The tenant believed baiting might harm her domestic animals despite reassurances of Mr O'Day to the contrary.
Contractors who had attended the rented premises for the Director had identified the rat infestation and mattresses on the floor as Occupational Health & Safety (OH&S) issues and therefore it is preferred that the pest treatment is initially completed along with decluttering of the rented premises.
From reviewing the Director's records, Mr Erfani was aware that there was previously a rat infestation at the rented premises and that between October 2016 and October 2017 the tenant moved out of the rented premises and the Director carried out works to remediate them and to eradicate rats.
Around the time that the tenant moved back into the rented premises, he believed there was no longer any rat problem and all rat damage had been fixed.
On 20 July 2017, a job order was raised by the Director which effectively authorised the contractors, Propest Control Pty Ltd (Propest), which was the preferred pest controllers of Resolve FM, the then head contractor, to complete a treatment for rats (standard practice) and possum caging at the rented premises.
This job was completed by 2 August 2017 at a cost to the Director of $835.12.
Some photographs taken on 17 October 2017 were attached to his statement . They show there had been remediation works undertaken at the rented premises.
On 26 February 2018, the tenant notified the Director that there was a new problem with rats at the rented premises following her re-occupying in October 2017.
The tenant also informed the Director that the gas heater could not be replaced or repaired due to the rat infestation. She did not provide any further details about the infestation at the time.
After being refused entry on 4 October 2018, Mr Erfani had contacted Traps because the tenant insisted that she did not want the Director's contractor (Propest).
The tenant wanted to use Traps as it was the company she had previously arranged to attend the rented premises in 2017.
She indicated that she trusted Traps as being suitable to perform the required works and accordingly the Director decided to proceed with Traps to ensure that the tenant's request was respected and to maximise the chances of her allowing access to complete the required works. The Director had been unable to undertake the investigation works before this time as the tenant had refused to engage with contractors, stating that she did not want baits to be used. Mr Erfani emailed Traps on 1 November 2018 to organise a time for an inspection at the rented premises to establish whether there was a rat infestation and, if so, to provide a quote for the cost of fumigation and eradication works.
Mr Erfani attended the rented premises on 8 November 2018 with Mr O'Day. While Mr Erfani did not observe any sign of rats at this attendance, he was advised by Mr O'Day that there were signs of rats outside the unit near the roof and gutter. Mr Erfani also did not observe any visible damage that may been caused by a rat infestation.
The tenant showed him a sample of white powder residue during this inspection but neither he nor Mr O'Day were able to identify what it was or its origin. The tenant stated that the white powder was all over the backyard, meaning that it may have been brought in by wind. The white powder appeared to Mr Erfani to be some sort of white flake shape with an unknown origin but potentially pollen from a tree. Despite this, he could not reach any definitive conclusion about its identification or origin or how it came to be at the rented premises.
On 8 November 2018, he also received Traps' quote. Mr O'Day had referred him, at the inspection, to two small holes located under the gutter on the left-hand side of the rear entrance and to a broken fly screen in the living room which may have provided an access point for rats. Mr O'Day recommended the holes should be sealed, and the fly screen should be replaced once rat eradication treatment was commenced but as the tenant refused the treatment on 14 November 2018 those issues were still outstanding.
After Mr Erfani reviewed the file notes on HIIP, he could not find any reference that the tenant had made a complaint about the matters noted on 8 November 2018 as requiring repair. The Director intended to repair these items but has been unable to do so because the tenant has not granted access.
On 14 November 2018 he attended the rented premises with Mr O'Day to commence the eradication works. After Mr O'Day had checked the roof cavity, the tenant enquired what material would be used for treatment as she wished for a non-chemical option to be used. The tenant was worried about chemicals harming her domestic animals.
Despite Mr O'Day advising that the chemical option was more feasible and preferred as it would be much more effective, it would bring the rodent population under control much more efficiently, and it would then take much longer for the rodents to re-establish the colony again, the tenant did not wish to proceed with that treatment.
She started shouting at Mr Erfani and said that she did not have time for "any of this" as she "has to prepare for the upcoming VCAT hearing". She also said she did not want any works undertaken by the Director until after the VCAT hearing and both he and Mr O'Day then departed the rented premises.

[18]

On 29 January 2014, the tenant first notified the Director that she believed there was a problem with the cooker including that the stove top grill was on a bad angle and pots had slipped off whilst she was cooking which was very dangerous and possibly involved a warranty issue.
On 3 November 2014 she reported that the oven was not working properly as the temperature did not regulate, the griller did not work, the stove top did not function well, and the whole stove/oven was faulty.
The Director's records showed inspections and actions taken by contractors on 26 March 2014, 10 April 2014, 18 July 2014, 2 October 2014, and 13 March 2015 to deal with the tenant's concerns. No faults were found with the cooker.
On 17 August 2015, the Director raised a job for the head contractor, Resolve FM, to inspect and report about the installation of an elevated stove which would result in a cooktop and a separate grill beside the oven together with the scope of works required to change from the current stove set-up to an elevated stove.
The job was raised to find out whether the Director could install a stove that had a separate oven and grill so that they were not within the same appliance unit.
However, the contractor was unable to complete the task with Resolve FM reporting that accurate measurements could not be undertaken due to the number of belongings stored on top of the kitchen bench, the tenant not being able to decide where she wanted the oven and cooktop to be located and wanting the whole kitchen re-configured, and the mattresses and cushions strewn all over the floors and backyard which created a tripping hazard that needed to be tidied up to allow any works to proceed.
Contractors engaged by the Director had subsequently made further inspections of the stove and have not found any fault.
Having spoken to Mr Cattapan, Mr Erfani was aware that, on 21 March 2018, Mr Cattapan had spoken to the tenant about replacing the stove which ultimately resulted in an order being raised by Mr Cattapan on 11 September 2018 directing the contractor to purchase and install a Westinghouse gas stove with an electric griller and electric oven with gas hob. The tenant agreed with this.
However, the Director had not been able to replace the cooker as required by VCAT orders dated 8 June 2018. Despite the raising of the 11 September 2018 works order, the contractors have not been able to access the rented premises to complete the cupboard works first in order to then install the new stove in accordance with the recommendations to complete the kitchen work prior to installation of the stove.
The tenant refused the work to commence as she claimed to be "too busy" and that the job was too big and she would not allow the contractor to fix a time and date for attendance until further notice, which notice she has still not given.
In relation to the kitchen cupboards, they had not yet been replaced, but have been ordered. These works form part of a broader upgrade to the kitchen.
The trigger for the kitchen upgrade was due to rotted cupboards under the kitchen sink as a result of kitchen taps dripping and spurting water. The Director decided to replace the cupboards as an upgrade for the kitchen area as it was considered to be beyond economical repair.
In or around February 2018, the Director was in the process of arranging for the kitchen cupboard works to be undertaken but was unable to proceed at that time due to the number of mattresses on the kitchen floor.
The Director required the tenant to remove the mattresses before work could commence but the tenant did not allow the Director to declutter the rented premises to allow the works to be undertaken, including removing the mattresses from the kitchen floor.
In relation to the kitchen cupboards and stove, contractors had also been arranged to commence works on 8 November 2018.
On 8 November 2018 Resolve FM notified the Director that the contractors engaged to install the new kitchen cupboards had again attempted to commence this job on or around this date, but the tenant refused them access stating again that she was too busy and the job was too big. She complained that the new stove was not the model/ type that she wanted. She wants to select the stove she preferred.
Again, the contractors have also advised that the rented premises must be decluttered, and the works undertaken to address the rat infestation, prior to installing the kitchen cupboards, because of the OH&S issues arising therefrom, but this has not occurred.

[20]

Mr Trueman is a Team Leader of the Tenancy and Property team at the Box Hill Housing Office of the Director. He has worked in this role since December 2016. His responsibilities include managing the head contractor complaints, supervision of the property team, payment of maintenance invoices, coordinating disability modifications, and overseeing property allocations.
He became involved with property upgrade works at the rented premises in early 2017. His role was to liaise with contractors and to provide support to Mr Darren Winter and the Housing Services Officers regarding the upgrade works at the rented premises. Extensive works had been undertaken during the time that the tenant had moved out from the rented premises between October 2016 and October 2017.
Having reviewed the Director's records, he was aware the works undertaken included removal of tiles and underlay, laying of new carpet, removal of old vinyl and underlay, laying of new vinyl sheet with urethane protective finish on the floor, repairing holes and painting, checking entire electrical installation, checking and repairing as required the hot water system, gas stove, and heater, replacing the rangehood, installing carpet edge strips, checking the gas fitting line, installing lights, undertaking a complete electrical rewire, cleaning all spouting, extensive cleaning throughout requiring a bio clean and enzyme wash removing all faeces and rat droppings and build up in all rooms, washing of walls, removing insulation and dusting out the roof cavity, and trimming of trees and branches. The total cost of these works was to be $24,370.85.
He inspected the rented premises on 7 September 2017, 10 October 2017 and 15 December 2017. On 7 September 2017, the rented premises was cleaned and all of the tenant's belongings had been removed. Photographs taken by Mr Trueman show internal cleaning and removal of belongings.
It was not possible to undertake the full works which were required until September 2017, due to the delays caused with the tenant not allowing the Director's pest control subcontractors to use poison baits for fear of her dogs becoming ill.
The baiting works needed to occur first to eradicate the rats before the other repairs could occur as otherwise it would have been unsafe for the contractors to attend.
When he undertook the December 2017 inspection with Mr Winter, the rented premises appeared to be in an acceptable condition with no evidence of rodents. Photographs taken by them on 15 December 2017 support this statement and also, when compared with the photographs taken by Mr Trueman on 10 October 2017, they show that works continued to be undertaken after 10 October 2017.
Concerning this relatively new property, built in 2002, he believed the main cause of the rat infestation at the rented premises was due to the tenant placing mattresses in the backyard and burying them beneath the surface, thereby creating a fertile environment for rodents to breed and live.
There is another property owned by the Director to the rear of the rented premises, being 2/30 Teck Street, Ashwood, which was constructed at the same time but has not had any rodent issues.

[22]

Concerning the cooker, on 21 January 2014, the Director replaced the gas stove with a new Westinghouse upright stove. On 29 January 2014 the tenant first notified the Director that she believed there was a problem with this new cooker in that the stovetop was on a bad angle and items were falling off the stovetop.
Contractors attended on 4 February 2014, but could not find any problem as the stovetop was level and in working order. The stove did not need to be repaired.
Mr Allford believed that the tenant did not like the style of the gas stove. On 5 and 6 March 2014, he had multiple phone conversations with the tenant who confirmed that she wanted the gas stove changed to an electric stove. He advised her that the Director required an occupational therapist assessment and a report to make any change from the recently installed stove to a more medically suited stove, if this was necessary. The tenant expressed significant distrust towards occupational therapists as she believed they would recommend the opposite to what she had requested.
At a VCAT hearing on 25 July 2014, in an earlier proceeding involving an application by the tenant for repairs to the stove, the Director had requested the tenant to provide a report by an occupational therapist. However, the tenant's application was ultimately struck out, as no report was provided.
Despite this, the tenant had continued to maintain that she had difficulty with her back, hands and knees and therefore struggled with the design of the stove.
In view of the lack of information about her medical conditions, Mr Allford decided the rented premises should be completely assessed. Under a notice of entry, Nicole Mathews, an occupational therapist, attended the rented premises on 27 May 2015 at 2.30 pm with two Housing Services Officers.
During the inspection, Ms Mathews recommended consideration of a side-by-side stove so that the tenant would not have to bend over too far but Ms Mathews required more medical information to make an accurate assessment.
On 15 May 2015, the tenant had complained to the Equal Opportunity and Human Rights Commission seeking to have the gas stove replaced.
The Director ultimately agreed to renovate the kitchen to meet the tenant's needs provided the tenant gave clear access and appropriate medical information. Clear access was needed to enable a plan to be drawn up to renovate the kitchen to better suit the tenant's needs but this did not occur due to the OH&S concerns.
The Director requested the tenant's GP provide necessary medical information by 19 June 2015. No such information was provided.
A Consumer Affairs Victoria report dated 20 July 2016 (the CAV report), following a 5 July 2016 inspection, identified that the oven griller was covered in grime and dust and appeared unable to be turned on and suggested that it be inspected by an industry professional.
The Director raised the job and the gas stove was serviced and a replacement spark electrode was provided and installed.

[23]

In relation to the rat infestation, the tenant first notified the Director about a rat problem on 18 August 2015 when she informed the Director that rats were chewing through her fly screens.
After discussion with his Team Leader, Mr Allford advised the tenant that pest control was a tenant's responsibility.
The tenant then made further complaints about the rats which indicated that they were causing multiple holes, potential electrical circuit shortages and leaving droppings around the rented premises.
The July 2016 CAV Report had raised an issue of rodent infestation resulting in damage to various locations within the rented premises including to walls, ceilings, window coverings and fly screens and the creation by the rodents of many entry/exit points.
However, while the CAV Report recommended repairs and pest control company works, it noted that the tenant has three dogs and did not want baiting used as an option.
On 12 October 2015, the Director raised a job for contractors to patch up holes caused by vermin. Patching up of approximately 30 holes was completed on 25 November 2015.
On 27 November 2015, the Director requested contractors to trap the rodents. The contractors advised that they could only bait the rodents and that trapping and sticky boards were against the law but that the bait used would be in the ceiling cavity and would be unlikely to affect the dogs if they ate a dead rodent.
Because the tenant would not agree to bait use, the job did not proceed.
Mr Allford believed that the rat infestation was due to the tenant not allowing tree branches to be cut back that overhung the unit in the front yard which prevented natural evaporation, the presence of straw and bones which provided a comfortable environment for rodents, the number of mattresses, futons, foam and other flooring coverings which would encourage the rodents to enter the unit, and the Director not being allowed to bait the rats as this was claimed by the tenant to be a potential health hazard for her dogs.
Mattresses had been at the rented premises since March 2007. Inspections also revealed a large amount of straw/hay in the front yard, which the tenant said was present to soak up the mud, together with bones for the dogs.
Mr Alford provided maintenance records for job orders raised by the Director between 2015 and 2017.
It was difficult for the Director to carry out repairs because of the tenant not allowing baiting which is the preferred method of rodent infestation treatment and the health hazard presented by the condition of the rented premises to contractors undertaking works.
There were numerous home visits undertaken in 2015, 2016 and 2017 which included 3 and 30 May, 8 July, and 15 September 2016.
On 3 May 2016, Mr Allford attended with both Mr Apostolopoulos of the Director and the supervisor of Resolve FM, during which time discussions took place with the tenant about job orders being raised to patch holes in walls, to replace fly wire, to undertake a bio-clean and to supply a skip to assist her with decluttering.
On 30 May 2016, he attended with another Housing Services Officer, a representative of Resolve FM, and two contractors to assist with works the subject of a job order for clearing and cleaning. A skip had been delivered and was out on the road. There was straw over the front yard and mattresses in the rear yard, and at the corner of the unit, near a common driveway, were old and well- worn mattresses/futons.
The contractors were to remove the damaged dishwasher sitting in the front yard which the tenant claimed had been destroyed by rats and the tenant was also advised that the contractors were in attendance to remove straw, bones/meat products, branches and trees impacting on the roof line, and mattresses, and they would also clean windows and remove cobwebs.
The tenant said that the contractors were not to touch the straw or bones as they did not attract rats, and the mattresses could only be removed if they provided new mattresses. The tenant was informed that new mattresses would not be provided.
The tenant also stated that the contractors could not touch the trees as they provided shade, kept her house cool, allowed birds which kept away rats to perch, and did not pose an issue generally. Mr Allford noted that there was a dead branch leaning on the roof which could easily damage it, a tree that was growing around the spouting, plants growing out of the spouting, very dirty windows and copious amounts of cobwebs.
One of the contractors tripped on something in the straw which, when uncovered, was discovered to be five fresh large bones for the dogs with a swarm of flies on them.
The spouting was full of leaves and dirt due to the trees overhanging the roof and was leaking onto the ground.
While the tenant continued to maintain that the straw was to absorb the mud in the front yard, it appeared that the mud was being caused by a lack of sunlight, constantly being trodden on by her three dogs, and the overflowing spouting.
He advised the tenant no further work could be undertaken if the trees, straw, and mattresses were not removed, upon which the tenant simply stated that she needed to attend to the dogs.

[24]

On 8 July 2016 a Local Laws Officer, Peter Wisdom, undertook an inspection on behalf of Monash Council. Mr Wisdom advised the rented premises were definitely unclean but not at the point considered unfit for human habitation.
Mr Wisdom was concerned that the oldest dog had blood coming from the rear portion of its body, and this was not being sufficiently cleaned by the tenant. There were also other significant stains which appeared to be blood.
He was surprised that the rats were inside the unit itself due to the favourable conditions out in the yard with the straw, bones and meat.
On 15 September 2016, Mr Apostolopoulos again attended the rented premises. On this occasion he was with a contractor from Propest. Mr Apostopoulos recorded that its condition had not improved. He counted three mattresses inside the unit and five outside in the courtyard.
On 25 August 2016, the Director gave a notice to vacate to the tenant for non-compliance with the January 2015 orders by VCAT. This notice was given under s. 248 (1) of the RTA, after all options had been explored by the Director for the tenant, including the involvement of the occupational therapist and a designated support person and consulting with the Director's Complex Clients Coordinator.
The Director was satisfied that the notice to vacate for non-compliance was required after having regard to the continuously deteriorating condition of the rented premises.
To understand the context of the notice to vacate, on 20 November 2014 the Director gave the tenant a breach notice alleging a breach of s. 63 of the RTA for her failure to keep the rented premises clean. This notice was given because of each of the large accumulation of mattresses, futons and foam covering the ground externally and the floor internally, some of the mattresses decomposing with other mattresses on top, their strong smell, many of the external mattresses being waterlogged, the significant amount of clutter in each of bedroom one, the kitchen and dining room, and the significant amount of cobwebs and dog hair throughout the rented premises.
While the Director attempted to engage with the tenant through different supports, she did not comply with the breach of duty notice.
On 13 January 2015, the Director applied to VCAT for a compliance order.
On 29 January 2015, the Tribunal heard the application and made a compliance order which required the tenant to remove the accumulated mattresses, futons and foam and other floor coverings which were causing health and safety concerns for the tenant and neighbouring occupants. The tenant was also directed to engage the assistance of a doctor, a designated support provider, and an occupational therapist.
The tenant did not comply with the compliance order or engage with any support services which were to attempt to assist the tenant to de-clutter the rooms and to potentially provide alternative solutions for flooring options.
The tenant did not consent during this time to support services available from the Social Housing Advocacy Support Program (SHASP). An attempt by Ms Tania Reid from 'The Crowded House' to assist with de-cluttering some of the rooms in the rented premises failed. Ms Reid explained the situation in an email to the Director's then Acting Complex Clients Co-ordinator and to Mr Allford dated 9 March 2015 which, in part, said:

[27]

On 9 September 2016, Resolve FM completed a short report about the rented premises. According to the report, the main issue is the condition of the rented premises and how the tenant lives. It noted that there have been numerous work orders cancelled due to OH&S issues, there are mattresses all over the floor inside and out with the mattresses outside being constantly wet and filthy and the tenant's dogs have large bones with attached raw meat all over the rented premises attracting rats and causing a bad smell throughout, the mattresses are a tripping hazard for workers attending to try to undertake maintenance work, the tenant refuses to cut back any trees which not only blocked sunlight but provided a pathway for the rats to get inside the roof space, the tenant has refused pest control contractors to use bait and the traps which had been set to catch the rats and remove them have not been successful.
On 12 September 2016, Resolve FM completed a further short report about the condition of the rented premises following an inspection, the findings of which were the house was cluttered, dirty food was left out, and mattresses were on the floor throughout the unit, window fly wire was damaged by rodents, overhanging branches were on the roof and these were access points for the rodents, there were holes located on the walls in the interior of the house from which the rodents would be entering and exiting, and there is hay in the front and back yards which will attract the rodents as a nest.
The 12 September 2016 report also recommended the house should be completely emptied so that the holes in the walls could be located, the hay should be removed as this is where the rodents would be living/nesting, tree branches should be cut more than a metre from the house so the rodents could not get on the roof, and all fly wire should be fixed.
On 22 September 2016, Mr Allford's team leader, Mr Apostolopoulos, inspected the rented premises to assess its condition, including whether the tenant had removed the mattresses. He found she had not complied with the Tribunal orders.
At the Tribunal hearing on 27 September 2016, regarding the tenant's non-compliance with the January 2015 orders, the presiding Member adjourned the proceeding by consent to 27 December 2016.
On 12 October 2016, Mr Allford attended a meeting with two other representatives of the Director, a representative from Harrison Uniting Care (Harrison), and two solicitors from Justice Connect, who were then acting for the tenant, to discuss the rented premises.
At this meeting, the Harrison representative said that the tenant had been given some options for alternative accommodation but she had rejected the options as they were not suitable for her dogs and the tenant was looking at private rental accommodation. It was agreed at the meeting that the Director would arrange for the repairs to be carried out to the rented premises.

[28]

He then attended a meeting on 20 October 2016 to again discuss the rented premises with the tenant, Harrison, and Justice Connect. Harrison and Justice Connect stated that they were unable to find alternative accommodation for the tenant which was appropriate for her financial situation and which also satisfied her requests for a fully fenced and pet friendly property. The tenant said she had been unsuccessful in applying for a private rental property.
However, the tenant moved out of the rented premises on 23 October 2016.
Accordingly, on 20 December 2016, the parties agreed to further adjourn the Tribunal hearing to 20 March 2017. The Director was then of the view that all the works to the rented premises would be completed by that date.
On 6 December 2016, because the Director and his contractors required industrial cleaning to be performed before the rat infestation and other works could be attended to and completed, the Director recommended STC Cleaning to Justice Connect (and therefore to the tenant) as an industrial cleaner that could be engaged. This recommendation was made so that the tenant could select an industrial cleaner of her choice under the arrangement agreed between the parties in the October 2016 meetings.
However, the Director was unable to complete the works by 20 March 2017. The Director decided not to seek a further adjournment of the Tribunal hearing after 20 March 2017. In an email to Justice Connect on 6 March 2017, the Director confirmed that it was able to contribute to the payment for an industrial clean of the rented premises and requested that Justice Connect proceed to arrange for the contractor to perform the clean.
On 12 April 2017, Resolve FM completed a further short report about the condition of the rented premises after an inspection. The findings from it included that it was infested with rats and possums and wildlife was entering the unit through open windows, screens and holes in external walls. The possum issue would need to be addressed before baiting the rodents and screens would need to be replaced, windows kept closed, and holes in walls blocked and repaired.
The tenant's former husband, Mr Phillips, had also been advocating for the tenant and had assisted her in making representations to the Director. The Director also sent a letter to the tenant's former husband in which the Director set out the reason why the rented premises was habitable, that its condition, however, attracted rats to enter and nest, that the Director would carry out a pest control treatment and general maintenance works, that the tenant should not return to the rented premises until these works had been completed and, among other matters, the tenant should complete the relevant application form for a transfer to another property.
On 25 May 2017, Mr Allford emailed Justice Connect information provided by the pest controllers about the techniques and chemicals used to carry out pest control.

[29]

In the email he said that the Director would not use any product in a situation where it could be harmful to humans or animals, that it would only bait the roof void area or install tamper proof stations where bait is secured within the station, and that second-hand poisoning is very unlikely to occur.
In an email to Mr Allford on 31 May 2017, Justice Connect stated that the tenant still had concerns about the method proposed to carry out the pest control and she proposed to engage a pest control contractor of her choosing and that the Director contributes to the cost.
He informed Justice Connect, among other matters, in an email on 6 June 2017, that the Director would not accept the tenant's proposal as the Director believed the method prescribed by his pest control operator ( Propest) was safe and the method of trapping had not been successful at the rented premises in the past.
On 14 June 2017, Mr Allford had a telephone discussion with Justice Connect regarding the need for the tenant to provide further documents to the occupational therapist so her report could be completed and they also discussed the request of the tenant to be transferred to another property. On the same day, he emailed Justice Connect with information for the tenant about applying to transfer to another property.
On 22 June 2017, he emailed Justice Connect to inform them that the Director agreed to use the tenant's preferred pest controller ( Justice Connect having previously advised the Director that the tenant still had concerns about the proposed pest control method), and that the Director would conduct the necessary maintenance to the rented premises after that pest controller had completed its works.
In the same email, he informed Justice Connect that any plans for renovations to the kitchen had not proceeded because of disagreements between the tenant and the Director's contractors.
In a responding email on 22 June 2017, Justice Connect informed him that the tenant was willing to pay the cost of using her preferred pest controller because it did not use chemicals that may harm her dogs if the Director agreed to carry out the maintenance to the rented premises after her preferred pest controller had completed the works.
In a telephone call with the tenant on 5 October 2017, Mr Apostolopoulos informed her that the Director was urgently carrying out the repairs, however, there had been a delay because the rented premises needed to be rewired as the rats had damaged the wiring.
The tenant informed Mr Allford in a telephone call on 11 October 2017 that there was a hole in the ceiling which she believed allowed the rats access and that the heater and stove needed to be replaced.
Mr Allford had called Justice Connect to advise that the tenant could move back into the rented premises from 10 October 2017 and rent would be charged from 15 October 2017, and that once she had moved back into the rented premises, the Director would also carry out an inspection to ascertain the scope of works still to be addressed.
The Director had previously been unable to complete the works by 20 March 2017, as originally anticipated, for a number of reasons.
In this regard, on 22 February 2017, Justice Connect provided a quote from STC Cleaning to the Director, to which the tenant was not going to contribute.
There was a delay while the Director decided how this cost was to be met. The tenant also caused delay by refusing access before 16 March 2017. She had the set of keys and did not give the contractors access to the rented premises before this date.
The industrial clean was performed on 16 March 2017 after access was granted by the tenant attending the rented premises which meant that the remaining works were unable to be undertaken by 20 March 2017.
The tenant also initially refused to allow the contractors to use baits to treat the rat infestation which delayed the Director from being able to carry out these works.
The tenant requested information about the contents of the baits to be used by the contractors, which information the Director provided to the tenant, after which the tenant agreed to allow the contractors to use the bait method on 19 July 2017 with this agreement being communicated by an email from Justice Connect.
In relation to the tenant's move to another premises, as earlier noted, representatives of the Director including its Complex Client Coordinator met with Justice Connect and a support worker from SHASP.
At the first meeting on 12 October 2016, it was agreed that the tenant would need to move out of the rented premises for an estimate of three to four weeks and the Director would waive the cost of rent during this time. The Director would pay for a skip and the rented premises would need an industrial clean. The Director would organise rodent extermination and removal and repair of the rented premises.
The tenant self-referred to the SHASP program during this time and it identified that hoarding and squalor were the two major issues. SHASP advised that the tenant was reluctant to accept any responsibility for the current state of the rented premises.
The Director advised Justice Connect that the tenant's level of current assets would make the tenant ineligible for a transfer to another public housing property. SHASP had explored alternative short-term housing options but the tenant was not satisfied that they would be suitable for her dogs.
During the second meeting on 20 October 2016, at which the tenant, Mr Allford, a representative of Harrison, and two representatives of Justice Connect attended, the tenant said that she had difficulty finding alternative accommodation due to her financial situation and reiterated any alternative property had to be fully fenced for her two large dogs, She indicated multiple times in the meeting that she did not wish to return to the rented premises even after the cleaning and repairs were completed, as she believed the rats would return.
However, the tenant never lodged an application to transfer to another property before she moved out of the rented premises despite both her and Justice Connect having been made aware of the option for a written request to the Director for consideration.
At the time, the tenant was not willing to accept anything less than a two bedroom property when she was only eligible for a one bedroom property. At the same time she had assets of $123,309 and she had also made requests to the Director to organise to move her into private rental.
Following upon these two meetings, it was agreed that the tenant would find alternative accommodation while the Director organised pest control and repairs to the rented premises.
Mr Allford recalled that Harrison had sourced a number of potential places for the tenant for short, medium and longer term stays but the tenant remained firm that she wanted an affordable, fully fenced, stand-alone property that would cater for her two large dogs and also be a minimum of two bedrooms in size. None of Harrison's potential options provided to the tenant met these criteria.
However, on 8 November 2016, the tenant advised the Director that she had secured a private rental in Ringwood (the alternative accommodation).
The Director applied subsidies to the tenant's account so she did not have to pay any rent for her public housing while she was absent between October 2016 and October 2017.
The tenant never relinquished her tenancy at the rented premises.
The original intent of her temporary absence was for an initial clean by the tenant to remove mattresses, straw and furniture into a skip provided by the Director for about five days, for a pest controller organised by the Director to attend the rented premises and treat the rodents for about two weeks, for an industrial clean which would be organised by Justice Connect who would also seek to arrange partial funding, and repairs would then be undertaken to bring the rented premises up to standard.
This original intent led to the initial estimate of around four weeks for the works to be undertaken although it had been noted that this estimate might have had to be extended by a further two weeks due to the amount of works required.
The issues then commenced with organising a cleaner willing to undertake the cleaning with the rodent infestation and organising the access required to be provided by the tenant.
The purpose for the industrial clean needing to be initially undertaken was specifically to include removal of nesting areas, hiding spots and food sources for the rats so the baiting would be more effective.
When the clean was eventually undertaken on 16 March 2017, the cleaners were kept waiting by the tenant for an additional two hours after the agreed time, which cost the Director an additional $1,633.50, on top of the $3,444.50 he had already committed to pay for the clean.
The Complex Clients Coordinator of the Director was also able to provide $1,500 and the total cost for the clean, which was fully funded by the Director, was $6,578.
The tenant did not then provide the Director with keys for access to undertake the works until around 9 August 2017.
Only sporadic works could be undertaken in accordance with the tenant's timetable with none of the works being able to be actioned until she left the rented premises.
The tenant also did not want the rodents baited because of her belief that there would be impact on her dogs when she returned, and, accordingly, she wanted to explore any alternative to baiting, including her own pest controllers, which all led to a significant delay.
When the tenant became aware of the requirement to treat the infestation, she wanted to know the exact chemicals being used, the information about which was provided by the Director to Justice Connect on 25 May 2017.
The tenant did not provide consent for the baiting until 19 July 2017, even after Mr Allford had extensive email communication with Justice Connect regarding the works to be undertaken at the rented premises.
When the tenant moved back into the rented premises, only minor repairs had not been carried out and Mr Allford believed them to be in a habitable state and clean condition.
Although it had been originally intended that the kitchen would be renovated, this could not be undertaken because the condition of the property had prevented contractors from drawing up plans.
Further, the tenant had wanted to choose her own stove, she had failed to provide medical documentation requested for the occupational therapist assessment and she had hesitated about the adjustment to her cupboards.
There were a number of attachments to Mr Allford's witness statement.
Attachment B was a compilation which recorded job orders raised between 2015 and 2017. From this attachment, 24 separate jobs appeared to have been raised between 12 October 2015 and 27 October 2017.
Outcomes achieved in these jobs included patching of holes, replacement of fly screens, patching and painting of walls, servicing of gas heater, installation of rat cages in the roof and inspections to check and replace (completed on 3 May 2016), servicing of gas stove, installation of double power point and provision of certificate of electrical safety, inspections and reports, further thorough cleans after pest treatment (completed on 1 September 2017), tree works, extensive work throughout the rented premises (between 7 September 2017 and 20 September 2017), cleaning of spouting, installation of rangehood, complete rewiring of house, gate repairs including supply and fitting of galvanised pad bolt and replacement of 11 bricks, removing rats nest and cleaning the area. The house rewiring and gate repairs were completed on 11 October 2017 and 23 October 2017 and the replacement of the bricks was completed on 27 October 2017.
Attachment C is the occupational therapy home visit report of Ms Mathews of 27 May 2015. Also present at the visit were Mr Allford and Mr Cattapan of the Director and the tenant herself. Relevantly, the report stated:
- The tenant received a disability support pension and had no other formal supports in place.
- Hay/straw was observed on the surfaces directly in front of the home which the tenant reported was for joint protection to enable a softer surface when mobilising.
- Within the unit, there were mattresses, foam, yoga mats and pillows on all floor surfaces which the tenant stated were also required for cushioning for joint protection to enable a softer surface when mobilising.
- The significant amount of clutter and items throughout the home made it unreasonably untidy and attention was required to cleanliness.
- While the tenant reported difficulties completing meal preparation, she accepted Ms Mathews' recommendation for an elevated stove provided she was involved in deciding the brand of stove to be installed.
- The tenant drove to access the local community and independently walked her dogs.
- Ms Mathews observed the tenant to be tangential and a person who made multiple unrealistic requests and she had concerns in relation to the tenant's behaviour and mental health.
- The tenant agreed to engage a new treating GP if she wished to proceed with exploring alternative flooring operations.
- In addition to other recommendations already referred to by Mr Allford, Ms Mathews recommended a full mental health assessment of the tenant due to the behaviours observed and concerns identified during the home visit, but this was not discussed by Ms Mathews with the tenant.
- Ms Mathews had serious concerns that the tenant may not have capacity to make informed decisions regarding the maintenance of her home.
Attachment P is pest control service reports from Propest to Resolve FM dated 14, 16, 17 and 21 August 2017. The tenant was not present at any of these inspections.
On 14 August 2017, Propest noted high rodent activity throughout all rooms and the roof void but low possum activity internally and none in the roof void. Propest installed seven cardboard bait stations throughout the house and baited the roof void and installed two possum cages in the kitchen and bedroom with the possum cages to be checked daily.
On 16 August 2017, Propest reported there were no signs of possums entering the cage and eating the bait, but there was a large amount of rat droppings throughout.
On 17 August 2017, Propest did not find anything, and on 21 August 2017, the possum cages were removed, and the house was baited for rodents.
Attachment R is another compilation by the Director which contains details of another seven jobs raised between 27 October 2017 and 28 November 2017.
These jobs included provision for replacement of fly screens, repair and replacement of sections of spouting, servicing of the heater, supplying and fitting new external blinds for each of the laundry, bathroom, kitchen, dining room, bedrooms, and lounge room, replacement and painting of six eaves, supplying a timber batten to the veranda and timber quad, removing the shed, refixing floor moulds and skirting/quad, inspecting and providing a report confirming that the kitchen cupboards, doors, drawers, shelves and benchtop are complete and functional, repairing of window winders and security doors, patching and painting a hole in the ceiling near a light fitting, repairing guttering, and unblocking the downpipe.
Copies of the HIIP files for the tenancy for the period 5 March 2015 to 21 November 2018 were provided by the Director. These comprised 208 pages.
A table containing a list of job orders raised between 16 January 2014 and 11 September 2018 for the stove was compiled and provided by the Director. It confirmed that on 21 January 2014, a new gas stove was installed for the tenant. There were seven further job orders raised in 2014 to check the stove after faults were reported by the tenant in the operation of the stove. On each occasion, there was no finding of any fault. On 3 July 2018, the Director provided a report with codes to raise a new job for an electric stove to be installed. Two further job orders were raised on 4 July 2018 and 11 September 2018 to make the rented premises ready for the installation of a Westinghouse gas stove with an electric grill and a 60 cm. electric oven with gas hobs, but due to OH&S issues, the contractors could not complete the works because of the state of the unit.
On 15 April 2014, the Director wrote to the tenant about her complaints in relation to the stove. The Director confirmed that the stove was not faulty and was operating as designed. The letter also provided the tenant with a brochure as to how to request repairs by, and report maintenance faults to, the Director together with a brochure from SHASP. The Director advised the tenant that SHASP was available to assist his tenants by providing support to households and advocacy services for tenants and that Harrison was the service provider in her area for SHASP.
The tenant was also informed by the Director in the same correspondence that tenants with special needs may request modifications to dwellings or other amenity provisions, and such requests can be considered by the Director but only on the basis of demonstrated need. To determine demonstrated need, the tenant was also informed that the Director required a written submission supporting the claim from an appropriate medical or other professional, such as an occupational therapist, where they are assessed on a case-by-case basis. It was specifically noted to the tenant that if she felt a different model stove was required to meet her medical needs, she was required to undertake that process.
The Director has also filed copies of what he regarded as relevant letters and file notes between 2014 and 2018 which are variously between the Director, the tenant, Justice Connect, Traps, Propest and Total Trades.
Included in these documents is the first page of a letter sent on behalf of the Director to the tenant on 9 September 2014. Omitting formal and irrelevant parts therefrom, this portion of the letter reads as follows:

[54]

There are two file notes of Mr Erfani dated 17 December and 18 December 2018 also included in these documents.
The first file note on 17 December 2018 confirms that Mr Erfani and another Housing Support Officer attended with Mr O'Day from Traps at the rented premises pursuant to a notice of entry. Mr Erfani informed the tenant why they had attended. The tenant responded that she only wanted non-chemical materials to be used in the treatment and other than that she did not want the job to be undertaken. Mr Erfani advised the tenant that this type of treatment was recommended by the contractor, Mr O'Day, whom the tenant had chosen and recommended, and that was why the Director wanted the work to be completed according to Traps' advice.
The tenant then accused Mr O'Day that he was now working with the Director when previously he was hired by her and therefore there was a conflict of interest. In response, Mr Erfani explained that Traps was only engaged in this work upon the request of the tenant, that it was acting as an independent contractor and that Mr O'Day could only operate according to what his observations were of the rat infestation at the rented premises.
According to the file note, the tenant then questioned Mr Erfani about the accuracy of his information, enquired about his background, and raised issues about his grammar usage. Mr Erfani responded by indicating that those were not relevant issues and that the tenant should provide access to the Director and contractor given the notice of entry, and if she did not do so, they were unable to proceed with the work, it would be treated as a refusal of the tenant and a breach of duty notice might follow. However, the tenant still refused access and told them all to leave. Mr Erfani noted that he would be returning the next day for kitchen work pursuant to the second notice of entry.
Mr Erfani and another Housing Support Officer then attended the rented premises on 18 December 2018, in accordance with the second notice of entry. Seamus and Darryl from Total Trades also attended. Mr Erfani explained to the tenant that he was there to access the property to complete kitchen work.
At the request of the tenant, the contractors were happy to assist her with moving her items out of the kitchen cabinets and cupboards so they could proceed with their work. The contractors started packing items under the tenant's supervision. The Housing Services Officers then departed. However, when Mr Erfani returned to his office, approximately 30 minutes later, Seamus called and stated that halfway through removing and emptying the kitchen cabinets and cupboards they were confronted with a strong smell and rat faeces inside the drawers which was so bad that they could not continue with their work and the kitchen/property had to be cleaned and fumigated prior to any attempt to complete the kitchen work.
Mr Erfani then asked the contractors to send him an email with some photos of what they described as being the OH&S issues that needed to be addressed as soon as possible. The photos included portions of the benchtop with open cupboard doors and other areas including the floor. They show cluttered areas on the benchtop and the interior of the opened cupboards and areas external to them to be extremely dirty.
Mr Erfani noted that in their report, the contractors stated:

[57]

Mr Grant Smith was at the time of his witness statement employed by Valley Maintenance Services as a vacant works supervisor and had been so for four months. He had worked for Resolve FM for four and a half years until it went into liquidation.
Resolve FM had been engaged by the Director for maintenance works at its public housing properties. Mr Smith's role at Resolve FM was to supervise, oversee and coordinate jobs often involving multiple tradespeople at the one rental property. The works were undertaken either by Resolve FM instructing its internal staff or by it engaging subcontractors.
Between mid to late 2015 to mid to late 2016, he attended the rented premises on various occasions. The purposes for these visits included inspection of the kitchen and to provide both a report to the Director on its state and a quote to replace it with a new kitchen, coordination of the installation of new kitchen cupboards, removal of rubbish, non-operational appliances and mattresses and to discuss with the tenant other items that required repair, addressing the rat infestation, trimming of trees which the tenant then refused to allow due to her sensitivity to sunlight and requirement for shade, repairing damaged fly screens with thicker fly screen material although they were subsequently damaged again, repairing holes in the internal walls and ceiling, and provision of a work order to service the cooker due to a complaint about it by the tenant.
Additionally, he attended on one occasion with a plumber to replace tap washers in the kitchen. The plumber had requested his attendance because he was constantly being called to replace the washers. The tenant had pushed bits of hose pipe on to the four ends of the taps to gain extra leverage to turn them off which resulted in damage to the washers and dripping taps despite the taps being relatively new.
When he attended the rented premises, among other items, he observed mattresses and cushions strewn all over the floor inside the rented premises and in the backyard, straw in the yards, bales of hay, tree branches overhanging the roof, stove and rangehood which were quite filthy and greasy, kitchen bench tops cluttered with items, holes in the internal walls and ceiling which he believed were caused by rats scratching through them and holes in the fly screens which he believed may have been caused by rats or the dogs trying to catch the rats, sticks or plants in some of the internal holes which he believed the tenant had placed there to try to drive the rats away, dogs dragging bones, rooms too cluttered to enter, blocked guttering and three to four lounge suites inside the unit.
He recalled both that the tenant had informed him that she required the mattresses to walk on because of arthritis as it was otherwise too hard for her to walk on hard surfaces and that there was something wrong with the cooker which she regarded as dangerous.
He raised a work order for contractors to attend to inspect the cooker, but he was unaware of the outcome of the inspection. The rented premises required to be tidied up to allow contractors to complete works which they were unable on a number of occasions to do because of the condition in which the tenant kept it.

[60]

Propest, Resolve FM's contractor, made a number of attempts to address the rat infestation and to gain access to the rented premises for this purpose. However, the tenant would not allow them to use baits. She wanted rats to be caught and removed by using traps but this was not possible. In this regard, Resolve FM purchased traps and arranged for their installation in the roof. Despite this, they were unable to catch any rats even though the traps were checked every couple of days for about a month.
In early to mid-2017, Mr Smith attended the rented premises after the tenant had vacated in 2016 for the purpose of Resolve FM's contractors undertaking a bio clean, addressing the rat infestation, rewiring the rented premises, replacing the carpet and damaged fly screens, replacing the kitchen, patching the internal holes, and removing the insulation from the roof because it had rat urine and faeces on it.
He was of the view that for the works to be undertaken, the tenant needed to have moved out of the rented premises which also required to have been cleared of her belongings and this had occurred.
After the tenant had vacated and Resolve FM's contractors cleaned the kitchen, it was in a good condition and did not need to be replaced. In late 2017 he attended the rented premises once all the works had been completed and he regarded it as then being in a decent and habitable condition with only minor repair works to be completed.
Mr Smith attended the rented premises at least eight to ten times between 2015 and 2017. Once Resolve FM had been informed that the tenant had moved out of the rented premises, it still had to inform her when it would be attending as she had requested that she be in attendance when contractors attended. This was also required as she was still in possession and had the key.
In his view, once access was obtained to the rented premises, given the extent of the works required, they were completed in a reasonable time. When he had attended the rented premises before the repair works were undertaken and completed in 2017, he had heard, but did not see, rats, but believed that they were hiding in the insulation in the roof. He regarded the rat infestation as having been significant.
The tenant had refused to allow contractors to use baits to address the rat infestation up until Propest was engaged to use baits in 2017 when the tenant was not living at the rented premises.
While he was able to access certain reports provided by Propest to Resolve FM he did not recall asking Propest to attend the rented premises and he was not directly involved in Propest's works. In these circumstances, he believed that someone else from Resolve FM must have been engaged in this task.
Propest provided a report to Resolve FM about its attendance at the rented premises on 26 April 2017. The rented premises were noted to be vacant but infested with rats and possums with wildlife gaining access by open windows and screens and holes in external walls. Propest recommended that the possum issue would need to be addressed before baiting for rodents while other trades would have to repair the site which would include replacement of the screens, ensuring closure of windows, checking of roof and repairing of holes in walls. Propest also stressed that when other trades attended, they would need to co-ordinate with Propest to attend on the same day.
Mr Smith believed that the cause of the rat infestation at the rented premises had been the tenant's lifestyle rather than the state of the rented premises.
He also believed that other matters which contributed to the rat infestation included dirty mattresses strewn around the rented premises which the tenant obtained from hard rubbish collections and over which adults walked, the generally dirty and cluttered condition of the rented premises, two double door fridges in which the tenant would store bones, a butcher's chopping board which he saw located in the dining area of the unit during one of his visits, bones located inside and outside the unit, piles of dirty clothes in the laundry which he also sighted on a visit, straw in the yard covering the garden and areas where grass could have grown, bales of hay spread everywhere outside in the yard, and tree branches overhanging the roof of the unit which gave the rats a path to access the roof.

[70]

On 3 July 2018, the tenant wrote two letters with enclosed documents to the Director and Tribunal setting out her initial claim for compensation pursuant to the order dated 8 June 2018.
By way of background, the tenant noted that after deductions totalling $364.84 were made from her pension, she received a net amount of $542.76 per fortnight or $271.38 per week.
The tenant then maintained that, by agreement between the Director and Justice Connect, she was not to be charged rent until all major and most minor repair works were fully completed and the rented premises were formally declared safe for human habitation "by the relevant authorities". As such works were not completed by the date when she had to move back into the rented premises, she demanded full refund of all rent she had paid since returning to live there in October 2017.
The tenant regarded the rented premises as not being re-lettable due to the extent of contamination, damage and wear and tear which became very serious in 2015. She also sought a transfer to a property with safe and fully equipped facilities and amenities appropriate to her needs, and with enough fully fenced space/acreage to provide her with freedom to exercise and sufficient room for ease of movement for herself and her two assistance dogs and cat. She noted that she had purchased the cat for rat control when the Director refused any help to contain the rats which she alleged were still present in the rented premises upon her return in October 2017.
According to the tenant, her claim for compensation and damages also arose from a forced and wrongful eviction by the Director with particular reference to the conduct of Housing Services Officers in the Box Hill housing office. This resulted in a loss of her inheritance from her parents' estates leaving her destitute and unable to afford rent, essential utility and service charges, car repairs, registration, and maintenance, whitegoods' repairs, veterinary expenses, medical and pharmaceutical expenses, clothes, shoes, household goods, groceries and appropriate meals.
The tenant also claimed not to have been left with any proper cooking facilities except for a mini pizza oven which she managed to fit on her kitchen bench. This had significantly restricted the quantity, quality and range of meals she could cook. She had also allegedly been provided with heating that could not be used, a faulty, insufficient and failing hot water service, kitchen taps from which water leaked, rotting benches and doors, unusable food cupboards and oven, and carpet which had been laid over rat contaminated and bloodstained flooring.
She maintained that she had to construct her own clothesline using loose tree branches as props. However, she regarded the outcome from this as functionally superior to the old broken clothesline with which she had been previously provided. Additionally, when the broken clothesline was removed, the contractors left one of the footings in place which, despite many requests and recalls by her to the Director, had still not been dug out and removed.
Although also being critical of Telstra, the tenant regarded the Director as responsible for permitting what she regarded as an illegal installation of a faulty, cumbersome, and expensive NBN set - up which was considerably inferior to, and more costly than, her previous copper wire service. The tenant also claimed for unusually high utility charges allegedly due to inappropriate, faulty and inefficient appliances.
The tenant also sought reimbursement of rent she had paid for the rented premises for having to live in squalid, rat infested accommodation with inappropriate and faulty gas and electrical appliances, water leaks, lack of space and storage, concrete flooring, yards and driveway, and cramped carport which had all adversely affected her mobility and exacerbated her medical conditions including osteoarthritis. She also claimed reimbursement of expenses incurred by her for each of the treatment and prevention of rats, the rent paid at the alternative accommodation between October 2016 and October 2017, the removalist and related expenses incurred for moving between the rented premises and the alternative accommodation, car repairs and insurance, and the costs of replacement or repair of multiple damaged or lost goods or faulty appliances. However, she was unable to provide any specific amounts for these items, except for the removalists' expenses and related moving costs which she estimated as totalling approximately $3500. Despite this, she maintained that each of the expenses constituting her claim were able to be proved by her bank statements or by receipts and cheque butts, the latter two categories of which she could supply. In relation to the moving expenses for the alternative accommodation, the tenant separately provided an invoice/receipt for $819.50. Some cheque butts were separately supplied for 2015 and 2016 for general expense items including for dog clubs' memberships.
Included in the documents for this initial claim was a copy of a letter from the Director to the tenant dated 15 March 2016, a copy of a letter from the tenant to the Director dated 13 June 2016 and Commonwealth Bank statements for two pensioner security accounts, each in the tenant's name. The statements were from 1 January 2014 until 1 June 2018.
The Director's letter to the tenant dated 15 March 2016 was written in response to her letter dated 10 February 2016 where the tenant requested compensation due to an increase in food bills as a result of not having been able to use the griller of the stove and reimbursement of her payment for wicker baskets to store linen and clothes. In relation to the stove, the Director's letter recorded that while it had been determined on numerous occasions that the stove is not faulty, to assist her, the Director has agreed to replace the stove with a model that better suits her needs as recommended by her occupational therapist. As to the request for compensation for the tenant's purchase of storage items, the Director had responded that the tenant is the sole occupant in a two-bedroom property, and she should therefore have adequate storage space available to her. It also noted that to assist her with her excess items, the Director has agreed to provide her with a skip for her to remove unwanted goods. The Director noted that he was awaiting contact from the tenant about a suitable period for the skip to be delivered for her use. Accordingly, the Director denied liability for the compensation claim.
In her letter to the Director dated 13 June 2016, the tenant had attached a copy of a letter she had written to Monash Council regarding a building proposal for a property at 39 Teck Street, Ashwood. The tenant then asserted that it had been deceptive, unconscionable, and spurious of the Director to have refused to do anything about the rat infestation and the resultant serious damage unless the tenant allowed the Director to remove "harmless straw, harmless tree branches and harmless mattressing in my concrete backyard." The tenant maintained that the straw she laid in the garden is clean and was used to cover the deep mud in the front yard so that she and her dogs could walk there without being "coated in mud." She stated that the straw also prevented extensive flooding outside her front door and she denied that the rats can eat the straw or nest in it as they are not attracted to it. The tenant also stated that the rats were not attracted to the mattresses in the backyard which are essential to cushion her path and to give the dogs a soft bed off the ground.
As to the bones eaten by her dogs, the tenant stated that they are clean. She removes all the marrow from them and feeds it to the dogs before putting them outside for the dogs to pick any meat from them. She maintained that she replaced them every few days and this had been her practice for what was the entire 14 years she had then been living in the rented premises without any problems. She stated that the rat problem, as described in her attached letter to the Council, had only arisen since the demolition of another house in her street which had been full of rats, which had then rushed into the rented premises and then broken into her unit.
The tenant denied that the overhanging branches were damaging the roof and she maintained that if they were lopped, the rats would still not be prevented from entering the unit. The rats had extensively damaged the ceilings, walls and wiring and there had been no proper attempt by the Director to trap them as the two traps which had been placed on either side of the manhole were insufficient in number, incorrectly installed, and not properly checked by the contractors. At that stage, she estimated there were more than 10 holes required to be repaired and plastered and the flywire screens needed to be replaced, all of which was due to rat damage. She also alleged breach by the Director of his duties under the RTA by refusing to replace the faulty stove which had resulted in her having no use of the faulty griller for two and a half years. This had forced her to eat only fat laden overcooked meats which had taken her twice as long to cook, had affected her health and had resulted in higher gas charges.
Additionally, the tenant alleged that the rats had extensively and significantly damaged plaster work, carpet, electrical wiring, dishwasher, couches, bicycle, gas furnace heater, insulation in walls and roof, and hot water service tank and had stained her carpets, cushion covers, towels, blankets, quilts, and clothes. She also alleged that without good reason and despite guarantees and promises from various staff of the Director, the holes in the plaster in the walls and roof were not repaired and the flywire was not replaced. This was meant to have initially occurred on 6 May 2016 and the tenant was adamant that by 5 May 2016, on the faith of the promises made to her on behalf of the Director, she had removed from her bookcases all of her books and had packed them into boxes and had moved them out of the contractors' way together with items from a cabinet, pictures from the walls, and the TV cables.
The tenant also denied that she had in any way contributed to the rat infestation which she regarded as being the direct result of loss of habitat from demolition and building works being undertaken in neighbouring properties and because of substandard materials and building practices used to construct the rented premises. She also maintained that her dogs were a great deterrent to the rats, but they cannot be expected to cope with a bad infestation and catching rats is not something that she encourages them to do as it seriously endangers their health.
The tenant described the situation as a public health scandal and that the Director's contractors were causing the situation as holes had to be repaired, immediately upon appearing, and the flywire strengthened when repaired. She had recently spent a further $251 on ultrasonic, electromagnetic rat deterrents and mouse wire but she needed trades assistance for their installation. It was her view that if the Director was serious about stopping rats entering the unit, his contractors should have recommended and undertaken such deterrent works earlier. Entry points needed to be identified and sealed and any rats inside trapped and removed. Since this problem had arisen, she claimed not to have had any proper use of her unit as it was unfit for human and pet animal habitation. The tenant also expressed displeasure about her claims for compensation having been continually rejected as they had been modest, just, fair and reasonable. In concluding the letter and while requesting the urgent completion of the necessary repair works, she maintained that as there was no future in the rented premises, she requested immediate transfer to a spacious, vermin proof property suitable to her needs and those of her dogs.
In relation to the tenant's two pensioner security accounts, for the first account she provided 54 monthly statements from between 1 to 31 January 2014 and 30 April 2018 to 23 May 2018. As at 1 January 2014, the credit balance was $74,373.91 with a closing balance on 23 May 2018 of $57.60.
The tenant provided 12 quarterly statements for the second account from between 14 July 2015 to 30 September 2015 and 3 April 2018 to 1 June 2018. At the end of the first statement on 30 September 2015, the tenant had a credit balance of $117,113.59 with the first deposit having been made into the account on 14 July of $92,048.34 which almost certainly was an inheritance.
However, in respect of expenses forming part of any claim for compensation, the tenant has not made any notations on these bank statements identifying such expenses. Despite this, it is apparent from the statements that calendar monthly rent of $1,733.75 was paid from the second account for the alternative accommodation. This rent figure was also confirmed from documentation provided by the tenant relating to the alternative accommodation.
In a letter to the Tribunal dated 30 September 2018, among other matters, the tenant noted that the removal of the clothesline footing had not been completed, despite many requests. She described it as a sharp steel stanchion which protruded a foot above the ground and as it represented a tripping hazard for her and her dogs, she had covered it with a cardboard box to make it safe.
The tenant also filed copies of two letters to her from Link Health and Community (formerly Monash Link Community Health Service). The letters which were dated 6 February and 16 March 2018 provided her at her request with copies of the report of Ms Mathews and of all notes and correspondence in relation to the tenant's engagement with Link Health and Community.
A copy of the tenant's response dated 4 April 2016 to the "CEO and Directors of Monash Link" was also filed with the Tribunal. The tenant was extremely dissatisfied about the content of the material provided to her by Link Health and Community as she regarded it as inaccurate and untruthful. She particularly regarded it as baselessly impugning her mental health. She requested an apology and an offer of compensation.
In relation to the stove, the tenant provided a document entitled "Contractor Inspection and Test Plan". It contained a job order number which had been issued on 9 July 2014. It was a Resolve FM document which had been completed by a licensed plumber named Nik Hartmann (the Hartmann document). He noted his instructions were to service the gas stove. Mr Hartmann wrote down the model of the Westinghouse stove and under the 'Description' section he has written "grill is shooting out flames after about 1 minute, grill making banging noises, cannot use upper-level (cannot put grill dish up top), handle coming out of grill dish, flame coming down from grill 25 mm - 50 mm, not igniting, orange flickers on grill flame." However, the document is not signed and there is no indication that any works were undertaken.
The tenant has also filed the first page of a letter dated 12 December 2014 from the Energy and Water Ombudsman Victoria. It was written in response to a complaint about Multinet Gas. It noted that Multinet Gas had responded to the issues raised with advice that a technician from its faults team had attended the rented premises to ensure the gas supply on its side was safe and that, upon inspection, no issue was found with its gas supply.
The tenant continued to file further hand- written letters and amendments to her claims for compensation.
In a letter dated 19 November 2018, she increased her claim for losses, repairs, and replacement of goods to $85,905.78, thereby increasing her then total claim, including rent reimbursement, to $133,418.89.

[71]

The tenant provided an invoice for the purchase of a bench top dishwasher on 17 November 2017. In her correspondence to the Tribunal, the tenant maintained that when she threw mattresses out, there were no holes in them and no rats nesting inside. She provided a receipt from "Margy's Home and Garden Services" dated 19 September 2016 for works undertaken on 7 September 2015 at a cost of $180 and for works undertaken on 12 January 2016 at a cost of $320. The receipt confirmed that the tenant had paid these amounts and that the work involved rubbish removal including mattresses and general rubbish and a clean out of the shed.
Additionally, in her correspondence, the tenant also stated that other neighbours, including the occupants of 2/30 Teck Street, used snap traps for their rat problems, that she had suffered personal injuries because of the surfaces at the rented premises and the use of insecticides and poisons, that she had understood that the kitchen works would be undertaken between 17 December 2018 and 20 December 2018, and that the witness statements of the Director were false and involved collusion.
The tenant also provided letters to the Tribunal from her uncle, Mr Bieske, and her neighbour, Ms Karlie Malone, dated 17 June 2018 and 31 December 2018, respectively. Both people subsequently gave evidence for the tenant at the hearing. Mr Bieske wrote that he had witnessed the rat infestation and that he had helped the tenant clean out several huge rats from her kitchen and dishwasher. He did not believe that the tenant had encouraged the rat problem in any way. He understood that his niece was seeking compensation from the Director because she was not offered suitable alternative rented premises and to recover the losses she had sustained by having to live in the alternative accommodation which had extinguished her inheritance resulting in her sole income source being the disability pension. Ms Malone confirmed that she lived at 24 Electra Avenue Ashwood and, as such, she was a neighbour with an adjoining fence. She had also experienced problems with rats at her property from 2015. She could use poison then but she could no longer do so because she now owns a dog. She had since used rat traps and had caught one rat by this method.
The tenant also provided correspondence from Justice Connect. This included a letter from Justice Connect to the Director dated 28 March 2017 and a letter from Justice Connect to the tenant dated 19 October 2017. Justice Connect recorded in the first letter that its purpose in sending this letter was to put relevant information to the Director about the tenant's circumstances and to request the Director to transfer the tenant's current tenancy to a new property. Justice Connect noted that the Director had legal obligations when assessing public housing applicants under the Allocations Manual issued by the Department of Health and Human Services (DHHS) due to its status as a functional public authority and that, specifically, the Director must consider the potential impact of any proposed action taken on the tenant's rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter). It then addressed these obligations in the letter and sought a written response about the Director's position on a transfer by 31 March 2017. In the second letter, among other matters, Justice Connect noted that it had assisted the tenant in relation to her maintenance dispute with the Director and as the Director had conducted maintenance and had informed Justice Connect that it was safe for her to return to the rented premises, it would close its file. Additionally, the second letter also noted: "You instructed us to seek to have the OOH repair the Property rather than continue with the transfer of tenancy application."
The tenant also provided to the Tribunal five separate envelopes containing undated colour photographs. She wrote on the front of each envelope a description of what the photographs therein were alleged to represent. They were notated as respectively containing photographs of the demolition next door at 22 Electra Avenue Ashwood which the tenant believed initiated the rat invasion at the rented premises, photographs of the rented premises well before leaving them on 31 October 2016, photographs showing some of the purchased items the costs of which she now sought to be reimbursed as part of her compensation claim, photographs showing exactly what she found upon her return to the unit at the end of October 2017 which was that it was still substantially unrepaired, and photographs taken by her daughter at the rented premises on Christmas Day in 2018. Additionally, the tenant had also written on the back of some of the photographs a description of what they each individually were said by her to represent.

[74]

The tenant confirmed that she had been living in the rented premises since 2002 and while there had been some problems beforehand, her claim for compensation commences relates to 2014 onward because that is when problems began with the stove.
She was seeking compensation higher than previously indicated of around $133,000. She stated that she could not perform repairs and the Director will not undertake repairs because of the rats.
She noted that her claim included reimbursement for costs for her cat which she had acquired to help eradicate the rats. She was also continuing with her claim for each of costs of moving to the alternative accommodation and establishing that residence, rent expenses, and replacing lost, damaged and contaminated goods. Her claim also included the costs of purchasing a replacement heater and a cooking appliance which also increased the cost of her electricity.
The tenant confirmed receiving inheritances from the estates of her late parents. From this initial evidence, it appeared that she commenced to receive her entitlements around 2013 or 2014. She now maintained that because of the problems related to the rented premises and the attendant expenses she has unreasonably incurred, she no longer has any proceeds of her inheritances and her income is limited to her pension.
As the Director was not re-housing her and the rented premises are unfit for habitation, her claim is now for an amount sufficient to allow her to move from public housing and to purchase a moderately priced property, and to still possess sufficient funds to live comfortably thereafter. She maintained that she had been wrongfully and illegally evicted due to deception and trickery of the Director. She could only obtain a 12 month lease for the alternative accommodation and upon her return the rented premises had still not been properly repaired.
In relation to the order of 8 June 2018, it was agreed that the repair relating to the removal of the footings of the old clothesline had been completed. However, disputes about the other issues remained. Mr Bruno confirmed these issues were the investigations about the rat infestation and the repair of the rented premises arising therefrom, baiting of the rats, and the kitchen including the cupboards and the stove.
Mr Bruno informed the Tribunal that the Director's new contractor, Valley Maintenance Services, wanted to access the rented premises on 10 January 2019. He had been provided with a file note which confirmed an appointment having been made for that day between 10 am and 2 pm. However, the tenant rang and cancelled the appointment as it was pension day and she had to go shopping. Mr Bruno stressed that it is the Director's intention to undertake the works but, as will be seen from the witness statements and the evidence to be given, the Director wishes to initially deal with the rat infestation by having them baited and eradicated and then cleaning the rented premises. However, OH&S issues remain which prevent the works from being performed. The Director has tried to have these works performed but has been prevented by the tenant from being able to undertake them.
In terms of the rat infestation, Mr Bruno also sought to make it clear at the outset that the Director does not accept any liability for any breach of the RTA for either the current, or the prior, rat infestation. However, despite this position, the rented premises is the Director's property and the Director wants to address the issues. He noted that part of the evidence the Director will lead in the case relates to the first rat infestation which will make it apparent to the Tribunal the extensive damage it caused to the rented premises. The Director also says that the rat infestation arose from the tenant's breach of s.63 of the RTA, relating to cleanliness and failure by her to comply with a Tribunal compliance order in 2015. Mr Bruno stated that the Director had issued possession proceedings to try to deal with the compliance issue and it was only at that point that there was engagement from the tenant. The Director did not want to carry out an eviction with the tenant as it recognised that she was having problems, but he had done his best in all the circumstances to have major works undertaken at the rented premises. These works were to clean and remediate them so the tenant could return to them. Mr Bruno confirmed that liability was therefore very much in issue in this proceeding in relation to the rat infestation, the cooker, and any other issue about which complaint has been made.
The tenant, however, maintained that all mattresses had been removed prior to the compliance hearing in 2015. Despite this, her evidence was that there were nasty concrete tripping hazards which were alleviated by the presence of the mattresses, no rats ever nested in them and she continued to replace the mattresses. The tenant denied any responsibility for the rat infestation. She confirmed in her evidence that there had been a significant increase in rat numbers due to the demolition in 2015 of the house next door and there had also been houses demolished in surrounding streets. She also said that there had always been a few rats before then at the rented premises, but none had ever been inside the unit. However, after the demolition(s) and the infestation, the rats "went straight through the fly wire screens and then onto the walls and ceiling."
In response to my direct question, the tenant stated that four dogs was the greatest number she had kept at the premises at any one time. She had four dogs at the start of the rat infestation but this reduced to a point where from 6 September 2016, she had two dogs.
She then continued giving evidence about the widespread presence of the rats throughout the rented premises, both inside and outside of the unit, and then about her dealings with the Director. She regarded such dealings as unsatisfactory because, despite numerous of his employees being very aware over time of the rats, the damage, and the poor condition of the rented promises, the Director had not rectified or remediated it.
The tenant did acknowledge that she was not prepared to allow use of any poisons to eradicate the rats because of the risk of harm to her pets.
The tenant also gave evidence that she could not live in the rented premises any longer as it had been overrun by the rats and she needed to move despite the Director not re-housing her.
She had enlisted the help of Harrison to try and find her cheaper accommodation but this was unsuccessful as the properties it brought to her attention were variously a considerable distance away, were expensive, were not suitable as they did not have adequate fencing, or were also in a poor state of repair. She attempted to obtain emergency accommodation but this was also unsuccessful because she was already in public housing. She then started making her own enquiries through various agents, and with the assistance of her ex-husband working on his computer, she obtained some addresses to look at properties. She required a good front fence. The alternative accommodation was the most suitable for her, particularly as it had a nice garden and good shade. However, she claimed to have also encountered a lot of problems with the alternative accommodation and ended up incurring much larger costs as a result. Despite its problems, the alternative accommodation was clean and did not have rats.
The tenant gave evidence that she had tried to deal with the rats herself before moving into the alternative accommodation but none of her attempts were successful. She tried some electromagnetic devices and a trap. Before leaving the rented premises, she had also contacted pest controllers including Traps because they claimed to use non-toxic methods of trapping. However, Traps did confirm that given the nature of the rat infestation, the only proper course was for her to move out of the unit with her belongings before any appropriate treatment was undertaken.
She then gave evidence about the stove and its faults which were not accepted by the Director. This affected the type and range of food she could cook and increased her living expenses.
The tenant was adamant that when she returned to the rented premises nothing had changed with the stove still faulty and dangerous and it remained a total mess throughout. She stated that the Director still had no intention of undertaking work, despite making appointments. In this regard, she was also adamant that she had provided access. She maintained the kitchen cupboards are all rotted and filthy from rats. In her evidence, she referred to Seamus and Darryl from Total Trades who accessed the premises but did not proceed with the works because of the contamination by the rats.
In relation to the inheritances, the tenant gave evidence that her mother died in 2008 and in around 2012 or 2013 she received a total sum of $120,000 from the estate. She then purchased a car in 2013, which car now forms part of her claim for compensation for alleged rat damage to it. Her father died in 2014 and from his estate she received $92,000. She then purchased some furniture to replace the then existing very old furniture. She also gave evidence that at the time her father died in 2014, she did not have much money left from the proceeds from her mother's estate.
She was somewhat hostile when giving evidence about Mr O'Day from Traps because she had first engaged him to provide an opinion about removal of the rats but then he was engaged subsequently by the Director. She regarded him as being untruthful and stated that he had openly admitted to her that he was only interested in going "where the money is".
In the afternoon, Mr Bruno commenced cross examination of the tenant. She maintained in response to his questions that the compliance order was not fair and that she had complied with it before the hearing in 2015. She maintained any mattresses used were always clean and they provided a soft bed for her dogs. She tried to avoid letting them become mouldy and regularly replaced them. In relation to obtaining replacement mattresses, the tenant's evidence was that she collected them from kerbsides, always with permission from the owners of the house outside of which they had been left. They were always in a very good condition. When leaving the rented premises in October 2016, she had two mattresses outside the unit.
The tenant admitted to having straw at the rented premises but never any hay. She would spread the straw in even layers around the garden except for a bale of straw upon which she would keep the dogs' feeding bowls. She claimed to have commenced to use the straw, probably in 2015, and initially because the dogs were bringing rat dirt into the unit from the yard. She denied the rats nested in the straw. The dogs ate from the bowls outside and the tenant would put any food back in her refrigerator.
The tenant denied using mattresses inside the unit. Rather, she described what was on the floor as futons. They were covered in cotton and she put another clean cotton sheet over each of them. This protected her from having to walk on the concrete floor and the extra sheet was put over the futons from when one of her dogs had a medical condition causing it to bleed. In this regard, the tenant admitted that as the condition progressed the amount and frequency of the bleeding increased. The dog died in September 2016.
The tenant denied that the straw attracted the rodents as they cannot eat it and they did not nest in it. Additionally, because she regularly used a pitchfork to thinly lay out the straw, if any rats had been nesting there, she would have seen them. She also denied the rats were interested in the mattresses. They did not nest in them as there were no holes in them.
Mr Bruno put to the tenant that Mr Allford would give evidence that the issue of alternative flooring for the inside of the property was discussed with her on a number of occasions and specifically he proposed that consideration could be given to installing composite rubber flooring and new carpet. She agreed she had asked the Director for some help about it but she did not remember any mention of carpet. She remembered some mention of some sort of rubber flooring but no assistance was provided. Ultimately, to further questioning, it was agreed that new carpet was installed in 2017. While the tenant agreed with that, she said that the slightly raised underlay also installed was very soft and after a while just compressed back to flat carpet over concrete. However, the tenant did accept that some of the contractors might not like the mattresses and futons and might not find them comfortable.
The tenant reiterated that the futons assisted her well, particularly because of her dog suffering from its bleeding condition and they kept carpet on the floor totally clean and dry. Every time the dog bled she cleaned up. At the same time she had a female dog which, as a result of an allegedly flawed medical procedure, also had a terrible discharge every two or three days for a number of years. She had to wash the dog each time and she also acknowledged that she had to wash the sheets all the time because they also became dirty as a result of this problem.
At the time of the hearing the tenant denied having any futons in the kitchen. She had some floor cushions which could be easily removed.
The tenant did not admit having any knowledge about the Director applying for a possession order in 2016 for non-compliance and she also claimed to not having had any prior knowledge about some of the meetings the Director had with Justice Connect until she had seen them referred to in some of the material filed by the Director.

[77]

Before the re-commencement of the hearing, on 24 April 2019, I had heard an application by the tenant for leave to issue Summonses to Witness to give evidence in respect of each of 14 named individuals. The Director indicated that it was calling five of the proposed witnesses to give evidence. I then made orders directing the Principal Registrar to issue, at the request of the tenant, a witness summons for each of Howard Shell, Janey Muir - Smith, Bill Apostolopoulos, and Darren Winter. Otherwise, I dismissed the tenant's application for leave to issue the remaining five proposed witness summonses.
The inspection at the rented premises took place during the morning of 13 May 2019. I will refer later to the inspection in more detail. The hearing resumed at the Tribunal after lunch on 13 May 2019 with cross - examination of the tenant to continue.
However, upon resumption, the tenant confirmed that she was adding a claim for compensation for the death of Ziggy which she alleged was connected to its ingestion of poison used by the Director's contractors. In her letter of 8 April 2019, she had foreshadowed this claim for which she had indicated she was then seeking damages of $30,000 to $40,000.
Mr Bruno then added to the Director's documents 17 photos taken of the rented premises on 22 September 2016. After looking at them, the tenant said that the rented premises were "a real mess". She said that because she had such a dreadful rat infestation, she could not access the cupboards and she could not clean up and it had been made worse because she had lived with the rats for over a year. She maintained that this was not a normal way of living. During the rat infestation she had to spend every morning cleaning up rat dirts, vomit and urine which were also around her refrigerators. To properly clean, she had to sweep, mop and then vacuum.
The tenant did not understand why the Director just left her in a unit full of rats given that Howard Shell, one of her witnesses, had attended the premises in May 2016 and had seen that it was full of rats. She also stated that before moving to the alternative accommodation she had requested the Director to contribute to the cost of the private rental, but this was refused.
She did not want to return to the rented premises after the expiration of her private lease because she maintained that it was still uninhabitable and works undertaken in her absence were unsatisfactory and it was still dirty, but she had no choice as she had run out of money completely and would have otherwise been homeless.
The tenant said she had to leave the rented premises when she did so because it was clear that it could not be repaired with her and her dogs and all her belongings remaining in a shocking mess inside. The Director could not treat for rats with her, her animals and belongings still there.
Included in her claim for compensation, supporting documents for which included some photographs, was a claim for loss of a couch. In response to questioning about it, she acknowledged that the photograph of the couch that she was relying upon was likely taken in 2013 or 2014 and not 2016 but it had still been in very good condition. She said she had other photographs of her dogs sitting on the couch on a later date. She also said that the couch was in very good condition despite her dog having the bleeding problem as she always covered it and it was only when the rats infested it, that it was ruined completely. The couch was otherwise, according to the tenant, "wonderful" for the dogs as it was nice, soft, wide and extremely big. The material on her couches also kept the dogs very warm in winter.
The tenant's evidence was that while she had first asked for a six month lease, she could not obtain anything less than a 12 month lease for the alternative accommodation.
She maintained that the rats were still at the rented premises including in the roof. She still finds their dirts in the back and front of the rented premises. However, she did acknowledge that they were not present to the same degree as previously, since her return, but she regarded the presence of her cat as an important factor in this situation. Despite this, because she cannot use poisons, she remains worried that if the rat numbers increase, there will again be a serious problem. With reference to the white powdery substance, she cannot identify it and she also acknowledged that it is not always present.
When questioned about the repairs ordered on 8 June 2018, which have still not been completed, the tenant was not all that definitive in her response. She thought that the white powder might have dropped from the eaves, although she was not sure that this was the case but, if it was, then the eaves needed repair. She maintained that the wiring was still defective and there were problems in the internal cavity of the roof. The tenant was then asked about how she would now describe the rented premises, given that she had regarded it as uninhabitable prior to moving to the alternative accommodation. In response, she said she had improved its condition because, upon her return, she had cleaned up all the insulation which had been thrown out of the roof and all rat mess as there had been a huge black bag of rats and traps left behind by contractors. Additionally, she had to clean out the cupboards as much as she could, but she still remains unprepared to use the cupboards under the sink and the food cupboard. In relation to the cupboards under the sink, she maintains there is water from behind the cupboards leaking into them, it is all rotted in that area and there is still rat contamination.
In relation to the on-site inspection at the rented premises conducted earlier in the day, the tenant said that there were still items which she had not shown the attendees, including the damage that was not properly repaired and still made the rented premises very unsafe. In this regard she again referred to electrical and internal roof issues, the ongoing presence of rats, the lack of appliances that she could use, and the heating that cannot be used due to rat contamination and damage.
The tenant also claimed that there were holes at each end of the brick terrace which were entry and exit points for the rats.
During the afternoon, I had asked questions of the tenant. Before the hearing closed for the day, Mr Bruno noted that some of the resulting discussions had focused on the bank statements and that I had noted to the tenant that to properly support her compensation claims, she needed to be comfortable that the bank statements, the tables of figures in which she had set out her claims and any other alleged supporting documents she had provided, constituted sufficient proof of her claims from the contents of the documents. Mr Bruno foreshadowed on behalf of the Director that he would be making submissions about what he regarded as the current inadequacy of the materials and information provided by the tenant to support the claims for compensation. Accordingly, he noted that if the tenant did have invoices or receipts she had not yet provided and which she asserted were relevant to prove her claims, then she should provide copies of them on the next day.

[78]

The first witness summonsed by the tenant was Mr Howard Shell. His then role was Acting Manager of the Preston housing office, but his substantive position was Manager of Tenancy and Property at the Box Hill housing office.
In response to the tenant's questions, Mr Shell remembered attending at her property on 3 May 2016 with two members of his staff and a contractor from Resolve FM. He confirmed that they had attended because of concerns with the tenancy and the condition of the rented premises. The concerns had arisen out of quite extensive discussions between him and the tenant over a number of months about the rat infestation at the rented premises and accordingly he had asked his staff to attend on a few occasions to speak to her about the position. His role as a Manager of Tenancy and Property is to sustain tenancies and to make sure that they continue in safe and habitable conditions. Therefore, he had personally inspected the property on that day to make a decision as to what should be the next course of action for the Director.
Mr Shell recalled that at that meeting he had discussions with the tenant about the mattresses on the ground, the straw in and around the yard, the bones that were left out for the dogs, reasons for the rat infestation and some of the ways that these issues could be addressed. He believed that some of the reasons for the rat infestation included the bones and the straw and that the unit itself was not in as clean a condition as it should have been. He did not dispute that initially the rats likely moved because of the demolition of the house next door but they would have been pushed towards the rented premises because it had an environment that encouraged rats to come to it. The Director was making every effort to try to eradicate the rat infestation. However, he had been informed that the pest control contractors could not manage that without putting baits out. He recalled discussions taking place with the tenant about trying to use traps and that the Director had come up with a solution after a lot of negotiation that traps be placed in the roof to try and keep the baits and everything away from the dogs. After this had occurred, he was advised by the pest controllers that they were not successful in being able to trap the rats because of the condition of the property at the front with the straw and the amount of scraps and foods available to them. Rats were not keen on going up into the roof to feed and were quite happy to stay on the ground where food was available.
He recalled seeing one rat hole in the lounge room near the heater. He was unable to answer quite a few of the tenant's questions, given the effluxion of time. He did remember having had telephone discussions with the tenant. He also recalled informing her that he would arrange for plasterers and cleaners to repair all damage, but he also remembered the difficulties for contractors because mattresses were not removed from the floor and works could not be undertaken as there were OH&S issues. He also recalled trying to explore the option with the tenant of obtaining an occupational therapist report to explore possible alternative floor coverings to suit the tenant's medical needs but that, despite continual requests, no final report could be obtained. Any indication he had given to the tenant about contractors attending to do works had been given on the proviso that the tenant provided them with clear access. He agreed that he had discussions with Mr Allford about the tenant and the rented premises. In his role, Mr Allford responded to a team leader who in turn responded to Mr Shell. Mr Allford was at that time the Housing Services Officer who was responsible for the management of that portfolio of properties of which the rented premises was one. The team leader in 2016 was Mr Apostolopoulos.
Mr Shell agreed that he had a copy of the letter from the tenant dated 13 June 2016 which she had filed. He noted that he had worked for the Director for many years and there have been many properties in which there was squalor and identification of rats and vermin being present. It was his opinion when he visited the rented premises that it had all the indications of a property that needed pest control to a high degree to remove the rat infestation. He recalled clearly the tenant's concerns about using baits because of the possible effects on her dogs. When the tenant then asked Mr Shell about his knowledge of alternatives other than baits to trap rats, he was adamant that the Director had explored every avenue that he could have through the contractors employed by him, he had tried to please the tenant in those circumstances by using baits which were non-chemical, and he could only proceed on the advice that the pest controllers gave to him. Mr Shell also confirmed that the directions that were given in 2016 were that no baits were to be used at the rented premises as per the request from the tenant. However, because he relied on the expertise and advice of the trained professionals in pest control, in response to a question from the tenant, he confirmed that he did not personally believe that there were dangers in using poison baits because they had been used by the Director in a whole range of different environments in the past and had not caused a problem and professional pest controllers had informed the Director that these baits did not affect dogs.
Mr Shell also confirmed that the Director was desperately trying to sustain the tenancy and, in doing so, had engaged a whole range of different services to try to assist. That was the sole purpose of him instructing Mr Allford to get the property cleaned and back to a habitable condition. He also noted from previous involvements with VCAT applications that if the Director instituted proceedings which may put the tenancy at risk it was another way for a manager to actually obtain supports to wrap around the tenancy to support it.
In relation to why the tenant was not re-housed by the Director, Mr Shell responded that he had explained to her on numerous occasions that she was not eligible for a transfer application. He had tried extremely hard to work with her to try to eradicate the rat infestation, clean the property, remove the mattresses and ensure that she had a sustainable tenancy. If he had not wanted to sustain her tenancy, he could have just proceeded through the Tribunal and taken care of the issue because of the compliance order that was in place. Additionally, he was very clear in stating that it had never been his intention to leave her in squalor at a property that had rats in it.
Mr Bruno then cross-examined Mr Shell. Through Mr Shell, a report from Propest relating to its attendance at the rented premises on 15 September 2016 was tendered by the Director into evidence. The report recorded that, upon Propest's inspection, the tenant's house was cluttered, dirty, food "was out," mattresses were on the floor throughout, window flywire was rodent damaged, and there were overhanging tree branches on the roof. Propest also observed some holes in interior walls which would be access points for rodents and hay in the front and back yards which would attract rodents as a good place for them to nest. The report also noted recommendations by other trades that the whole house be emptied so all the holes in the walls could be located and repaired as it was so cluttered. Additionally, these recommendations included that the hay be removed, the branches be cut back more than a metre from the house so the rodents could not get on the roof, and all the fly wire screens on the windows be repaired. Propest also noted if this was completed, it could enter and bait for rodents. Mr Shell agreed with the recommendations.
Mr Bruno then showed Mr Shell an email from Mr Allford to Mr Shell dated 20 July 2016. Attached to that email were three photographs taken on 8 July 2016. The email and photographs were also tendered into evidence through Mr Shell. The email reads, omitting formal and irrelevant parts therefrom: "Just had a conversation with Peter Wisdom from Monash Council about the inspection he did at the premises. The matter won't be forwarded to Dept of Health due to no complaints from outside parties. However, the photos show significant issues with health and safety to Anna. The property condition has definitely deteriorated since the Compliance Order was granted." Given that Mr Shell had been at the property in May 2016, Mr Bruno asked him about the photographs. Mr Shell confirmed each of the three photographs were consistent with his observations in May 2016. The first showed that when entering the hallway, the entrant walked on mattresses. The second showed straw in the front yard and on top of some bales were three bones. The third photograph showed mattresses lying outside the house in the yard. Mr Bruno also showed Mr Shell the 17 photographs taken of the rented premises on 22 September 2016. Mr Shell confirmed that they depicted the rented premises in the same condition as at his May 2016 visit.
Mr Shell also confirmed that the tenant was linked with Complex Clients given the difficulties that were presenting in relation to her tenancy. He explained that Complex Clients is a division or an area within the Department of Health and Human Services (DHHS) with the responsibility to link tenancies which are experiencing issues to different services to achieve outcomes to sustain their tenancy. The issues might be around hoarding, condition of the property, antisocial behaviour, or a range of other different components.
To further questions put by Mr Bruno, Mr Shell confirmed that the Director did not continue with the non - compliance possession application and withdrew it because the Director was trying alternatives and was never going to seek an eviction. He saw an eviction as a failure in that it represented a situation where the Director had "missed the mark" in assisting clients who required particular needs met. Eviction was not an option for him in the tenant's environment. Mr Shell also confirmed that the tenancy has continued. Additionally, he stated that the tenant did not provide keys to the Director for the repairs until July 2017 and the Director had significant difficulties in arranging for the more basic tasks like cleaning the premises. In this regard, he confirmed that the tenant neither wanted chemicals to be used in the cleaning process, nor did she want baits used when it came to the rat eradication works. Mr Shell noted at this point that it was only after Justice Connect was involved in 2017 in July that the tenant gave the permission for baiting to be used. Thereafter, the Director had, for the first time, been able to undertake the full rectification works required. Mr Shell further confirmed that the Director had decided not to sue the tenant for compensation for the rat damage and had also applied a subsidy to support the tenancy throughout the time of the tenant's absence from the rented premises when it was the subject of the cleaning, rat eradication and rectification works.
In re- examination by the tenant, Mr Shell explained that while a transfer application for the tenant had been an option, it had been decided by the Director, including the care team, that transferring the tenant was not going to resolve the issues with the tenancy which were around hoarding and condition of the property. It would have been a situation of moving the problem rather than resolving it. He also confirmed that there was a period of time when the tenant had an amount in the bank which exceeded $80,000 which was above the eligibility criteria for a transfer. He was adamant that the tenant had chosen to move to the alternative accommodation of her own accord. However, unfortunately, she had not allowed the Director and his contractors sufficient access to the rented premises prior to the move to achieve what was needed to remediate the property.
Ms Jane Muir-Smith, another witness summonsed by the tenant, then gave evidence. In 2016 she had been Mr Shell's superior. She agreed that the tenant had rung her complaining about the terrible rat infestation. She also agreed that she had a three-way telephone conversation with the tenant and with Mr Shell. However, she could not recollect details of the conversation. At that stage she was a Residential Client Services Manager and the tenant, by area location, came within the group of public housing tenants that she managed.
Mr Darren Winter who was also summonsed by the tenant then gave evidence. He did not believe that he had inspected the rented premises prior to the tenant moving back in October 2017. His first recollection of visiting the rented premises was later in October 2017 with Mr Trueman to address maintenance issues, including the clothesline, which were repair works that had not been completed but were still required to be undertaken. It was his understanding in relation to the clothesline that a work order had previously been raised which included removal of the footings but it was subsequently reported that only one of the footings had been removed, leaving one remaining. He also recalled visiting the rented premises at some stage after October 2017 with Mr Cattapan. He did recall looking in a food cupboard which was essentially empty. He described it as having some dust on the shelf but nothing else that he would attribute to rat damage. Additionally, he recalled that some work had to be undertaken with the eaves in the rear of the property due to some water damage or staining which was probably from the spouting being full of leaves. He did not remember any rat damage. The only thing he recalled, that could not be determined, was the cause of a small hole in a ceiling in the vicinity of a light fitting.
In cross-examination by Mr Bruno, Mr Winter stated that at the time of his first visit to the rented premises, he regarded the kitchen cupboards as being in reasonable condition. In relation to the cupboards under the sink, he did not recall them being water damaged on the first occasion but they were water damaged on the second occasion when he visited with Mr Cattapan. He was aware that the Director had replaced washers on many occasions at the rented premises.
The next witness called by the tenant was Ms Karlie Malone, a neighbour. Hearing transcript does not contain her evidence. My notes about her evidence are not extensive. However, from them it appears that Ms Malone leased 24 Electra Avenue Ashwood after commencing her tenancy in April 2015. From her perspective, there was quite a lot of rat activity in the area generally due to demolition and construction works. She was aware of the tenant's problems with rats at the rented premises and she had also had rat activity at her property.
The tenant's uncle, Mr Adrian Bieske, then gave evidence. In response to the tenant's questions, he stated that he was a witness to the rat infestation during visits to the rented premises, including since her return from the alternative accommodation. He was specifically asked by the tenant whether he remembered helping her in 2016 to move her dishwasher out of the unit. He was adamant that he could not forget that occasion. He stated that he was helping the tenant move the dishwasher out the front door and when they opened the back of it, he saw two or three very large rats jump out. His evidence of the rat infestation that he had seen at the rented premises included the kitchen, holes in walls, and what appeared to be rat fluid in the food cupboard.

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Mr Bruno then cross-examined Mr Bieske. In response to Mr Bruno, Mr Bieske expressed the opinion that the tenant did not cause the rented premises to be in a condition which encouraged rats. Mr Bruno then showed Mr Bieske the 17 photos taken by the Director on 22 September 2016. When asked if the rented premises, in general terms, was in a similar condition to the photographs, when compared with his visits in 2016, Mr Bieske thought they were a little different. He recalled some straw but not a large amount. When asked about the interior of the house, he was not certain that he had seen the bathroom and bedroom when he visited. He was then shown a photograph of the study. He denied that the study was exactly like it was shown in the photographs although he recalled that the tenant had stored quite a number of items in there from her late father's estate. When asked about the hallway after a photograph was shown to him in which there appeared to have been futons and a mat on the floor, Mr Bieske did not recall having seen those items before. He acknowledged there were a few mattresses in the backyard when he last visited and that there were four in the photograph shown to him. However, he believed the mattresses being placed there was consistent with the tenant's medical condition and advice because of their softness. He did not believe the lounge room was particularly cluttered and therefore it was not in the condition shown in the photographs when he had previously visited. However, he said that he remembered seeing rat damage more recently in the corner of the kitchen. Mr Bruno then put to him that this location was different to his previous evidence when he said the damage was near the food cupboard. Mr Bieske denied giving that earlier evidence and then eventually stated that he could not really recall exactly where the rat damage had been located in the kitchen.
Evidence was also given by the tenant's daughter, Ms Jessica Phillips. She was aware that for a large part of 2015 and 2016 there was a rat infestation that became worse. At that point it had become quite clear to her that the rented premises was uninhabitable and causing a lot of stress to her mother. Jessica confirmed that she had left the rented premises in 2008 to continue her studies.
To questions put by Mr Bruno, Ms Phillips confirmed that in 2015 and 2016 she was living in Kensington. She could not answer whether there were mattresses on the floor in 2015 and 2016. She recalled, however, the presence of large bales of straw in the front yard and the dogs' food in the bowls elevated on those bales for them to eat. She also recalled seeing dog bones in the yard.

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At the start of this next hearing day, some discussions took place with the parties wherein the tenant expressed her belief that during the on-site inspection I had a brief glimpse into the food cupboard. I confirmed that was the case but I noted that I had not seen a hole in the cupboard. In response, and apparently to try to clarify any perceived contradiction in the evidence of Mr Bieske about the kitchen, the tenant then indicated that any hole in the food cupboard had been plastered over, and she believed that Mr Bieske may have been referring in his evidence to when he had viewed the hole prior to its repair.
Cross-examination of the tenant by Mr Bruno then re-commenced. In doing so, he referred her to the photograph of the hallway taken on 8 July 2016 which showed apparent bloodstains on sheets on the mattresses or futons in the hallway which had been seen by Mr Wisdom from Monash Council. The tenant did not deny the bloodstains but did not definitively respond to the contention by Mr Bruno that the stains appeared to have been present for a while. The tenant expressed the belief that Mr Wisdom may have arrived while she was in the middle of her usual practice of immediately washing her dog as soon as she had noticed it was bleeding and then removing the sheets and washing them immediately.
The tenant denied that the dog bones, straw and mattresses in the yard had contributed to the rats remaining at the rented premises. She then mainly either denied or could not recall any repairs or attempts at repairs by the Director's contractors when these matters were put to her by Mr Bruno. In relation to the mattresses that she had been requested to move for the contractors, her evidence was essentially that the mattresses were often too heavy to move, but if she could move them out of the way, she did. As to the futons, they were foam and, accordingly, she did move them from the floor inside as they were quite light and easy to move. She also denied having had any arguments with staff or contractors of the Director or ever denying access.
As Mr Apostolopoulos had then arrived at the Tribunal, he was interposed and gave evidence. The tenant commenced questioning him. He confirmed that in 2016 he was a Team Leader at the Box Hill housing office and he reported to Mr Shell and Mr Allford reported to him. He had commenced in the Tenancy and Property team at the Box Hill housing office in 2004. He regarded the records of his attendances with the tenant to be accurately set out on the HIIP system. However, he clearly recalled the rented premises to have been unclean and the Director had offered referrals and support services to the tenant to assist her to restore the condition of the rented premises to an appropriate standard. Agencies including Harrison and The Crowded House were engaged through the Director's Complex Care Team.
Although he also recalled inspecting the rented premises in 2016 and noting the tenant was in breach of her lease conditions in terms of cleanliness, the Director had never wanted to evict her. Rather, it wanted to provide her with supports to help manage and maintain her tenancy obligations but she has always refused.
Mr Bruno then cross-examined Mr Apostolopoulos, and, through him, he tendered into evidence the bundle of 17 photographs that Mr Apostolopoulos had taken on 22 September 2016 and which were handed up to the presiding Member at the VCAT hearing relating to the compliance order on 27 September 2016. He confirmed that 'The Crowded House' has expertise with people who have hoarding behaviours and it had been engaged to try to assist the tenant to declutter her house and to remove excess items.
The tenant was then recalled for cross-examination. She maintained that Ms Reid from 'The Crowded House' believed, after visiting the rented premises and discussing matters with her, that the tenant had a good plan for how she was going to tidy up and rearrange the unit in future. The tenant denied that she was hoarding. She also maintained that she had truthfully informed the Tribunal in the earlier compliance proceeding that she had removed the mattresses and that Mr Allford, in giving evidence to the contrary, had lied to the Tribunal. She agreed with Mr Bruno that she had selected a Westinghouse stove, possibly in September 2018, for installation but nothing further had happened.
She had regarded an industrial clean as not being appropriate for a domestic unit because of the chemicals that are used as they are very strong, can kill dogs and she is allergic to them. She did not accept that the Director had arranged and paid for two industrial cleans at her property. She denied that she had delayed handing over the keys when she lived at the alternative accommodation, claiming that she had not been asked to, and why should she do so when she still had a tenancy at the rented premises. She reiterated that she had not done anything to attract the rats which had come from the demolition of the building next door and her witness, Ms Malone, had given supporting evidence in this regard.
The tenant did agree with Mr Bruno that she understood that the Director was not able to do all the repairs to the property until the rat infestation was dealt with and rectified. She admitted that during part of the time she was away from the rented premises, the mobile phone she had nominated for contact purposes was not in use. However, she did not admit that contractors for the Director had been calling her and leaving messages to make arrangements for accessing the keys and the rented premises. The tenant ultimately essentially agreed that she had wanted to be at the rented premises when works were being undertaken, but delays occurred in handing over the keys as she had a very busy daily domestic schedule including cleaning and setting up the alternative accommodation. Despite this, she acknowledged Mr Bruno's proposition that as she was the tenant, the Director could not simply just enter her house.
Additionally, the tenant stated that some of the delay for the commencement of the repair works while she was living at the alternative accommodation was due to the Director not responding quickly enough to Justice Connect. However, she appeared to impliedly accept that it was not until 19 July 2017 that she had agreed to baits being used in the roof void and only in that area. The tenant maintained that she had only then agreed because she was forced to do so by the Director as she had tried everything beforehand to have the Director agree to not using any baits and to just use non-toxic trapping. She was also forced to agree to the Director using poisons in the roof because she was running out of money and she knew she had to move back into the rented premises.
The proceeding was then adjourned to 18 and 19 June 2019 with the time for compliance by the Director with the repair orders of 8 June 2018 extended to 19 June 2019.

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On 2 June 2019, the tenant sent a letter to the Tribunal enclosing seven additional notated photographs. She also noted therein that she had forgotten to show at the on-site inspection the rat damage to her car and the rat hole in the laundry door which had not been repaired by the Director. One of the enclosed photographs related to the laundry door hole.
At the re-commencement of the hearing, the tenant was recalled for cross-examination. She agreed that she had two large refrigerators in the room next to the kitchen and, despite the rats, she kept windows in that room open because she was concerned about the danger if gas from the refrigerators leaked.
Mr Bruno put to the tenant that, despite her earlier evidence, Ms Reid of 'The Crowded House' was not satisfied with the manner in which the tenant was dealing with the house at the rented premises and that the tenant had accused Ms Reid of stealing. The tenant denied both those propositions. The tenant also denied that the Director had not been able to have proper access to draw plans for a kitchen renovation. In fact, she maintained that she has had contractors attend and take measurements on four separate occasions. She also stated that the rented premises were uninhabitable upon her return and continue to be so as the Director is conducting a vendetta against her. In response to numerous questions, the tenant effectively indicated that she refused to accept what was being put to her by Mr Bruno. She specifically denied that she refused to allow work to be performed on 11 September, 4 October and 8 November 2018, and on 9 and 10 January 2019, in February 2019 and on 5 June 2019.
Mr Bruno also cross-examined the tenant about her photographs. Noting they were undated, his proposition to the tenant was that she could not be sure when any of the photographs were taken and, accordingly, her descriptions on the front of the envelopes of what the photographs in them represented could not be found to be accurate. This aspect involved a number of exchanges between Mr Bruno and the tenant. The tenant made concessions. She agreed that she wrote on the envelopes only when she handed them to the Tribunal. Mr Bruno also disputed the accuracy of the notations made by the tenant on the back of the photographs upon which she had written. His proposition was that the photographs, on their face, could not be established as representing their notated descriptions.
The tenant regarded Mr Erfani's witness statement to be completely untruthful. She denied that attempted inspections on 17 and 18 December 2018 were under notices to enter. In relation to the claim that her dog, Ziggy, died because of ingesting rat poison, she said that she would be able to obtain a report from the manager of an animal emergency centre that Ziggy's symptoms were consistent with rat poisoning. However, she did not have any supporting letter or veterinary report (and none were ever provided).
Mr Cattapan then gave evidence. He is Acting Team Leader at Box Hill housing office. Previously he had been the housing officer in charge of the Ashwood area. He had also been involved with the rented premises in 2018 with Mr Erfani and in this proceeding. He attended the hearing on 8 June 2018. In response to Mr Bruno's questions about the hearing, Mr Cattapan stated that the tenant had informed the Tribunal about works that needed to be performed including the cupboards and stove and after further discussions with the parties, the Member made orders specifically including the cupboards, the footing, and the stove and the Director "had to agree to that."
From his recollection, Mr Cattapan believed that the tenant had indicated to the Tribunal on 8 June 2018 that the stove was not working. However, no report had been provided by her to that effect. Despite this, and even though the Director's inspections had not detected any fault with the stove, no issue was raised by the Director at the hearing on 8 June 2018 as he had already decided to provide a new stove and discussions had been held with the tenant about the type of stove.
Although there had also been discussions and agreement prior to the hearing to replace the cupboards, this had not occurred due to disagreement over the baiting of the rats which had to occur prior to any installation of cupboards in the kitchen. It had been the intention of the Director to try to deal with the stove and cupboards as a package. Despite this, in addition to the rat issue, additional problems were access and that no agreement could be reached with the tenant about what she wanted and what needed to be done.
Mr Cattapan also confirmed that he had discussions with the tenant about access to undertake works at the rented premises earlier in June 2019 as the Director wanted to complete the works for the cupboards and stove. However, according to him, the tenant had refused to discuss it and said that she would see him in court. He therefore understood that she did not want to proceed with the works at this time. As to the agreement about the stove, he could not be specific about dates but again, to the best of his recollection, he thought that an agreement had been reached about the electric Westinghouse oven with a gas hob initially around March 2018.
Mr Cattapan also confirmed that electrical and plumbing works in relation to any requests of the tenant had been undertaken since her return to the rented premises and job orders had been raised for a new security door and front door lock. The Director remained committed to completing the repairs referred to in the order of 8 June 2018 and has always maintained that position.
The tenant then cross-examined Mr Cattapan. He had re-commenced dealing directly with the tenant after Mr Allford had changed his role. In response to the tenant's query as to why no works had been undertaken in the kitchen, Mr Cattapan stated that as discussions had proceeded with her it was apparent that the kitchen had become a much bigger job but contractors had been unable to properly scope works due to the rat and access problems. He denied the tenant's suggestions that he wanted her dogs permanently removed. Rather, Mr Cattapan stated that he had said to her that if they were away from the premises only while the works were being undertaken, it might make it easier for them to be completed. The tenant herself then stated to the Tribunal that she had informed Mr Cattapan that the dogs were not going anywhere away from the rented premises without her.

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Mr Allford then commenced giving evidence. He confirmed his witness statement which was tendered into evidence by Mr Bruno together with the attachments referred to in the statement.
He attended the rented premises on numerous occasions particularly from when the rats were involved in 2015 and 2016. He had also undertaken multiple inspections at 2/30 Teck Street. During these visits, rats were never identified or seen at 2/30 Teck Street. Mr Bruno then provided to Mr Allford a copy of the Hartmann document. Mr Allford identified it as essentially a test plan which meant that once the contractor had been to the rented premises and undertaken work they wrote down the test plan. He had seen the Hartmann document before. He could not recall exactly when he actually received it as the Director had requested a number of test plans over the time of his involvement with the tenant's tenancy.
However, he remembered speaking to Mr Hartmann shortly after Mr Hartmann had been to the rented premises. Mr Hartmann had telephoned him and said that he had written in the Hartmann document exactly what the tenant had asked him to write down because he had been to the rented premises previously and each time had written that there was no fault to be found with the stove. He had still not found any fault, but he informed Mr Allford that on this occasion he wrote down what the tenant had told him so he could just leave the rented premises.
Mr Allford had numerous conversations between around September 2016 and October 2017 with Justice Connect and also with other supports, to try to establish what would be suitable for the tenant and for the Director in its efforts to assist her with her tenancy. In relation to the two industrial cleans, Mr Allford had informed Resolve FM that it had been agreed that no bleach or industrial chemicals would be used at the rented premises due to the tenant's allergies and he understood that the cleaners had adhered to those instructions. No details of the tenant's allergies were provided. Two cleans were required. The initial clean was to remove major sources where rats could hide so baiting of the rats could occur and then the next clean was required after that in order that the contractors could attend the premises to undertake their normal work. Mr Allford had also informed Resolve FM that after considerable effort, and despite the tenant not being at the premises at the time, an agreement with numerous conditions had been reached for a baiting process to be undertaken.
Mr Allford then detailed the significant issues experienced by the Director in gaining access to the rented premises when the tenant was residing in the alternative accommodation. The Director did not have a set of keys. In accordance with his practice, he does not retain keys, so he had to rely on the keys to be made available by the tenant in order for him to attend the rented premises. Accordingly, it took significant time for the first clean to be undertaken and it was not until around 8 August 2017 that the baiting process could occur. The second clean was then undertaken on 29 August 2017.
Mr Allford denied that the Director had ever been notified about any hole in the laundry door. He otherwise believed that the rented premises was in reasonable condition upon the tenant's return and that any further works outstanding were then able to be addressed. However, by this time, his role was more of an administrative nature in respect of the tenancy, and because of the complexity of the maintenance side of it, the lead role for this was then taken over by Mr Trueman. Mr Allford ceased working at the Box Hill housing office on 8 December 2017 and moved to the Ringwood housing office the following week.
The tenant then cross-examined Mr Allford. He confirmed that the occupational therapist, Ms Mathews, had been engaged to try to establish what sort of rectification was needed to the rented premises to assist the tenant. The earlier compliance proceeding was commenced by the Director to improve the condition of the rented premises. There was sufficient evidence that some of the mattresses or floor coverings had not been removed sufficiently and some had disintegrated and biodegraded into the actual backyard.
Mr Allford referred to the meetings in October 2016 with Justice Connect, support agencies, and the Complex Clients Coordinator. Discussion took place about the tenant wanting to be relocated to another property. One issue for the Director was that the rented premises had not been deemed unfit for human habitation and the other was that the tenant's assets at that stage were $123,000 from an inheritance, at which level she was not eligible for a transfer under the Director's criteria. It was agreed that one of the options was private rental which was secured two to three weeks' later but, before that had occurred, the Director had advised Justice Connect that a written submission on behalf of the tenant could have been made, expressing a wish to have the Director consider a transfer outside of its normal policies and guidelines. No submission was received. However, even if the Director had been requested to do so, and had made such a decision, any property offered would have been based on the tenant's bedroom eligibility which would have been a one-bedroom property which she would have refused to accept.
In re-examination by Mr Bruno, Mr Allford stated he was advised by Mr Wisdom from Monash Council that if rats had gone to other premises or there had been complaints from other premises, Monash Council would have considered it as a public health nuisance and the matter would have been referred to a public health entity for investigation. However, this did not occur because it was contained to the rented premises and there had been no other complaints.
Mr Trueman was the next witness. He confirmed the contents of his witness statement and, accordingly, Mr Bruno tendered it into evidence along with attachments to the statement.
His inspection of the rented premises with Mr Winter on 15 December 2017 was undertaken to ascertain whether any additional works were needed or required by the tenant. They talked with her about the heater but the tenant declined to have it replaced with a lower wall furnace. The majority of the time was spent in the kitchen talking about replacement of the kitchen cupboards. The tenant did not even want to turn the heater on. Mr Trueman, before giving his evidence, had reviewed the notes on the HIIP system and, in doing so, he had seen that there had been three requests by the tenant after her return to the property for the heater to be serviced, and work orders had been raised accordingly, but no access had been given on any occasion.
Mr Trueman then gave evidence that the Director was proposing to undertake a kitchen rebuild in collaboration with the tenant. The tenant had been asked what she wanted and the Director informed her about the scope of what it could provide which included bench tops, kitchen carcasses, a stove that was already available, and the bulkheads.
The Director's Field Services Officer, who is a qualified tradesman, was of the view that the tenant's kitchen was fine. An independent contractor also regarded the kitchen as completely functional and not in need of replacement. However, in good faith, the Director had ignored that advice and decided to go ahead with the kitchen upgrade.
Mr Winter had written up the initial job order but Resolve FM went into administration which prevented the replacement kitchen works proceeding through Resolve FM. However, prior to going into administration, Resolve FM had recorded in a memorandum that it could not gain access to undertake the works as the tenant had said she was too busy, the job was too big and she was complaining about the new stove. The complete kitchen with bench tops remained in its factory.
Mr Trueman then rewrote the job order, but no works had been undertaken before he moved to another role on 13 March 2019. However, it was his understanding from the new contractor, Valley Maintenance Services, that it also had issues with access as the tenant had cancelled appointments in January and February 2019 due to shopping commitments. Mr Trueman also gave evidence about possible costs incurred by the Director in relation to the kitchen, but I found his evidence unclear on this aspect.
The tenant then cross-examined Mr Trueman. He confirmed that electricals in the rented premises were compliant as a result of the rewiring of the entire house at a cost of around $6,000. Both he and Mr Winter maintain that mattresses were buried under soil in the backyard after walking on parts of the ground surface which were not covered by mattresses.
Mr Grant Smith then gave evidence. He confirmed the contents of his witness statement which was tendered into evidence together with its attachments. He was a work supervisor at Resolve FM and his duties included coordination of the trades to undertake works at the rented premises. Mr Bruno provided him with a copy of the Hartmann document. Mr Smith knew Mr Hartmann to be a gas plumber and he spoke with him about the Hartmann document. Mr Hartmann informed Mr Smith that its contents were not his findings about the stove as he did not regard it as faulty. He had written in it what the tenant had said was wrong with the stove. Mr Hartmann installed the stove and had since inspected it and had never found anything wrong with it.
Mr Smith was then cross-examined by the tenant. He confirmed that he had met with her to discuss remodelling the kitchen and they had stood in the kitchen and talked about various possible changes, including having shelving instead of a food cupboard. However, he could not take measurements accurately due to the number of belongings stored on the kitchen benchtops. Total Trades was ultimately able to measure the kitchen and to have a kitchen made which was waiting to be installed. This work has been unable to proceed, as this proceeding has been pending, and the tenant has not permitted it to be undertaken. Additionally, he noted that the tenant could not make a decision about whether she wanted a freestanding oven or an in-built oven with a separate cooktop.
In relation to the rats, Mr Smith stated that he co-ordinated works but he did not physically inspect the traps himself. However, he understood that the traps that were used did not catch any rats. Tradespeople were also unable to undertake works because of the state of the rented premises, and its excessive clutter, particularly furniture including multiple lounge suites. There were a number of orders raised for repairs, but contractors were reluctant to attend to undertake the works due to these OH&S issues and the presence of rat urine and faeces.
Mr Smith confirmed that the tenant had met him at the rented premises to hand him the key to the lock box. He agreed with the tenant that at this time they had a discussion about possums and she had said to him that she did not want anyone to touch or try baiting possums as it was against the law. However, it was his understanding that when pest controllers attend a property they do not bait for rats until they have made sure that there are no possums at the property. He also believed that there were mattresses as well as futons inside the house. He agreed that he knew the tenant did not want any baits put in the property while her pets were there and he could understand that position. However, he was not aware that when she was away from the rented premises she still did not want any poisons used anywhere. Despite this he remained firmly of the understanding that baits had only been placed in the roof void even though he was not in attendance at the rented premises when the baiting was undertaken.
In re-examination by Mr Bruno, Mr Smith stated that a carpenter did install traps in the roof of the rented premises and he went back and checked the traps a number of times but after a period it was very difficult for him to access the manhole due to the clutter. Insulation was removed because there were concerns that rats were nesting in it.
The next witness was Mr O'Day. He confirmed his witness statement and it was tendered into evidence. In his oral evidence, he stated that he had told the tenant that Traps needed to use poison to control the rat problem. He had researched the chemicals he had chosen to use at the rented premises about their safety for human and animal health. Each of the entomologist used by Traps and the companies that supplied the chemicals recommended using a first-generation bait which was a multiple feed bait with all baits placed in lock boxes inside the roof void and in the garden. There was no secondary poisoning risk for dogs from that bait.
Mr O'Day believed that most of the baits should be placed in the roof void for the eradication to be effective together with a smaller number in each of the front and back yards. All these baits would be in lock boxes. He explained that the rats access them through two small holes on each end of the lock box and then they climb up and over some ramps to enter the box. Given the size of the holes it was not possible for a dog to enter. Although he explained this in discussions with the tenant, she did not want the baits to be used.
The photographs taken by Mr Apostolopoulos on 22 September 2016 were then shown to Mr O'Day. From them he noted wet mattresses on the ground, a dog bone on top of one of the mattresses, and various materials in the backyard. The rats could live undetected under the mattresses, there was a food source and they could take the materials into the roof void to make nests in which they could live and breed. He also noted the tree which he believed provided access for the rats straight into the roof void.
Mr O'Day was then cross-examined by the tenant. He remembered their first telephone conversation when she had initially contacted Traps and that they had discussed the rat problems, her concerns about her dogs and her preference to use non-chemical options for rat eradication. He subsequently visited the rented premises, undertook an assessment and provided the tenant with a proposal and quote. He had explained to the tenant that there was limited success with snap traps and glue boards could no longer be used. No guarantees or warranties were provided with his proposal as Traps did not believe non-chemical options would be successful. Although he agreed that he first dealt with the tenant, he denied that he was taking sides because he was giving evidence at the request of the Director. He acknowledged that the tenant had paid for his independent assessment and that Traps had subsequently been requested by the Director on the tenant's behalf to undertake work at the rented premises.
During cross-examination, the tenant alleged that Ziggy had died from poisoning. In response, Mr O'Day noted that he had not used any poisons and had not undertaken any treatment works at the rented premises.
Mr Bruno re-examined Mr O'Day about the quote provided to the tenant. Although he was unable to recall significant detail about it, Mr O'Day remembered that it had covered trapping of rats rather than poisoning, it was based on using snap traps, and no guarantee was given because Traps had only had limited success in controlling rat numbers by such means. He had previously given evidence that when he first visited the rented premises on 5 July 2017, it was vacant and not in good condition. When he next became involved with the rented premises in November 2018, he noted a difference in the house as repairs had been undertaken, but he recalled damage to fly screens and a requirement for more cleaning.
Mr Erfani then gave evidence. He confirmed his witness statement which was then tendered into evidence. He was also shown the file notes of the Director after meetings with the tenant at the rented premises on 17 December 2018 and 18 December 2018. After giving evidence that he had made these file notes on or around these same dates, they were also tendered into evidence.
It was Mr Erfani's belief, including after a discussion with Mr Cattapan, that on at least one occasion after December 2018, being on or around 6 May 2019, the Director had asked the tenant to allow him to attend the rented premises to undertake the repairs. He understood that this request had been refused and, according to the HIIP notes, while the tenant had not been happy to allow the works to be undertaken, she had informed Mr Cattapan that she was more than happy to see the Director's staff at the VCAT hearing.
Through Mr Erfani, a maintenance log update for the rented premises from 7 November 2018 to 18 June 2019 together with the email and photographs of Total Trades after its attendance at the rented premises on 18 December 2018 were also tendered into evidence by the Director. This portion of the maintenance log showed that some separate plumbing and electrical works had been undertaken for the period to which it related, with a job being raised on 11 June 2019 for the supply and installation of a new security door. To 18 June 2019, total expenses for maintenance works at the rented premises appeared to have increased to $62,484.06.
Mr Erfani, by way of clarification about the attempts by the Director to undertake rat eradication works, gave evidence that Propest, at the request of Resolve FM, had attended the rented premises on 4 October 2018 to use a bait system but the tenant did not allow this to proceed. On 8 November 2018, he attended with Mr O'Day to investigate any rat damage and any white powder. On 14 November 2018 he again attended the rented premises with Mr O'Day to undertake baiting works, but the tenant refused to permit the works.
Mr Erfani was then cross-examined by the tenant. He acknowledged that there had been a discussion on 8 November 2018 with the tenant about only using non-toxic trapping. However, he denied the tenant's proposition that he and Mr O'Day had agreed to proceed with that method. He confirmed that he had contacted Traps as the tenant had expressed a preference to deal with them because she trusted them but, despite this, the tenant ultimately disagreed with their assessment and recommendation.
Mr Erfani was the last witness. I then ordered, among other matters, dates for provision of written submissions but I had to subsequently extend time to 7 October 2019 for provision by the tenant of her final submissions. In addition to reserving my decision, I ordered that the time for compliance with the repair orders of 8 June 2018 was extended to further order of the Tribunal.
On a number of occasions during this proceeding, the tenant has provided details of various compensation claims. As earlier noted, as at 18 November 2018, her total claim was $133,418.89. This amount included a reimbursement of rent claim of $47,513.11, being a full refund of rent for 12 months from 28 October 2016 for the alternative accommodation of $20,776.46 and a full refund of rent paid to the Director for the period of 2 January 2014 to 18 June 2018 totalling $26,736.65. The balance of $85,905.78 was for the costs of repair and replacement of numerous items.
In relation to the claims for items, the tenant provided various tables setting out each item, date of purchase, cost, bank account from which the funds were drawn, and the reason for now claiming for the item.
Without being exhaustive, the items for which compensation was claimed included clothing, household goods, ornaments, dog harnesses and jackets, kitchen and dining room curtains for the alternative accommodation, shoes and boots, backpacks, dog leads, blankets, quilts, lamps, light fittings, sunglasses, medications, medical aids and equipment, bicycle parts, dinnerware, cups, mugs, drinking glasses, car repairs, car hire, fuel, car insurance, taxis, car servicing fees, car registration, driver licence, expenses relating to her dog, "Fritz", expenses in relation to her cat, veterinary bills, pet food, removalist expenses, items alleged to have been damaged during removalist operations, futons, rugs, shelves, bookcases, storage unit, table, chairs, stereo, radio, heaters, hoses and attachments, benchtop dishwasher, baskets, fans, grocery expenses and increase in cigarettes smoked. Reasons alleged for claiming compensation for these items from the Director included not only loss of, or damage to, them when moving from the rented premises but also the need to more properly equip the alternative accommodation, increased stress, dislocation of lifestyle, lack of heating, poor quality light fittings, rat damage, excessive need to use her car, and continuous need to cover concrete floors and hard surfaces at both the rented premises and alternative accommodation. The cat related expenses have been claimed for its assistance with control and eradication of rats. Claims in relation to Fritz have been made as the tenant has additionally alleged that his death was caused by ingestion of rat poison.
Additional claims have thereafter been made for further cat related expenses, costs of replacement of sheets for the futons, all meat purchases from 2015, bamboo fence screenings for privacy to replace rat damaged blinds previously attached to the fences at the rented premises, and compensation for the death of "Ziggy" which the tenant also continues to maintain was caused by poisons for which the Director was responsible. The tenant's claim for the cost of her meat purchases has been made because of the allegedly faulty griller and oven which has made it necessary for her to buy better quality but more expensive meat in order that when it has been cooked, it is still sufficiently tender for her to consume it without danger of choking or exacerbating her teeth and gum diseases.
As earlier noted, I attended an on-site inspection at the rented premises earlier in the morning of 13 May 2019 before later re-commencing the hearing back at the Tribunal. The tenant was in attendance along with representatives of the Director.
The garden and trees were generally overgrown. I noted the presence of the tenant's cat and dog. There was a pet futon in the study. The tenant had attached blinds on the top of the front and back fences for privacy but they had become significantly detached and were damaged. There was a hole in a brick at the back of the building near the roof and downpipe but no other apparent problem with the downpipe. The fence was not insecure. No smell was noted. There were rugs throughout the unit and mattresses and futons in the backyard. There were some small gaps between cornices and walls through which the tenant alleged at the inspection that spiders entered. I could not see any gaps for rats to enter although the tenant maintained that they did so through the windows. In the entrance, hallway, lounge, family room and bedroom I noted repaired areas on walls and ceilings but no holes.
The tenant complained at the inspection about the ability to operate the kitchen taps, to which I noted that she had connected plastic hosing for better grip. She admitted that the Director had complained that this was damaging the washers. There did not appear to be anything stored in the kitchen cupboards below the sink. One of the cupboards had some peeling of its door surface. It was not clear if the tenant was using other kitchen cupboards. The tenant said that she did not use the pantry as she maintained that there was evidence of the presence of rats. I noted some marks, the cause or origin of which was not clear, but no smell.
There was a bench dishwasher. Two large double door refrigerators were located in the lounge and dining room area noting that the kitchen and lounge and dining room area are open areas. The refrigerators were nearer to the windows which the tenant reiterated she leaves open a little in case of any gas leakage. Again, there was no smell evident in or around the refrigerators, despite the tenant's concerns about the possible presence there of decomposing rats. I noted the electric griller which the tenant had purchased due to her alleged inability to use the cooker. However, the tenant admitted she could use the hot plates but did not do so because she was concerned that a smell of rats would permeate through into the kitchen if she operated the rangehood filter located above.

[94]

The tenant's submissions were not solely based on the evidence. Instead, they include some new or varied compensation claims, purported new evidence and reiteration of some of her past correspondence.
The tenant's submissions now include (without an indication of their respective individual amounts or how they should be calculated) claims for compensation for payment for alleged loss and damage relating to the following:
- wrongful and illegal eviction, rendering the tenant and her dogs homeless when they should have been re-housed.
- refusal to re-house in circumstances where the rented premises were unfit for human and animal habitation and the tenant's asset level did not exceed the permitted limit.
- complete loss of tenant's inheritances which she was forced to spend on trying to deal with the rats at the rented premises, on private rental, and on repairing or replacing damaged, contaminated, lost, or stolen goods.
- deprivation of essential cooking, heating and hot water services and supplies due to faulty, rat damaged and rat contaminated appliances.
- deprivation of her normal living arrangements and location and consequent extra expenses.
- permanent scarring of one of her dogs, Zoe, after being attacked by another dog at a park close to the alternative accommodation, which would not have occurred if she had been re-housed or the rented premises had been repaired.
- complete loss of her dog, Ziggy, due to indiscriminate use and laying of poison by the Director and failure to clean it up.
- exposing the tenant and her dogs, by living with rats, to various viruses and illnesses.
- all telecommunication expenses relating to the Director's faulty installation of a faulty NBN system.
- isolation from family and friends due to their inability to visit the tenant because of the condition of the rented premises or the location of the alternative accommodation.
- loss of privacy and enjoyment.
- total loss of amenity.
- the costs of purchase of, and living expenses for, her cat which she purchased to keep rats out of the unit.
- replacement or complete repair of her car, washing machine, refrigerators, television, clothes dryer, and mini pizza oven/griller which were all damaged by rats.
- increased utility charges and pharmaceutical costs.
- moving costs to and from the alternative accommodation.
- all rent paid to the Director for the rented premises from and including 2014 to the present.
- all the rent paid for the alternative accommodation.
- the entirety of the remaining items in her original and amended compensation claims.
- the costs, direct and indirect, of increased smoking by the tenant as a result of the stress.
- deterioration in her health.
The tenant maintains that the Director did not undertake repairs as and when agreed. She denies that she had attracted the rats or that their ongoing presence was a result of her lifestyle or her manner of occupation of the rented premises. She also denies that she had ever refused, prevented, or impeded access to contractors to undertake works or failed to comply and co-operate with prior requests of the Director and contractors.
The tenant regards the Director's photographs as supporting her case in addition to her own photographs. She maintains that the Director's witnesses were untruthful. In this regard, she is particularly critical of Mr Allford. She is also critical of evidence given by, and conduct of, Mr Shell and Mr Apostolopoulos, although they were witnesses called by her. She denies that rats had ever entered through windows that she had left open. Rather, she submits that the rats gained access by chewing through the fly wire screens, walls, ceilings, or heater flue or entering through downpipes and the roof. The tenant also disputes the quality, extent and adequacy of the Director's works. She also strongly disputes the evidence led by the Director about the Hartmann document. In this regard, she maintained that Mr Hartmann had not been in a hurry to leave her premises, that he had been critical of the stove's operation, and the contents of the Hartmann document reflected his actual observations and findings when operating the stove, rather than a reproduction only of the tenant's criticisms of the stove without any support or basis.
The tenant maintains that she has been falsely accused by the Director of hoarding, of being a bad housekeeper, and, because of mental instability, of being unable to maintain the rented premises. She is adamant these were malicious allegations by the Director with no basis in fact.
The tenant submits that the compensation that she should be awarded should be sufficient to enable her to move out of public housing, to purchase and maintain a suitable property, and to still enjoy a good quality of life while retaining sufficient funds to assist her daughter. She has always separately thought that the total amount of her claim is around $3 million which is what she contends that these desired outcomes would likely cost.

[139]

The Director notes that s 447(2), s 452(1), and s 472(1) (f) apply to the tenant's claim and that the onus of proof is with the tenant. Her onus of proof was explained to the tenant in the Tribunal orders made on 11 July 2018 and at various times throughout the hearing. However, the Director submits that the tenant has failed in her oral evidence and written material to explain much of her claim in a way which makes sense. Additionally, the Director submits that, despite a number of opportunities, the tenant has failed to describe how any receipts, invoices, bank statements or other documents establish a claim and that I should not try to fill in any gaps caused by these shortcomings in the tenant's evidence but rather find that she has not proved her claim.
As to the tenant's allegation about a breach by the Director of the duty under s.68(1) of the RTA relating to good repair, the scope of this duty is noted by the Director to have been considered by Associate Justice Daly in Vicki Shields v Peter Deliopoulos {2016] VSC 500 (Deliopoulos). In this regard, the Director submits that Her Honour held at [30] that the duty imposed on a landlord in s. 68 to 'ensure that the rented premises are maintained in good repair' is strict and absolute and imposes an obligation upon the Director to identify and rectify any defects of which he is aware or ought to be aware. Her Honour also held at [38] that 'good repair' means 'tenantable repair' or 'reasonably fit and suitable for occupation' and at [41] that the RTA does not allow the parties to a residential tenancy agreement to contract out of their rights under the RTA.
However, the Director further submits that although the duty is strict and absolute, it is premised on a tenant making the rented premises available, in a practical sense, for the Director to comply with s. 68. In this regard, in circumstances where a tenant either refuses entry to a landlord or impedes the landlord's compliance with the duty in any other practical sense, there cannot be said to have been a breach of the duty under s. 68 by the landlord. The lease confers exclusive possession of the rented premises to the tenant and the landlord cannot effect any repairs to the rented premises if the tenant refuses, or impedes, access which the tenant has done frequently in this proceeding. It is put by the Director that this issue was not considered in Deliopoulos and this submission by the Director relating to the circumstances of this proceeding is not inconsistent with the scope of the duty in s.68 as determined in Deliopoulos.
The tenant also alleges a breach by the Director of s.67 of the RTA (quiet enjoyment) which the Director understands is said by the tenant to have arisen due to his alleged failure to comply with the duty under s. 68. However, the Director submits that for a finding that s.67 has been breached, I must first decide whether there has been interference with the tenant's quiet enjoyment of the rented premises by the Director and essentially, to do so, the following are relevant considerations:
- at common law, the right to quiet enjoyment encompasses the tenant's right to possess the property and to enjoy it for all usual purposes,
- a breach of quiet enjoyment will usually be found where the landlord has substantially interfered with the tenant's ordinary and lawful enjoyment of the property,
- 'substantial interference' is conduct that renders the premises unfit, from a reasonable viewpoint, for the purpose for which the lease was granted, and
- whether the landlord's interference (if any) is substantial is a question of fact and degree.
The following "general" submissions are made by the Director about quantum:
- compensation for damaged items as in this application is normally calculated on a depreciated basis, rather than "new for old".
- for any item alleged to be damaged or dirty due to a rat infestation, the tenant bears the onus of establishing whether it can be cleaned or repaired or requires replacement.
- compensation for loss of amenity of the rented premises, or for a breach of quiet enjoyment, requires a determination by me about whether there has been a loss of amenity and, if so, to what extent, or about whether there has been a substantial interference by the Director with the tenant's ordinary use of the premises and, if so, to what degree. If an entitlement to compensation is found, this is typically awarded as a percentage of the rent the tenant has paid rather than a reimbursement of full rent.
- the tenant's application is made under s.452 of the RTA and, although s.211 does not expressly apply to such an application, some of the factors listed therein, and, in particular, (a), (d) and (e) thereof, are relevant to my assessment about whether the tenant ought to be awarded compensation for any breach of duty established. The Director submits this is appropriate due to the broad discretion in s.472 (1) (f) and that the tenant's claim involves a breach of duty for which s.209 provides. Accordingly, the Director maintains that I am not prevented from considering matters that I would have specifically done so if the application had been made under s.209 instead of s.452. Additionally, the Director contends that these factors are also relevant for me to consider when deciding if there is any entitlement to compensation under the ACLFTA because of a contravention of the RTA.
The Director relies on the evidence of its witnesses, Mr O'Day, Mr Erfani, Mr Trueman, Mr Allford, Mr Smith, and Mr Cattapan and also on the evidence of Mr Shell, Ms Muir - Smith, Mr Winter, and Mr Apostolopoulos who were called by the tenant. Additionally, the Director relies on the documents filed on its behalf with particular reference to the 102 page maintenance report and updated supplement showing extensive works undertaken by the Director to the rented premises.
The tenant claims that the Director is responsible for the rat infestation which commenced in 2015. The Director submits that he is not responsible for a rat infestation unless it arose because of a breach by the Director of any duty. The Director further submits that the evidence is overwhelmingly against the tenant on this allegation and she has also failed to establish that the second infestation which commenced after her return to the rented premises in 2017 occurred as a result of a breach of duty by the Director.
Instead, the Director submits that both rat infestations occurred because of the tenant's breach of duty under s.63 in that she has failed to keep the rented premises in a reasonably clean condition and, accordingly, the Director is also not liable for any losses claimed to have been suffered by the tenant, both for rats damaging items or for any rent reimbursement.
The Director then sets out a chronology of significant events referred to in evidence about each of the rat infestations.
In respect of the first rat infestation, the Director relevantly submits:
- on 20 November 2014 the tenant was given a breach of duty notice by the Director for failing to comply with s. 63 of the RTA and which, among other matters, related to the tenant's accumulated mattresses, futons and foam coverings inside and outside the unit at the rented premises with many of the external items being waterlogged.
- on 13 January 2015 the tenant was served with a compliance application because of non-compliance with the breach of duty notice.
- on 25 January 2015 the Tribunal made a compliance order requiring the tenant to remove accumulated mattresses, futons, and foam and other floor coverings causing OH&S concerns and she was further required to engage the assistance of each of her doctor, a representative of 'The Crowded House' and an occupational therapist.
- the tenant did not comply with the compliance order and ceased engaging with 'The Crowded House'.
- observations made by the Director during inspections of the rented premises between May 2015 and 22 September 2016 showed a deteriorating condition.
- in particular, when Mr Allford inspected the rented premises on 30 May 2016, he found it to be very unclean and cluttered. Among other items, he observed straw in the front yard, numerous mattresses both in the front yard and leaning against the unit next to the common driveway, mattresses and floor coverings inside the front door of the unit lining the floor, five fresh large bones surrounded by flies and partially covered by straw over which a contractor had tripped, a smaller tree growing around the spouting in the front yard and a larger gum tree with a branch broken leading onto the roof.
- during this inspection, the tenant stated that the contractors were not to touch straw or bones as they did not attract rats as rats did not like straw or bone/meat products, the straw was to absorb mud, the Director could only remove mattresses if they were replaced with new mattresses and she did not permit any cutting of the trees. The tenant was told that the Director would not supply new mattresses and was unable to undertake any more works to the rented premises to assist her if the trees were not cut and the straw and the mattresses were not removed.
- the tenant did not allow the Director to undertake these works.
- photographs taken on 8 July 2016 showed bloodstains on futons/mattresses inside the unit and considerable amounts of hay and mattresses and bones with meat were observed outside the unit at the rented premises.
- photographs taken on 22 September 2016 showed significant amounts of hay outside the unit, clutter throughout the interior of the unit, numerous mattresses and futons on the floor inside the unit and on the ground outside the unit, and tree branches hanging on the roof of the unit.
In respect of the second rat infestation, the Director relevantly submits:
- this occurred following the tenant resuming occupation of the rented premises in October 2017.
- the tenant notified the Director of the second rat infestation on 26 February 2018.
- Mr O'Day made a number of observations on 8 November 2018 about cleanliness at the rented premises which would attract rats when he inspected it.
- the tenant refused to permit Mr O'Day to carry out reasonable baiting works, at the request of the Director, on 14 November and 17 December 2018.
- at the on-site inspection on 13 May 2019, two large refrigerators and a chopping board were located in the lounge and dining room area rather than in the kitchen.
  - during cross examination after the tenant referred to hordes of rats entering through the window of the lounge and dining room area and then running over and under the refrigerators and thereby completely contaminating them, she confirmed that there was "quite a bit" of meat inside those refrigerators because at that particular time in 2016 she was living at the rented premises with three dogs.
- the meat within the refrigerators, coupled with the manner in which the tenant generally kept the rented premises, were the clear causes of both rat infestations.
No expert evidence has been produced by the tenant to prove that either rat infestation was caused by any failure of the Director to comply with his duty to maintain the premises in good repair. The Director submits that his evidence shows that rat infestation was caused by the tenant's failure to keep the rented premises in a reasonably clean condition. Reference in this regard is then made to specific supporting evidence in reports of Resolve FM and in oral evidence of Mr Grant Smith and Mr O'Day.
The evidence of the tenant that she was not responsible for the rat infestation ought to be rejected as it is against the overwhelming evidence adduced by the Director including the objective evidence contained in the photographs taken on 8 July 2016 and 22 September 2016 which clearly showed that the rented premises during the relevant period were in an unclean and cluttered state with significant food sources for rats. Additionally, the Director submits that the evidence of the tenant's witnesses, Ms Phillips, Ms Malone, and Mr Bieske did not support her case due to lack of direct evidence and objectivity.

[140]

Further, the Director refers to his evidence that his property to the rear of the rented premises which is of the same age and construction has never had an issue with rats. The Director submits that this again shows that there was something about the rented premises to which the rats were attracted, that being hay, mattresses, futons, bones, meat, clutter and grime.
The Director submits that he repaired the damage caused to the rented premises by the rats as quickly as was reasonably possible in the circumstances. In this regard, the Director further relevantly submits:
- the first rat infestation ultimately became significant and the rats caused damage to the rented premises.
  - the tenant first notified the Director that there was a rat problem on 18 August 2015.
  - the Director undertook extensive works upon being notified of damage to the rented premises caused by the rats between 2015 and 2017.
  - when the tenant notified the Director of the damage, as it arose, the Director complied with his duty under s 68 (1) as quickly as possible despite the tenant refusing entry or otherwise impeding the Director's compliance with the duty in every other practical sense.
  - Mr Allford's evidence sets out the difficulties for the Director to carry out repairs in a quick manner because the tenant would not allow baiting to deal with the rat infestations despite it being the only viable option. Additionally, contractors had issues with the condition of the rented premises, including of an OH&S nature.
  - throughout, the tenant has failed to comply with the compliance order obtained by the Director on 25 January 2015.
  - additionally, she has refused assistance offered by the Director to clean the rented premises and to remove the clutter and she failed to engage with supports despite all options being explored by the Director with 'The Crowded House' and occupational therapist and with his Complex Clients Coordinator.
  - as the condition of the rented premises was continuing to deteriorate, the Director gave a notice to vacate to the tenant for her failure to comply with the compliance order and then applied for possession to try to have the tenant engage in cleaning the rented premises to sustain her tenancy.
  - it was only after these steps were taken by the Director that the tenant engaged with supports and lawyers as no other options had worked up until then and the tenant had obstructed all reasonable attempts by the Director to help clean and remediate the rented premises.

[142]

The Director submits that therefore, in all the circumstances, he has complied with his duty under s 68(1) in relation to the rat infestations.
The Director submits that he has also not breached s.67 relating to quiet enjoyment regarding the rat infestations as he has not taken any steps to interfere with the tenant's use of the rented premises but rather he has made numerous attempts to engage with the tenant and to remediate the damage caused as a result of her breach of duty under s 63 to keep the rented premises reasonably clean.
The Director submits that there has been no breach of duty by him regarding the cooker. He further submits that the tenant's claim that her cooker has been in disrepair is unsustainable and she has not provided any expert evidence to prove this claim. In this regard, the Director refers to the production of two documents to the Tribunal by the tenant during the hearing on 18 June and 19 June 2019, but contends that neither of those documents establishes any fault with the cooker. With particular focus on the Hartmann document, the Director submits that the evidence of Mr Smith was that the Hartmann document simply recorded the tenant's complaint about the cooker, rather than containing any opinion by the contractor that the cooker required repair. It was noted that this was in circumstances where that contractor had attended the rented premises on a number of previous occasions, he had replaced the previous stove on 21 January 2014 with the stove in question, and he did not regard that stove as dangerous.
In relation to the cooker, the Director further submits that the evidence adduced by him demonstrates the cooker was not in disrepair, the tenant had made numerous complaints, and the Director had undertaken necessary checks and servicing as required. Accordingly, the Director submits that there have been no breaches of either s. 67 or s. 68 by him relating to the cooker. As to s 67, he submits that there has not been interference by the Director with the tenant's use of the rented premises. With regard to s 68, the Director submits that during the Tribunal hearing on 8 June 2018, he simply conceded the repairs regarding the cooker and cupboards to give the tenant what she wanted.
The Director also submits that he ought not to be found to have breached the orders of 8 June 2018. In this regard, the Director further relevantly submits:
- the time for him to comply with this order has been extended by various orders of the Tribunal.
- the orders of 8 June 2018 relevantly require the tenant to permit access by consenting to the works and by ensuring rugs, mats and coverings were removed as well as any tripping or other hazards.
- the Director was able to remove the old footings for the clothesline by 8 November 2018.
- the Director has been impeded by the tenant in performing the kitchen cupboard works and the replacement of the cooker.
- the Director has arranged to replace all the kitchen cupboards.
- however, the tenant has refused access for these works to occur.
- on 11 September 2018 the tenant said she was too busy and she did not allow the contractor to set a time and date for attendance until further notice.
- on 8 November 2018 the tenant again said she was too busy and the new stove was not the model/type that she wanted.
- on 13 December 2018 the tenant was served with notices of entry regarding works involving the cooker and the cupboards but when the contractors attended the rented premises, the tenant had not removed items from the cupboards and the contractors were unable to complete the job because of the poor state of cleanliness of the kitchen cupboards.
- the tenant also cancelled further appointments for the works to occur on 10 January 2019, when she said that it was pension day and she had to undertake shopping, and again on 14 February 2019.
- the Director still wishes to undertake the works to the kitchen cupboards and the rat eradication works if the tenant will provide unimpeded and safe access to the rented premises.
- in relation to the 8 June 2018 orders and the requirement for the Director to investigate the white powder residue, the Director submits that he could not substantiate what the white powder residue was but remains of the view that it was possibly pollen.
As to the quantum of the tenant's compensation claim, considerations of liability aside, the Director further submits (much by way of reiteration):
- there is no basis to the tenant's claim that she should be reimbursed all of her public housing rent for the period claimed because of either or both of the rat infestations or her issue with the cooker as there is no logic to it and it is manifestly excessive. If a breach of duty by the Director is found, any award should be calculated on a small percentage of rent based on loss of amenity or use of the rented premises. The Director has also applied a subsidy resulting in the tenant not paying rent from 23 October 2016 to 14 October 2017 during her absence from, but while retaining possession of, the rented premises.
- additionally, in relation to reimbursement of public housing rent, if the landlord was found to have breached his duty about the rat infestation, on the basis of relevant factors to be considered under s. 211 of the RTA, the tenant should not be awarded any compensation.
- in this regard, factors to take into account are that the Director has taken all reasonable steps to comply with his duties under the RTA but the tenant has prevented him from complying with his duties in a timelier fashion, that there has been a reduction of rent payable by the tenant, and that the tenant has not taken reasonable action available to her to mitigate her loss which included providing the Director with unimpeded and safe access to the rented premises to quickly undertake repairs, sorting out short-term accommodation, and placing her pets in a temporary boarding kennel for the period that she moved from the rented premises.
- moving costs relating to the alternative accommodation have not been substantiated and are not linked to any landlord's breach of duty noting, for example, that they include both alleged damage to goods in the removal process and expenses of setting up the alternative accommodation to the tenant's standard such as for furnishing or undertaking minor works.
The Director submits that he has no liability to reimburse costs incurred by the tenant for damaged possessions due to the rat infestation as any such damage has resulted from the tenant's breach of duty and not because of any landlord's breach of duty. However, if I find otherwise, the Director submits that:
- many of the costs claimed are not causally linked to any breach of the landlord's duty, are excessive, do not take into account any depreciated value, and are not sufficiently substantiated by the tenant in her documents or evidence.
- again, there are factors under s.211 of the RTA which should be taken into account and, in doing so, should result in no award of compensation. In this regard, the Director has taken all reasonable steps to comply with his duties under the RTA but has been prevented by the tenant from complying in a timelier fashion, there has been a reduction of rent payable by the tenant, and the tenant has not taken reasonable action available to her to mitigate loss. As to this last issue, the tenant should have both complied herself with the compliance order and should have provided the Director with unimpeded and safe access to assist the tenant to clean the rented premises, all of which to avoid the spread of the rats.
The Director also submits that no compensation should be awarded to the tenant even if the Director is found not to have complied with the orders of 8 June 2018 as the Tribunal should again take into account that the Director has taken all reasonable steps to comply with those orders and the tenant has not taken reasonable action available to her to mitigate her loss as she has not permitted the Director entry to the rented premises to allow the works to be undertaken.
In relation to other items included by the tenant in her claims for compensation, the Director addresses these items in his submissions as follows:
- for car repairs, services, parts, fuel, insurance, registration, taxi fares, car hire and alleged rat damage to the car, there is no basis to suggest that a car, left outside, which is damaged by rats is the responsibility of the Director. The Director denies each of the claim, any liability, and any breach of duty.
- as to expenses incurred (including veterinary fees, pet food and litter) in relation to white shepherd dog, 'Fritz', female borzoi dog, 'Zoe', cat, 'Zulu' and male borzoi dog, 'Ziggy', these have been, or continue to be, pets of the tenant. The Director denies each of the claim, any liability, and any breach of duty. Further, he says that these expenses do not flow from any breach of duty of the landlord which, in any event, is denied. Zulu is not an appropriate pest control measure. Compensation is also sought for the death of Ziggy. The Director also denies each of the claim, any liability and any breach of duty. There is no independent evidence to establish that Ziggy died of poison. Further, on any reasonable view of the evidence, no breach of duty of the Director (which is denied) could, in any event, be said to have caused or contributed to Ziggy's death.
- for the cost of repair or replacement of couches, the Director denies each of the claim, any liability and any breach of duty. Additionally, there is insufficient particularisation and evidence to support the claim.
- costs incurred in moving from the rented premises at Ashwood to the alternative accommodation at Ringwood, including rent paid at Ringwood, have been dealt with earlier in the Director's submissions. For the avoidance of doubt, the Director denies each of the claim, any liability, and any breach of duty.
- household items, personal items and expenses (including meals/food) and utility bills have also been dealt with earlier in the Director's submissions. Again, for the avoidance of doubt, the Director denies each of the claims, any liability, and any breach of duty. Further, most of the costs claimed do not relate to any breach of duty by the landlord. Additionally, in many instances, the claim is not adequately particularised, few receipts/invoices/photographs have been provided by the tenant to establish the claim and in respect of any that have been provided, the tenant has not explained how they prove her claim. The Director also refers to his earlier submissions about these items.
- in respect of any tobacco expenses or NBN unauthorised set up at the unit, the Director denies each of the claims, any liability and any breach of duty.
- for any medical and other health expenses, the Director denies each of the claim, any liability and any breach of duty. Further, there is no jurisdiction under the RTA to award compensation for this alleged item.
- as to isolation, loss of privacy and enjoyment, the Director denies each of the claim, any liability, and any breach of duty.

[143]

I did not find the tenant to be a reliable witness. She frequently responded to direct questioning about events and circumstances by claiming to have no recollection about them. She made few concessions and avoided making admissions against interest. Her evidence lacked credibility. This was apparent from the evidence about her interactions and dealings with 'The Crowded House.' Additionally, despite the preponderance of evidence to the contrary, she denied refusing or impeding access to the Director and contractors, she denied being given the notices of entry, she claimed a lack of knowledge about the ongoing nature of the compliance order made in 2015, and she maintained that she had complied with the Director's breach of duty notice prior to the making of the compliance order.
In contrast, I found the witnesses called by the Director to be credible and reliable and I do not accept the tenant's submission that the Director's witnesses were untruthful and colluded with each other.
Considerable contemporaneous 'business records' and documentation were also provided by the Director which supported and complemented the oral evidence given by the Director's witnesses and his employees who gave evidence.
The tenant's lay witnesses could only provide limited support. It was apparent from the evidence of each of Ms Phillips and Ms Malone that they had not often been at the rented premises during the time period of the tenant's compensation claim and accordingly this significantly reduced their own knowledge of events. Mr Bieske clearly sought to be very supportive of the tenant during his evidence but, in attempting to do so, I found him to be somewhat contradictory and unreliable and lacking objectivity. This was particularly so when responding to questions put to him by Mr Bruno about the photographs taken in September 2016 and about his observations of the rented premises generally, and, specifically, about rat damage in the kitchen.
Having lived at the rented premises since its initial construction in 2002, it was clear from the tenant's evidence that she had long-established lifestyle behaviours which governed her use of the rented premises and adversely impacted its condition. Most relevantly to the background of this proceeding, such behaviours and use included her retention and storage of excess items within the unit, the presence of the mattresses and other floor and ground coverings throughout, and the care of, and interaction with, her pet dogs.
The tenant claims compensation from January 2014 when the cooker was installed. The tenant has made numerous complaints that the cooker is faulty with such complaints having commenced shortly after its installation. Despite these complaints, the preponderance of the evidence is that the cooker is not faulty with the Director having arranged multiple inspections by different contractors who have all reached that same conclusion.
The tenant principally relied upon the Hartmann document to support her claim about the cooker. As earlier noted, the Hartmann document sets out on the face of it an apparent description of problems with the operation of the cooker. Mr Hartmann was not called to give evidence. The tenant's evidence was that Mr Hartmann had found these problems and had recorded them on the document. The Director's evidence was that Mr Hartmann had informed staff and contractors (which included Mr Allford and Mr Smith) that he had simply written down the tenant's complaints, despite not finding any basis for them, to enable him to leave the rented premises as soon as possible. Despite the competing versions of the parties, and putting aside for the moment my general impressions of the witnesses, after viewing the Hartmann document, I inferred from both the nature and manner of its completion, that the Director's version about it is more probable than the tenant's version. The document itself does not provide any indication of any work having been undertaken or completed and it is not signed. Accordingly, in accepting the Director's version, I find that he has not breached his duty in relation to the cooker.
Compelling evidence about deterioration of the rented premises, particularly in 2016, is provided by the Director by the three photographs taken on 8 July 2016 and the 17 photographs taken on 22 September 2016. These photographs, taken at a time within around 12 months of the tenant's initial report of the first rat infestation, clearly show the existence and progress of damage consistent with rats being the dominant cause. At the same time, the photographs clearly depict the tenant continuing to use the rented premises in ways which, on the preponderance of evidence, attract rats to the rented premises rather than deter them from the rented premises. The compelling nature of this evidence contrasts with the tenant's purported photographic evidence. The lack of probative value of the tenant's photographs became apparent to me during cross - examination of her about them. Her evidence that they were compiled and notated when filed in this proceeding, rather than when taken, adversely affected my findings about their accuracy.
As established in evidence, the first of the three photographs taken on 8 July 2016, when Monash Council attended the rented premises, shows mattresses (with dried blood) in the entrance hallway, the second photograph shows straw and dog bones in the front yard, and the third photograph shows mattresses lying outside the house in the yard.
The 17 photographs taken on 22 September 2016 show dog bowls, considerable amounts of straw, numerous mattresses and futons, and dog bones in the yards. They also show clutters of clothes and other items throughout the rooms of the unit, including the bathroom, and covering nearly the entire floor space together with the mattresses and futons in the hallway. The kitchen is seen to have the benchtops covered with food, appliances and other items, and the floor is almost entirely covered with a variety of items including a chair with items on it, a bucket, a mat, and what appear to be a rug, mattress and futon. The overhanging tree resting on top of the roof of the unit has also been photographed.
I accept the Director's submission that he did not cause the rat infestations. It seems not to be in dispute that the rats initially escaped from neighbouring properties when demolition and re-building commenced there in 2015. These properties and the activities thereon did not have any connection with the Director. There has not been any substantive evidence to support the tenant's position that nearby properties also thereafter suffered a rat infestation. The Director's evidence, which the tenant cannot rebut, is that the Director's property at 2/30 Teck Street has not had a rat problem.
The expert evidence of Mr O'Day and the evidence of Mr Shell, in particular, who has had significant experience over many years with a vast range of rented premises, together with the evidence of other employees of the Director, is more than sufficient for me to find on the balance of probabilities that the unsatisfactory state of the rented premises during the period of the tenant's claim has arisen from its use by the tenant. Specifically, the safe harbourage, food, water, and nesting materials it has provided, in the absence of a properly controlled and monitored poison control program, has caused both rat infestations at the rented premises. The contents of the rented premises, particularly in the yards, and in and near the refrigerators in the unit in a room with open windows, have been a significant attraction to rats to enter and stay and are an outcome of the tenant's long - established lifestyle. This situation, on the preponderance of the evidence, has remained constant in nature from prior to the initial escape of rats from other properties, during the first rat infestation, and then upon, and continuing from, the tenant's return to the rented premises after the repair works were undertaken in 2017.
The Deliopoulos decision has been already referred to in these reasons. However, it is appropriate, given the nature of the tenant's claim and the fundamental importance of the case generally, to further consider it.
In June 2014, the tenant, Ms Shields, made a VCAT application against the landlord, Mr Deliopoulos, under s 452 of the RTA, seeking compensation for, among other things, the landlord's alleged breaches of s.68 of the RTA. Ms Shields alleged that the landlord breached s 68 by failing to ensure that the premises were maintained in good repair both at the start of the tenancy and for the duration of the tenancy. The tenant sought compensation of $50 per week for loss of amenity of the premises throughout the duration of the tenancy which began on 13 June 2008 and ended on 1 November 2013.
Ms Shields identified numerous repair issues at the premises, some of which were apparent from the commencement of the tenancy and evidenced by the condition report, and others emerged during the tenancy. There was no real dispute that the premises were in poor condition. Although the landlord had spent money effecting repairs to the premises over the course of the tenancy, it appeared from the correspondence produced by the parties that the landlord was reluctant to carry out maintenance and repair works at the premises. The tenant paid rent of $125 per week for the duration of the tenancy. She gave evidence that she was desperate at the time she commenced occupying the premises even though there was a statement in the condition report that the premises were in a poor state and required minor and major repairs.
The Tribunal found that the tenant had not established that the landlord was in breach of his duty in respect of the maintenance of the premises and dismissed the tenant's application for compensation.
On appeal to the Supreme Court, the tenant's Senior Counsel identified questions of law arising from the Tribunal hearing and decision and relied upon multiple appeal grounds. However, his submissions mainly focussed on what he maintained to be the Tribunal Member's erroneous consideration of s.68. In this regard, he submitted that the duty imposed upon a landlord by s 68 of the RTA entails an obligation to put the premises into good repair at the commencement of the tenancy and then to maintain them in good repair throughout the duration of the tenancy.
In this regard, he then submitted that the Tribunal Member was in error by:

[149]

Further, at [40], Her Honour observed that the question of whether the putting of premises in good repair amounts to an 'upgrade' of the premises is not relevant to the question of whether the premises are being maintained in good repair. In many instances it will be inevitable that effecting repairs will 'upgrade' the standard of the premises, for example, by replacing old floor coverings with new floor coverings. In such an instance, it is only replacement of something that is already there, which has become dilapidated or worn out and if it has been replaced by its modern equivalent, it comes within the category of repairs and not that of improvements.
It is apparent from this further examination of Deliopoulos that there were considerable differences in the background to it when compared to the background to this proceeding. In this proceeding, the tenancy commenced shortly after the rented premises was constructed. There is no evidence or allegations of the premises not being in good repair at the commencement of the tenancy, the subject of this proceeding. The Director in this proceeding has, in the past, obtained a possession order for non - compliance by the tenant arising from a breach by her of s. 63 of the RTA. I regard the tenant as still not having complied with s.63. Some of the damage in Deliopoulos was from rats and other pests. However, this was due to the poor state of repair of the premises and was present from the beginning of the tenancy. In this proceeding, there was no such problem at the beginning of the tenancy. Additionally, unlike Deliopoulos, the Director in this proceeding has provided extensive records about maintenance and repair of the rented premises and provision of tenant supports.
Despite this, the tenant in this proceeding, also effectively alleges that the Director has been, and continues to be, reluctant and/or unwilling to undertake maintenance and repairs to the rented premises.
However, after having considered all evidence in this proceeding, I do not accept these allegations of the tenant.
I accept the Director's submission in this proceeding that the Director identified and rectified, in as timely a fashion as possible, any defects of which he was aware or ought to have been aware when the maintenance and repair works were undertaken in 2017. In this regard, particularly on the basis of the evidence of Mr Trueman (including photographs) and Mr Winter, I find that these works, when completed, ensured that the rented premises, while not perfect, were maintained in 'good repair' as they were restored to 'tenantable repair' and were 'reasonably fit and suitable for occupation.'
I also find, on the preponderance of the evidence, that the Director was unable to undertake the repairs until later in 2017 due to the tenant refusing entry and/or impeding access by the Director to the rented premises, the delays experienced before the tenant finally agreed to the use of baits on a qualified basis to deal with the rat infestation, and the tenant's ongoing breach of s. 63 of the RTA which resulted in OH&S issues, safety concerns and tripping hazards remaining at the rented premises. In this regard, I found the evidence of Mr Allford and Mr Smith to be especially persuasive.
Likewise, I find that, despite the extensions of the date for completion, the Director has not been able to comply with all the repair orders made on 8 June 2018, again because of the tenant refusing entry and/or impeding access to the rented premises, by her ongoing refusal to agree to the recommended baiting method to deal with the second rat infestation, her ongoing breach of s. 63 and her failure to ensure, as specifically required by the 8 June 2018 orders, that all rugs, mats and coverings are removed as well as any tripping or other hazards. In this regard, I particularly preferred the evidence of Mr Cattapan, Mr Erfani, and Mr O'Day to that of the tenant. There was a delay in removing the final footing of the old clothesline but, on the balance of probabilities, I regard this as having resulted from an oversight by one of the contractors rather than any breach of s. 68 by the Director. Even if I found that it was a breach of s.68, given the general state of the rented premises, I do not regard the placement of a cardboard box over the stanchion until its removal as an interference resulting in a breach of s 67 of the RTA or an entitlement to compensation. I find the notices of entry served by the Director for 17 December 2018 and 18 December 2018 to have been valid and to have been properly given. In refusing access on 17 December 2018, the tenant has breached her duty under s. 89 of the RTA. Given the unclean state of the rented premises on 18 December 2018, the tenant has not complied with the 8 June 2018 orders and has prevented repair works being undertaken. The Director has also investigated the white powder residue but has been unable to identify it or its source. However, it does not appear to require the undertaking of repairs.
Further, in relation to the repair orders of 8 June 2018 made by the Tribunal, I accept what essentially is the evidence of Mr Cattapan that the making of those orders was not opposed by the Director, despite the lack of evidence presented by the tenant at the hearing about the condition of the items and areas alleged to require repair or replacement, as the Director had reached an agreement with the tenant as to the new cooker and about the new kitchen, including cupboards, and job orders were subsequently issued to be actioned.
I agree with the Director's submission that in the circumstances of this proceeding where the tenant has refused entry to the Director and/or impeded or prevented the Director's compliance with the duty in any other practical sense, the duty in s 68 (1) of the RTA cannot be found to have been breached. The Director has requested entry and access, has served compliant s 85 and 86 notices, has issued job orders, and has attended with contractors to undertake works to ensure that the rented premises are maintained in good repair. However, the lease confers exclusive possession of the rented premises on the tenant. An issue of this nature was not required to be considered in Deliopoulos. Further, I also agree with the Director's submission that in these circumstances in this proceeding, such a finding that there has not been a breach of s 68 (1) is not inconsistent with the scope of the duty in s 68 (1) as found in Deliopoulos.
In finding that the Director has not breached s. 68 (1) in this proceeding, I remain mindful both that the duty has been expressed as strict and absolute and that if a breach of s. 68 is proved, the Tribunal can take into account the mitigating factors set out in s. 211 of the RTA when assessing compensation. The Director has separately provided submissions about the application of s 211 in this proceeding which, if accepted, would result in no compensation being awarded even if a breach of s. 68 was found. However, in the circumstances of this proceeding and my findings both about the Director's conduct and about the tenant's actions which have prevented the Director from undertaking repairs, it would be quite anomalous to make a finding of primary liability against the Director.
Further, I cannot find any breach of s. 67 of the RTA by the Director. In addition to my above findings, including about s. 68 (1) and that any delays encountered by the Director in undertaking repairs in 2017 were due to the tenant's actions, I also find on the evidence, particularly that of Mr Allford and Mr Shell, that it was the tenant's own decision-making and actions which resulted in her entering into a 12 month lease at the alternative accommodation. There is no evidence of conduct by the Director which would equate to the nature and extent of any interference by him which has prevented the tenant from having quiet enjoyment of the rented premises.
Part of the tenant's claim for compensation appears to also relate to failure of the Director to re-house her and her pets. As noted above, it was specifically raised in some detail by Justice Connect on 28 March 2017 in a letter to the Director. It referred to administrative functions of the Director and alleged failures to pay proper regard to the DHHS Allocations Manual and to the tenant's rights under the Charter.
In Director of Housing v Sudi [2011] VSCA 266 the Court of Appeal held that the clear legislative intention of both the Victorian Civil and Administrative Tribunal Act 1998 and the RTA is such that the Tribunal does not have power to undertake collateral review on the validity of an administrative action while dealing with an application under the RTA. Accordingly, insofar as the tenant seeks compensation for any failure to re-house, I have no jurisdiction to consider such an issue. Further, this part of the compensation claim does not fall for consideration under s 67 or s 68 (1) of the RTA.
I cannot find a breach by the Director of his duties under the RTA or in respect of the 8 June 2018 orders and accordingly I dismiss the tenant's claim for compensation.
Additionally, in the absence of any liability considerations, I accept the Director's submissions on liability and quantum set out above in respect of individual items of compensation together with the Director's submissions on the broader issues raised by the tenant's compensation claim.

Linton-Smith v Director of Housing

At a glance

Court

Decision date

Source

Judgment (152 paragraphs)

Linton-Smith v Director of Housing (Residential Tenancies) [2020] VCAT 1355 (24 December 2020)

Parties

Legislation Cited (4)