1. On 10 February 2011 the tenants lodged an application with the Tribunal. The particulars of the claim said:

Please Identify the Issues in Dispute, for example, payment of rental arrears or that the landlord/grantor fix a broken heater.

Storage Shed on property was never communicated to be unavailable. Only at the time of receiving the keys to the property when we asked for the keys was it communicated verbally that it was not to be used.

We as a result had to lease storage space causing us a financial loss.

We would have never moved into the property if we had known about the storage shed not being available to us. We have bikes and gardening machinery plus many boxes that could not be placed into the house at anytime.

There was nothing in the advert for the property, nothing said verbally, nothing in the lease. We found out when it was too late to do anything.

Please note the lease was received on the 10th May (email evidence attached) and the condition report was received after we had been handed the keys and paid the advance rent and bond on the 14th May (agreement start date).

Please see the attached statement from Storage King with the complete cost of storage since moving into this property.

We would also like it to be considered the amount we will have still pay until the end of the lease for storage.

Amount until the end of the lease (13th May) will be $480 (end of storage (22nd May).

At the time of receiving the keys to the property when we asked for the key to the storage shed was it communicated verbally that it was not to be used. We had our furniture outside the property to move in and I had taken a day off of work to relocate.

About a week after moving in, we complained about the shed, Paul Kerins reply was that he never told us it could be used and if we had asked then he would have told us. At the time we were completely unaware of our legal standing. (email communication as evidence attached).

Then the owner of the property started accessing the shed as her personal property was within. The owner has since returned at least four times and plans a further visit to put her furniture back into the shed. We allowed her access again not aware that we had the right to refuse access. The owner gained access via Paul Kerins communicating the fact. (email evidence attached).

Whilst seeking legal advice on a different matter (consumer law), I sought clarification on the storage shed as it had caused us considerable financial loss. The advice we were given was that there should have been in the contract of the lease the fact that the shed was not to be used. The fact that the owner repeatingly returned to the shed was not allowed due to the lease agreement also as we were entitled to our freedom of living space.

We initially had to hire a storage unit at the cost of $200 a month, but after dispersing some of our items and the need to cut costs we moved into a smaller unit which costs $160 a month. We seek the cost of storage we have had to pay since moving into the property as compensation. The shed is also outside of walking distance to fetch the items especially with two small children.

We would never have considered the property had we known about the storage shed. The extra $200 a month spent on storage we could have had a far better house which would have included storage. We had an open lease termination from our previous property we were renting due to the owners moving back into it. We were in no hurry to move quickly and thought we had found the right property with the storage shed. We never expected we could not use it.

There have also been a number of repairs left outstanding since we moved in, including the letter box and a broken window.

1. The application included a copy of the tenancy agreement, a list of charges incurred at Storage King Belconnen and the following emails between the tenants and the landlord's agent:

I would also like you to note that due to the shed being unavailable as the owners gear is within we now pay out a $200 storage fee per month. It was never communicated to us either by yourself that showed the house or by the advertisement for the house that the shed would not be available. Thank you for bringing it to our attention after you had handed the keys over, accepted the bond and rent.

The property was never advertised with storage on the Allhomes ad and it would have stated this if there was. All of my properties that I advertise I ensure that all the correct information is there and I state if there is any storage at each property available!!

Please see email below from Courtney our landlord just regarding access to the shed again. Let me know what will suit.

I collected a few clothes and things on Monday and met Sonya, who does seem lovely. Thanks for arranging things.

I've found a room for rent much quicker than I expected and again need access to my shed (as I need to supply my own bedroom furniture). I'm hoping to move on Saturday week (16 October), though I can be flexible if this causes problems for the tenants in any way.

I have a bad feeling that I didn't think this bit through so well and the furniture that I need is right at the back of the shed. I would obviously aim to be as quick and discrete as I can. However, this time may be a little more time consuming and I will probably need the assistance of a friend (or parent) or two to lift and load the larger items. I may also need to take more than one trip with a trailer.

Anyway, if you could please let Sonya know, and ask if she has a preferred time/day (preferably out of work hours). Hopefully I will be able to take all I will need for the months to come and not disturb them again for a while.

I have received legal advice regarding the storage shed on the premises of 11 Fletcher place. From which advice I intend to create a dispute via the small claims court.

Your previous argument regarding the storage shed was that we were never told that we could use it and therefore why would you have told us otherwise. This under contractual law is not acceptable. You as the agent should have plainly put forward the fact that the shed was not to be used. Verbally also would not have been acceptable as it needed to be in writing, not that at any time it was communicated to us regarding the use of the shed.

The result for us when moving into the property was to put our goods into a storage unit as a great cost to ourselves.

The fact that the owner was also using it as her personal storage should have also been put forward. The owner has returned at least four times and is planning a further visit.

It is within our rights to refuse access to the shed of which we now refuse any access until the end of the lease. Had we known our rights beforehand we would have refused access previously. You as the agent for the property should have advised of such things.

51 The landlord guarantees that there is no legal impediment to the

use of the premises for residential purposes by the tenant.

1. The landlord must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.
2. Unless otherwise agreed in writing, the tenant has exclusive possession of the premises, as described in the agreement, from the date of commencement of the tenancy agreement provided for in the agreement.

The owner indicated again that she will be returning to the storage unit to return her personal goods. You as an agent can communicate our refusal to allow the storage shed to be accessed. As we have been advised we have the legal right to refuse this.

Since I arrived at 11 Fletcher Place, our goods have been in storage unit which has cost us $200 a month in rental. We will be seeking this to be returned to us via the small claims court.

If you want to talk about this you can contact me on my mobile number.

We will give you a week to offer a reply, but considering your previous reply when we entered the property I will not expect anything. I am more than happy for this to be resolved in the small claims court where we would expect a fair resolution.

We are in receipt of your email dated 2nd February 2011.

We are surprised to say the least to receive your email and also the tone of it as we believed we had a good working relationship with you and Sonya.

The garden shed was mentioned once in an email from you on 10th June 2010. It has not been mentioned by you since, so to today receive this email is astounding.

To confirm the property was never advertised with storage. Paul also further advised tenants at the inspection that the garden shed was unavailable and that the owner had her belongings in it. It was also noted in writing on the inventory and condition report that the garden shed was unavailable and that the owner had her belongings in it. The report was provided to you when you moved in and returned by you on 20th May 2010. I am unsure as to where else you expected it to be written.

You took on the property and moved in, we had numerous correspondences with in relation to maintenance items in the next few weeks, nothing mentioned about the garden shed. You then noted in an email on 10th June 2010, nearly a month after you moved in that you were storing your belongings in a storage shed at a cost of $200 per month, Paul again confirmed the above.

Access to the shed was never mentioned as the owner was overseas and at that point intended to stay there for the duration of the tenancy. Her plans then changed and she returned to Canberra on 1st October. When she realised she was coming back she requested access to the garden this was on 9th September, you responded with "no worries whatever day suits her best". She attended on 1st October and then managed to find a property to move into so again requested access two weeks later, your response again was "we are fine with access, whichever day suits her best...please give her my mobile number to text or call before she arrives".

You mention in your email that the owner is wishing to return for a further visit, we were unaware of this - I can only think that she must have requested this directly with you. Please advise.

All correspondences with you in relation to the garden shed and access has been met with positive responses. So now to receive an email stating you will not be providing access and that you wouldn't have previously, is surprising.

We then received an email from you on 24th January giving us an update on a few issues and asking when your lease expires, again no mention of then anything that required our attention or that we could assist you with. I can only think that you were mentioning these items and asking when the lease expires as you were intending to vacate the property. Please advise what your intentions are in relation to your lease agreement.

We are not legal professionals and therefore obviously are not able to provide legal advice.

I do not know what resolution you are looking for with this letter, or how you want us to assist you as it is not stated in your email. From your email it looks like the resolution you are hoping for is a financial gain. If you are looking for a different resolution please advise what that is.

Please let us know if you have anything we can assist you with, and look forward to your advice on the issues mentioned above.

I am surprised regarding your comment about my tone. I am putting the issue in writing and giving you a week to respond before I take it to the small claims court.

There is nothing in a contract (lease) that communicates about the shed. You know you made a mistake not communicating the availability of the shed. Paul had at the time the opportunity to correct the issue but replied in the manner that he never said we could use it! I do not accept that at any time you communicated the shed's availability before we were handed the keys on the day of moving in, which was after the lease being signed, rent in advance and the bond paid.

The shed has always been a massive problem for us, as we would never have even considered the property let alone lease it. Now thankfully we are close to the end of the lease.

Had we had knowledge of our legal rights we would have pursued this issue previously. $200 a month on storage is not easy to soak up each month.

It is disappointing that your feel that way Neil. I don't believe we made a mistake about the garden shed. I don't understand your comment that Paul had the opportunity to correct the issue, what did you expect him to do?

From your email I presume that the only resolution you are looking for is a monetary one, is this correct?

I also presume that you are intending to leave at the end of your lease? Please advise.

If the garden shed was such a massive issue why didn't you mention it again until now? I just can't understand this and why only now are you getting legal advice it has been such a huge issue. You have never mentioned it in all the other correspondence over the last 7 months until now.

Again please confirm your advice on the above issues and the issues in my previous email.

Rather than continue with this "slinging match" which was never my intention as I was just stating facts in response to your comments.

Like I have already communicated, this is a formal request to fix this issue. This has been communicated previously as I have already indicated and Paul replied via email that he never said we could use the shed. This occurred at the beginning of our lease. This response was extremely disappointing, but at the time without legal advice we thought that he was within his rights to rubbish the notion about the shed.

The black and white of this communication is that we want compensation for the storage we have had to lease to replace the lack of the shed that we were going to utilise. You can understand that $200 a month (every 30 days) is a considerable amount to lose. This does not take into account the amount of travelling and time wasted to the storage unit.

For you to find this amusing is unfortunate, I take all your emails very seriously and have spent a considerable amount of time on responding to them.

I have just spoken to the owner regarding the access, as we were not aware that she had requested further access. She advised that she contacted Sonya directly as that is what she thought Sonya wanted her to do as that was the request the second time she accessed the garden shed. And she received a response from Sonya to say that it was no problem and to come whenever. She didn't believe it was a problem and apologised if this was not the way you wanted her to communicate. She has advised that if getting access to the garden shed is a huge problem for you then she can look at alternatives to put her things back in the garden shed. I advised her I would confirm with you if you were intending to now not allow her any access to the garden shed. Please confirm your intentions.

I advised her of your email and she was also very surprised as I was. She also mentioned that she has been to the property twice in October, and that Sonya mentioned to her that you would be leaving at the end of the lease as the property is too small for you and therefore you had to put stuff in storage. The owner said she told Sonya then that she didn't think it would be difficult to break your lease if you wished to do so but Sonya said no you would stay to the end of the lease and then look for something else then.

Neil you have not mentioned anything in relation to the garden shed since that one email back in June 2010 where the garden shed being unavailable was again confirmed to you. Nothing was mentioned about it again and therefore obviously we believed that there wasn't an issue. To now receive an email some 8 months later requesting some form of compensation is completely unreasonable.

We will forward your request onto the owner. However it does not have a figure in your request, so we will just be advising her that you are requesting compensation unless you wish to provide a figure.

We will however be advising the owner that we do not believe that this request is reasonable, nor that we believe she is liable to provide you with any form of compensation. Obviously we are not legal professionals and cannot provide legal advice.

I have nothing more to say/provide on this issue and have already spent a whole day on responding to your emails. Whatever you decide to do from here is up to you.

I will open a dispute in the small claims court next week. This gives you adequate time to get legal advice as we have.

Quote "We will however be advising the owner that we do not believe that this request is reasonable, nor that we believe she is liable to provide you with any form of compensation"

The owner did not make the mistake about the shed, you as the agent did that. The dispute will be raised against you.

The owner is no longer allowed to visit the shed. We will rethink this when the issue is resolved. This is within our legal rights set out in the lease.

When your other queries are to do with the original dispute then I will answer them. You need to focus on the storage shed and correct your mistake. You are the agent responsible for the lease of the property, it is your responsibility what is in the contract.

I would advise you to get legal advice as you are starting to go on about irrelevant issues.

Once the compensation has been resolved, we will rethink the access to the shed and consider ending the lease (so you will not be liable to keep paying for storage)

1. On 24 February 2011 the landlord filed her defence to the claim. The landlord said:

Three false statements have been made by the Applicant/Tenant in the application:

The tenants have stated that the parties have attempted to resolve this dispute through formal mediation processes. This is FALSE. No formal mediation has been requested, nor attended, by the tenants with the landlord.

The tenants state that the Bond has NOT been lodged. This is FALSE. The Bond was lodged with the Office of Rental Bonds, Bond Number 361783-4 lodged on 26 May 2010 see bond receipt (attachment 1).

The tenants state that there is a broken window. This is FALSE. The window is not broken. It is the original 1970s style kitchen window with a gap of approximately two inches across the top to allow for ventilation. The gap was sealed by the Landlord with heavy duty plastic when she resided there. The tenants raised concern that there was draught from the window. Although the window was not broken and did not require repair the landlord sought a quote to replace the glass with a pane that did not have the vent at the top. The Landlord was waiting for a quote to replace the window and advised Sonya Huskisson of this in person on 16 October 2010. At this time Ms Huskisson verbally advised that she realised the plastic had become unstuck but that she had resealed the plastic across the gap and not to worry about it.

The application is contested on the following grounds

Background: The garden shed at the property was never useable by the tenants. This is the second tenancy at the property at no time has the garden shed been useable by the tenants. The garden shed was built by the landlord in March 2009, shortly before letting the property for the sole purpose of storing her belongings prior to going overseas in April 2009 (receipts for the laying of the concrete slab and purchase of the shed at attachments 2-4). It should be noted that the shed is in the front courtyard of the property.

The property was not advertised as including any storage space (attachment 5). The rental rate of the property of $395 per week was a reduced rate compared to comparable properties including storage, due to the fact that there was no useable storage available at the property. If the property were to include storage the property would have rented for $420 per week.

All prospective tenants were advised verbally at the open house that the garden shed was not useable. The tenants state that "We would have never moved into the property if we had known about the storage shed not being available to us." However, despite the tenants indicating the shed as crucial to the decision to rent the property, the tenants did not request to inspect the shed which was padlocked at all times. Had they requested to inspect it they would have been re-advised that it was for the landlord's use only.

Further, as part of the evidence provided by the tenants as the immediate need for storage, the tenants have provided receipts for the storage detailing the unit numbers. We have contacted Storage King and confirmed that the first unit rented by the tenants holds 20.25 cubic metres. It is of note that the garden shed in question is approximately 13 cubic metres (dimensions detailed in the quote at attachment 3) and would therefore have not fit all of the tenants' belongings prior to their "dispersing" some of their items and moving into the smaller unit, this unit has been confirmed with Storage King as holding 13.5 cubic metres. This further demonstrates that the tenants did not fully consider their storage needs from the outset.

The tenants state that the Lease was received on 10 May 2010 and the Inventory on 14 May 2010. This is correct. Most Property Managers only provide the lease to tenants at the signing of documents and handover of the property i.e. 14 May 2010, as per the requirements of the Act. However, All En Vogue Property Management tenants are provided with the lease agreement as soon as possible prior to the handover and signing appointment to give them ample time to read through the lease prior to the handover and sign up appointment, hence providing the lease on 10 May 2010. All other paperwork is provided at the handover and sign up appointment as per the Act requirements, including the Inventory and Condition report, in this instance this was on 14 May 2010. It is not possible to provide the Inventory and Condition report any earlier than the sign up appointment, as it is updated at the Final inspection of the previous tenant. The tenants did not complain about the garden shed not being useable at the signing and handover appointment on 14 May 2010. This is confirmed in the tenants' application.

20 May 2010 - Correspondence with tenants (attachment 6). Nothing mentioned about the garden shed.

25 May 2010 - The tenants returned the Inventory and Condition report (attachment 7) where the tenants have signed off that the garden shed was not to be used. The tenants have made a number of notes on the Inventory and Condition report, however again nothing mentioned about the garden shed being unusable.

30 May 2010 - Correspondence with tenants (attachment 8) nothing mentioned about garden shed.

10 June 2010 - The tenants state in the application that about a week later they complained about the shed. In fact, as per the email correspondence submitted by the tenants it was nearly a month later on 10 June 2010. The tenants emailed regarding some maintenance items and also noted that they had to get storage as the shed was unavailable. The Property Manager, Paul Kerin, drafted a quick response as he felt this was quite unusual complaining about the garden shed nearly a month after moving in. This is the one and only time the tenants have complained about the garden shed being unusable during the duration of the tenancy.

23 June 2010 - Correspondence with tenants (attachment 9) no mention of garden shed.

30 June 2010 Correspondence with tenants (attachment 10) no mention of garden shed.

15 July 2010 - Correspondence with tenants (attachment 11) no mention of garden shed.

9 September 2010 - The landlord of the property advised that she would be returning to Australia on 1 October 2010. As soon as she knew she would be returning she requested access to the garden shed, on either 1 or 6 October 2010. The tenants were advised of this request via email. The tenants responded with "no worries about access which ever day suits the landlord". These emails don't appear to be attached to the tenants' application so I have attached them (attachment 12).

1 October 2010 - The landlord attended the garden shed and removed some belongings.

11 October 2010 - The landlord then found a property to rent so requested a further access visit on 16th October, and stated she could be very flexible if this date did not suit the tenants (attachment 13).

13 October 2010 - Response from the tenants "that we are fine with access - she can come whichever day suits her best" (attachment 13).

16 October 2010 - The landlord attended the property and removed some belongings from the garden shed. The Landlord spoke to the tenants who advised that they would not be renewing the lease at the end of the tenancy as the property was too small for them and that they had put some of their belongings in storage. The Landlord informed the tenants that they should be able to break their lease. The Landlord stated she was not sure what was involved but she did not think it was very difficult and that the tenants should speak to the Property Managers. The tenants said that was not necessary; that they would wait until the end of the Tenancy and then look for something larger. This was also when the discussion that there was no longer a need to replace the kitchen window took place.

Approx 9 November 2010 - The fridge at the Landlord's residence broke and the Landlord texted the tenants directly to request access to get her fridge from the shed, making it clear the tenants could refuse such a request. The tenants agreed and gave a time on 13 November 2010 when the tenants would not be home or inconvenienced. A joke was made via text by the Landlord to the tenants that she wished the tenants had said no so that the Landlord's flatmate would have to buy a new fridge. The tenants replied to the joke that she was willing to let the Landlord lie to her flatmate and blame the tenants. This was said in jest and the agreement to access the shed on 13 November 2010 remained. Unfortunately the Landlord no longer has the texts in her phone and her phone service provider does not keep record of content. However, the landlord sent an email to her sister on 12 November 2010 with regards to collection of the fridge which makes reference to the exchange stating "I even tried to encourage my tenants to say no to the access!!" (attachment 14).

In the application the tenants have stated that they "were not aware that [they] had the right to refuse access." However, the text exchange above, supported by the email evidence, clearly indicates that the landlord was making a request for access, and made it clear to the tenants it was up to them to grant permission (in accordance with S75 and S76 of the Lease Agreement at (attachment 15). Further, that a negative responsive was acceptable.

13 November 2010 - The landlord accessed the garden shed as agreed. Unfortunately she forgot an item and sent a text shortly after apologising for the memory failure asking if it would be okay to quickly pick it up. The tenants replied with words to the effect that it was no problem for the landlord to return that same day. The landlord was on the property for approximately 2 minutes within the hour, apologising again for her forgetfulness when she happened to see the tenants who replied "Don't worry about it" or words to that effect. This was the 3rd and final day that the landlord accessed the shed.

24 January 2011 - Correspondence with tenants in relation to some items at the property "not a request for anything to be fixed". Again nothing about the garden shed (attachment 16).

28 January 2011 1:58pm - The landlord was advised of a temporary transfer to Sydney with her job and texted the tenants to request access to the shed on "14 or 15 February 2011" to store her belongings.

29 January 2011 9:52am - The tenants responded with "Hi Courtney, happy new year. No big deal really for either day - but I may have visitors on the 15th Nice to see we aren't the only ones who move regularly!" The text is stored in the landlord's phone and will be available at the conference on 3 March 2011.

2 February 2011 - The tenants emailed the Property Mangers advising that they are refusing shed access to the landlord and that they are going to be seeking storage costs be returned to them via the Small Claims Court. We were astounded to receive such an email. The tenants had complained once about the garden shed on 10 June 2010 and nothing further had been mentioned for some eight months. The landlord had contacted the tenants directly regarding access as she believed that this was the tenants preferred form of communication, she apologised if this had changed. The landlord said that if the access caused any problems for the tenants she could look at alternatives for storing or moving her furniture. The landlord respects the rights of the tenants and did not access the shed in February, but moved her belongings to Sydney at her own expense.

2 February 2011 - A number of emails were sent. In the last email the tenants state that "once the compensation has been resolved, we will rethink the access to the shed and consider ending the lease (so you will not be liable to keep paying for storage)" (attachment 17). The landlord has only ever requested access to the shed. She has been grateful when it has been provided and made alternate arrangements when it has not. The landlord is content to not have access to the shed for the remainder of the lease. The option to terminate the lease and cease paying for storage has been an option that has always been available to the tenants.

The landlord has accessed the property on three days in the nine month duration of the tenancy, at times agreed to as convenient by the tenants and in accordance with S75 and S76 of the Lease Agreement. The landlord has always stated that if this is a problem that she can make alternate arrangements, always being very sympathetic to the tenants needs. Hence she has made alternate arrangements for her belongings as soon as the tenants mentioned that access was a problem in February 2011.

− 10 May 2010 - The tenants signed the Lease Agreement which clearly states at S75 and S76 that the landlord may only enter the property with the permission or consent of the tenants. This has been adhered to.

− 14 May 2010 - The tenants took on the property knowing that the garden shed was unusable. The garden shed being unusable was stated in the Inventory and Condition report which forms part of the lease at Item 12

− 25 May 2010 - The tenants returned the Inventory and Condition Report which clearly stated the garden shed was unusable. The tenants noted anything they did not agree with in detail and signed it on 20 May 2010.

− 10 June 2010 - Nearly a month after moving in, the tenants advised that they had put some of their belongings in a storage shed as they could not use the garden shed. This was the first and only time the garden shed was mentioned.

− 1 October 2010 - landlord accessed the garden shed after obtaining permission from the tenants.

− 16 October 2010 - landlord accessed the garden shed after obtaining permission from the tenants. The tenants advised the landlord that they would be leaving at the end of the lease because the property was too small for them and that they had to put some of their belongings in storage. The landlord advised the tenants that if the property was too small she was sure it would not be too difficult to break the Lease. She suggested the tenants should talk to the Property Manager about this. The tenants did not do so.

− 13 November 2010 - landlord accessed the garden shed after obtaining permission from the tenants. Reference was made to the tenants' option to say no in the texts requesting access.

− 28 January 2011 - landlord requested access via text. Permission given the next day by Sonya Huskisson.

− 2 February 2011 - Email from Neil Huskisson denying access. landlord made alternative arrangements.

− 14 February 2011 - Nine months since the beginning of the lease, the tenants have now applied to ACAT for compensation for their storage costs for the duration of the 12 month Tenancy.

The tenants state in the ACAT application that "We would never have considered the property had we known about the storage shed." However, the tenants did not make any enquiries regarding the shed prior to signing the agreement and only made one effort to discuss the matter with the Property Manager in the preceding nine months despite the many occasions when the tenants have had the chance to raise their concerns with the Property Manger and/or the landlord directly. The tenants also opted not to enter into discussion regarding terminating the Lease Agreement early.

The tenants immediately rented storage larger than the garden shed in question in which to store their belongings. This indicates that the tenants would have incurred storage costs regardless of whether the garden shed was available or not. Further, the tenants have not pursued the matter to any length until over nine months into the agreement.

Overall, The landlord is not responsible for paying the tenants' storage costs if the tenants rent a property that is too small for them and then needs to hire a storage space. We therefore strongly contest the tenants entire application for Compensation.

Should the Tribunal determine to award compensation, the following comments are made regarding the amount sought by the tenants:

According to the receipt provided the tenants have only paid a total of $1444.99, including purchase of a padlock for $15 and an Access Card Deposit of $20. It is reasonable to assume that when the tenants end the storage agreement that they will keep the padlock and that the Access Card Deposit will be returned to the tenants. The landlord should therefore not be responsible for these amounts. It should also be noted that the amount claimed includes five months where the tenants paid for storage larger than the garden shed on the property. It is therefore not reasonable for the "Storage Costs to Date" to be awarded for more than $1290 (the cost of 13 cubic metres of storage for 9 months, including the $10 Access Card Charge and the initial 33% discount received by the tenants for the first 3 months).

It is not reasonable for the landlord to be liable for costs that have not yet been incurred. Further, the tenants have previously been advised they can terminate the tenancy and this remains the case. It is not reasonable for the landlord to be liable for future costs dictated by the choices made by the tenants.

I note the ACAT's website that "Costs are rarely awarded in the ACAT and usually only in cases where one side has caused an unreasonable obstruction or delay in proceedings." As there has been no such obstruction or delay it is not reasonable for the tenants to be awarded this cost.

1. Attached to the defence was a copy of the Inventory provided to the tenants at the commencement of the tenancy which contained the notation:

'1 x beige shed-locked. Owners' belongings not to be used'. 2. The matter was listed before the Tribunal on 3 March 2011 and directions were made for the filing of evidence. 3. On 17 March 2011 the tenants filed a statement which read as follows:

As part of the court order for the tenants dispute RT 11/116 I have been asked to supply some information.

Part of this information was to supply a date to which we could have kept our goods in the previous leased property.

As I stated at the time of the court conference that we had to vacate the property once the lease ended. We had no relationship with the owner of the property and dealings were through the leasing agents Badenoch R/S. When I approached Badenoch they communicated to me that if we had kept any goods within the property we would have had to continue to pay rent. However this was not an option as there were relatives of the owners wanting to move into the property.

Badenoch are unable to provide any written evidence for this purpose, as essentially there is nothing on the records to provide evidence. Badenoch also indicated that they do not under any circumstance provide written references.

The only item that Badenoch would give me is the schedule of rental payments which indicates the end date of the lease.

Further to the information supplied within this communication, I feel that the court should pursue the fact that the owner under the guidance of the agent (En Vogue) leasing the property deliberately performed trespass on the property we are leasing. It would be correct to point out that we gave permission for the owner to access her shed, but only under the belief that we had no choice in the matter. We had no idea of the legal context or our rights as tenants. You can see as part of the original evidence submitted that the agent (Paul Kerin) communicated that the owner wanted to access the shed, not "if" but when will the access be allowed.

I am sure that the notion of a handful of visits is of a minor disturbance but consideration of the fact that the owner constantly changed her mind on the date at which she accessed the shed and only vaguely indicating when she would turn up. The court should consider also that the owner turned up on the weekends, Saturday and Sundays. Also the fact that the owner (on her day long visit) to retrieve her furniture from the shed which removed our use of the garden and the only entrance to the property then started to pass out orders on looking after her property. Our inconvenience should not be played down.

We feel that it is the duty of the agent to regulate these rules and they have a duty of care to look after both the interests of the owner and the tenants according the law.

As evidence also points to the fact that the owner and agent both intended to utilise the storage shed throughout the lease agreement. There should be no mistake on the matter was by chance but an action that was pre planned. Such planning should indicate to the court that there should have been a written instruction in the lease agreement. Nothing was communicated even verbally.

1. Annexed to the tenants' statement was:
   • (a) A schedule of costs incurred in renting the storage facility
   • (b) A chronology of relevant events by the male tenant, Mr Huskisson
   • (c) A chronology of relevant events by the female tenant, Mrs Huskisson
   • (d) A letter from Storage King describing the size of the storage shed and the costs paid by the tenants.

2. The schedule of costs claimed $1806.45 inclusive of the storage costs, the fuel cost of travelling to and from the external storage unit and the cost of the padlock. This contrasts with the original claim for $2004 for the same items.

We were the last people to view the property. A woman was leaving as we started looking.

For the majority of the viewing I stood in the same room (living area) with my baby son whilst my wife and daughter viewed the property. The only conversation with Paul was concerning the previous tenants as there was still children's toys in the garden. Nothing was mentioned about the poor state of the carpet as boxes hid the many pulls and the burn mark.

Requested the lease agreement and bond documents to be updated as they had the wrong address on them. Marg Barnes had sent them, originally and Paul Kerin updated them.

Received via email amended bond and lease contracts

Also payments made for bond and advance rent via bank transfer.

(Neil & Sonya) met Paul Kerin at the property. 09:15am

Lease handed over to Paul signed, then received condition report to returned by the 28th May.

Paul talked about the condition of the garden and what the owner expected.

Then the keys were handed over as a bunch of keys, of which we checked they were all there. The key to the shed was not there so we asked for the key, to which we were told that we could not use the shed.

Then a conversation took place about buying a further shed for ourselves and placing it at the side of the house.

I started looking at Allhomes.com.au for possible rental properties as our landlord had advised us that they wanted to move back into the property at the end of our lease, thereby giving us notice. I found 11 Fletcher Place, Page - it looked as though it may be suitable. Although there was no garage (just a carport) there was a shed visible in the photos online. I called Paul at En Vogue to discuss viewing property. Obviously at this early stage, there was no mention of the shed. Paul took my details and said he would call me back at a later date with a viewing date and time.

Neil, kids and I viewed the property at the time/date advised by Paul, En Vogue. The property looked suitable, Neil and I stood in the front yard and briefly discussed the fact that the shed had double doors - it was bigger than Neil had imagined and so we determined that our excess storage would fit in the shed. The shed did have a lock on it - but we didn't think this odd as the tenants were still in the process of moving out and there were boxes throughout the house. Paul did not come into the front yard whilst we were looking at the shed - and at no time during our inspection did he mention the shed to us.

We completed the application form for the property and faxed it to En Vogue from our local post office. The application did not state that the shed was not part of the lease.

Marg Barnes forwarded me the lease agreement. The agreement incorrectly stated the address as Fletcher Street, rather than Place so Neil asked that it be amended and resent, it was then re emailed to him on 11th May. The lease documents did not state that the shed was not included in the lease. We also paid the $1,580 bond.

Neil and I met with Paul at the property at 9:15am. All the paperwork/keys etc were layed out on the kitchen bench. We signed/initialed the Lease. Paul provided us with the Condition Reports that we needed to return by the 28th May (which we didn't go through at that time). Paul mentioned that a burn in the carpet in the lounge room had been charged to the previous tenant and he also mentioned the "pulled threads" in the carpet. He also had a page of information regarding instructions from landlord regarding the garden - he mentioned that she didn't mind if some plants died etc - and laughed and didn't say anything further about the garden. The shed was only mentioned by Neil, when looking at the keys - Paul looked at us and said that the shed was not available. Neil and I were taken aback. I immediately panicked as our removalist was due to collect our furniture within 2 hours from our current property - as well as the fact that I had confirmed with our real estate agent our vacating date. Paul and Neil then had a brief discussion about putting a shed in the vacant area on the exterior lounge room wall.

We researched buying a shed the same size as the one already on the property. The shed itself was very expensive - but the main problem was the fact that the shed had to be pinned to the ground so that it wouldn't lift during heavy winds etc. The area where we thought the shed could go is exposed soil and pebbles and is very uneven. We then realised that we would also need to purchase a strong base - more than likely concrete and have it all professionally layed and installed. As this was a major expense that we would be unable to pick up and move with us at a later date we decided against it. We then found a storage firm that was local to our area - this was important, as we needed regular access to our lawn mower and whipper snipper, ladder etc.

End of lease of previous property. Keys returned to Badenoch Real Estate. We had/have no relationship with the landlord of the previous property - we were in no way able/invited or even requested to leave our furniture in the garage. The garage adjoins the property and accesses the townhouse internally through a sliding door. So apart from the fact that it would inconvenience the people living there - it would have also been a major security breech for them.

Neil was increasingly upset that we were paying storage costs at no fault of our own. Although I asked him not to complain, he advised Paul of his feelings via email. Paul replied (incorrectly) that we were advised at the initial inspection.

Neil sought legal advice regarding a different matter and casually mentioned the shed not being available and the real estate's claim (incorrectly) that he had advised us at the initial viewing of the property. The solicitor advised Neil that he had a sound case and should pursue if he wished.

1. On 29 March 2011 the landlord's agent filed:
   • (a) a statement of evidence by Mr Paul Kerrin
   • (b) submissions

I, Paul Kerin, from En Vogue Property Management have been asked to provide a statement in relation to my recollection of conversations concerning access to the shed at 11 Fletcher Place, Page. My recollection is as follows.

Sonya Huskisson contacted me to request a viewing of the property. I told her I had a number of people to go through and that I would talk to the current tenants, organise a time and call her back.

I called Sonya Huskisson back and advised her that she could view the property on 29 April 2010 at 4.00pm.

29 April 2010, 4pm: I did an exhibition on the property where I showed 4 separate groups of people through the property.

The first family were looking to move from Queanbeyan, second group were two singles and third was a single lady.

Prior to the Huskissons arriving I was discussing with the single lady about alternate storage options as she required storage and due to the garden shed not being available was looking for further options, we discussed buying one of the plastic storage cupboards or maybe a small garden shed of her own as there was ample room on the pebbled area and such structures are just pegged down so are not affixed to the properly and do not cause any damage. She said she would look into it.

Sonya & Neil Huskisson attended the property with their two children, I greeted them and introduced myself, I advised them that the previous tenant was still in the process of moving out that the property was available from 10 May 2010 and that the garden shed was not included in the tenancy. I told them to have a wander around, and let me know if they had any questions. Being the 4th group of people through the property I felt like a broken record.

They only spent about 5 minutes at the property. The only question they had was who had previously lived at the property. I advised that it was a single mother. I did not expect to receive an application from the Huskissons as they had spent such little time there. I was confident however that I would receive an application from the family and the two singles.

30 April 2010: To my surprise I received an application form from Sonya Huskisson.

4 May 2010: After I went through the application form and contacted the referees, I discussed the application with the owner via email. She advised me to go ahead with the tenancy.

5 May 2010: I contacted Sonya Huskisson and advised her the application was successful. I advised her to secure the property the bond monies needed to be paid into the trust account. I also asked her to confirm on what date she wanted the lease to commence, as she had previously said either 12 or 14 May 2010. She advised 14 May 2010. I told her I would email her the front page of the lease, the standard terms and bond form as they are quite long and would give her time to read through it prior to the sign up appointment. The documents were then drawn up and emailed to Sonya Huskisson

7 May 2010: Neil Huskisson brought to my attention via email, that there was a typographical error on the documents, "Street" rather than Place".

11 May 2010: The papers were amended and resent this time to Neil Huskisson. The bond monies were paid into the Trust Account.

I contacted Sonya to organise a time to conduct the sign up appointment. I originally said 9.00am however she requested 9:15am as she needed to drop the children at school.

14 May 2010: I met Neil and Sonya Huskisson at the property. I provided them with all the paperwork including 2 copies of the Inventory and Condition Report and advised that it needed to be returned by 28 May 2010. They initialed and signed all of the paperwork. I advised them that there was a burn in the carpet that the previous tenant had compensated the owner for and that there were some pulls in the carpet. I provided them with the owners information sheet which included info about the garden, I said that if a plant dies here and there that is obviously fine, however there was further information on the sheet in relation to the garden. I handed the keys to the tenants and asked them to sign off on the key photocopy sheet. Neil Huskisson went through the keys and then asked where the key was for the shed. I found this weird as I had advised them at the initial inspection that the shed was not included, however thought that maybe he had forgotten or was just trying his luck- I again advised him that the shed was not included. I said to them that if they did require storage they could always look at getting a storage unit or garden shed and put it on the pebbled area beside the lounge room. Nothing more was said and 1 didn't think any more of it.

25 May 2010: Inventory and Condition Report returned including the Huskissons signing off where it stated that the garden shed was not included. The Huskissons had clearly gone through the Report in detail and made numerous observations.

Numerous emails were exchanged on maintenance items as detailed in the previous submission.

10 June 2010: I didn't think any more about it until I received an email from Neil Huskisson, about a month after they had moved in, regarding a maintenance matter. He noted at the bottom of the email that he had put some belongings in external storage because he couldn't use the garden shed. I again said that, as previously advised the garden shed was not included.

January 2011: I did not hear anything further until an email from Neil advising that he now wanted compensation for storage and was seeking legal action.

To address the matters as raised by the tenant, Mr Neil Huskisson, in his further submission dated 15 March 2011.

As stated by the tenant, permission was given by the tenants, so there can be no matter for trespass. However, that the tenant states that they did not know they had a choice only further demonstrates that even some 4 months into the lease, they had still not chosen to read the agreement. The lease clearly states at S75 and S76 that the landlord may only enter the property with the permission or consent of the tenant.

It should be pointed out that the landlord has not attended the property on a Sunday.

The landlord has attended the shed on 3 occasions, each time providing the tenants with as much notice as possible and usually with a range of dates so that the tenants could indicate their preference - this was solely for the convenience of the tenants to minimise disruption to them. On no occasion did the landlord change her mind on the day at which she accessed the shed". Instead the landlord attended in accordance with any preference expressed by the tenants. An example of this was the final visit on 13 November 2010, when the tenants mentioned they would be out until 10am, so the landlord attended the shed prior to this time (with the exception of the 2 minute return to pick up a forgotten item that was further agreed to via text with Sonya Huskisson. Ms Huskisson clearly stated at the time that this was no problem).

In terms of inconvenience, it should be remembered that the tenants had the opportunity to indicate a preferred time and day or deny access altogether. We would also like to clarity that the "day long" visit referred to by Neil Huskisson was two visits of approximately an hour on the first occasion and less than that on the second with not more than an hour in between. The landlord was only retrieving bedroom furniture and a couple of boxes with the assistance of her two parents, so it is not conceivable that this could take all day. The shed is located along the same fence line as the property entrance and on the other side of the garden to the house, so the garden was still useable during this time. The entrance to the property was also accessible as witnessed by Sonya Huskisson coming home and going into the house while the landlord was there. Further, when Ms Huskisson offered to move the trampoline away from the shed, the landlord stated that wasn't necessary so the tenants were disturbed as little as possible and the trampoline could still be used by their daughter if desired.

The tenant also makes reference to the landlord passing out "orders" on looking after her property. He has provided no details. The landlord can only surmise that this relates to the concern of damp raised by Sonya Huskisson on the landlord's initial visit. Ms Huskisson asked the landlord if she had previously had a problem with damp, to which she replied she had not. Upon arriving at the property for the agreed visit on 16 October 2010, there was significant condensation build up on the inside of the windows, The landlord suggested to Mr Huskisson that opening the windows may help address the concern previously raised by Ms Huskisson. The landlord can only assume the "order' referred to was the suggestion she made as part of her obligation as a landlord to help maintain the property and rectify any concerns raised by the tenants.

Tenants' use of the premises without Interference

S51 is met, there is no legal impediment to the use of the premises.

S52 is met, as any "interference" has been at the permission of the tenants in accordance with S75 and S76 and therefore the 3 shed visits over the last 11 months cannot be seen as unreasonable.

S53 is met as the Inventory and Condition Report, being part of the agreement, clearly states in writing that the shed is not for the tenants' use.

That there should have been a written instruction in the lease agreement

The fact that the shed was not useable by the tenant was certainly pro-planned (for if there were no belongings to store, the shed would not have been built prior to the landlord's departure). The shed was built for the sole purpose of storing the landlord's belongings end not intended to be used by any tenant. This is also reflected in the landlord's decision on the rental rate, which was reduced to take into account that no storage was included.

Therefore, a written instruction, as suggested by the tenants, is indeed a part of the lease agreement. It is clearly written in the Inventory and Condition Report which forms part of the lease agreement. While it is the responsibility of the property manager to ensure that the tenant is provided with a copy of the lease agreement arid that they have an opportunity to read it prior to signing, neither the property manager, or the landlord, can force the tenant to read the agreement prior to signing. Something which Neil Huskisson has openly admitted he did not do.

As there is no written evidence, it will be a matter for the Tribunal to decide whether the property manager, Paul Kerin, advised the tenants at the open house as declared in his statement. When considering this matter, we would like to draw to your attention the immaculate record of En Vogue property management. in their 10 years of operation they have not been called before the Tribunal until the current matter. This is a clear demonstration of the integrity of the company and its directors. Further, the shed not being available for the tenants use was clearly written in the Inventory and Condition Report. This was given to the tenants prior to them signing the lease. Mr Kerin would ordinarily expect a prospective tenants to read the lease, of which the Inventory and Condition Report forms a part, prior to signing as is their right and responsibility. There would therefore be absolutely no benefit of not drawing the matter of the garden shed not being included to any prospective tenants' attention at the earliest opportunity. Otherwise, they may choose not to accept the property and the Agent and landlord would lose valuable time in finding a new tenant, and potentially money, in relation to lost rent.

On the other hand, Neil Huskisson has made a number of inflammatory, vexatious and false statements that have been disproved by the evidence before you (as referred to in our previous submission such as the false statements regarding bond lodgement, prior mediation and a "broken window" and in suggesting trespass despite permission being given). Further, at the previous Tribunal conference Mr Huskisson did not remember much of the details regarding the initial viewing of the property or how they came to submit their application. I therefore suggest that it is also quite likely that he does not remember being told about the garden shed not being available for the tenants' use, despite this event taking place.

It is of note that the tenants had 11 days of their previous lease left when they signed the lease in question. Had they read the full lease agreement prior to signing, as was their right and responsibility, this would have given them two full weekends, and during the week besides, to find something more suitable. This would be reasonable given the number of houses that are available for immediate rental at any given point in time. The landlord cannot be held financially responsible for the tenants not reading the full terms & the lease prior to signing.

The landlord should not be held responsible for any of the costs incurred by the tenants for their failure to read the agreement prior to signing.

However, should the Tribunal disagree, the following points should be considered:

It is noted that the tenants has revised his costs since his original application in response to the point raised at the Tribunal conference that he rented storage larger than the size of the shed for the first 5 months. He has now based his claim on 13 cubic metres of storage (in accordance with the size of the garden shed). I note that he is still including the $15 for the padlock (which he would have had to buy for the garden shed regardless and will get to keep), and has also now included fuel costs of $21.45. The fuel costs are based on visiting the off-site storage once per week, which seems a product of poor planning on behalf of the tenants, for which the landlord should not be responsible. In addition, quotes from other nearby facilities show that the tenants have chosen the most expensive storage facility in the area by as much as an extra $65/month.

It is of note that the tenants were given the landlord's mobile number in September 2010 and also saw and spoke with her on the three occasions that she accessed the garden shed. Had the tenants raised the extent of their concern with the landlord at any time prior to the claim for compensation, the landlord could have considered such options as placing her belongings in off-site storage. The Lock-Up Self Storage is only $105/month, totaling $1134 for the full 12 months of the agreement, including the 10% discount for paying upfront.

Instead, the landlord was only made aware of the tenants concerns in February 2011 when the claim for compensation was received. This was some 9 months into the agreement, and just 3 months prior to the lease expiring (having been verbally informed by Sonya Huskisson in October that they would be moving out at the end of the lease in May). Therefore such a solution is not viable for such a short period of time.

It should not now be up to the landlord to reimburse the tenants for:

a) costs for storage larger than that on the property,

b) costs for storage beyond what would have been incurred had the tenants raised the matter in a more timely and conciliatory manner, and

a) costs for storage which was clearly not included as per the written terms of the lease agreement.

1. The matter was listed for hearing on 4 May 2011. Mr Huskisson appeared in person. Mr Kerrin (real estate agent) appeared for the landlord.
2. At the hearing each party was given the opportunity to ask questions of the other party and to develop any of their own submissions. The content of the hearing did not raise new matters not already addressed in the above evidence and submissions. The tenants advised that they were vacating the property in 9 days.
3. At the end of the hearing the Tribunal reserved its decision.

1. Sections of the Residential Tenancies Act 1997 (the Act):

7. A residential tenancy agreement starts on the earliest of the following days:

(b) the 1st day both parties have signed the agreement and received a copy

(c) the day the tenant takes possession of the premises;

12(1) The landlord must give the tenant a copy of the proposed residential

tenancy agreement and, if they are not included in the copy of the agreement, the standard residential tenancy terms, and allow the tenant a reasonable time to consider the proposed agreement.

(2) A copy of a residential tenancy agreement provided under subsection

(1) that contains a provision that is inconsistent with a standard residential tenancy term must be annotated in a way that draws the attention of the tenant to the provision and the fact that it is inconsistent with a standard residential tenancy term.

Prescribed terms of Schedule 1 of the Act forming part of the residential tenancies agreement:

51 The landlord guarantees that there is no legal impediment to the use of the premises for residential purposes by the tenant.

52. The landlord must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.

53. Unless otherwise agreed in writing, the tenant has exclusive possession of the premises, as described in the agreement, from the date of commencement of the tenancy agreement provided for in the agreement.

1. A residential tenancy agreement is:
   • (a) a species of contract governed by the law of contracts as modified by the Act: and
   • (b) an estate in land in the form of a lease or tenancy at common law.

(Anforth, Christensen and Taylor, Residential Tenancies Law and Practice in NSW (5th ed.) (2011), Federation Press, at [2.13.11] [2.3.7]).

1. In the case of residential tenancy agreements, there are standard terms of the agreement set out in Schedule 1 of the Act which are deemed to form part of the agreement between the parties (section 8). It is not permissible for the parties to contract out of the standard terms, whether by agreement or otherwise (sections 8 and 9 and prescribed terms 2 and 3 of the Schedule. The parties may include non-standard terms in the tenancy agreement if they are not inconsistent with any standard terms. Any term proposed which is inconsistent with a standard term of schedule 1 must be endorsed by the Tribunal under section 10.
2. For present purposes, the relevant sections of the Act and the relevant prescribed terms are set out above.
3. In order for a contract to be formed, the parties must explicitly or implicitly agree on the terms of the contract. In the case of residential tenancy agreements, this means that there must be actual agreement by the parties to any term that is not a standard prescribed term.
4. There cannot be agreement between the parties to terms of a tenancy agreement that were not known by the one of the parties prior to entering the contract simply because the other party intended that such a term apply. There must be an actual meeting of minds on these non-standard terms prior to entering the contract and this can only occur if there is relevant disclosure and agreement by the party propounding the additional non-standard term.
5. To this end, section 12 of the Act requires that the landlord provide the tenant with a copy of the proposed residential tenancy agreement with any non-standard terms 'annotated in a way that draws the attention of the tenant to the provision'. Section 12 further requires that the tenant be provided 'a reasonable time to consider the proposed agreement' after receiving the proposed residential tenancy agreement.
6. The terms of a residential tenancy agreement do not need to be set out in the one consolidated document and so it is possible to include some terms of a tenancy agreement in a second document that is incorporated by reference into the primary tenancy agreement (Gillies and Selvadurai, Law of Contract, Federation Press at [5.3.3]). However, if this is done the second document is part of the tenancy agreement and is caught by section 12. Furthermore, if terms are to be incorporated into a contract by reference to another document, then there is a duty on the party relying on the incorporated terms to bring to the attention of the other party any unusual terms that may have an effect on the basic rights of the party before the contract is entered (Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1987] EWCA Civ 6; (1988) 1 AER 348).

The Act does not envisage that a tenant be presented with a copy of the residential tenancy agreement, with or without non-standard terms, only at the time they are required to enter the agreement so that they have no opportunity to review its terms and convey their informed consent or dissent to the terms of the proposed agreement.

It is fundamental principle of contract law that the terms of a contract are fixed at the point in which the contract is entered (usually being the point of acceptance of the agreement by the accepting party) and the terms of the contract cannot be thereafter altered at the will of one party only. Any variation of the contract after it is entered requires the consent of both parties.

In the case of residential tenancy agreements, section 7 provides that the tenancy agreement commences on the earliest of the four days referred to in section 7. Thus, the requirements of section 12 must have been satisfied at this date and the content of the terms of the contract are to be assessed as at this date.

Because a residential tenancy agreement is also an estate in land in the form of a lease at common law (Anforth, Christensen and Taylor, Residential Tenancies Law and Practice in NSW (5th ed.) (2011), Federation Press at [2.13.11]), it attracts the fundamental incidents of a lease at common law, namely:

• (a) the exclusive right of possession of the property during the term of the lease: and
  • (b) the right to quiet enjoyment of the property during the term of the lease.

The existence of these fundamental rights in a tenant is affirmed and declared in prescribed terms 52 and 53 of the Schedule to the Act.

Allied to these rights is the warranty given by the landlord at common law, which is affirmed and declared in prescribed term 51, that there is no legal impediment to the landlord conferring these fundamental rights on the tenant in the tenancy agreement.

In order to determine the extent or ambit of the exclusive right of possession and quiet enjoyment granted by the tenancy agreement, it is necessary to determine the extent of the land that is included in the tenancy agreement. The extent of the land included in a tenancy agreement is actually one of the four essential terms of any lease at common law which must be determined with certainty in order for a valid lease to exist ((Upper Hunter County District Council v Australian Chilling & Freezing Co [1968] HCA 8; (1968) 118 CLR 429 at 436-437 per Barwick CJ; G Scammell & Nephew Ltd v HC & JG Ouston [1941] AC 251 at 255 (Viscount Maugham); Axelsen v O'Brien [1949] HCA 18; (1949) 80 CLR 219 at 603 per Kitto J; and Godecke v Kirwan [1973] HCA 38; (1973) 129 CLR 629 at 646-647 per Gibbs J).

The essential terms of a tenancy at common law are: * (a) the dates of formation and commencement of the agreement (Pirie v Saunders (1960) 104 CLR 149; Darling Point Securities P/L v Industrial Equity P/L (unreported, NSWCA, 9 July 1991 at p 4; Picwood P/L v Panagopoulous [2004] NSWSC 978 at [60] per White J); * (b) the parties to the agreement (Stockell v Niven (1889) 61 LT 18 (CA); Sale v Lambert (1874) LR 18 Eq 1; Di Biase v Rezek [1971] 1 NSWLR 735 (CA)); * (c) the identity and extent of the premises in question (Lancaster v de Trafford (1862) 31 LJ Ch 554); * (d) the duration of the tenancy (Whitlock v Brew (1968) 80 WN (NSW) 1520); * (e) the rent (or a mechanism for determining the rent) (Whitlock v Brew [1968] HCA 71; (1968) 118 CLR 445; Lang's Commercial Leasing in Australia (CCH Australia, 2005), [1-210].

([Anforth, Christensen and Taylor, Residential Tenancies Law and Practice in NSW (5th ed.) (2011), Federation Press at [2.13.1]).

A tenancy agreement is not merely a license to occupy the premises upon which a house sits. A tenancy agreement confers the exclusive right of occupancy in respect of the land and in respect of all of its fixtures (thing fixed upon the land) and all non-fixed facilities intended to remain upon the land during the tenancy. Thus, if the property includes a swimming pool (a fixture) then the use of the swimming pool forms part of the tenancy agreement and the tenant has the exclusive use, and the quiet enjoyment, of the pool. If the property includes a shed that is not fixed but sits upon its weight on the property, the tenant prima facie, acquires the exclusive use and quiet enjoyment of the shed.

It is open to the parties to agree to define the extent of the property to be included in the lease. In fact, it is essential that they do so for the lease at common law to be valid.

In most residential tenancy agreements, this is not a problem because the tenancy agreement specifies the address of the property to be leased. Usually, this is done by specifying the street address of the premises by reference to the suburb, street name and number. This mode of description is sufficient for the certainty requirements in that it corresponds with the formal title description under the Land Titles Act 1923 (ACT) and is readily identifiable with a divisional block and section reference (the land title).

However, if this mode of description of the property is adopted the effect is that the whole of the land title becomes the subject matter of the tenancy.

This last point is of particular importance in the present case in light of the assertion by the landlord's agent that, 'the property was never advertised with storage on the Allhomes ad and it would have stated this if there was'. This assertion by the landlord's agent, purports to reverse the presumption that the tenancy includes all the fixtures and facilities upon the land, unless they are expressly excluded by agreement of the parties.

When a prospective tenant sights the property and notes the existence of facilities or service of various kinds the tenant is entitled to presume that those facilities or services will form part of the tenancy unless the landlord makes it clear, before the tenancy agreement is entered, that those services and facilities will not be provided. Perhaps, the most common example of this principle is where a house contains built in air-conditioning and heating appliances which the tenant assumes are functional, only to discover later that they are non-functional. In these circumstances it is not open to the landlord to assert that no representation had ever been made that the facilities were functional. The representation is implied in the fact that the facilities were visibly present during the pre-tenancy inspections. Similarly, for washing machines, TV aerials and other facilities whose visible present itself represents the actual availability of the facility and service. Conversely, a hole in a wall where a heater once existed implies no representation that such a heating service forms part of the tenancy.

If the landlord does not want the whole of the land title to form the subject of the tenancy and wants to retain the personal use of part of the property, or of things that are on the property, then the landlord must disclose this to the tenant in accordance with section 12 of the Act and must secure the tenant's agreement to this limitation prior to the tenancy being entered.

A landlord cannot retrospectively and unilaterally alter the terms of the tenancy contract after it has been entered, to excise the use of some part of the property from the scope of the lease.

If the landlord does occupy or use part of the property that forms part of the tenancy, then the landlord has denied the tenant the exclusive right of use and quiet enjoyment of that part of the property. In so doing, the landlord is in breach of both its contractual obligations at common law, and prescribed terms 52 and 53, which are in fact one and the same contractual obligation.

If the landlord only occupies or uses that part of the property which was validly excised from the scope of the tenancy, then no such breaches have occurred on the landlord's part.

Assuming the landlord has validly excised the use of part of the property from the lease, there still remains the issue of the manner in which the landlord accesses and uses that part of the property. The landlord's right to use a shed that is on the property does not mean that the landlord can go on to the property at any time to access the shed. If access to the shed requires the landlord to walk or drive across part of the leased land, then the landlord requires the consent of the tenants to access the shed. This consent may be obtained on each individual occasion or may be obtained in a generic form at the start of, or during, the tenancy. The consent is in the nature of an easement.

If the shed has been excised from the lease, and if landlord has the tenants' consent to access the shed, then the landlord's use of the shed must be such as not to disturb the quiet enjoyment by the tenants of the remainder of the property. That disturbance may occur because of noise or fumes or unsightliness or invasion of the tenants' privacy by the landlord's use of the shed.

If it is established that the landlord has breached the duty to provide the tenants with the exclusive use and quiet enjoyment of all or part of the premises, then the tenants are entitled to compensation commensurate with the breach, subject to the tenants' duty to mitigate their losses.

The power to award the compensation stems from the contractual breach on the landlord's part and exists both in section 104(c) and (d) of the Act and at common law.

The compensation that may be awarded includes compensation for: * (a) direct economic loss arising from the breach; and * (b) for non-economic loss to compensate for those breaches associated with the loss of use of the part of the premises concerned; and * (c) for the associated loss of use and quiet enjoyment of the part of the premises.

([Anforth, Christensen and Taylor, Residential Tenancies Law and Practice in

NSW (5th ed.) (2011), Federation Press, at [2.187.2][2.187.5]).

1. The measure of the amount of compensation payable is essentially assessed by reference to comparative awards after due allowance for the inevitable differences in the facts of each case ([Anforth, Christensen and Taylor Residential Tenancies Law and Practice in NSW (5th ed.) (2011), Federation Press at [2.187.5]).

2. Where a party to a contract suffers a loss by reasons of the breach of the contract by the other party, the innocent party is under a duty to mitigate their losses by taking all reasonable action to reduce the extent of the losses incurred (Anforth, Christensen and Taylor, Residential Tenancies Law in NSW (5th ed.) (2011), Federation Press at [2.187.10]). This duty is set out explicitly in section 38 of the Act.

3. The duty to mitigate in section 38 is drawn from the common law. The following five common law principles concerning mitigation of losses are most likely to be relevant in Tribunal proceedings:
   • (1) the plaintiff must take all reasonable steps to mitigate the loss caused

by the defendant's breach, and cannot recover damages for any loss which he or she could have avoided but failed, through unreasonable action, to avoid;

(2) where the plaintiff does take reasonable steps to mitigate the loss he

can recover for loss incurred in so doing. It does not matter that the resulting loss is greater than would have been the case, had no mitigating steps been taken; see Simonius Vischer & Co v Holt [1979] 2 NSWLR 322 at 355-356 (obiter); Lloyds and Scottish Finance v Modern Cars and Caravans [1966] 1 QB 764.

(3) where the plaintiff does take steps to mitigate the loss and those steps

are successful the defendant is only liable for the loss as lessened. In other words, the defendant takes the benefit of the plaintiff's actions;

(4) the onus of proof is on the defendant to show that the plaintiff acted

unreasonably in failing to mitigate its loss: TC Industrial Plant P/L v Robert's Queensland P/L [1963] HCA 57; (1963) 180 CLR 130 at 138; Wenkart v Pittman (1999) 46 NSWLR 502 at 520-523. A contrary conclusion appears to have been reached by the Supreme Court of South Australia (Full Court) in Murray-Oates v Jjadd P/L (1999) 76 SASR 38 at 48, relying on Roper v Johnson (1873) LR 8 CP 167. It is respectfully suggested that Roper v Johnson is not authority for the proposition suggested. The approach of the High Court in TC Industrial Plant is binding;

(5) not only is the onus on the defendant to show that the plaintiff acted unreasonably, but the onus is on the defendant to prove the value of what would have occurred, had the plaintiff acted reasonably or the value of loss in fact avoided by the plaintiff who did act reasonably: Karacominakis v Big Country Development P/L [2000] NSWCA 313 at [187]. As was said by Lord Denning MR in The World Beauty [1970] P 144 at 154:

The question, therefore, is what a prudent person ought reasonably to do in order to mitigate his loss arising from a breach of contract.

1. It should not be forgotten, however, that it is the innocent party who is required to take steps to mitigate the loss because of the breach of the defendant and that the steps required of the innocent party will not generally be set too high. Thus, in Banco de Portugal v Waterlow & Sons Ltd [1932] UKHL 1; [1932] AC 452 at 506 Lord McMillan said:

Where the sufferer from a breach of contract finds himself in consequence of that breach placed in a position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty. It is often easy after an emergency has passed to criticise the steps which have been taken to meet it, but such criticism does not come well from those who have themselves created the emergency. The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures, and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken.

1. In Karacominakis v Big Country Developments P/L [2000] NSWCA 313 at [187], the court said:

A plaintiff who acts unreasonably in failing to minimise his loss from the defendant's breach of contract will have his damages reduced to the extent to which, had he acted reasonably, his loss would have been less. This is often misleadingly referred to as a duty to mitigate, although the plaintiff is not under a positive duty. The plaintiff does not have to show that he has fulfilled his so-called duty, and the onus is on the defendant to show that he has not and the extent to which (TCN Channel 9 P/L v Hayden Enterprises P/L (1989) 16 NSWLR 130). Since the defendant is a wrongdoer, in determining whether the plaintiff has acted unreasonably a high standard of conduct will not be required, and the plaintiff will not be held to have acted unreasonably simply because the defendant can suggest other and more beneficial conduct if it was reasonable for the plaintiff to do what he did (Banco de Portugal v Waterlow and Sons Ltd [1932] UKHL 1; [1932] AC 452; Pilkington v Wood [1953] Ch 770; Sacher Investments P/L v Forma Stereo Consultants P/L [1976] 1 NSWLR 5).

The issues of fact to be determined are: * (a) when did the tenancy agreement come into force; * (b) when were the tenants first informed that the landlord was proposing to retain the use of the shed; * (c) whether the tenants actually agreed to this proposal as opposed to being presented with a fait accompli; * (d) whether the terms of section 12 were complied with and the effect therefore; * (e) the relevance of the notation on the Inventory(Condition Report); * (f) the occasions on which the landlord visited the shed and whether the landlord had the tenants' consent to do so: * (g) the extent to which the loss of use of the shed caused inconvenience to the tenants; * (h) whether the tenants hiring of an offsite storage facility was a reasonable and proportionate response by the tenants.

Section 7 provides that the tenancy agreement came into force on the earlier of the two dates, being the date the tenancy agreement was executed and the date the tenant took possession.

In the present case the tenancy agreement was dated 14 May 2005, executed on 14 May 2010 and the rent became due and payable from the 14 May 2010. Possession was not taken until 18 May 2010. Therefore, the date of the binding contractual relations is at the point of execution of the tenancy agreement on 14 May 2010.

It is by reference to the point of time of the execution of the tenancy agreement on 14 May 2010, that the parties' rights have to be determined.

The tenancy agreement and all advertisement that preceded its execution were silent on the exclusion of the shed from the scope of the property being leased.

The landlord's agent asserted that he had orally informed the tenants during an open house on 29 April that the shed would not form part of the tenancy. The tenants denied this. Had the landlord's agent made this clear to the tenants at the open house, then the exclusion of the shed may have formed part of the tenancy agreement, notwithstanding that it was not notated in the tenancy agreement itself (notwithstanding the 'parole evidence rule' to the contrary). The Tribunal does not accept as a fact that the landlord's agent did make this statement to the tenants at the open house. Furthermore, if the landlord's agent had in fact made this representation to all prospective tenants at the open house, then it is entirely unsatisfactory that all advertisements and the tenancy agreement itself remained silent on such a significant issue.

The Tribunal is satisfied that the tenants did not become aware of the landlord's intention to exclude the shed from the tenancy and reserve the right to access the shed during the tenancy, until 14 May 2010 after the tenants had signed the tenancy agreement. The tenants at no time agreed to this exclusion from the lease, they were simply presented with what appeared to be a fait accompli after signing the tenancy agreement.

On all accounts of the evidence, the Inventory was only provided to the tenants after they had signed the lease. It is not entirely clear when the tenants were given the Inventory. In some of the evidence this time is said to have been on

14 May 2010 but after the execution of the tenancy agreement, and in other parts of the evidence it is said to have occurred on 18 May 2010. On either version, the Inventory was not provided to the tenants until after the execution of the tenancy agreement.

There is no law that says that the landlord's agent must provide the tenants with the Inventory prior to, or at the time of, the execution of the tenancy agreement. This is because it is not intended that the Inventory will add new terms to the tenancy agreement. It is only intended to speak of the condition of the premises. If the landlord chooses to use the Inventory to add new terms to the tenancy agreement, then the Inventory will need to be provided to the tenants as part of the tenancy agreement.

The term in the Inventory excluding the shed from the tenancy is not a standard term and, therefore, in order for it to form part of the tenancy agreement, there must be compliance with section 12 of the Act. Providing the tenants with an Inventory that purports to alter the terms of the tenancy agreement that has already been executed, does not comply with section 12 of the Act. Furthermore, the purported variation of the tenancy agreement in this manner after its execution, does not comply with the principle in Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1987] EWCA Civ 6; (1988) 1 AER 348 referred to above.

On the basis of the above findings of fact and applying the principles of law set out above, the purported excision of the shed from the scope of the tenancy agreement contained in the Inventory, had no force or effect. As there had been no antecedent agreement on this point, there was nothing to disturb the prima facie position set out in the tenancy agreement itself, that the landlord was agreeing to lease the whole of the land title and everything that stood upon it, including the shed.

On the basis of that finding, it follows that the actions of the landlord in withholding access to, and use of, the shed, by the tenants was a breach of the landlord's duty to give the tenant the exclusive right of possession of the shed from the start of the tenancy.

The landlord denies that any breach of quiet enjoyment occurred by the landlord's visits to the shed during the tenancy because the tenants in fact consented to the visits. Putting to one side whether the tenants did in fact consent, the prior issue arises as to whether any such consent by the tenants was a valid or lawful consent upon which the landlord could rely to defeat the tenants' claim for breach of quiet enjoyment.

At the time of the landlord's visits, the tenants were labouring under the mistaken belief in fact and law that they were required to permit the landlord's access to the shed. This mistaken belief was engendered by the misrepresentations by the landlord's agent to the tenants to this effect.

If it be assumed that the landlord's agent truly believed in the truth of this representation, as did the tenants at the time of the visits, then the parties were operating on what is known as a 'common mistake' of fact and law at the time the tenants granted the landlord access. The mistake of fact was that the shed was not included in the tenancy, and the mistake of law was that the tenants must afford the landlord the right to access the shed during the tenancy.

There is a body of law on the issue of whether the terms of a contract entered as result of mistake arising from a misrepresentation, can be enforced by the guilty party (Gillies and Selvadurai, Law of Contract (2009), Federation Press, at chapter 8). This is the issue that now confronts the Tribunal. Specifically, the issue for the Tribunal is whether: * (a) an actual consent by the tenants for the landlord to enter the property; * (b) based on a mistake of fact and law on the tenants' part; * (c) caused by the misrepresentation by the landlords agent; * (d) voids the consent to the landlord; and * (e) thereby, causes the landlord's entry onto the property to be a breach of contract and a tort.

Solle v Butcher [1950] 1 KB 671 concerned the purported exercise of rights by a landlord based on a mistaken belief that the right existed. The UK Court of Appeal held, inter alia, that the landlord could not rely upon the common mistaken belief that he had the right to do that which the tenancy agreement and the law did not permit him to do. The fact that the tenant in that case only belatedly became aware of his rights to resist the landlord's unlawful action did not defeat the tenant's right to belatedly raise that defence. The case is not entirely on point with the facts of the present case, but the Tribunal is satisfied that: * (a) the actual consent given by the present tenants for the landlord to enter them property; * (b) based on a mistaken belief of the fact and law that the landlord had the right of entry; * (c) that was engendered by the landlord's innocent misrepresentation to the tenants; * (d) is not a true and valid consent by the tenants that the landlord can now rely upon.

Accordingly, the landlord's access to the shed was a trespass and a breach of the tenants' quiet enjoyment of the property.

For the above reasons, the Tribunal finds that the landlord is in breach of her duty to provide the tenants with the exclusive right of occupancy of the shed, and has breached the tenants' right to quiet enjoyment in the visits to the shed.

In response to the first of these breaches, the tenants hired alternative storage facilities and now make a claim for the cost thereof.

• (a) the tenants have not mitigated their losses in that they have hired

unjustifiably expensive alternative storage facilities that were actually bigger than the capacity of the lost shed;

(b) the tenants should not charge for the cost of travelling to the alternative facilities; and

(c) the tenants have the advantage of a capital asset in the form of the padlocks purchased for the alternative premises.

1. The last point is such a triviality in the scheme of this case, that it will not be further addressed.

2. The tenants have been unlawfully deprived of the use of the storage facilities in the form of the shed. They are entitled to take steps to mitigate that loss per the principles set out in paragraphs 59,60 and 61 above.

3. The tenant had two relevant choices:
   • (a) hire other equivalent storage facilities; or
   • (b) erect another shed on the leased property.

4. The tenants chose the first alternative at a cost of $1806. This raises the issue of whether the tenants could have exercised the second option at a lesser cost. There was no direct evidence on this point but it is a matter of common general knowledge that the second option would be more expensive then the first. It would involve:
   • (a) laying a waterproofed cement slab;

(b) buying the shed;

(c) hiring someone to erect it; and

(d) pulling it down at the end of the lease and removing the cement slab.

87. The Tribunal is satisfied that the first option was by far the cheaper and more practicable. In any event, the landlord did not discharge her evidential onus of showing that the tenants' election to adopt the first alternative was unreasonable.

The fact that the storage unit may have been a little bigger than the shed at the property is a relevant factor. However, the cost of a smaller unit would not have reduced the cost by much, and this factor is taken into account at paragraph 90 below.

The Tribunal awards the sum of $1806 for direct economic loss stemming from the landlord's breach.

This leaves the issue of non-economic loss. Given the tenants did have the use of a storage facility to be funded by the landlord there is no award of non-economic for loss of facility as such. The economic loss award compensates the tenants for petrol. The tenants did spend some time transiting between their home and the storage unit for which they are entitled to some recognition and compensation. The Tribunal sets off this component of the tenants' compensation against the fact that the unit at storage unit was a little bigger than the shed at the property.

The tenants are entitled to an award of compensation for the loss of quiet enjoyment sustained by the landlord's unlawful visits. This award is to be assessed by reference to comparative verdicts. There were probably 4 visits in all. The visits undoubtably caused nuisance to the tenants but it was of a minor nature. The Tribunal allows $50 per unlawful visit, giving a total of $200.

The total award in favour of the tenants is: * (e) $1806 for economic loss; and, * (f) $200 for non-economic loss