1. Essentially, the facts were not in dispute. The tenant commenced to reside at the rented premises in mid 2008 without incident or complaint until he returned home from work on 29 August 2013 and found water leaking from the front door and the garage. He opened the door to find the premises flooded, located the source and cause of the leak in the bathroom, turned off the water at the mains and rang the emergency number of the agent. A plumber attended that night and changed the burst wire mesh reinforced hose. The tenant endeavoured to salvage what he could of his personal belongings. The next morning he rang the agent. He asked for emergency accommodation but was informed that the insurance company would have to determine if the premises were unliveable. He was asked if he had insurance and when he said that he did not, was advised to stay with a friend as "it would all be up to the insurer". A carpet cleaner attended the next day and apparently extracted some 1800 litres of water. On 3 September 2013 the tenant was contacted by a tradesman to arrange for the carpets to be removed the next day. On 4 September 2103 after the carpet removal and the attendance of the agent to obtain keys to copy to allow for their further access, the tenant consulted his Counsel who wrote a letter on his behalf to the agent . The letter was not tendered in evidence. The tenant then determined to look for alternate accommodation, found premises, borrowed a bond and part of the rent from friends, obtained a new lease on 13 September 2013 and informed the agent accordingly. A final inspection took place on 18 September 2013 and the tenant was informed that the premises needed to be further cleaned. On 20 September 2013 the tenant returned and attended to some of the cleaning but refused to clean window tracks and other items which he believed to have been caused by moisture from the flooding. He requested return of bond. Instead, he received the landlord's application.

1. According to his witness statement the tenant now claims:

1. He also claims "an additional amount of compensation by way of exemplary or punitive damages".
2. The landlord claims the cost of removal of a cabinet left in the driveway $99, cleaning of window tracks and blinds $165 and wall repair, patch and paint $120.
3. The claim for rent was not proceeded with, having been withdrawn prior to the hearing.

1. It was claimed by Counsel that the landlord had breached section 68 of the Act. This states that:-

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

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

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

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

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

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

(b) the applicant has paid to the other party more than the applicant is required to pay in accordance with this Act or the tenancy agreement.

(2) This section does not apply to a duty under a duty provision or section 66.

(1) A tenant may give a landlord a notice of intention to vacate rented premises if the landlord fails to comply with an order of the Tribunal under section 212.

(2) The notice must specify a termination date that is not less than 14 days after the date on which the notice is given.

1. Sections 182 and 184 of the ACLFTA were also sought to be relied upon.

(1) In this Chapter a consumer and trader dispute is a dispute or claim arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services.

(2) For the purposes of subsection (1), a dispute or claim includes any dispute or claim in negligence, nuisance or trespass that relates to the supply or possible supply of goods or services but (except as provided in subsection (3)) does not include a dispute or claim related to a personal injury.

(3) For the purposes of subsection (1), a dispute or claim includes a claim related to personal injury if -

(b) the claim relates to a supply or possible supply of goods or services; and

(c) the supply or possible supply of goods or services is the subject of a related consumer and trader dispute.

184 Settlement of consumer and trader disputes or small claims

(1) VCAT may hear and determine a consumer and trader dispute.

(2) VCAT may do one or more of the following in relation to a consumer and trader dispute -

(a) refer a dispute to a mediator appointed by VCAT;

(i) found to be owing by one party to another party;

(ii) by way of damages (including exemplary damages and damages in the nature of interest);

(d) declare that a term of a contract is, or is not, void;

(e) order the refund of any money paid under a contract or under a void contract;

(f) make an order in the nature of an order for specific performance of a contract;

(k) order a party to do or refrain from doing something;

1. The tenant sought to be represented by Counsel. This was not opposed by the landlord's agent who had previously been informed to communicate only with him and not the tenant. It was clear that there was animosity between the representatives of the parties. In my view, this did not assist the parties in the conduct of the proceeding.
2. On behalf of the landlord the agent had initially claimed compensation for rent loss, the cost of removal of a cabinet from the front of the property which had not been collected by the local council, proposed cleaning of dusty window frames and proposed wall repair costs. The claim for rent was withdrawn prior to the hearing. The agent relied on an invoice, two quotations and photographs. The landlord did not give evidence. Counsel for the tenant submitted that his client was not liable for any of the claims as the landlord had failed to prove either responsibility or liability. He then proceeded with the tenant's application for compensation and outlined the contents of a witness statement prepared on his client's behalf. The tenant adopted his witness statement which was not formally tendered in evidence. However I am satisfied that the statement disclosed a summary of the chain of events which formed the basis for his claims, that the flood had caused significant damage to his personal effects, that he believed that the premises were unliveable and that accordingly the landlord should have done more to assist him. .He was cross examined by the agent. It was put to him that there had been regular communication via telephone to keep him informed of the progress of the claim with the insurance company and that he knew that the matter was in hand and being attended to as quickly as possible. The tenant did not agree. At the conclusion of his evidence, Counsel requested a mediation, which was impossible to arrange at such short notice, but the parties were offered and accepted a compulsory conference. The matters were however not resolved and accordingly proceeded.
3. The landlord gave sworn evidence and was cross examined. Essentially, Counsel put to him that he had hidden behind the insurance company and done nothing to assist the tenant. The landlord's evidence was to the contrary. He had acted promptly, it was also in his interests to have the premises made good as quickly as possible and he had not contacted the tenant because it was not appropriate to do so as he had an agent acting for him.
4. At the conclusion of the evidence Counsel submitted that because no evidence had been called to challenge the tenant's witness statement, I was bound to find that the premises were unliveable and that all the tenant's claims were proved, I form the view that it is first incumbent upon the tenant to establish a cause of action, namely that the landlord has breached a duty under the Act or breached a contract under the ACLFTA. All else ultimately must follow from that.
5. Thus, it must be asked what duty is the landlord said to have breached?
6. It is agreed that the landlord was not responsible for the flood in the rented premises which was a spontaneous event unrelated to any failure to maintain the premises in good repair (section 68) or failure to comply with the tenancy agreement or his duties under the Act relating to the tenancy agreement (section 210).
7. Upon notification by the tenant of the occurrence of the flood the landlord and the landlord's agent acted immediately to have a qualified tradesman attend at the premises that evening to repair the hose.
8. The landlord's insurer was notified the following morning and a tradesman attended to extract water from the rented premises that day. Three days later (with the intervention of the weekend), the insurer determined that the carpet was to be removed. Arrangements were made with the tenant to secure his consent for a tradesman to attend for this purpose the following day. Accordingly I am satisfied that the landlord and the landlord's agent acted appropriately and promptly in the aftermath of the flood and accordingly I find that there has been no breach of duty by the landlord.
9. It was submitted by Counsel for the tenant that the landlord and the landlord's agent had an added obligation to render assistance to the tenant in the circumstances and that they failed to do so by "hiding" behind the insurance company and further, that by not making personal approaches to the tenant to determine his needs and wants, breached the landlord's duty to his tenant.
10. Again I can find nothing in the Act which imposes on a landlord any additional duties, either to render assistance or make personal approaches to a tenant or to perform to a greater or higher obligation than the law requires.
11. The aftermath of the flood was determined by a number of practicalities over which the landlord had very little, if any, control.
12. The circumstances of the flood required the involvement of the landlord's insurance company who determined the progress of the claim and directed tradesmen as appropriate. The involvement of the landlord's insurer was not a breach of any duty under the tenancy agreement. It was a necessity to allow for the repair. I accept that the tenant believed the premises were unliveable, but that doesn't make it so. The responsibility for that determination fell to the landlord's insurer.
13. In any event the tenant knew or ought to have known of the requirement to have his own insurance cover.
14. The fact that the tenant elected not to take out insurance does not oblige the landlord to assume any greater responsibility to his tenant.
15. I am unable to determine the relevance of section 239 of the Act as pleaded in the tenant's application as there has been no order made by the Tribunal against the landlord to my knowledge so I am unable to advance this claim or make any finding or decision.
16. Turning to the provisions of the ACLFTA I shall assume that Counsel submits that the landlord has breached his contract with the tenant to provide "services". It is generally understood that the landlord will provide suitable premises to a tenant for the rent charged. If the landlord is unable to do so, the tenant is entitled to ask for a rental adjustment either by way of a rent refund or rent reduction having requested that the landlord make good or repair the rented premises. In the present circumstances it is not possible for me to determine whether the tenant demanded the landlord repair or make good the premises after the removal of the carpet on 4 September 2013. Counsel's letter of even date apparently demanded that the tenant be assisted to live somewhere else. The tenant then proceeded to do this without further reference to the landlord and the agent was duly notified on 10 September 2013. It is indeed arguable that the tenant breached his contract with the landlord but this was not an argument advanced on the landlord's behalf and so I will not take the matter further. The landlord was entitled to written notice of the tenant's intention to vacate. This too may indeed have been incorporated in Counsel's letter of 4 September 2013, in which case, in the absence of any demand for repair or make good, the landlord was entitled to presume that he was not required to do anything.
17. To the landlord's credit the tenant's rent was refunded from the date of the flood up to and including the 13 September 2103 being the date to which the tenant had paid rent in advance. Whilst no reason was given, the landlord's claim for rent loss for failure to give 28 days notice of intention to vacate was withdrawn prior to the hearing.
18. I find that there has been no breach of contract by the landlord which would entitle the tenant to claim damages, whether exemplary, punitive or otherwise.
19. As the tenant has failed to prove that the landlord has breached a duty owed to him under the Act or a breach of contract pursuant to the ACLFTA his application must fail, save for his claim for bond.
20. I am satisfied that the landlord's claim for bond was not made within 10 days of the end of the tenancy and that no application was made by the landlord pursuant to section 120 for an extension of time to lodge the application. However, even if time had been extended, I find that the landlord should bear the cost of the cabinet removal as the tenant was not advised that the item had not been collected by Council or afforded the opportunity to remove the same at his cost. The balance of the landlord's claims are quotations for works that have not been done, and have not been proved either to have been caused by or the responsibility of the tenant. The landlord's application is accordingly dismissed.
21. The Residential Tenancies Bond Authority is directed to pay to the tenant the bond in the sum of $1043.00.
22. I have referred the files to the principal registrar with a request that in the circumstances of this case consideration be given to a refund to the tenant of the difference between VCAT's standard application fee and the fee he has paid.