1. The landlord pay the tenant compensation in the amount of $2,066.79 for failure to maintain the premises in good repair as follows:

1. The amount payable by the landlord to the tenant will be offset against the rent owing by the tenant to the landlord, reducing the amount payable by the landlord to the tenant in accordance with this order to NIL.
2. Pursuant to s.77 of the Residential Tenancies Act 1997, the principal registrar is directed to pay the sum of $3,100 held in the Rent Special Account to the landlord.
3. The order of the Tribunal dated 8 October 2013 directing the tenant to pay the rent of $1083 per calendar month into the Rent Special Account is set-aside. The tenant is to resume paying rent to the landlord.

1. Arguments over repairs and the standard of those repairs to rented premises in Albion is the divisive point between this tenant and landlord. The tenant, Charlie Micallef, wants to turn a "sows ear into a silk purse" and the landlord, Jamie Todio, wants to maintain the property with minimum expenditure.
2. This claim for compensation by the tenant, is the fifth occasion this proceeding has been before the Tribunal - the other four attendances relating to orders to carrying out repairs.
3. The rented premises were in a state of disrepair when the tenant first moved in. Twelve months into the tenancy, the complaints about repairs intensified, resulting in this application. The following twelve months were then consumed by debate as to whether the repairs were carried out in a "proper and tradesman-like manner employing a qualified tradesman".
4. The tenant seeks compensation for repairs required to the (a) toilet (b) oven (c) shower rose (d) roof (e) the loungeroom floor and (f) the heater. The Tribunal must determine when the landlord was notified of the items requiring repairs, how and when the items were repaired, and what compensation, if any, is payable to the tenant because his use and/or enjoyment of the rented premises was reduced.

1. The tenant moved into the rented premises in May 2012. The landlord says that the tenant was desperate for a place to live and took the rented premises despite them being run-down.
2. The tenant says while he knew the property needed work, there was an agreement that the landlord would carry out the repairs. He says he gave him a list of the items that needed attention, along with a Notice. The landlord denies the agreement to repair and ever receiving this notice.
3. The tenant's list of items requiring repair provides a picture of the state of the rented premises:

Front yard - lots of garbage, Bricks, Branches, couches, glass, weeds and grass over hips high.

Driveway - Broken Concrete needs Replacing Near footpath, cant open gate because hinges are broken

Hallway - Front door has a shattered frame from being broken in from the outside. The front door dont close and keeps getting stuck. needs Repaintion and lino needs Replacing.

1st Bedroom - Carpet needs Replacing and the door is splintering into pieces. Dirty walls needs Repainting holes in the walls

2nd Bedroom - Old shag Rug needs cleaning, the door frame is crooked and the door dont close, the door has no door Lock mechanism. Needs cleaning and Repainting.

3rd Bedroom - the door dont close, the Door frame is crooked and no working Door mechanism need new carpet and Repainting, Clean walls and fix broken windows.

kitchen - Stove dont work, the ceiling leaks Really bad over stove, the chimney leaks behind the oven, the walls are dirty and cupboards have bugs in them - Needs Cleaning and Repainting

Lounge Room - Needs New carpet and needs to be cleaned, big gap between floor and heater, the heater don't work, big cracks and Both sides of chimney, (heater), Needs curtains, and repainting

Laundry Room - Needs door lock mechanism, Neds New lino, the window is broken and the other window don't close.

Backyard - lots of garbage, Bricks, glass, Bamboo, really long grass and siding from house is falling down, fence is falling over and the garage has no door or windows in it. lots of Bamboo is growing wild over back garden. Roofing tiles scattered in backyard.

Bathroom - the bathtub has holes from Rust around plug Area, the glass door in shower is not screwed together properly, the Toilet tank is on the floor and cant flush Toilet.

1. A year later, the tenant says he wrote to the landlord again. In a handwritten letter dated 29 May 2013, he stated :

We need emergency repairs to the following. Stove in the kitchen has a broken Oven Door and 3 Burners don't work and full of Rust from Roof leaking on it.

The Toilet tank is falling off the wall again. Sink in the kitchen is leaking, there is a big gap around the Heater in the lounge Room and Cold Air and Bugs are getting in.

the doors in the bedrooms dont close and we have no door Handles on them.

the garage door you promises when I moved in is still missing, you also promises to fix front yard and the Brick Veranda, and front Brick fence is falling over.

The clothsline has been brocken since i moved in. These repairs need to be done urgently

The Bathtub has Rust holes in it, you can see through to ground Below it, Also has sharp edges on the Rust holes. The shower is Built over the Tub."

1. The tenant says he then sent further notices to the landlord, before filing this application to the Tribunal for urgent repairs in early August 2013. The first notice the landlord acknowledges receiving was one sent on 22 June 2013.
2. On 9 August 2013, Member Eggleston made orders which included requiring repairs "in a proper and tradesman-like manner employing a qualified tradesman" to :

(a) fix/replace broken lavatory system by 16/8/2013,

(b) repair serious roof leak above stove alcove by 23/8/2013,

(c) replace shower rose in bathroom so that shower is operational by 16/8/2013,

(d) repair stove system so that the new stove is connected and operational by 16/8/2013, and

(e) remove all protruding nails in the loungeroom and repair the loungeroom floor by 16/8/2013.

1. The repairs were not completed, and the proceeding was renewed. On 8 October 2013, Member Wiseman made orders directing the repairs to be carried out by 22 October 2013, and a further order that the tenant pay his rent into the Rent Special Account.
2. When the matter was renewed yet again, it came on for hearing before me in November. By that stage, the landlord had engaged the services of a real estate agent, and the matter was adjourned.
3. The matter came back on for hearing before the Tribunal and the matter was adjourned again. The Tribunal noted that : "The application is adjourned to enable compliance with previous orders of the Tribunal including engaging qualified tradesman to carry out the works, for discussions about settlement to take place and for Consumer Affairs to attend to inspect and report on other maintenance issues."
4. The issue of compensation then came back on for hearing before me on 14 May 2014. Despite three hours being allocated for the hearing, it was unable to be concluded on that day, and was heard on 4 July 2014 for a further two hours.

1. This application is the renewal of an order for urgent repairs[1]. Ordinarily the ability to seek compensation arises as a result of a landlord not complying with the repair order. However in order to avoid a further claim for compensation, the application[2] was treated as a general claim for compensation where a tenancy is on foot.
2. The relevant section of the Residential Tenancies Act 1997 (the "RTAct") is 209, which states (as far as it is relevant):

Application for compensation or compliance order for breach of duty

(1) If a breach of duty notice is not complied with, the person who gave it may apply to the Tribunal for a compensation order or a compliance order.

1. An application for compensation by a tenant is only triggered once the tenant has notified the landlord[3] that an item requires repair or maintenance, and the landlord has failed to attend to the item in a reasonable period of time.

1. Much was made during the hearing about the works being carried out by a "qualified tradesman" in a "tradesman-like manner".
2. The starting point is that rented premises are to be kept in "good repair". What is "good repair" was considered by Deputy President Barker[4] who found :

"The standard of rented premises in the RTA is "good repair". In Cooke v Cholmondeley [1858] EngR 994; (1858) 4 Drew 326 at 327-328 Kindersley V-C said a building in good repair must be "in such a state that they may be fit for use and enjoyment. They must be put in such a state of repair as will satisfy a respectable occupant using them fairly" and a similar term "in good tenantable repair" was referred to in Proudfoot v Hart (1890) 25 QBD 42 at 50-53 per Lord Esher who said "The age and character of the house is relevant .. the house need not be put into perfect repair .. it need only be put into such a state of repair as renders it reasonably fit for the occupation of a reasonably minded tenant ..." and "the age of the house .. the character of the house .. and the locality of the house must be taken into account". While these decisions were made a long time ago (and today I would replace "respectable with "reasonable") they clearly set out the standard required by a landlord when maintaining a rented premises."

1. The condition of the rented premises at the commencement of the tenancy is a matter that I have taken into account in my assessment of what is "reasonable". This property was run-down. The tenant knew this when he entered into the tenancy agreement. It is not now reasonable that this modest property is turned into a high-end home. It is also reasonable that a handyman be engaged to fix a number of items requiring repair. Many of these items do not require a carpenter or plasterer - they can be attended to by a handyman, who would not ordinarily hold any "qualifications". What is relevant is the standard of work that the handyman carries out.
2. The tenant, as this is his application, bears the burden of proof. I am not satisfied that there was any agreement to fix up the property. The landlord denies any such agreement and denies receiving any list of items to repair. This is consistent with no further written request for repairs from the tenant, for the first twelve months of the tenancy.
3. The starting point for any compensation will be the notice served on the landlord on 22 June 2013. While this notice is not technically a "breach notice" under the RTAct, it is written notice of the items requiring repair at that time.

1. During the hearing I made findings in relation to the Shower Rose. I don't propose to reiterate those here. The tenant is entitled to $561.93 in compensation.

1. The tenant referred to the broken toilet in his notice of 22 June 2013 - "The toilet tank is still on the floor and you said that you would have it fixed". The toilet remained an issue when the matter first came before the Tribunal and according to the tenant was still leaking at the time of the compensation hearing in May.
2. The landlord claims the leaking toilet was fixed by 3 June 2014, when there was an attendance by Western Plumbing Services.
3. I am satisfied that from 22 June 2013 to 3 June 2014 ( a total of 347 days), the toilet had not been repaired in a reasonable manner and was leaking.
4. The tenant argues that the toilet has still not been repaired in a "tradesman-like manner". Plasterboard has been placed behind the toilet and the cistern attached to the unpainted board, over the top of the existing tiles. I agree that the manner in which the cistern has been attached to the wall does not look nice, but this of itself does not mean that it hasn't been a "reasonable repair". Taking into account the condition and age of the rented premises, I consider the repair to be reasonable. The toilet is working.
5. The tenant is entitled to compensation for the period of time that the toilet was leaking. The tenant seeks 10% of the rent paid during this period of time. At no stage was the toilet inoperable. It was flushing, but was leaking. I believe a reasonable amount for a reduction in amenity for a leaking toilet is 2%. The rent for the relevant period was $1083 per calendar month - a daily rate of $35.61.
6. The landlord is to compensate the tenant an amount of $247.13 for the toilet (calculated as 2% x the daily rate of $35.61 x 347 days).

1. On 22 June 2013, the tenant advised the landlord that "the stove in the kitchen is broken too".
2. The landlord says the freestanding stove was replaced on 21 November 2013, by Micallef Plumbing Industries. A copy of the gas plumbing certificate, invoice and purchase order was provided.
3. Despite the provision of a new stove, the tenant claims he is still unable to use the cooking facilities because the leak above the alcove that houses the stove has resulted in rubbish falling onto it. In February 2014 he advised the Consumer Affairs inspector that a "large amount of rubbish/debris falls down chimney flue, sometimes whilst cooking".
4. In support, the tenant produced photos of the stove which showed the debris that had fallen on the stove while works were carried out to the chimney alcove. He also showed photos of dust and splatter that he claims regularly falls on the stove.
5. I am satisfied that the stove was replaced and operational from 21 November 2013. The tenant himself in his description to the inspector two months later indicated he was using it to cook, by reference to debris sometimes falling in the cooking. It is difficult to know how much the falling dust in the chimney impacted on the use of the stove and how often it occurred. As such I have not taken this period into account in an assessment of compensation related directly to the stove. I have however considered it in reference to the compensation claim for the roof leak.
6. The tenant seeks compensation in the amount of 10% of the rent for the period of time he claims the stove was not working.
7. I am of the view that 10% for an inability to use cooking facilities is a reasonable amount for the absence of an essential service.
8. From 22 June 2013 when the landlord was first advised in writing that the stove was not working, to the time it was replaced on 21 November 2013, is a total of 152 days.
9. The tenant is entitled to be compensated for the reduced amenity of the stove in the amount of $541.27 (calculated as 152 days x daily rate of $35.61 x 10%).

1. In the Notice to the Landlord, the tenant advised the owner - "The roof has a really bad leak over the kitchen stove".
2. The landlord claims to have had two handymen attend to the leak above the stove in early December 2013. The invoice from Micallef plumbing from November 2013 also refers to the removal of the old rusted chimney cover and the supply and fit of a custom made chimney cover with cowls.
3. The Consumer Affairs report (from February 2014) does not refer to any issue with the chimney except for the reference to claims by the tenant that rubbish sometimes falls down the flu. This is different to a roof leak in that area. It does however refer to wall tiles around the ventilation being damaged from a possible roof leak.
4. The tenant claims the roof is still leaking and referred the Tribunal to a picture of a rusted plate and crack at the base of the chimney above the stove. There was no photographic evidence showing any water running down the walls or staining around the chimney.
5. I am not satisfied that this photo produced is a recent picture of the state of the chimney. In my view it is consistent with the period of time prior to the attendance of the plumber and the handymen. If there was such a noticeable crack, then I would have expected it to be referred to in the report of the inspector.
6. The tenant seeks reimbursement of five percent of the rent for the period of time that the roof was leaking.
7. I am of the view that 5% is reasonable due to the inconvenience caused and loss of amenity to a property from a roof leak. I am satisfied that the roof was leaking and the landlord was on notice that it needed repair, from 22 June 2013 to 5 December 2013 (a period of 166 days).
8. The tenant is entitled to compensation in the amount of $295.56 for the leaking roof (calculated as 166 days x daily rent rate of $35.61 x 5%).

1. The tenant did not refer to the nails in the loungeroom floor in the notice to the landlord served on 22 June 2013. He made reference to "There is a big gap in the floor in the loungeroom that you said you will send someone over and fix, But always nobody came." There was also no reference to any nails in the application dated 5 August 2013, only "dangerous hole in loungeroom floor". But by 9 August 2013, the protruding nails were at issue, and were the subject of an order by this Tribunal : The protruding nails in the loungeroom were to be removed, and the loungeroom floor repaired by 16 August 2013.
2. The exposed nails were still an issue in February 2014, when Consumer Affairs attended the property and included in their report : "Carpet is very old. Carpet has begun to rott and is damaged at various points throughout the premises. Carpet is also not properly secured to the floor and can be lifted by hand. There are areas where floor/carpet nails have been left exposed."
3. The tenant claims the problem has not been fixed in a tradesman like manner. A photo of what the carpet looks like now was produced. The carpet has been patched. It is fraying around the heater, and the strip that has been laid against the wall does not align with the rest of the carpet, leaving a five to ten millimetre gap. The picture does not reveal any exposed nails. The tenant seeks a 5% reduction in rent for the carpet.
4. I agree that the patch job that has been done on the carpet is not reasonable. Not because a strip of carpet has been used but because that strip is fraying and does not cover all the exposed timber floorboards.
5. Given the age of the house and it's condition, I believe the claim for 5% for a rent reduction is unreasonable. In my view a one percent rent reduction from 22 June 2013 to 4 July 2014 (the final day of hearing) is reasonable.
6. The tenant is entitled to compensation in the amount of $134.24 for the loungeroom floor carpet (calculated as 377 days x daily rate of $35.61 x 1%).

1. The claim was amended on the final day of the hearing (by consent) to include compensation for the heater. The issue of the heater was not raised in the application by the tenant, nor was it referred to in any of the orders for repairs by the Tribunal. However the landlord confirms he had notice of issues with the heater, with an attendance by RACV Home Emergency as early as 7 December 2013.
2. The Consumer Affairs report in February 2014 also confirms that the gas wall heater does not work. The landlord received this report on 6 March 2014.
3. RACV returned again on 29 April 2014 to investigate the heater and advised "Heater works fine just needs to manual light heater, electronic spark does not work, will not be able to get parts, due to age." The Certificate of Electrical Safety states "Replaced faulty isolater switch for gas heater in lounge (located on south wall). NOTE : Mantlepiece bricks are unstable not safe."
4. On 22 May 2014, an insurance assessor inspected the heater and stated : "shut gas heater down as is not installed correctly and is not safe. Mantle is not secure and heater is not sealed. Quote to have gas heater attended to, will need servicing and testing."
5. The heater and the bricks around the mantle remained a live issue at the hearing. The landlord claimed there had been issues with access at the property for tradesmen to attend, with the tenant confirming he only wanted attendances in the evenings and on weekends as he had other things to do. I have taken the tenants unwillingness to give the landlord reasonable access to carry out the repairs into account in awarding compensation related to the heater. The tenant seeks compensation in the amount of 10% of the rent. Ordinarily I would agree that this would be a reasonable amount of compensation for a heater, but due to the tenants absence from the rented premises on weekdays and his reluctance to allow access for the repairs, I am reducing the amount down to 7%.
6. I am satisfied that the landlord received written notice that the heater was not working in early March[5] and it took 8 weeks to 29 April 2014 to have someone attend. The tenant is entitled to be compensated for this period of time.
7. I am also of the view that the requirement for the tenant to light the heater manually is unacceptable. The heater is not functioning as it should and should be replaced. The tenant should be compensated up to the final day of hearing[6].
8. Much was made during the hearing of the bricks being loose around the mantle and its unsafe to use the heater. The tenant claims that the bricks are loose because of the landlords failure to maintain the property, while the landlord has suggested that the tenant may have loosened the bricks and mantle.
9. This is the tenants application and as such the tenant must satisfy the Tribunal that his version is more probable than that of the landlord. Given the absence of any reference to the mantle or bricks in the Consumer Affairs report of February 2014, despite a notation about the heater not working, I am not satisfied that the bricks are loose as a result of any lack of maintenance at the rented premises.
10. The tenant is entitled to compensation for a faulty heater in the amount of $286.66 (calculated as 115 days[7] x daily rent of $35.61 x 7%).

1. The tenant is entitled to compensation as follows :

1. As a result of the landlords non-compliance with the Tribunal order of 9 August 2013, Member Wiseman directed the tenant to pay his monthly rent of $1083 into the Rent Special Account, commencing 17 October 2013, until further order.
2. No payment was made by the tenant until 7 February 2014, when a payment of $3,100 was made. By this point in time, the tenant was to have paid at least 4 monthly payments, totalling $4332.00. A further $1083 due ten days later.
3. He had made no further payments into the Rent Special Account by the second day of the hearing on 4 July 2014. As at this date, the tenant owed the landlord rent of $11,892.23, less the amount of $3,100 sitting in the Rent Special Account, a total amount of $8,792.23. The tenant agreed this was the amount owing as at 4 July 2014.
4. The total amount of compensation to be awarded to the tenant from the landlord, is to be deducted from the rent outstanding. As such the amount of rent owing by the tenant to the landlord is $6,725.44.
5. I shall also make orders that the amount of $3,100 sitting in the Rent Special Account is to be returned to the landlord, and that the relevant order of the Tribunal directing the payments into this account be set-aside.

[1] See section 73 of the RTAct.

[3] Notification being by service of a breach notice

[4] Ms T v. Director of Housing, Department of Human Services [2013] VCAT 2195 @ paragraph 36.

[5] See Consumer Affairs report of February 2014

[7] For the period from 10 March 2014 (seven days after the landlord became aware of the heater, being a reasonable period of time to have it fixed) to 4 July 2014.