Standen, Rodney J (Landlord) v Turner, Diane

decision be sent to me". The decision has been set out and the

orders made on 26 June 1995. Ms Turner was present at the hearing

and the reasons were fully explained to her as well as to the

landlord's representative. I have not recorded the reasons for the

decision which were given orally at the conclusion of the hearing.

All that I am able to offer is details of the notes which I took

during the course of the proceedings. Those notes were as follows.

JURISDICTION The landlord sought orders for compensation for repair

to a garage door of a panel lift variety and claimed the sum of

$750. The landlord also sought compensation for alleged damage to a

colourbond fence in the sum of $180 for a total of $930.

The reasons given for seeking orders were set forth fully in the

provisions of paragraphs 9 and 10 of the application. The landlord

produced to the Tribunal a copy of a residential tenancy agreement

which was dated 12 October 1994 providing for rent of $200 per

week beginning on 14 October 1994. There was a dispute between the

parties concerning the condition of the garage door and fence

arising from the residential tenancy agreement which was clearly made

between the parties and accordingly the Tribunal had jurisdiction to

The application was heard informally by consent of the parties in

accordance with the Regulations. I explained both during the call

over and prior to commencement of the hearing the parties rights to

have the case determined either in a formal manner with witnesses

being called and evidence given on oath or an informal manner

without witnesses and evidence on oath. The parties elected to have

the case determined informally and hence it proceeded accordingly.

In accordance with the Regulations the landlord was invited to

testify first with the respondent being given an opportunity of

asking questions and in turn the respondent was asked to testify

and the landlord given an opportunity of asking the respondent

questions. Each party was informed that at the conclusion thereof

they would be given an opportunity of summarising their case and

that they could ask me questions as the case proceeded and I would

ask each of the parties questions in order to determine the facts

I do not recall, but I believe I would as usual have explained

that the parties could have had the proceedings conducted as a

conciliation whereby the Tribunal attempts to assist the parties make

their own agreements. It would seem from the notes that I have

perused that it became necessary for the Tribunal simply to make a

decision, namely an adjudication was necessary the parties being

EVIDENCE Mr Standen produced to me a copy of a condition report

dated 12 September 1994 signed by Ms Turner. Mr Standen said that

he was a real estate teacher and he asserted that the tenant had

a horse on the premises and that that was the reason for the

damage claimed for the colourbond fence, namely he alleged that the

Mr Standen produced a copy of the condition report dated 28 April

1995 which had been completed by Dale Ulrich of Tony Cant Real

Mr Standen produced photographs taken on 4 May 1995 showing the

alleged damage to the steel garage door and the fence. He produced

a statutory declaration from a witness including Mr Ulrich as to

the condition of the premises. He asserted that at the conclusion

of the tenancy the tenant, Ms Turner, had been present at the

inspection according to the provisions of Regulation 22 relating to

the requirement for the parties at the end of the tenancy to sign

the outgoing condition report in each other's presence.

Applying the rule of statutory interpretation currently preferred by

the High Court namely the "purpose approach" of what "mischief" was

intended to be overcome by the statutory rule it is evident that

parties should meet at the premises to inspect the premises when

the tenancy has ended to establish the condition at that time and

to record that condition on a report signed by each party to have

an agreed record of the condition of the property so the Tribunal

can resolve who should be held liable for the condition at the end

of the tenancy after comparison with the report at the commencement

of the tenancy. The photographs disclosed that damage had been

occasioned to both the fence and to the garage door of panel lift

type which Mr Standen said had been expensive to purchase. Ms

Turner asked questions of Mr Standen and he replied.

Ms Turner was then asked to testify. She said that she had

children and that they had played with a tennis ball and a

football at the premises. She said that it was untrue that she had

her horse at the premises and she said she had agisted it around

the corner on another property. She said that Mr Ulrich had been

She confirmed that an inspection of the premises had taken place

and that she had a discussion with Mr Ulrich concerning dents in

the garage door and claimed that those dents were only minor such

Ms Turner pointed out that the landlord did not make a claim until

2 May 1995 in respect to the door. She claimed that it had

appeared to the parties that damage was minor and that accordingly

However, I noted that she did not deny that the damage had

occurred to that door while she was a tenant nor that it may have

been caused by her children for whose conduct under the lease she

Ms Turner denied liability in respect of the colourbond fencing.

Following conclusion of Ms Turner's testimony Mr Standen was asked

whether he wished to ask her any questions. He asked her a

At the conclusion of the case each party was given an opportunity

of summarising their evidence. Ms Turner asserted that during a

conversation with Mr Standen it was agreed that the bond would be

simply returned to her and she had accepted that that would occur.

As a result she had assumed there would be no problem concerning

the bond. It was not till subsequently that the landlord made the

claim with respect to the garage door as indicated above.

Furthermore, she said that the fence repairs were simply added to

The landlord said that the tenants had not refuted damage to the

door. He also asserted the tenants were responsible for damage to

the fencing. He said it had been a brand new fence when the

tenant occupied, that the nature of the dents clearly indicated that

the damage was occasioned to the side of the fence facing the

premises rather than the side facing the adjoining property.

The landlord bears the onus of proof of damage being occasioned by

the tenants arising from a breach of duty of care. The standard is

the civil standard of the balance of probabilities that it is more

likely than not that the damage was occasioned by the tenant.

In the case of the colourbond fence there was no proof produced

other than the allegation of a horse being present on the premises

that the tenant caused the damage. The damage is not disputed but

the tenant has asserted that it may have been caused by people on

the adjoining property. There being insufficient evidence before me

to make an award in favour of the landlord concerning the

colourbond fencing I dismissed that part of the claim.

However, with respect to the garage door the tenant admitted that

damage was occasioned whilst she was a tenant. It seems more likely

than not that it was caused by her children playing in the

vicinity of the garage. Her principal assertion is that the damage

is so minor she should not be held liable. In the alternative she

has argued that she should not be held liable on the basis the

landlord has accepted the damage is minor and that he waived his

rights under estoppel and should be held to his promise to release

For the tenant to be successful with an assertion that the landlord

had waived his rights the tenant needed to establish some binding

As for an agreement waiving rights it must either be supported by

consideration or be in the form of a deed of release. No agreement

was made in writing to form the deed and there is no evidence of

any consideration moving from the tenant to the landlord to make

As for whether an estoppel has occurred based upon a representation,

a reliance upon the representation and a prejudice in the event

reliance on the representation and an inability to return to a

party's former position I find that those elements are not

established as the delay between the landlord's alleged agreement and

some four days later writing to the tenant saying that he wanted

to make a claim is (in my view) insufficient to have resulted in

any prejudice being suffered by the tenant. Hence I do not find

Accordingly the tenant was liable for the damage to the garage

door. As for the value of the damage the only evidence before me

was that produced on behalf of the landlord as to the costs

involved of $750. I made a deduction of a 15% depreciation for the

three years of existence of the door at the premises and reduced

the claim by $112.50, resulting in an award in favour of the

Residential Tenancies Act 1987 s. 16Residential Tenancies Regulation 1989