T v Director of Housing (Residential Tenancies) [2013] VCAT 2195

1. The applications on files R201033226 and R201248214 be consolidated and heard and determined together.
2. The tenant's claims for compensation to date are dismissed.
3. The landlord shall carry out the following repairs to the back door of the premises in a proper and tradesman-like manner -

: inspect and, if necessary, attend to possible rust on the back screen door

: provide an exterior canvas blind for the window in the door

1. The landlord shall carry out the following repairs to the front door of the premises in a proper and tradesman-like manner -

1. The tenant shall make the rented premises reasonably available to the landlord and the landlord's tradespersons for the purpose of complying with this order.
2. All repairs are to be completed by 14 February 2014.
3. The application is adjourned to a date no later than 14 March 2014 to be heard by Senior Member H Barker of the Victorian Civil and Administrative Tribunal. The application may be renewed by either party giving the principal registrar notice in writing but if the application is not renewed on or before this date it shall be considered withdrawn.
4. Direct the registrar to pay to the landlord the sum of $9,854.80 held in the Rent Special Account.

Ms F Morris and Ms J Hubbard; Housing Officers, Sunshine Housing Office

Mr Silvio Mazzei, Director GIV Building - Registered Building Practitioner

1. The tenant (Ms T) has brought these applications against the landlord, the Director of Housing, Department of Human Services (DHS) relating to rented premises (the premises).
2. The first application is dated 30 August 2010 and the second is dated 7 November 2012. The applications are under s75 of the Residential Tenancies Act 1997 (the RTA) for non urgent repairs to be carried out and under s209 for compensation for the breach of the landlord's duty under section 68 of the RTA to maintain premises in good repair and under s67 of the RTA to provide quiet enjoyment. The applications were preceded by notices served on the DHS by Ms T including a Notice to Repair dated 3 August 2010 and several Breach of Duty notices. Attached to the first application is a report dated 19 August 2010 made under section 74 of the Residential Tenancies Act 1997 (the RTA) by an Inspector, Consumer Affairs Victoria (the s74 report).
3. After the second application was made, the notices and applications have been treated as one and it is convenient to do so. Some of the issues contained in the applications have been resolved.
4. The first hearing was on 24 September 2010 ( the first hearing ) and there have been a number of subsequent hearings. At the hearing on 14 November 2013, Ms T told me that the outstanding issues are the repair of

1. The premises were built in about 1996 and Ms T's tenancy commenced in 2006.

1. Ms T has spent a considerable amount of time on these applications and has prepared a substantial amount of material. A brief chronological history of the dispute follows**.**

The s74 report

1. This report was in respect of 8 items. I shall not refer to the repairs that have been resolved.
2. Items 2 and 3 of the s74 report relate to the front and back doors and provide:

At the time of this inspection, I found the front door to be. Not flush, difficult to open and close, gaps at the top and base of the door. The tenant advised that this has been an ongoing cause of concern, with previous attempts at rectification.

For an independent professional door repairer to inspect and provide a report and recommendations needed to resolve this issue. These instructions should then be acted upon.

The back door is also similar to the front door with gaps around the door, the door is not aligned and the striker plate and tongue do not meet (a certain amount of force is required to close the door). The weather seal also has a gap between the door and the ground.

For an independent professional door repairer to inspect and provide a report and recommendations needed to resolve this issue. These instructions should then be acted upon.

1. At the first hearing, with respect to the door repairs the Tribunal ordered DHS to obtain a report by an independent professional door repairer by 8 October 2010 and complete the repairs by 26 November 2010.
2. On 19 October 2010, the Tribunal extended these times to 12 November 2010 and 10 December 2010 respectively. Order 4 of the orders of 19 October also provides "The repairs recommended in the report obtained by the landlord must be undertaken by a qualified carpenter." On 24 March 2011 Ms T wrote to the registrar outlining a dispute between her and DHS as to the "qualified carpenter" and stated that she wished to seek the Tribunal's instructions about this. However, there is no later reference to this item on the files and I shall not address it further.

1. In accordance with the Tribunal's orders, DHS engaged Resi-check to provide a report. It is dated 12 November 2010 and the relevant items are:

I note the dwelling has settled and doubt that the original construction was plumb and level at the time of completion. This situation requires some minor compromises. I have taken the distortion of the dwelling into consideration in the following recommendations.

The report then found the existing front and rear doors had not been installed correctly and the relevant recommendations are:

Remove and reinstall the front and rear door frames plumb, square, level and in a flat plane as far as the brick veneer openings will allow. Compromises will be required but the frames must finish plumb, square and in a flat plane to the closure rebates.

Fit the door to the frame with even clearances to sides and tops to max 3mm.

Install bottom clearance as required to accommodate a threshold plate, and an appropriate door seal. See http://www.raven.com.au & http://www.cowdroy.co.nz (see Cowdroy CM54 seal).

Refit the locks and latches to operate as required.

Ensure all work is carried out to achieve the performance and function requirements as described.

In the case of an external door to a dwelling the expected performance should be that the installation should provide reasonable:

• Security
• Exclusion of moisture/wind driven rain
• Exclusion of draughts

In the case of an external door installation to a dwelling the reasonable expected function should be:

• To be simple and easy to operate without the necessity to use undue force.
• To provide easy, safe access and egress.
• To provide access and egress to the maximum width of the opening.

1. On 28 February 2011, Ms T renewed her applications by a letter that included details of a compensation claim. When that renewal was heard on 9 March 2011, the application was amended to include an application that rent be paid into the Rent Special Account and the hearing was adjourned. After a further adjournment, the next hearing was listed for 19 April 2011.
2. About 2 weeks before that hearing, Ms T wrote to the registrar. The relevant part of that letter dated 4 April 2011 (underlining by Ms T) is:
   1. After three prior department and contractor inspections (measurements/levels taken) the repairs commenced on 26 March 2011 (18 days since the last VCAT orders of 9 March 2011)
   2. The Report by 'Resi-Check' dated 12 November 2010 identifies that the premise's (sic) front and back door frames are out of plumb and compromises would be required to ensure the door frames were plumb.
   3. In respect of the front door, the Respondent removed and replaced the front door step to allow the door frame to be plumb. Whilst this option has corrected the plumbness of the front door frame, the step is now too high for my needs. The Director has suggested that a 'wedge' be inserted to correct this.

1. The issues concerning the repair to the front and back door has now been going on for nearly two years.

1. The letter also states "The repairs were to be completed by 9 April" (although I note this had not been ordered by the Tribunal ) and Ms T requests that rent be now paid into the Rent Special Account.
2. In summary, in her letter of 4 April 2011, Ms T says that the Resi-check report had been made and the front door frame is plumb. Her complaints are only about the front door step and the wedge to be installed there.
3. For completeness I note that Items 9 and 10 in her letter were complaints about the back door_._ At this time the back door was not satisfactory and it was replaced. It is this second back door that Ms T now agrees is satisfactory apart from complaints made later on 9 August 2011, that:

: an exterior canvas blind is to be provided for the window in the door

DHS has agreed to undertake those repairs and I shall make an order to that effect.

1. At the hearing on 19 April 2011 the Tribunal ordered that

: DHS arrange for an occupational therapist's report to be obtained "within three weeks of the completion of the repairs to the doors" and that

At the next hearing on 17 June 2011 the Tribunal made findings that the repairs would be completed within one month in accordance with the occupational therapist's report (which was still to be obtained). The next hearing was to be listed for a date after 15 July 2011.

1. An occupational therapist visited the premises and provided a report dated 30 July 2011. It provides:

An Occupational Therapy home visit was conducted on 26th July 2012 with a view to assessing home suitability. The following problems were identified:

1. The existing door weather seal stops opening/closing the front door because it is in contact with the rubber wedge ramp
2. The external timber wedge ramp to front door is slippery when wet
3. Ms T reports that she has been finding it increasingly difficult to push/pull her shopping trolley (which she uses regularly) up/down the inside rubber wedge ramp and she instructs this causes her pain in her knees

1. It is suggested that Office of Housing (sic) should explore the possibility of installing a different type of door weather seal so that the front door can freely open and close. Reportedly Ms T was advised by Office of Housing that they could shave the rubber wedge ramp. This will create a gap.
2. Install slip resistant surface i.e. textured finish to external timber wedge ramp.
3. The existing rubber wedge (inside the front door) is 50 mm (rise) x 100 mm (length), a gradient of 1:2. Install a rubber wedge ramp of size 50 mm (rise) x 500 mm (length), gradient of 1:10.

1. The next hearing was listed for 17 August 2011 but Ms T wrote to the registrar on 9 August 2011 advising "that in all probability the repairs will not be completed by the next hearing 17 August 2011" and requested an adjournment. The letter sets out her current concerns. The relevant part of Point 6 of that letter states:
   1. The outstanding issues are:

1. front and back doors not in contact with weather seal at top of doors on the lock/handset side, 2. ...

1. front door step wedge needs to be fixed so door can be opened and closed,

1. Respondent to provide me with Occupational Therapist's details so I can make contact in regard to correct usage/suitability of wedge.
2. In summary, the areas of concern specified in the report and letter were the front door which, at the top did not meet the weather seal and at the bottom was in contact with the rubber wedge, which meant the door could not open or close easily, and the slippery timber wedge.

1. On 1 September 2011 Ms T advised the registrar she had raised the issues with the Ombudsman and requested an adjournment of 3 months. On 30 November 2011, at her request, the matter was further adjourned to be renewed by Ms T not later than 12 June 2012. On 11 June 2012 Ms T renewed proceedings and for medical reasons, she requested a hearing after 30 July 2012.
2. That hearing took place on 31 July 2012 .The relevant orders are:

1. The landlord will comply with the recommendations in relation to the front step contained in the occupational therapist's report dated 30 July 2012 and will:

a meet with the tenant and the occupational therapist at the tenant's rented premises on a Wednesday on or before 15 August 2012.

b complete any necessary repairs by 29 August 2012.

1. The landlord will make any necessary adjustments to the tenant's front door to remove the gap above the door and to ensure that the door can be easily closed by 29 August 2012 and will ensure that the adjustments comply with the report of Resi-check.

1. That order gave Ms T the right to renew and she did so on 7 November 2012 . After further adjournments, the next substantive hearing was on site on 22 May 2013. After that hearing, on application by Ms T, and by order of the President after a hearing by him on 19 September 2013, the Tribunal was reconstituted.

1. There was no dispute about the condition of the front door. The dispute is about the cause and rectification.

1. Mr Mazzei gave evidence that he is a builder and carpenter with 25 years experience and in 2011 he undertook work at the premises for DHS including the replacement of the front and rear doors. He did not recall whether he had received a copy of the Resi-check report but he recalled a meeting at the premises on 3 September 2012 with two field service officers from DHS to assess the ongoing issues. At the hearing on 14 November 2013, Ms T told Mr Mazzei she had recorded that meeting and she referred to her "transcript" of the meeting in asking questions of Mr Mazzei who gave the following evidence in reply.

: With respect to the gap at the top of the door, the walls of the premises are not square. Accordingly, the new door does not fit the frame perfectly and, on the inside there is a gap at the top left hand area of the door of about 8-9mm. The gap diminishes down the length and across the top of the door so that at the bottom and hinge side of the door, there is no gap. On the outside, the gap is on the top right hand side of the door and is between the door face and the external architrave

: The operation of the door is not affected by the gap and the only way to achieve a perfect fit is to demolish and rebuild the wall.

: A normal gap between a door and frame is 3-4 mm which allows for expansion and contraction of the timber but larger gaps can exist, as here, where a door is retro fitted and the walls have previously settled or otherwise moved out of plumb.

: Where there is a gap, it is normal industry practice to install a weather seal between the door and the frame and Mr Mazzei had consistently recommended an aluminium and rubber type be installed on this frame. This may not completely seal the gap but a house door "will never fit like a car door" and should not do so due to expansion requirements. Also, the gap will change further over time with movement of the house especially in drought or very wet conditions. Any gaps that exist after the fitting of the seal would be acceptable.

: the door meets any relevant Australian Standards because it is retro fitted.

: the Resi-check report was completed when the original door was still in place and the recommendations did not take into account all the issues surrounding the difficulty in replacing a door in an imperfect wall.

Ms T has objected to and has been unwilling to agree to the weather seal of the type proposed by the DHS to try to rectify the gap at the top of the door. Ms T's opinion is that a weather seal will not address the problem as the gap is not uniform. No work had been done to install a weather seal as the DHS did not want to undertake work that Ms T was unhappy with.

1. Ms T gave evidence and showed a video and photos that she had taken from the inside and outside of the door which confirmed the state of the door described by Mr Mazzei. She said:

: The new front door does not properly fit the door frame so that it does not close easily and properly. The door hinges are on the right hand side of the door and there is a gap at the top left hand corner of the door. From the inside of the premises, light can be seen through this gap. The gap can be rectified by giving the door an extra push so that it closes tighter. The gap also allows draft, loss of heating and ingress of noise. The problem is caused by the door being "twisted." and the new door is no better than the original door.

1. There is no dispute about the existence of a 38mm wide gap along the bottom length of the front door. On the original door the gap was about 20mm. Ms T's photos show a thin metal weather strip currently installed along the bottom of the door.
2. DHS attempted to rectify the 38mm gap by installing a ramp up to the door level on each side. The inside ramp, which has now been removed, was made of rubber which caught on the door, making it difficult to open. The outside ramp is made of timber that can be slippery. Ms T said she cannot use the front door as the step down on the inside of about 50mm is too high for her to use.
3. Ms T gave a great deal of evidence as to the effectiveness of the proposed seals for the bottom of the door. She referred to brochures, specifications and discussions that she had with the supplier of the "Raven" brand seals who, she said, told her a threshold plate in accordance with the Resi-check report and a door seal if required would offer the best protection. The supplier of Raven seals has not inspected the door.
4. Mr Mazzei gave evidence that, with respect to the bottom gap DHS has offered rectification work by way of the installation of a retractable door seal. Once that is installed, DHS intend to reinstall the rubber ramp that may need to be shaved to ensure proper operation of the door. Two types of seal had been offered to Ms T and she had refused both. Ms T is asking that the door be replaced.

1. There was little difference in opinion between Ms T and Mr Mazzei as to the condition of the front door, but there was a disagreement as to the cause and the solutions. Whatever the cause or whatever terminology is used, the gaps exist. With respect to the solutions, there is disagreement. Ms T wants a new, properly fitting door with no gaps. If there is a gap at the bottom of the front door, she wants a threshold plate in accordance with the Resi-check recommendation. DHS has offered to install a weather seal at the top of the door, a retractable weather shield at the bottom of the door and appropriate ramps at each side of the door. It says these will effectively seal the door and enable access.

THE RESIDENTIAL TENANCIES ACT

1. Ms T's applications for repair are based on the alleged breach by DHS of the duty of the landlord to maintain the premises in good repair as contained in section 68 of the RTA_._ Ms T says that the doors have not been repaired in accordance with the Resi-check report as ordered by the Tribunal at the first hearing on 24 September 2010 and that the front door requires replacement or further repair by way of weather seals. In Ms T's submission, non compliance with the Resi-check report and the Tribunal's first order is enough to prove that the landlord's duty to maintain the premises in good repair has been breached.
2. Although the Tribunal ordered the doors be repaired in accordance with the Resi-check report, the recommendations of that report are contradictory. On the one hand, in the first sentence in point 7, which Ms T herself repeated and underlined in her letter of 4 April 2013, the work to the frames is to be done "as far as the brick veneer openings will allow" and the second sentence begins "Compromises will be required..." . However, the report then provides standards that effectively mean the doors must be perfect. Both sections of the report cannot be met.
3. The next recommendations by Resi-check are that the top gap is to be no more than 3mm and there is to be a threshold plate and seal fitted to the bottom of the door. The current gap is wider than this recommendation and DHS considers a retractable seal on the bottom edge will be more effective than a threshold plate. It should be remembered that the Tribunal's first order that DHS complete repairs as recommended in the report was made prior to the report being received and the Resi-check report was made on 12 November 2010 before the new front door was installed in March 2011. There has been no report on the door that is currently installed.
4. Ms T now would like a new door or seals of a kind that she chooses. Mr Massini gave evidence that any door would have the same issues as the current door because the wall is out of plumb. There was no evidence to contradict his opinion and I find that the DHS complied with the work as described by the Resi-check report in installing the new door with the compromises anticipated by that report. However, that door does not meet the standards because the work has not been completed and there are gaps that need to be rectified.
5. 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.
6. Turning to Ms T's complaints, I consider the gaps as described mean the front door is not in good repair. This is not in dispute and Ms T and the DHS agree that further works are required so that the doors are in good repair. I accept the walls are out of alignment for the reasons given in the Resi-check report which includes the original construction of the building. I do not accept that the walls should be rebuilt to effect a "perfect" front door. I find that the door, if the gaps are attended to appropriately, will be in the condition required for these premises. This may mean the doors will not be completely sealed and Mr Mazzei has stated that there will be some gap. I do not accept that having to give the door an extra push to close it properly means it is in not in good repair. Doors are subject to a great deal of use, loosening of hinges, changes in size due to weather conditions and they can have small defects that do not mean they are not in good repair. This is an older dwelling of average quality and the normal deterioration of the building points to compromises in the standard of maintenance. The door cannot be square and it will have gaps. Those gaps are to be filled as best as possible and then ramps installed to allow access. There may be some light, draught and noise entering through the front door but this may be considered a reasonable state of repair for this dwelling.
7. Once the landlord has carried out the work, it will be apparent whether the door is in good repair taking into account all the factors referred to above and, particularly, the standard mentioned.
8. It is for the landlord to complete the repair works and there is no right given to the tenant to demand that works be undertaken in a particular way or by a particular person. For instance, according to Mr Mazzei, the response by Raven, the seal supplier, to a query from DHS is that DHS should consider the suitability of various Raven and Cowdroy door seals. That is the appropriate course of action - it is for the landlord to decide how the door is to be repaired and any consequential works that need to be done, such as the installation of weather seals and ramps.
9. I will make orders that DHS undertake the repair of the front door by the installation of weather seals and ramps so that the door is in good repair .

1. Ms T has claimed compensation under the RTA for breach of the landlord's duties to repair and to provide quiet enjoyment and even though the work has not been completed, given the length of time since this dispute began, it is appropriate to determine whether the landlord has breached its duty at any time over that period to date.

DUTY TO MAINTAIN THE PREMISES IN GOOD REPAIR - s68

1. I am not satisfied that DHS has failed to comply with this duty. The repairs were initially carried out within a reasonable period and the back door was promptly replaced a second time when Ms T complained about the first repair. Ramps were installed with respect to the front door and they required adjustment. Ms T was convinced the repairs were not adequate on her interpretation of the Resi-check report. I am satisfied that DHS was at all times willing to adjust the rubber ramp, install weather seals and otherwise do all that was necessary to make the condition of the front door acceptable. Even the tenant's own correspondence, in particular, her letter of 4 April 2011 and the report from the therapist referred only to the adjustments required to the doors. Ms T had her own opinion on the way the door was to be repaired and DHS took the practical view that they would not carry out the work that she had said she was not happy with. DHS was in a difficult situation but it was always ready and able to carry out the final works to the front door. Accordingly, I am not satisfied that the landlord failed to take all reasonable steps to comply with the duty to maintain the premises in good repair. As there is no breach by DHS of its duty to repair, I do not need to consider Ms T's claims for compensation which will be dismissed.

DUTY TO PROVIDE QUIET ENJOYMENT - s67

1. Turning to Ms T's application for breach of quiet enjoyment. "The basis of (the duty of a landlord to provide quiet enjoyment) is that the landlord... promises not to interfere with the tenant's exercise and right of possession during the term" Kenny v Preen [1962] EWCA Civ 2; (1962) 3 All ER 814. Ms T's application is based on the time it has taken to effect the repairs and the ongoing disruption to her but I find this has been because Ms T has refused to consent to the repair. There have been a number of inspections, reports etc that have all been done to try to find a solution that is acceptable to Ms T but to no avail. DHS has not breached this duty and again, I do not need to consider Ms T's claims for compensation which will be dismissed.

1. Ms T paid rent into the Rent Special Account from 19 April 2011 until August 2013. She has paid rent direct to DHS since then. At this hearing, Ms T refused to agree that the sum in the Rent Special Account be now paid to DHS. She said that it is an incentive to DHS to repair the door. As stated above, I find that DHS is ready and able to effect the repair. Accordingly, I will direct the rent in the Rent Special Account be paid to it.

THE CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006

1. Ms T referred to the duty of the Tribunal, as imposed by the Charter, to interpret the provisions of the RTA so far as is possible in a way that is compatible with human rights. She particularly directed me to section 13 of that Act. In this proceeding, I am satisfied that I have interpreted the provisions of the RTA in accordance with the Charter of Human Rights and Responsibilities Act 2006.

1. The applications on files R201033226 and R201248214 be consolidated and heard and determined together.
2. The tenant's claims for compensation to date are dismissed.
3. The landlord shall carry out the following repairs to the back door of the premises in a proper and tradesman-like manner -

: inspect and, if necessary, attend to possible rust on the back screen door

: provide an exterior canvas blind for the window in the door

1. The landlord shall carry out the following repairs to the front door of the premises in a proper and tradesman-like manner -

1. The tenant shall make the rented premises reasonably available to the landlord and the landlord's tradespersons for the purpose of complying with this order.
2. All repairs are to be completed by 14 February 2014.
3. The application is adjourned to a date no later than 14 March 2014 to be heard by Senior Member H Barker of the Victorian Civil and Administrative Tribunal. The application may be renewed by either party giving the principal registrar notice in writing but if the application is not renewed on or before this date it shall be considered withdrawn.
4. Direct the registrar to pay to the landlord the sum of $9,854.80 held in the Rent Special Account.