Legislation cited: ACT Civil and Administrative Tribunal Act 2008, s 53

Residential Tenancies Act 1997, ss 8, 29, 30, 31, 36, 38, 43, 71, 83, 84, 86, 87, 133, Standard terms 3, 52, 54, 55, 57, 59, 64, 84, 86, 90, 91, 100

Cases cited: Baltic Shipping v Dillon [1993] HCA 4

But v Baldwin [2016] ACAT 9

De Soleil v Palmhide Pty Ltd [2010] NSWCTTT 464

Faulder v Tran [2016] ACAT 9

Fiege v Wilkinson [ 2023] ACAT 11

Lee v Guo [2017] ACAT 60

Mansour v Dangar [2017] ACAT 49

Peters v ACT Housing [2006] ACTRTT 6

Salem & Gizgeez v Abeygunasekara & Jeevanthan [2011]

ACAT 1

1. Under section 63 of the ACT Civil and Administrative Tribunal Act 2008, the order of 6 September 2023 in this matter is amended by changing the words "9 August 2023" to "11 August 2023".

1. The lessor is to pay $3,111.40 to the tenants by 28 days from the date of this order.

1. ACT Revenue on behalf of the Territory is directed to discharge the entirety of the bond to the tenants.

1. This decision is about whether two tenants, Ms Taylor Hembling and Ms Sarah Thomson, should be compensated by their lessor, Mr Liwei Xu, for what they say are his failures to meet their tenancy agreement, or whether, to the contrary, Mr Xu should be compensated because the tenants left his property part way through a fixed-term tenancy and without properly cleaning the premises.
2. There are two applications in this matter, both made under the Residential Tenancies Act 1997 (the RTA). In the first, in matter RT 795/2023, the two tenants are the applicants. That application, filed on 18 August 2023, sought compensation from the lessor; on or about 8 September 2023 the lessor filed the application in matter RT 871/2023 seeking that the bond paid by the tenants be discharged to him, along with additional compensation for costs incurred at the end of the tenancy. Thus the tenants are the applicants in one matter and respondents in the other matter (and the same in reverse for the lessor). The two matters were heard together, but because each of the parties is an applicant in one matter and a respondent in the other, they are referred to either by name or as "the tenants" and "the lessor" in this decision.
3. The tenants are seeking:

(a) A declaration that the premises were unfit for habitation from 10 May 2023, with $10,400 in compensation for abatement of the rent from that date to 11 August 2023.

(b) $5,798.55 in compensation in recognition of the premises being provided inadequately cleaned, in an inadequate state of repair, and inadequately secure from 3 March to 10 May 2023.

(c) Compensation of $323 for the purchase of heating devices and an air fryer required because the premises were inadequately cleaned and not properly heated;

(d) $340 compensation for engagement of a cleaner for the kitchen and bathrooms in April 2023.

(e) Compensation of $105 in veterinarian fees for treatment of the tenants' cats for conditions purportedly caused by the state of the premises.

(f) $117.56 for an electricity reconnection fee that the tenants paid after inheriting a problem from the previous tenants.

(g) Compensation for unspecified non-economic losses, to be awarded at the Tribunal's discretion.

1. The lessor's application sought payment of the entirety of the bond ($3,200) for:

(a) Arrears of rent of $914.29.

(b) Payment of a water bill for $70.44.

(c) End of lease cleaning for $1,100.

(d) Re-letting costs of $800.

(e) End of lease gardening costs of $600.

1. The total amount sought by the lessor exceeded the amount of the bond. All the costs sought are recoverable through a bond application, except for item (d) above, which is not among the recoverable costs provided for in section 31 of the RTA. If that part of the claim is omitted, the total sought falls within the amount of the bond (compensation beyond the bond amount is normally not recoverable through a bond claim).
2. Not all of the itemised amounts of compensation sought by the parties were pressed at the hearing, and of those that were, not all were contested.

1. The matter first came before me on 6 September 2023. The tenants had filed an application for interim orders under section 53 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) seeking that the matter be heard and decided urgently. When the matter came to be heard, however, the lessor was absent, and it appears that he had not received notice of the hearing. A number of resumed hearings followed, with obstacles arising on each occasion, until the resumed hearing on 14 February 2024.
2. At that hearing, Ms Hembling, one of the tenants, lodged a form authorising her mother, Ms Tracey Cavanagh, to represent her. In practice, however, Ms Hembling presented her case herself, and her mother participated only as a witness (Ms Cavanagh is also known as Ms Tracey Hembling, but was happy to be referred to as "Ms Cavanagh" at the hearing and in this decision, in the interests of clarity). Mr Shae Toole of Distinct Property Management, the lessor's agent for the property, appeared in person for Mr Xu, and Mr Xu himself appeared remotely.
3. Ms Thomson, one of the tenants and the second applicant in matter RT 795/2023, appeared at the very first hearing on 6 September 2023, and not thereafter. Ms Hembling and Ms Cavanagh said that Ms Thomson had cut off relations with them and had announced an intention not to participate in the hearing process. I have no independent corroboration of that decision, but it is certainly consistent with her apparent receipt of email correspondence but continued absence. Ms Thomson was a co-tenant of the property with Ms Hembling at all relevant times, and under standard term 100 of Schedule 1 to the RTA, the two tenants are to be treated as co-tenants (and are therefore jointly and severally liable). The decision arrived at in these reasons therefore applies equally to both tenants. And because Ms Hembling was left to advance the case, this decision refers to her, frequently, rather than Ms Thomson, as having filed particular evidence or advanced a particular argument.
4. On the morning of the hearing of 14 February 2024 Ms Hembling filed a large volume of papers in hard copy. These papers were clearly filed extraordinarily late, which is manifestly unfair to the lessor; but Ms Hembling asserted that she too was operating at a disadvantage in that she had not been able to access the lessor's response and supporting documents, filed on 6 October 2023 (these are the major documents advanced by the lessor in support of his case). Mr Toole said he had sent the latter papers electronically, and Ms Hembling pointed to evidence in the form of screenshots to substantiate her claim that she had been unable to open them, apart from one or two documents of limited relevance. In practice, although the hearing on 14 February 2024 was the fifth occasion the matter had been listed for hearing, the parties had not been physically in the same room on any one of those occasions, as Ms Hembling appeared remotely at every hearing but the first (at which the lessor and his agent was absent), or was represented by her mother (who also appeared remotely). Mr Toole said he had brought hard copy of the papers to the previous hearings, but had been unable to pass them to Ms Hembling because she had not been physically present; he also professed himself mystified as to why Ms Hembling had been unable to open the documents.
5. It is fundamental to procedural fairness that the parties should have access to, and an opportunity to put evidence on in reply to, or make submissions on, all the material that will be considered in their case. I offered the parties a further adjournment, a course that was unattractive in light of the number of times the matter had already come before the Tribunal to little purpose; but both parties rejected that option, preferring to proceed despite each not having been able to engage with the documentation of the other. I adjourned the hearing for a brief period to allow Mr Toole to familiarise himself with the late papers filed by Ms Hembling; I also made orders for the lessor's response of 6 October 2023 to be sent to the tenants and gave all the parties a fortnight following the hearing to make submissions in light of the material that they had not seen until the hearing or shortly after it.
6. It is clearly unsatisfactory that each of the parties had not seen the other's papers, but the responsibility for this state of affairs seems to fall equally upon them. If Ms Hembling found she could not open documents sent by the respondent in October 2023, why did she not alert Mr Toole or the Tribunal to the problem? Ms Hembling said that she was not familiar with Mr Toole, with whom she had had no dealings during the tenancy. Nevertheless, there was surely some path through which the documents could have been accessed. And why, given all the adjournments, did Ms Hembling put forward such a large volume of material on the morning of the hearing? Why was it necessary for Mr Toole to see the tenants in person to pass the hard copy papers to them? Could he not have investigated alternative ways to hand them over? These matters were, it appears, easy enough to resolve provided the parties had sufficiently wished to do so; and they put the process, and the resources of the Tribunal, at risk by not making the effort to ensure their hearing could proceed smoothly.
7. The papers before the Tribunal, once the lessor's response, the papers filed the morning of the hearing, and the submissions made after the hearing are taken into account, comprise the following (identified in this decision as indicated in bold):

(a) The tenants' original application in matter RT 795/2023 dated 18 August 2023 with Annexures A to O.

(b) The lessor's response, dated 6 October 2023, comprising a timeline and Attachments 1-13.

(c) A small bundle of papers filed by the lessor on 12 February 2024, addressing issues associated with mould and the heater (lessor's opinion evidence on mould and on the heater).

(d) The papers filed by Ms Hembling on 14 February 2024 comprising a timeline and Documents 1-62.

(e) Advice from ACT revenue of the dispute over the bond, the basis for matter RT 871/2023.

(f) Submissions filed by the lessor on 29 February 2024 (the lessor's final submission) and by Ms Hembling on 12 March 2024 (the tenants' final submission).

1. At the hearing, Ms Hembling gave evidence in her own cause and Ms Cavanagh also appeared as a witness. Mr Toole called no witnesses; he cross-examined Ms Hembling.

(a) Whether the premises were unfit for habitation at any point in the tenancy, and if so from what date;

(b) if the premises were unfit for habitation at some point, whether they were so affected by loss of amenity in the period before that date that the tenants are entitled to compensation under section 71 of the RTA;

(c) in the alternative to (a) and (b) above, whether the lessor breached standard term 54 of the tenancy agreement by failing to provide the premises in a reasonably clean condition, in reasonable repair and in a reasonably secure condition at the start of the tenancy;

(d) whether the lessor, in addition to or in the alternative to (c) above, breached the tenancy agreement by failing to maintain the premises in a reasonable state of repair and/or by failing to make repairs in a timely fashion once notified of the need;

(e) whether any failures by the lessor under (c) and (d) above provided a basis for termination of the tenancy, and/or whether those same failures justify the payment of compensation to the tenants;

(f) whether the lessor is entitled to a break lease fee for the departure of the tenants during a fixed-term tenancy;

(g) whether the lessor is entitled to recover the costs of end-of-lease cleaning and gardening;

(h) the disposition of the bond; and

(i) taking all of the above into account, what each of the parties owes the other.

1. The RTA provides the framework for residential tenancies in the ACT. The Act itself sets out general parameters for tenancies and occupancies, and grants powers to the ACAT to resolve disputes and make orders accordingly. Schedule 1 to the Act sets out standard terms that are included in, or are taken to be included in, every residential tenancy agreement.[1] In the outline that follows the references are to the Act and the standard terms as of 3 March 2023, when the tenancy agreement began (substantial amendments to the RTA came into effect shortly afterwards, but a fixed term agreement contains the terms as at the day the parties enter into it[2]).
2. At the start of a tenancy, the lessor is obliged to provide the tenant, within a day of the tenant taking up possession of the premises, with two copies of a report signed by the lessor setting out the condition and state of repair of the premises. The tenant must then return one copy, signed (indicating agreement) or else with comments agreeing or disagreeing.[3] The report, apart from those aspects on which the tenant has disagreed, is then evidence of the condition of the premises at the time the lessor gave the report to the tenant.[4]
3. Either lessor or tenant may terminate a tenancy by written notice on a date specified in the notice if the premises are not fit for habitation;[5] the rent abates from the date the premises became unfit for habitation.[6] Where a tenant's use or enjoyment of rented premises is significantly diminished because a lessor has failed to maintain the premises in a reasonable state of repair, the tenant is entitled to a rent reduction, on application to the ACAT.[7] At the start of a tenancy, the lessor is obliged to provide premises that are reasonably clean, in a reasonable state of repair, reasonably secure and reasonably fit for habitation.[8] The lessor must then maintain the premises in a reasonable state of repair,[9] and must make repairs, other than urgent repairs, within four weeks of being notified of the need to do so.[10] Urgent repairs must be done "as soon as necessary, having regard to the nature of the problem".[11] The ACAT may terminate a tenancy agreement, on application by a tenant, where a lessor has breached the terms of the agreement and the breach justifies the termination.[12]
4. Where a tenant leaves premises part way through a fixed term tenancy, a lessor is entitled to compensation reflecting the loss of the security provided by that form of tenancy. The RTA provides for a prescribed form of words covering a break-lease fee to be included as a clause in the tenancy agreement;[13] alternatively, where there is no such clause in the agreement, the lessor can apply to the ACAT for compensation.[14] At the end of a tenancy, a tenant is obliged to leave the premises in substantially the same condition and state of cleanliness as at the start of the tenancy, except for wear and tear.[15] The lessor may make claims against the bond for expenses incurred at the end of a tenancy, including for arrears of rent, and repair and restoration of the premises.[16]
5. As noted above, section 71 of the Act provides for loss of amenity by a tenant to be reflected in a rent reduction. Where the tenancy has already ended, that rent reduction is converted into an amount of compensation.[17]

1. The general outlines of the tenancy are not in dispute. The tenants signed a twelve-month fixed-term tenancy agreement with the lessor on 27 February 2023, with the tenancy to begin on 3 March 2023.[18] The rent was set at $800 per week and the tenants paid a bond of $3,200. The agents for the property, at this time an agency known as inStyle, sent an incoming condition report to the tenants on 9 March 2023; the tenants completed it and returned it on 3 April.[19] There was an exchange between agent and tenants in which the latter sought additional time to return the completed report.[20]
2. In the returned condition report, the tenants brought to the agents' attention a significant number of matters which they said required attention. These were in various rooms and included lights not working, a handle missing from a screen door, holes in the screen of the door, a gate latch not working, a fallen shower head, a broken towel rail, furniture that was unstable or broken, the oven and cooktop being dirty, a drain being clogged with mould and the exterior utility fittings being dirty and dusty.[21] The agent from inStyle, in response, undertook to have some of the matters attended to but dismissed a number of others as "the condition of the property" at the start of the tenancy.[22]
3. Ms Cavanagh's evidence on these points is that she helped Ms Hembling and Ms Thomson move into the premises; that she noticed at the time a large number of areas in which the premises were in poor repair or were not clean, including the insides of cupboards, the bathrooms, some broken furniture, the screen door handle, and especially the kitchen, where the oven had "never been cleaned" and the cooktop was also dirty.[23] Ms Hembling said that they were sent the incoming condition report electronically, but that she and Ms Thomson did not appreciate that in addition to nine pages of text there was a large number of photographs, making up an additional 170 pages. It was the need to attend to all those photographs that led to the report being returned late.[24]
4. Ms Hembling said in evidence that the physical inspection of the property that she undertook with Ms Thomson before taking up the tenancy lasted only about 15 minutes and allowed only a brief look at the premises. It seemed like a pleasing property, but when they came to live in it they discovered one after another a series of problems with the state of repair, the state of cleanliness, the operation of appliances and the like.[25] Ms Hembling gave particular emphasis to the state of the oven, which caused her to have an allergic reaction when she opened it (Ms Hembling says she is severely allergic to pork in any form).[26] There were also problems with a broken shower rail and a shower head that fell when first used.[27]
5. Ms Hembling said that the tenants brought all these and other matters to the attention of the property managers, but to no avail.[28] No work was done to fix problems or repair what was broken. Ms Cavanagh paid for a tradesperson to come into the premises and clean the oven, cooktop and bathroom; by that time Ms Hembling and Ms Thomson had bought an air fryer to use instead of the oven. And Ms Hembling said that even after the oven was cleaned she would not use it; the tradesperson who cleaned the oven had told her that he had found mould in it, and she was worried about mould reappearing or remaining in the oven.
6. Among the other matters that were brought to the attention of the agents at or shortly after the beginning of the tenancy were difficulties with the company engaged by the agents to check the smoke alarms; and problems arising because the previous tenants appeared to have vacated the premises leaving some utility bills unpaid. In the case of the electricity bill, this led to a disconnection of power to the premises, and the payment of a reconnection fee by the tenants.[29] Other problems included bathrooms and a toilet badly needing cleaning, lifting and dirty carpets, holes in a screen door, locks and handles on the doors that would not work, and a back gate latch that was insecure, leaving the gate to swing open when there was wind (Ms Hembling explained that she was sensitive about security because she had been the victim of domestic violence).[30] Ms Hembling said that despite these matters being raised with the agents, the latter remained unresponsive and uncommunicative.
7. A routine inspection took place on 10 May 2023 (after earlier attempts had been postponed, with some difficulty). Ms Hembling said that she and Ms Thomson took this opportunity to bring to the agent's attention a significant number of issues that had been troubling them with regard to the premises. The list of issues is extensive; it is set out in detail in document 32. Yet even after having raised these with the agents, Ms Hembling said, they were left unattended to. Ms Hembling said that they had applied to have the premises found not to be fit for habitation from that date because that was when it became completely clear that the agents were not going to attend to the matters of concern at the premises, despite having been comprehensively informed of them.
8. On or around 15 May 2023, inStyle, the agents, merged with another property manager to become Distinct Property Management (because this was a merger, the actual agent with whom the tenants were communicating (or attempting to communicate) was the same as previously).[31] Ms Hembling said that once again the communication by the new agency to make her and Ms Thomson aware of this change was inadequate and haphazard, with the risk that rent might have been paid into inoperative accounts and lost.
9. At or about this time a discussion began with the agent about rent: the tenants were slightly in arrears, but were beginning to agitate for a rent reduction in recognition of matters going unaddressed by the agents. These attempts to explore options for managing and reducing rent were highly unsatisfactory and frustrating for the tenants.[32] A similar unresponsiveness related to a water bill (for $70.44) which Ms Hembling said she and Mr Thomson tried, but were unable, to pay.[33] Ms Hembling said the money had been set aside to pay this bill, and she was even now willing to make the payment.
10. Ms Hembling said that in early June 2023 the tenants started to feel unwell, and when this persisted they began to wonder if there was a gas leak. They contacted the plumbing and gas company nominated by the agents (identified as JML Plumbing[34]), and spoke to a tradesperson, who told them to turn off the gas supply and open the windows, which they did. The tradesperson attended the premises the next day, established that there was no gas leak, but noticed that the heating/air conditioning system was displaying advice that the filter needed cleaning. Ms Hembling said that the tradesman was concerned about this and told them that they should not use the heater until the filter had been cleaned. The tenants lodged a request with the agents the same day (6 or 9 June 2023).[35] Ms Hembling said this was another occasion on which the tenants received no response. In accordance with the advice from the tradesperson, they did not use the heating system, but went and bought their own heating units, the Canberra winter having arrived, and limited their use of the house to those rooms they could heat. She said that the legend on the heater advising that the filter needed cleaning had been there from the start of the tenancy.[36]
11. Ms Hembling said that the final straw for the tenants was around 24 July 2023, when they found that both cat bowls had become covered in mould overnight; and about the same time discovered that the drain of the wash basin in one bathroom - a bathroom that generally they did not use - was blocked by black mould.[37] Ms Hembling became unwell, attributing this to mould exposure. The tenants had by this time found alternative accommodation, and so they moved to new premises.[38] They gave a notice of termination to the agents on 3 August 2023, advising that they would vacate by 9 August,[39] on the grounds that the premises were not fit for habitation. Ms Hembling said that the keys were put in the agents' lockbox on 11 August 2023.[40] They paid to have an end of lease clean done at the premises, despite feeling that they had no obligation to clean uninhabitable premises or leave the premises cleaner than they found them.[41] Under cross-examination by Mr Toole from Distinct Properties, Ms Hembling said that the clean was not comprehensive, but focused on mirrors, bathrooms, floors and the kitchen. It did not include a steam clean of the carpets.[42]

1. Ms Hembling's arguments, in summary, were that the premises were below the required standard when the tenants moved in, with the kitchen dirty, especially the oven, the cupboards not cleaned, the bathrooms dirty, especially the toilet, some furniture in need of repair, the premises not secure because of the gate and the screen door, and the back garden unusable because of the pavers being uneven and not adequately fixed to the ground. They brought these matters to the attention of the agents, but no work was done and communication with the agent became difficult and unproductive. A significant number of issues were raised with the agent at the inspection on 10 May 2023, but although the agent acknowledged a number of these at the time, she attended to none of them, and the tenants came to the conclusion that their agents were not going to take proper care of the premises or respond to their notifications of work needing to be done. The tenants found the premises, given that the agents were quite so unresponsive, to be "unliveable". This was reinforced by the failure to advise on the continued use of the heating system, after the preferred tradesperson had said that they should not use it, and the mould on the cats' bowls and the bathroom around the end of July. The tenants contended that the house should be declared to have been uninhabitable from 10 May 2023, when they had raised a large number of issues but obtained no response; that rent should be reduced in the period from the start of the tenancy up to 10 May 2023, in recognition of the reduced amenity from that promised in the tenancy agreement; and that they should be reimbursed for the purchase of an air fryer (when the oven was not operational), and three heaters (when they had been advised not to use the heating system).
2. The tenants also seek unspecified compensation for non-economic loss. Ms Hembling is vulnerable (she has a disability and suffered domestic violence at an earlier time). The unwillingness of the agents to engage with the tenants put her under stress. The agents were aware of the tenants' vulnerabilities and should have taken them into account in the way they dealt with them.
3. It was discussed during the hearing, and is clear from the way Ms Hembling has put her submissions, that if the argument that the premises were uninhabitable fails, there is an argument in the alternative that the alleged failures by the lessor to maintain the premises and to respond to the tenants constitute a breach, or multiple breaches, of the tenancy agreement, and warrant compensation. A case for compensation could be made on the basis of section 71 of the RTA (loss of facilities or use of part of the premises) or section 83 (compensation for breach of contract, eg breach of standard terms 54, 55, 57, 59). The tenants vacated the premises part way through a fixed-term tenancy; that could be justified if the premises were not fit for habitation or otherwise under section 43 of the RTA, which allows the ACAT, on application by a tenant, to terminate a tenancy where breach of the tenancy by the lessor warrants such termination.
4. The lessor's case is straightforward. The premises may not have been pristine at the start of the tenancy, but any imperfections were comparatively minor and below the level that would constitute a breach of the requirement of standard term 54 that the premises be reasonably fit for habitation, reasonably clean, in a reasonable state of repair and reasonably secure. It is true that there were some delays in responding to requests for repairs, for example time was lost on one occasion because a contractor went out of business, but the agency did its best to provide the services required of it in a timely and efficient way. The tenants themselves contributed to the delays in maintenance: one contractor, who was hired to repair the broken towel rail, gate latch and flyscreen door lock, made 33 attempts to contact the tenants, only to be told by the tenants on the 33rd attempt that they had already vacated the premises. Some of the things for which the tenants sought repairs had been perfectly functional, like the heating system, and no intervention by the agents had been, or should have been necessary.
5. At the end of the tenancy, the premises seemed to have been cleaned minimally at best. There had been no steam cleaning and fumigation of the carpet, although that had been a requirement of the tenancy agreement. The garden was full of weeds, and a gardener had to be engaged to bring the garden into order so the premises could be let to new tenants. The lessor had wanted to inspect the premises before they were relet, and that had meant a delay in the letting process, and so the lessor would not seek the break lease fee, but would seek the cleaning and gardening costs plus one week's rent for the costs of reletting, as provided for in section 84 of the RTA and standard term 84.

1. A preliminary matter that perhaps requires some comment is the absence of Ms Thomson from the proceedings. All the evidence suggests that her absence is by her own choice. But as noted earlier, any orders I make against Ms Hembling will be made equally against Ms Thomson; and any orders in Ms Hembling's favour will be equally to Ms Thomson's benefit. In preparation for the hearing, Ms Hembling quite evidently put in a good deal of effort, and in the course of the hearing she presented the tenants' case cogently and with considerable attention to detail. If she is successful, Ms Thomson will share in the benefits of Ms Hembling's efforts; if she is not, Ms Thomson will be responsible for her share of any orders in the lessor's favour. It is a matter for the tenants to sort out between themselves what arrangements should be made in either eventuality (I note that in the tenants' final submission Ms Cavanagh states that Ms Thomson has accepted that any compensation that flows from my decision will go to Ms Hembling).
2. Not only did Ms Hembling present the applicants' case; she was also the primary witness, giving evidence over an extended period. I formed the view that Ms Hembling's account of what transpired during the tenancy was to be trusted. The only qualification I would make in that regard is that Ms Hembling acknowledged that she has more acute sensitivities than perhaps most other people. Her evidence is in that way a very subjective account of the events during the tenancy, whereas the conclusions that I am to draw in this matter require an objective judgment - that is, I must draw a conclusion that the evidence, viewed reasonably by someone with no involvement, leads to. The evidence that Ms Hembling gave was for the most part without contradiction: Mr Toole asked only a few questions by way of cross-examination; the other way in which the evidence might be tested is by the available documentation.
3. It will be apparent from the way the evidence has been summarised that the tenants claimed to have a difficult relationship with the agents - first inStyle and later Distinct. In practice, this relationship was essentially with the responsible person who worked at inStyle and then was absorbed into Distinct. I understand from the final submissions by the respondent that the agent in question was herself struggling with health issues. That does not, however, allow the lessor to escape the requirements of the RTA; many of the requirements are couched in mandatory terms, and difficulty in complying, or poor performance by an agent or employee, while unfortunate for all concerned, is not a satisfactory excuse, generally speaking. Mr Xu, the lessor, lives outside the ACT; but he is vicariously liable for the actions of his agents, provided those actions fell within the scope of authority granted to them. I did not hear from Mr Xu any suggestion that his agents exceeded the scope of their authority.
4. In Faulder v Tran (Faulder),[43] an appeal case, the Tribunal, with then President Neate presiding, considered an application not vastly dissimilar from that in the present matter. In that decision a number of principles were enunciated, and those principles provide clear guidance on how some aspects of the present matter should be resolved. Principles of potential application, extracted for their relevance to the present matter, include:

(a) Standard term 54 addresses the lessor's duty in handing over the premises at the start of the tenancy and does not extend beyond that.

(b) Standard term 54 is in mandatory language, that is, the lessor is obliged to ensure that the term is complied with. It is not a defence for a lessor to plead that reasonable steps were taken to rectify defects.

(c) The duty does not just apply to the premises as a whole in a global sense, but to each component or element within the premises. The definition of 'premises' in the Dictionary to the RTA defines premise to include any habitable structure, any part of the premises, and any buildings or structures belonging to the premises. Standard Term 54 expressly applies to all furniture, fittings and appliances provided with the premises.

(d) The provision of premises that are reasonably clean, reasonably secure and in a reasonable state of repair are three separate requirements, each of which must be met.

(e) Cleanliness is an objective test judged by average standards in the community. It is not the standard preferred by either party.

(f) The obligation under standard term 54 operates from the start of the tenancy and does not depend on the tenant giving notice of the need for repairs or other remedial work to be done.

1. It is also established in the case law that the requirement for repairs to be undertaken during the tenancy, under standard term 57, is also mandatory; a lessor is obliged to complete repair within four weeks of being notified of the need under standard term 55(2). It is not a defence that the lessor did their best if they failed to meet that timeline.[44]

Were the premises uninhabitable at any time during the tenancy?

1. It was the contention of the tenants that the premises should be declared uninhabitable from 10 May 2023 until the end of the tenancy on 9 August 2023. Ms Hembling says that the property was always unsatisfactory, once she and Ms Thomson had moved in, but became unliveable from 10 May 2023, where a long list of defects was discussed with the agent, but no action was taken subsequently to remedy any of them. Ms Hembling drafted a list of the issues raised.[45] This document is not contemporaneous but prepared after the event in preparation for the hearing; nevertheless every one of the 36 issues listed has been referred to in the course of the hearing, and I am not conscious of any on the list that do not receive some kind of documentary support elsewhere in the papers.
2. Nevertheless, Ms Hembling's proposal that the premises were uninhabitable presents a number of difficulties. The first challenge is the concept of uninhabitability itself. At the heart of Ms Hembling's case is the breakdown in relations between the tenants and the agents: she asserts that the agents became, essentially, totally unresponsive to her and Ms Thomson. That, according to Ms Hembling, made the premises unliveable for her and her then partner. Ms Hembling has a number of sensitivities, both physical and mental, and I invited the parties to address in their final submissions whether premises could be unfit for habitation for a particular tenant while remaining habitable for other tenants, or whether being unfit for habitation was something that must necessarily apply to the generality of tenants. At this point, Ms Hembling made the concession that she might be more likely to find premises to be unliveable than some other tenant and said that she accepted that a rent reduction for the entirety of the tenancy would be an acceptable alternative outcome. I understood her to mean that she was not pressing with any vigour a claim that the premises should be declared unfit for habitation.
3. In any case, that is clearly the outcome that the RTA would lead to. Standard term 86 allows a tenant to terminate a tenancy by written notice to the lessor where the premises are not fit for habitation. The unfitness is of the premises. There is no recognition in the term of the possibility of a breakdown of the relationship between tenant and lessor. The case law establishes that a declaration that premises are uninhabitable is not lightly made; the conclusion is one of fact, made objectively.[46] A house without a functioning toilet or a useable bathroom or kitchen may be unfit for habitation, but no defect of that magnitude was ever identified at the premises in the present matter. An absence of heating in the Canberra winter may lead to compensation being paid to a tenant, but it is unlikely to result in a declaration that the premises are unfit for habitation, as portable heaters can be provided to tide tenants over while a longer term solution is given effect. On the other hand, a house severely infested with mould may indeed be unfit for habitation; the tenants cited Fiege v Wilkinson[47] (Fiege) as an authority for that conclusion, and there are a number of other such cases.[48] Fiege, however, is very clearly distinguished from the present matter. In that case there was extensive evidence of mould over a long period and two expert reports had been prepared by a mould expert, who attended the property on a number of occasions. I would be reluctant to reach such a conclusion in the absence of expert evidence attesting authoritatively to the existence, nature and density of mould in the premises; such evidence is not available in the present matter. Ms Hembling has asserted that the mould in the premises made her sick, but the medical evidence consists mainly of her subjective impression of her own state of health.
4. Ms Hembling cited objective evidence that there was mould on the blind in the kitchen, which grew as the tenancy proceeded; that there was mould in the oven, as reported by the person who cleaned it; and filed photographic evidence of mould on 24 July 2023 in her cat bowls and the drain in the largely unused main bathroom. I have already commented that the evidence about the oven is hearsay, and largely unconvincing in any case. The growth of the spots of mould on the blind, while arguably visible, is nothing like so extensive that it is compelling evidence of a major and continuing infestation.[49] The rapid growth of mould on the cat bowls and in the bathroom drain does indeed suggest that on that night there was a high level of mould in parts of the premises, at least, but of the kind that ought perhaps to have prompted investigation by the lessor or his agents rather than serve as grounds for a declaration that the premises were not fit for habitation. And in any case, the tenants moved out immediately or very shortly afterwards.
5. For these reasons, I am not able to find that the premises were unfit for habitation at any point in the tenancy.

1. The tenants contend that the premises were not reasonably clean, reasonably secure and in a reasonable state of repair (as required by standard term 54) at the start of the tenancy. The lessor concedes that the premises were not in perfect condition at that time, but says that standard term 54 was nevertheless met. The tenants also argue that the lessor failed to complete notified repairs within the four weeks allowed, failed to undertake urgent repairs as soon as reasonably possible, and failed generally to maintain the property. If these were made out it would imply that the lessor breached standard terms 55, 57 and 59, in addition to standard term 54. The lessor argues that repairs were done, or attempted, with reasonable despatch and that some failures resulted from the uncooperative behaviour of the tenants themselves.
2. It is plain that standard term 54, which requires that the premises be "reasonably" clean, "reasonably" secure and in a "reasonable" state of repair, does not require that premises be pristine or absolutely spotless. So much follows from the use of "reasonably", and that conclusion is confirmed by the case law.[50] But standard term 54 sets a minimum standard, and, as pointed out in Faulder, this is not a "holistic" standard, but rather a standard that all parts and elements of the premises must meet. The lessor argues that the condition of the premises was accepted by the tenants when the tenancy was entered into. But, as pointed out in Faulder, the lessor is bound by the terms of the tenancy agreement: a broken shelf in a cupboard may not make the premises as a whole fall below a state of reasonable repair, but standard term 54 requires that the cupboard, as one element of the premises, be in reasonable repair, and I would not regard a cupboard with a broken shelf as being in a "reasonable state of repair". The same then applies to other elements of the premises.
3. Faulder also points out that the RTA prohibits lessor and tenants from contracting out of the standard terms, except as provided for in the RTA.[51] Standard term 54 allows lessor and tenant to contract out of the strict requirements of the term by excluding particular elements in writing. No such written exclusions have been brought to my attention in the present matter. During the tenancy,[52] and in submissions after the hearing,[53] the lessor contended that the tenants accepted the premises as they were. By implication, the lessor is arguing that the state of the premises, having been accepted by the tenants, becomes part of the contract. But specific parts of the common law of contract are overtaken and displaced by statute law in the form of the RTA. The test set by the RTA is not what was accepted by the tenants, but whether the premises, as they stood when the tenancy started, met the minimum requirements set by standard term 54. Acceptance of the state of the premises by the tenants does not displace that test.
4. The RTA provides for an incoming condition report to be prepared,[54] and where one is available it is likely to be the most reliable evidence of the state of the premises at the start of the tenancy. The RTA expects the lessor to provide a completed report to the tenants within one day of the start of the tenancy, and allows the tenants a fortnight to provide the report back, with comments if they wish. In this case the lessor provided a completed report to the tenants on 9 March, six days after the start of the tenancy, and the tenants returned it just over three weeks later, with comments. Neither party met the deadlines in the RTA, but the report nevertheless provides useful evidence, especially as the comments are supported by a large number of photographs. A note of caution is warranted here, however: the descriptive material from both lessor and tenants needs to be read in light of the incentives that the system provides for each party to present the facts to their advantage: the lessor will describe the premises in positive terms, while the tenants will draw attention to every imperfection.
5. It is plain from their annotations to the report that the tenants found a good deal to bring to the lessor's attention at the start of the tenancy. Some of these complaints are supported by photographic evidence. The oven was plainly less than clean, and that is a significant matter, I would think, in any leased premises. Also significant is the need for the toilet to be thoroughly cleaned. The other matters to which the tenants drew attention were the blinds (including apparent mould on the kitchen blind), food residues on the cooktop and benchtops, dirt on top of and underneath the dishwasher, lifting carpet in the carpeted rooms, mould in the showers, a broken shelf in the walk-in robe, wood chocking and supporting the laundry cabinets, clogged drains, damage to the wall in the main toilet, the walls generally marked, with sticky material and hooks where the previous tenants had hung things on walls and doors, and some lights not working. Outside the house, the tenants identified moss in the water tank, dusty and dirty external facilities such as fuse boxes and the NBN box and that it was dangerous to step on the pavers in the back yard because they were improperly secured.
6. Were the premises reasonably clean and in a reasonable state of repair at the start of the tenancy? Many of the things identified as faults or matters needing attention were minor, for example lights that were not working may simply have needed a new globe (it is the tenant's role to attend to such matters if they arise during the tenancy, but a tenant should receive the premises with the lights operational). Some of the problems identified were not faults to which the lessor need have attended, such as dusty exterior equipment like the fuse box and NBN box; these are always likely to become dusty and dirty just by their location. Other faults were more serious, such as the oven and the cooktop. My conclusion is that the premises were not in a reasonable state of cleanliness and repair when the tenants moved in. I find that the lessor breached standard term 54. The minor nature of some of the faults goes more towards the amount of compensation that may be ordered, a question that I examine below.

Did the lessor breach standard terms 55, 57 and 59?

1. After moving in, the tenants made several requests to have matters attended to, not only the things they had identified in the incoming condition report, but also things that had gone wrong after the tenancy started, for example the broken towel rail and the soap dish broken when the shower head fell. These are not major items, but I think they are items that the lessor rather than the tenants would remedy. No tradesperson ever came to the premises to attend to these issues.
2. A company was tasked to attend to the towel rail, soap dish, the screen door (lock and holes in the screen) and back gate latch. The agents said that the first repair business tasked ceased trading. A second business was tasked and the agents contend that the tradesperson made 33 attempts to contact the tenants by phone, but when successful on the 33rd attempt discovered that the tenants had left the premises. Ms Hembling says that neither she nor Ms Thomson had a large number of missed calls over the relevant period, but that she did receive a call on 20 August 2023 about work to be done at the premises, which the tenants had by now vacated. In any case, in my view it would not be unusual for a person, especially a person who felt vulnerable, to be wary of accepting calls from a source whose number was unknown; when a number of calls were unsuccessful, surely the tradesperson might have made contact again with the agent, checked contact numbers, and perhaps asked that the tenants be notified by text or email that a tradesperson with a particular number was trying to contact them. A course of that kind does not seem to have been followed. The agents accept that the tenants did not answer the calls for fear they were "spam" calls, and have not suggested that for the tenants to behave in that way was unreasonable. And the tenants have denied that they missed the calls. I do not think I can hold the tenants to have knowingly or recklessly contributed to the problem, in all the circumstances; nor do I believe that they failed to mitigate their losses, as is required of them by section 38 of the RTA. No argument to that effect been made to me.
3. So far as the evidence discloses, the only maintenance notifications to which the agents responded during the entire tenancy were those described in the previous paragraph. The despatch of a plumber and gasfitter when the tenants started to feel ill and thought there might be a gas leak was instigated by the tenants themselves by direct contact with a nominated service provider: there was a telephone conversation the same evening, and the tradesman appeared at the premises the next day.
4. Most of the faults nominated by the tenants were present from the start of the tenancy, and so go to the breach of standard term 54. But the failure to attend to the additional faults that occurred once the tenancy had started means that there was also a breach of standard term 57, which requires that repairs be completed within four weeks of being notified. As no repairs at all appear to have occurred, I do not need to examine whether there was a breach of standard term 59, which deals with urgent repairs.
5. At the heart of the tenants' application is the general unresponsiveness of the agents to representations made to them. This could be construed as a breach of standard term 55, which requires a lessor to maintain premises. But in my view the intent of standard term 55 is that, with term 57, it establishes the process by which tenants report the need for repairs and each report obliges the lessor to respond. It is the failure to respond in a timely way under standard term 57 that provides the basis for determining whether there has been a breach. Accordingly, I have dealt below with the general unresponsiveness of the agents as a breach of standard term 52.

The lessor must not cause or permit any interference with the reasonable peace, comfort and privacy of the tenant in the use by the tenant of the premises.[55]

1. When a tradesman came to the premises on 10 June 2023 to investigate the possible gas leak he noticed that there was a warning sign on the electric heating system for the premises that the filter needed to be cleaned. Ms Hembling's evidence was that he advised the tenants not to use the system and suggested it could be the reason why they were feeling ill.[56] The tenants took the tradesman's advice seriously and did not use the heating system during the months of June and July, two of the coldest months in the Canberra winter. They bought some electric room heaters, and relied on these for that period. They also reported the matter to the agents, apparently on 10 June 2023, requesting action to resolve the issue.[57] No maintenance work was ever done on the heating system. The agents have now collected some evidence[58] suggesting that there was no reason the heating system could not have been used, and that it would have been a simple matter for the tenants themselves to have cleaned the filter.
2. The evidence on this issue is somewhat mixed. The tradesman, Dylan, has not been called as a witness, and although I can accept that he gave the advice Ms Hembling reports (he made a similar report to the agents[59]), the truth or validity of that advice is both hearsay and opinion evidence unsupported by any information about Dylan's expertise in the relevant field. The people to whom the lessor, or his agent, has turned have likewise provided opinion evidence which is unsupported by their appearance as witnesses or the submission of documentation about their expertise and qualifications.
3. But the essence of Ms Hembling's argument on this point does not turn on whether the heater might have been usable; it turns rather on the inaction of the agents in providing either someone to maintain the heater, or else advice to the tenants that they could clean the heater themselves and/or that there was no risk in its continued use. Neither of those courses of action was followed, leaving the tenants at a loss as to how to heat the premises.
4. The evidence, although not compelling, tends to suggest that the heater was not in a state of repair that rendered it unable to be used. If it had been there would have been a breach of standard term 57, which would have required that the heater be repaired within 28 days of its having been reported at fault, or of standard term 59, which deals with urgent repairs (a report of a heater issue in early June suggests that any necessary repair would have been urgent). I note that Ms Hembling said in evidence that the signal that the filter needed to be cleaned was present at the start of the tenancy and indeed it is visible in the agents' photographs of the premises. If the heater had been in need of repair at the start of the tenancy, that would be another breach of standard term 54. But none of those things appears to be true, as it seems that the heater was usable throughout, and if it was usable there was no legal requirement to repair it. The other possibility is that the agents' inaction is a breach of standard term 52, which requires that the lessor not cause or permit the loss of reasonable peace, comfort and privacy of a tenant.
5. Did the omission by the agents "cause or permit" a loss of comfort by the tenants? It seems to me that the agents, by their omission to communicate with the tenants, put the latter in a position where their belief that the heater was unusable stood without correction. In the absence of advice from the agents, the tenants suffered considerable inconvenience and discomfort, and that discomfort was caused by the agents. I find that the lessor breached standard term 52.
6. The tenants have made a claim for non-economic loss, arguing that the unwillingness of the agents to attend to them and to the premises over the entire extent of the tenancy caused them distress and anxiety, and eventually pushed them into leaving the tenancy. They left the amount of compensation to the Tribunal's discretion.
7. It is recognised in the case law that where a contract sets out to provide non-economic benefits such as the peace, comfort and privacy promised by standard term 52, then a party denied those benefits is entitled to damages.[60] Ms Hembling has provided substantial evidence, both orally at the hearing and in documentation, illustrating the frustrations of the interchange with the agents. When the tenants found themselves with reduced incomes, they raised the issue by email with the agents, seeking a reduced rent on two grounds: first on the ground that the house had not been provided to them in a state of reasonable cleanliness and good repair, and second, because they were finding it difficult to meet the rent in any case. The response from the agent with whom they dealt involved a protracted exchange in which there was no forward movement, as the agent repeatedly started new email chains raising similar questions each time, along the lines of "How much are you able to pay?", without at any stage entering into a proper dialogue with the tenants, and without explaining how a payment plan might work. This kind of exchange seems to have typified the interaction between agent and tenants. Apart from the inspection conducted on 10 May 2023 (at which a number of actions were promised, none of which later transpired), none of the exchanges the tenants had with the agents seems to have been satisfactory or productive.
8. I am heavily reliant on the evidence of Ms Hembling on this point, and I am conscious that this is only one side of the story. But the lessor has not contested the evidence, either orally or through additional documentation, and accordingly I have nothing else from which to draw conclusions. On the evidence available to me, I find that the lessor, through the way in which the agents managed the tenancy and behaved towards the tenants, breached standard term 52. In reaching that conclusion, I am following examples set in the case law, viewing the lessor's behaviour during the tenancy cumulatively rather than assess a succession of small items separately.[61] And in my view the tenants' claim for non-economic loss can be regarded as effectively identical to a claim for loss of peace and comfort, and therefore dealt with as a breach of standard term 52 of the tenancy agreement.

Did the breaches of the tenancy agreement justify the ending of the tenancy?

1. The tenants applied to have the tenancy terminated because the premises were unfit for habitation. For the reasons explained above, that application cannot succeed. The tenancy has ended: the tenants left the premises on 11 August 2023, returning the keys. At the very first hearing of the matter I declared the tenancy to have ended on 9 August 2023. Where a tenant departs a fixed-term tenancy early, a lessor is entitled to compensation for lost rent plus the cost of reletting (both amounts are capped), or else can be compensated under the "break-lease fee" clause if such a clause is included in the tenancy agreement.[62]
2. The breaches that I have identified above comprise the breach of standard term 54 when the tenancy started; the breach of standard term 57 by the failure to repair items brought to the agents' notice after the tenancy had started; breach of standard term 52 through a failure to advise the tenants on the continued use of the heating system; and the breach of the same term through the general and continuing unresponsiveness of the agents.
3. Before considering whether these breaches justify the termination of the tenancy, there is an anterior issue, relating to the operation of section 43 of the RTA. The term allows a tenant to apply to the ACAT for termination of a tenancy agreement because of breaches by the lessor The term reads as follows:

_(1) On application by a tenant, the ACAT may terminate a residential tenancy agreement if satisfied that - _

(a) the lessor has breached the standard residential tenancy terms; and

(b) the breach of the standard residential tenancy terms was not in accordance with a term of the residential tenancy agreement endorsed by the ACAT; and

(c) the breach justifies the termination of the tenancy.

(a) the ACAT decides to terminate a residential tenancy agreement in accordance with subsection (1); and

(i) the tenant would suffer significant hardship if the agreement were not terminated within 2 weeks after the making of the decision to terminate; and

(ii) that hardship would be greater than the hardship the lessor would suffer if the tenancy were terminated within 2 weeks after that day;

the ACAT must order that the agreement be terminated at a specified time within 2 weeks after the making of the decision to terminate the tenancy.

(a) the ACAT decides to terminate a residential tenancy agreement in accordance with subsection (1); and

(b) the ACAT is not satisfied in relation to the matters mentioned in subsection (2) (b);

the ACAT must order that the agreement be terminated at a specified time not less than 2 weeks after the making of the decision to terminate.

1. The tenants did not apply under section 43 of the RTA to terminate their tenancy; rather, they applied under standard term 86, dealing with premises unfit for habitation. For the reasons already explained, that application was misconceived. With self-represented parties, it is sometimes understood that their engagement with the RTA will be imperfect, and some accommodation might be made for procedures imprecisely followed. Thus, I might deem the tenants' application to have been made under section 43 of the RTA; but that section, and the corresponding standard terms in Schedule 1 to the RTA, together impose some prescriptive and limiting requirements on such applications.
2. Section 43 itself appears to contemplate that the application made by a tenant will be prospective rather than retrospective: that is, that the tenant will still be in possession of the premises at the time of the application. That appears to be the implication of subsections 43(2) and 43(3), which require a comparison of the hardship that a rapid termination order might have on tenant and lessor - a comparison that only makes sense if it is undertaken while the tenant is still in possession. It is not entirely clear, however, that that reading is intended. If it were, it would have been straightforward to make that plain, for example by including in subsection 43(1) a requirement that at the time of the application the tenant had not vacated the premises; such requirements appear in sections 47, 48 and 49, where a lessor is applying to terminate a tenancy. The absence of such a requirement might encourage a belief that the operation of the section is not necessarily strictly prospective.
3. Looking at the scheme of the RTA as a whole, however, it appears that the intention is that the intervention of the ACAT to bring a tenancy to an end should occur only where that is needed to resolve a dispute or difference of view between lessor and a tenant still in possession. Otherwise, the tenancy will end by the action of one or the other, e.g., a tenant will vacate the premises in accordance with a lessor's termination notice; or a tenant will notify the lessor of the intention to vacate and vacate the premise in accordance with the notice (and other courses of action are also possible). Section 36 of the RTA sets out the possible ways in which a tenancy can end; one option is that the tenant notifies the lessor of the intention to vacate and vacates in accordance with the notice.[63] The relevant provision specifies that the notice must be "in the form approved under section 133", but no forms have been approved under that section, so the requirement has no application.
4. Further complications arise from the application of standard terms 90 and 91. Standard term 90 states that a tenant who wishes to end a tenancy for breach of the tenancy agreement by the lessor can either apply to the ACAT for an order (presumably under section 43) or go through a notice process as specified in standard term 91. The latter term sets out a detailed process that requires a notice to remedy identifying the breach be served, and after two weeks, if the breach is not remedied, a notice to vacate, specifying a date for vacation at least two weeks later.
5. Also potentially relevant is standard term 84, which provides for a tenancy to end when a tenant serves a notice of intention to vacate, and vacates the premises in accordance with the notice. Under those circumstances the tenancy ends when the tenant vacates the premises.
6. Taking the above provisions together, it seems to me that the intention of the RTA is that generally speaking the provisions empowering the ACAT to intervene to end a tenancy are prospective, not retrospective. Where a tenancy has already come to an end, for example because the tenant has vacated the premises, one of the other provisions will apply. In this case, I cannot see that the tenancy ended under standard term 90, as the tenants did not apply to the ACAT for an order while they were still in possession; it did not end under standard term 91 because the prescribed notice process, involving a notice to remedy served on the lessor, and a period to allow for remedy, was not followed (a notice to remedy was drafted but not sent); but a valid notice of termination was served on 3 August 2023, and the tenants then vacated in accordance with that notice.[64] The tenancy thus ended in accordance with standard term 84 and section 36(1)(b) of the RTA.

1. The tenancy agreement in the present matter includes a break lease clause in the terms specified in section 8(4) of the RTA, but the lessor is not pressing for a break lease fee to cover rental losses. When the tenancy ended, the lessor wished to inspect the premises, and the agents arranged not to complete re-letting until he had travelled to Canberra to make that inspection. The lessor is therefore not pressing any entitlement he may have had to a break lease fee for lost rent. But he is claiming a week's rent ($800) to cover the re-letting costs, and that is allowed for in section 84 of the RTA.
2. The only claim made by the lessor in these two matters is his claim against the bond. As noted earlier, a claim against the break lease fee cannot be made in a bond claim, which is limited to those matters detailed in section 31 of the RTA, such as arrears of rent, the costs of repair and cleaning, and making premises secure. Section 31 does not provide for rent foregone, for example, and I cannot see how reletting costs can be brought within the matters identified in the section. In the present matter, the lessor has not filed a counterclaim against the application made by the tenants. Where a party is self-represented, some leeway might be given where the party has engaged incompletely with the RTA and its provisions; but the lessor here is represented by an agent who should be sufficiently familiar with the RTA to ensure that a client's interests are properly advanced. The lessor's claim against the bond does not allow me to make an order in his favour for the reletting costs.

1. Only the most abbreviated references are made in the papers or were made during the hearing to questions of rental arrears. In his response of 6 October 2023 the lessor included arrears of rent, coming to $914.29, among the amounts to be recovered from the bond. And Mr Toole, in his opening statement at the hearing, included rental arrears as among the costs that should be recovered from the bond.[65] The ledger material filed by the lessor supports the claim, listing $685.71 owed at 3 August 2023.
2. If the tenancy had ended because the premises were unfit for habitation, no arrears would be owed, the rent having abated; but that is not how the tenancy ended. It ended by the tenants giving notice and vacating the premises. The matter may not have been pressed with any vigour, but the recovery of rental arrears from a bond is provided for under section 31 of the RTA, and it is one of the fundamental expectations of any tenancy that rent should be paid. The lessor is entitled to rent owed to him.

Is the lessor entitled to compensation for cleaning and gardening?

1. The lessor claims that the premises were left in a state that required a full end-of-lease clean, and that the garden also needed a good deal of work to bring it into a state where the premises could be let. Ms Hembling said that she and Ms Thomson had paid for the premises to be cleaned before they left, and although this was not a complete clean, the premises were in approximately the same state when they left as they had been on their arrival. As for the garden, Ms Hembling said she was entitled to gardening assistance under her NDIS plan, but had been unable to engage anyone because the unsteady pavers made the garden too dangerous for any substantive work. Ms Hembling provided video evidence of the cleanliness of the premises when the tenants left, and so far as that evidence goes, the premises looked to have been cleaned quite thoroughly. But Ms Hembling conceded that no professional clean had been done of the carpets, and such a clean is a standard requirement when a tenancy agreement allows a tenant to keep one or more animals.
2. Distinct did complete an exit condition report, and that document is in evidence.[66] Ms Hembling said at the hearing that the tenants had not been advised that an exit report was to be prepared, and so had not had the opportunity of involvement contemplated by the RTA.[67] The report lists a good deal of the premises as not clean, but the attached photographic evidence does not persuasively support that; nor does the video material filed by the tenants. The question here is how the premises at the start of the tenancy compared with the premises after the tenants had vacated. As is common in such matters, the photographic evidence is inconclusive about the state of affairs at both ends of the tenancy. What I can be sure about is that at the start the oven and toilets needed cleaning, and there were some other imperfections: the agents conceded as much. And at the end of the tenancy, the tenants acknowledged, the carpets had not been professionally cleaned. In general, I think the property was in a broadly comparable state at the start and at the end of the tenancy; but a good clean of the carpet is a reasonable requirement at the end of a tenancy when animals have been present.
3. I think the lessor is entitled to be reimbursed the cost of a professional carpet clean and flea treatment.

What compensation should each party receive for the other party's breaches?

1. I have found that the lessor breached standard terms 54, 57 and 52, and that the tenants breached the break lease clause specified in section 8(4) of the RTA. The duration of the tenancy agreement was 23 weeks from 3 March to 11 August 2023. The assignment of compensation that follows relies on an assessment of the seriousness of each loss of amenity and takes account of the awards made in similar cases; but these assessments are the kind of matter on which minds are likely to differ.
2. The lessor provided premises in which the oven was significantly dirty, dirty enough that I think it was reasonable for the tenants to treat it as unusable. It remained in that state until 24 April 2023, when a tradesperson cleaned the oven.[68] Prior to that, the tenants had purchased an air fryer, and although subsequently the oven was cleaned, and, apparently, cleaned to a high standard, the tenants chose not to use it for the remainder of the tenancy. In my view the tenants might reasonably be compensated for the absence of an oven until 24 April 2023, and for the cost of cleaning the oven, but not also for the air fryer, which they have (presumably) taken with them. The tenants chose not to use the oven even after it was cleaned, but that was their choice, and not something that can be laid at the lessor's door. They say that the person who cleaned the oven told them that there was mould in it. This is hearsay evidence; and I doubt very much, in any case, that mould is likely to survive in an oven that is in use, as very few cellular organisms could be expected to survive in temperatures of 200º C. I assign a rent reduction of 5% of the weekly rent ($40 per week) from 3 March to 24 April 2023 (seven weeks and three days) for the oven, plus $340 for the cost of cleaning the oven (with the other cleaning that took place at the same time), making a total amount of compensation of $637.14.
3. Compensation for the general state of cleanliness of the premises I assess at a rent reduction of $30 per week, to cover the cooktop, toilets and the kitchen benchtops, all of which, as I understand it, were cleaned when the oven was cleaned. Applying that reduction from 3 March to 24 April 2023 gives a total of $227.14. The broken shelf, the chocked cupboard, the broken towel rail, the soap dish, the screen door, the back gate latch and the unstable pavers I assess at $10 per week each, coming to a total of $70 per week for the entirety of the tenancy, that is for 23 weeks, giving a total of $1,610.
4. I do not propose making a separate order for the breach of standard term 57, as the faults in question arose very close to the start of the tenancy and were present throughout it; they are covered by the amounts specified in the previous paragraph.
5. The absence of heating is a more serious matter. I do not think it is reasonable to compensate the tenants for the purchase of heaters which they have (presumably) taken with them and can reuse or resell; the standard term breached was term 52, loss of peace, comfort and privacy, but the basis for compensation is the loss of amenity caused by that breach, which was significant (some rooms could not be lived in). I assign a rent reduction of 20% of the rent ($160 per week), for nine weeks and five days from 9 June to 3 August, giving an amount of $1,554.29.
6. The more general loss of peace and comfort, resulting from the difficulty of dealing with a totally unresponsive agency, I assess as warranting a rent reduction of $50 per week from 10 May (when the tenants had the opportunity of ensuring that the agents were truly aware of all the problems they had with the premises) to the end of the tenancy, a period of 13 weeks. This comes to $650, well short of what the tenants have claimed. But it seems to me that these tenants were especially susceptible to distress for a variety of reasons, whereas the amounts of compensation are determined on the basis of the ordinary tenant. I do not think the RTA requires a lessor to provide an extra level of attention or service to a tenant because that tenant has specific vulnerabilities, even where those vulnerabilities have been brought to the lessor's attention (of course some lessors would do what they could to make a tenancy easier for a vulnerable tenant).
7. The total compensation to the tenants is therefore $4,678.57. There is a further $117.56 owed to them for the electricity reconnection, which is not contested. This gives a total of $4,796.13.
8. I have already noted above that Mr Xu, the lessor, is entitled to $914.29 in rental arrears, and $70.44 for the unpaid water bill. He is also entitled to an amount for fumigation of the carpets, which I assess at $700. The total compensation to the lessor is therefore $1,684.73.
9. Accordingly, Mr Xu owes Ms Hembling and Ms Thomson a total of $3,111.40 in compensation. The bond of $3,200 is to be discharged to the tenants. I have made orders accordingly. In those orders I have also corrected the declaration that I made on 6 September 2023 that the tenancy ended on 9 August 2023; the correct date was 11 August.

[17] See Faulder v Tran [2018] ACAT 80, at [60]

[22] Annexure F; Documents 10g, 10h, 10i

[23] Transcript of proceedings, 14 February 2024, pages 19-20

[24] Transcript of proceedings, 14 February 2024, page 27

[25] Transcript of proceedings, 14 February 2024, page 28

[26] Transcript of proceedings, 14 February 2024, page 28

[27] Transcript of proceedings, 14 February 2024, page 29

[28] Transcript of proceedings, 14 February 2024, pages 29, 30

[29] Transcript of proceedings, 14 February 2024, pages 29-33; documents 12, 13, 14, 19

[30] Transcript of proceedings, 14 February 2024, page 37

[32] Documents 25, 26, 34, 35, 36, 39, 40, 41; transcript of proceedings, 14 February 2024, pages 48-51

[33] Transcript of proceedings, 14 February 2024, page 55; Document 36

[35] Transcript of proceedings, 14 February 2024, page 58 (both dates are nominated)

[36] Transcript of proceedings, 14 February 2024, page 32

[37] Transcript of proceedings, 14 February 2024, page 61

[38] Transcript of proceedings, 14 February 2024, pages 61-2

[39] Transcript of proceedings, 14 February 2024, page 63, Annexure J

[40] Transcript of proceedings, 14 February 2024, page 64, Documents 53, 55

[41] Transcript of proceedings, 14 February 2024, page 63, Document 52

[42] Transcript of proceedings, 14 February 2024, page 70

[43] [2018] ACAT 80

[44] See Peters v ACT Housing [2006] ACTRTT 6 at [41] (the paragraph numbering has become corrupted - the relevant paragraph [41] is close to the end of the case); Salem & Gizgeez v Abeygunasekara & Jeevanthan [2011] ACAT 1 at [44]; But v Baldwin [2016] ACAT 9 at [31]

[45] Document 32, listing 36 issues; perhaps 30 of the 36 are identified as defects in the premises

[46] De Soleil v Palmhide Pty Lrd [2010] NSWCTTT 464

[47] [2023] ACAT 11

[48] See for example those cited in Fiege at [36]

[53] Lessor's submission received 29 February 2024

[56] Transcript of proceedings, 14 February 2023, page 58

[58] Lessor's opinion evidence on the heater

[60] See eg Baltic Shipping v Dillon [1993] HCA 4, at [17]

[61] See for example Mansour v Dangar [2017] ACAT 49 at [57]; Lee v Guo [2017] ACAT 60, at [98]

[65] Transcript of proceedings, 14 February 2024, page 18

[68] Transcript of proceedings, 14 February 2024, page 20