1. Relevantly, in Magrath v Varacalli,[10] the Tribunal observed that:

The provisions of the RTA referred to in section 216 are a complete statement of the way in which a tenancy agreement governed by the RTA can be terminated, and it is not legally possible to terminate a tenancy agreement governed by the RTA in any other way.[11]

Did the landlord appropriately mitigate its loss?

1. Having found that the tenants did not validly terminate the lease under the RT Act, and vacated the premises prior to the expiry of the fixed term, it follows that the landlord may be entitled to compensation under s 210 of the RT Act for loss or damage suffered by it because the tenants failed to comply with the tenancy agreement.
2. Section 211 of the RT Act sets out various matters which the Tribunal may take into account in determining an application for compensation which, relevantly, includes whether or not action has been taken by the landlord to mitigate the loss or damage.
3. In the context of the breaking a fixed term, this requires consideration of the steps taken by the landlord to find another tenant.
4. In the present circumstances, the tenants gave notice of intention to vacate on 28 March 2017, vacated on 29 April 2017 and the property was relet on 22 June 2017. In other words, it took the landlord 12 weeks from the date of the notice, and 8 weeks from the date of vacation, to find another tenant to rent the property.
5. The landlord seeks to explain this delay by the need to bring in tradesmen to check the issues raised by the tenants and repaint the bedroom with the marks, and said that he had to wait for the return of a principal of a firm who he preferred to deal with, who was ill and so was not able to address the issues for some 6 weeks. The landlord did not provide any receipts for these items or call the person concerned.
6. The tenants respond to this by asking why, if (as the landlord argues, see further discussion below) there was nothing wrong with the premises, the property was not put on the market immediately.

1. Ms Chen confirmed that the property was first advertised on 18 May 2017. There was an open for inspection held on 6 occasions (22, 24, 25, 29 and 31 May and 1 June 2017). The new tenant was the first party to submit an application and was approved on 9 June 2017. The new tenant moved in on 22 June 2017 at the same rental.
2. In my view, it was unreasonable of the landlord not to have advertised the property for lease from the time that the notice was given, even if it may have been necessary to effect some repairs prior to a new tenant entering into occupation. It was also unreasonable for the landlord to sit and wait for a particular tradesmen to return.
3. Having regard to 6 weeks taken to for a new tenant to move in from when the apartment was first advertised, I find the reasonable compensation is limited to a period of 6 weeks from the date of notice to vacate. Deducting the 4 week notice period, I find that the landlord is entitled to compensation for rent loss of 2 weeks in the sum of $1,339.86.

1. In addition to the claim of rent loss, the landlord claims the following items:
   • Pro-rata letting fees: $230.15
   • Pro-rata advertising: $123.65
   • Agent's cost: $550.00
   • Plumbing cost: $872.00
2. I allow the pro-rata letting fees and advertising in the sum of $353.80.
3. The agent's costs are set out in an invoice from Biggin Scott dated 16 June 2017 for VCAT document preparation, consultation with director (2 meetings) and VCAT attendance by property manager.
4. The plumbing costs are set out in an invoice from AJACS Group dated 20 June 2017 for attendance fee for the VCAT hearing (including a minimum 4 hour charge).
5. These are not losses or damages arising from the tenants' failure to comply with the RT Act. Rather, they are costs of the proceeding. The general rule in section 109 of the Victorian Civil and Administrative Tribunal Act 1998 is that each party is to bear their own costs of the proceeding. Accordingly, I dismiss the claims for these costs.
6. The total compensation allowed to the landlord is $1,693.66.

1. The tenants argue that the state of the premises entitled them to terminate the tenancy. For the reasons above, I do not accept that submission. However, the evidence relied upon by the tenants is also relevant to whether or not they are entitled to compensation under s 210 of the RT Act.
2. A landlord has an obligation to ensure that rented premises are maintained in good repair.[12] In Shield v Deliopolous,[13] it was held that this obligation is strict and absolute and requires a landlord to identify and rectify any defects of which they are aware or ought to be aware, including ensuring that premises are reasonably fit and suitable for occupation at the start of a tenancy.[14]
3. In addition to the matters raised in the communication of 17 October 2016 (at paragraph 15 above), the tenant also seeks compensation in relation to the toilet seat in the main bathroom, and small sums for water, electricity and cleaning.
4. I address each of the tenants' claims below.

1. The tenants' concern with the upstairs bathroom relates to a stench said to be so unbearable that it cannot be used.
2. The landlord responds to this claim by submitting that:
   • it was not aware of the issue at the commencement of the tenancy due to the failure of the then agent to bring it to his attention until 26 October 2016;
   • as soon as it came to the landlord's attention, arrangements were made for the landlord and a plumber to attend and identify the cause in early November;
   • the cause identified by the plumber and communicated to the tenant was a failure to use the bathroom so as to fill the trap with water, allowing smells to rise through the pipes;
   • the tenants did not raise the issue again between early December and late March at the time of giving the notice to vacate suggesting that it was not an issue and was only "contrived" in order to justify that notice.
3. The landlord called the plumber, Mr Antonio San Filippo, to give evidence. Mr San Filippo confirmed that he attended the premises on 11 November 2016 and told the tenants that the shower had no water in the trap and that the smell could be resolved by turning on the water. He advised the tenants that they needed to ensure that the water was run occasionally so that the trap does not dry out. He attended the property again on 8 December 2016, but did not observe any stench. He was asked by the landlord whether he ever smelled a stench after the tenants vacated. He indicated that he had not, although he said he had not been to the premises for months.
4. The landlord also pointed to a series of SMS messages between the landlord and tenants over the period 11 November to 8 December 2016. Relevantly, that includes a message from the tenants to the landlord on 18 November 2016 as follows:

Hi Ian, thank you for organising Tony to attend last night. It seems he found the problem and the fix. Hopefully it takes care of the upstairs shower issue also. Regards Andrew

1. The tenants explain that Mr San Filippo attended on 17 November 2017 to look at the hot water service which was downstairs and which was also giving off a stench. They say Mr San Filippo's advice related to filling the trap to resolve the stench with respect to the hot water service, which they accept was resolved.
2. The tenants say that this did not resolve the issue with the upstairs bathroom as evidenced by the subsequent communications between the tenants and the agent. Under cross-examination, Ms Chen accepted that the tenants had raised the issue about the stench the first time she went through the property. She also accepted that the tenants raised the issue when they visited the agent on 8 December 2016 (following a visit by the landlord to the property, at which the tenants requested the landlord to leave).
3. The documents on which the landlord sought to rely included an email from Ms Chen to Mr Pohl dated 5 June 2017. This states:

When we took over management late November, Jenn Durling had spoken to the tenant around this time who outlined his concerns. Jenn then emailed you on 24.11.16.

Unable to use upstairs bathroom due to smell coming from the bathroom - door must be close and windows all open to avoid it filtering through to the house

Upstairs bathroom also have damage from previous water leaks

We inspected the property on 01.12.16 and went over tenant concerns.

1. This exchange is entirely consistent with the tenants' position that the smell in the upstairs bathroom had been raised at the commencement of the tenancy and had not been resolved by the works or advice from Mr San Filippo on 17 November 2016. While it is true that there was not much further communication in writing on the issue between December 2016 and March 2017, this may be explained by a breakdown in communication between the landlord and the tenants following the events on 8 December 2016.
2. I am satisfied on the balance of probabilities that there was an ongoing smell from shortly after the commencement, till the end, of the tenancy which rendered the upstairs bathroom unusable and which arose from the landlord's breach of its duty to keep the premises in good repair. The tenants are entitled to compensation.
3. The tenants have calculated the compensation at 25% of the rent for the duration of the tenancy. The property had two bathrooms, and there was no suggestion that (apart from an issue with the toilet seat discussed below) the tenants were unable to use the main bathroom. Accordingly, while the inability to use the upstairs bathroom no doubt reduced the amenity of the premises, it was not such as to entitle the tenants to compensation equal to one quarter of the total rent.
4. Allowing for a reasonable period for the landlord to have effected repairs to address this issue, I assess the reasonable compensation as 10% of the rent for 180 days (197 days in the tenancy, less the 3 days from the commencement of the tenancy until notice was given and 14 days for the landlord to have effected repairs). Accordingly, I calculate the compensation at $1,722.67.

1. The upstairs area comprised an open plan living area next to the bathroom. The tenants say that the smell from the upstairs bathroom rendered the living area unusable.
2. I have already accepted that there was a smell from the upstairs bathroom for the duration of the tenancy arising from the landlord's breach of the duty to keep the premises in good repair. I further find that, on the balance of probabilities, the smell limited the amenity of the upstairs living area.
3. The tenants have calculated the compensation at 25% of the rent for the duration of the tenancy. However, the evidence in the written communications was that the upstairs area was not wholly unusable, but rather "requires all upstairs windows to be open in order to make the area liveable". As it might have been possible for the tenants to keep the windows open to use the area on some occasions, I do not consider the tenants are entitled to compensation equal to one quarter of the total rent.
4. I assess the reasonable compensation as 7.5% of the rent for 180 days and calculate the compensation at $1,292.01.

1. The condition report prepared by the landlord's agent identified an issue with the toilet seats in both bathrooms in the following terms:

Main Bathroom - Toilet - Lid come off it's (sic) hinges (2 photos)

Main Bathroom 2 - Toilet - In good condition lid needs screwing back on (2 photos)

1. The tenants seek compensation of 25% of the rent for a period of 45 days from when the tenancy commenced until the toilet hinges were repaired for the downstairs toilet. No additional claim is made in relation to the upstairs toilet.
2. The landlord essentially seeks to defend this claim on the basis that the toilets were still useable and that he arranged the repair of the hinges as soon as practicable having regard to what he described in one SMS to the tenants on 6 December 2016 as the need to "rely on people in a very in a very (sic) unreliable building industry".
3. It appears the landlord attempted to repair the toilet seats himself on 26 October 2016 using silicone. An email from the tenants to Nadia Powell the next day indicates that the repair did not work and that the tenants were concerned by the landlord's use of two of their kitchen knives to do the work and silicone that was left on the kitchen bench, dining table and bathroom vanity.
4. As he then went overseas, the landlord was unable to return to the property until 11 November 2016. He then agreed to arrange for Mr San Filippo to repair the toilet hinges. It took almost a week for Mr San Filippo to attend. Mr San Filippo then ordered brackets for the toilet seats. It was not until 11 days later, on 28 November 2016, that some brackets arrived at the supplier chosen by Mr San Filippo. The landlord advised the tenants on 30 November 2016 that the wrong brackets had been delivered. After some heated exchanges between the parties by SMS, it appears the correct brackets became available and were finally attached on 8 December 2016.
5. While the landlord says that he has had a long involvement in the building industry and in owning and leasing properties, the evidence regarding the repair of the toilet hinges does not speak well of his approach to his obligations under the RT Act. That said, the purpose of s 210 of the RT Act is to compensate for the loss suffered by a tenant, rather than to punish the landlord.
6. The toilet was not in good repair at the start of the tenancy, as evidenced by the condition report, and was not repaired for some 45 days. It is no answer to a claim to say that there are delays in the building industry.
7. Nevertheless, it seems to me that the downstairs toilet was useable, although not conveniently so. In all the circumstances, I assess the reasonable compensation at $120, being $20 per week for 6 weeks.

1. The tenants have claimed compensation for the hole in the wardrobe in the second bedroom. It is clear based on the condition report and the photos provided by the tenant at the end of the tenancy that the hole was there the whole time. However, while there was some evidence that at the end of the tenancy, water had gotten into the cupboard via the hole in the cupboard wall, the tenants did not suggest that there was any damage caused to any of their goods by that hole. Further, the tenants did not provide any evidence that the hole was causing any harm to their health. In all the circumstances, I do not allow any compensation for this item.
2. There was no evidence presented by the tenants of the basis for the claims in relation to cleaning, water and electricity and I dismiss those claims.

1. Having regard to the foregoing, the tenants are entitled to compensation in the sum of $3,134.68 comprising:
   • Upstairs bathroom - $1,722.67
   • Upstairs living area - $1,292.01
   • Downstairs toilet - $120.00

1. Offsetting the amount awarded in respect of the landlord's claim for compensation ($1,693.66) against the tenants' claims ($3,134.68), I will make orders that the landlord pay compensation to the tenants in the sum of $1,441.02.

[3] [2016] VCAT 1535.

[5] [1974] HCA 40.

[7] [2013] VCAT 1319.

[8] [2016] VCAT 82.

[10] [2016] VCAT 575.

[13] [2016] VSC 500.