1. The respondent pay the applicants the sum of $2,500 on or before 15 November 2019.
2. ACT Rental Bonds is directed to release the whole the bond to the applicants.
3. This decision is in satisfaction of all claims made by both parties.

1. The applicants Ms Keira Wicks and Mr Trent Stevens were the occupants (the occupants) of a residential property on Caloola Farm 705 Top Naas Road, Tharwa in the Australian Capital Territory (Caloola). The Hurst-Meyers Charity Ltd was the owner (the owner) and is the respondent in these proceedings.
2. On 12 October 2018 the occupants signed a "service occupancy" agreement (the agreement) and moved into the residential property, also known as "The Cottage" (Cottage or the property).[1] The nature of the agreement is a matter of contention that will be dealt with in these reasons. Though the occupancy began on 12 October 2018, [2] a bond of $1,600 was not lodged with ACT Revenue Office until 7 November 2018.[3] The owner asserted that an ingoing condition report (ICR) dated 12 October 2018 was provided to the occupants on that same date.[4]
3. On 15 October 2018 the occupants requested an asbestos clearance certificate (certificate) of the Cottage. On 16 October 2018 the owner emailed a certificate from L & D Consulting to the occupants. The certificate confirmed the Cottage was asbestos free and was safe to inhabit.
4. Sometime during their stay, the occupants discovered there was asbestos contamination in the Cottage. The events leading up to the discovery of asbestos is in dispute. On or around 19 October 2018, a part of the linoleum flooring in the kitchen (lino) was taken by the occupants' friend Mr Ashley Sorenson to be used as a sample for asbestos testing.[5] Mr Sorenson was not a party to the occupancy agreement.
5. On 21 October 2018, the owner visited the Cottage and discovered Mr Sorenson had been sleeping at the Cottage. The owner asserted that at this meeting Mr Hurst-Meyers talked to Mr Stevens and Mr Sorenson about the Cottage having an issue with asbestos. Mr Stevens and Mr Sorenson both worked in the asbestos removal industry. There was discussion between the three men concerning Mr Stevens and Mr Sorenson removing the asbestos and the price of $1,500 was mentioned. Mr Hurst-Meyers told Mr Stevens and Mr Sorenson not to make alterations to the Cottage[6] without the owner's written consent.[7]
6. On 25 October 2018 the owner informed the occupants via Facebook message that Mr Sorenson could not reside at the Cottage,[8] to which the occupants replied that Mr Sorenson was no longer doing so.[9]
7. Although the exact dates are unclear, on or before 29 October 2018 Mr Sorenson provided the lino to Keane Environmental for asbestos testing.[10] Testing was undertaken on the same day and a report (Keane report) confirmed the lino tested positive for asbestos.[11] Mr Sorenson informed Ms Wicks of the results of the Keane report on 29 October 2018 and Ms Wicks immediately removed her son from the Cottage.[12]
8. In her witness statement Ms Wicks states that on 5 November 2018, she sent a text message about the Keane report to Erika. [13] Erika was the Cottage's caretaker at the time. On 6 November 2018 Erika called Mr Hurst-Meyers to inform him the occupants now had evidence that the Cottage had asbestos contamination.[14] The owner responded they would instruct Erika in the next few days what to do. At this time a copy of the Keane report had not been provided to the owner.[15]
9. On 6 November 2018 the owner informed the occupants via Facebook message that a "general analysis" for asbestos will be conducted at Caloola.[16] The occupants responded that an asbestos assessment had already been conducted for the Cottage and the lino tested positive for friable asbestos. The owner instructed the occupants to vacate the Cottage. At 8:52pm the owner emailed the occupants a notice to terminate the agreement (notice to terminate).[17] The owner also informed the occupants that an asbestos assessor from L & D Consulting would attend the Cottage the following day. At approximately 10:00pm, Ms Hurst-Meyers personally served the occupants the notice to terminate at the Cottage. During the conversation the occupants informed Ms Hurst-Meyers that they would not permit the asbestos assessor to enter the Cottage.
10. On 7 November 2018, the owner emailed the occupants to inform them again that an asbestos assessor from L & D Consulting would be attending the Cottage. On that day, while the occupants were not present, the asbestos assessor Mr Kyle Lancaster attended the Cottage. The owner asserted that in addition to conducting an assessment for the asbestos report (L & D report),[18] Mr Lancaster examined the damage to the lino and considered this recent damage.[19] Later that day when the occupants returned to the Cottage, they discovered someone had been inside the Cottage and that "the lino in the kitchen had been cut and taped [sic] placed over it".[20]
11. On 8 November 2018 the occupants lodged an application for resolution of a dispute under the Residential Tenancies Act 1997 (RTA) (RT 851/2109). The occupants contended that the agreement was in fact a residential tenancy agreement for the purposes of the RTA. The matter was listed for hearing at 3pm on 9 November 2018.
12. On 9 November 2018, prior to the hearing, the owner applied for interim protection orders at the Magistrates Court. The Magistrates Court ordered that the occupants were prohibited from attending Caloola and the owner's residential properties. Following this order, the parties agreed to end the occupancy agreement and on 15 November 2018 the occupants vacated the Cottage and removed their goods.

1. The occupants filed their application on 8 November 2018, at which time they were still in occupation. They sought orders that:
   • (a) within three days of the tribunal's orders, the owner was to return all rent and bond to the occupants;
   • (b) within 28 days of the tribunal's orders, the owner was to pay $15,000 in compensation to the occupants; and
   • (c) if required, the owner was to pay the costs associated with the remediation of the occupant's belongings.
2. The application attached a number of documents, the most relevant being:
   • (a) The service occupancy agreement for the period 12 October 2018 to 12 October 2019.[21]
   • (b) The receipt for four weeks' bond and two weeks' rent in advance in the sum of $2,398.00.[22]
   • (c) The notice to vacate from the owner dated 6 November 2018,[23] attaching an asbestos report for the Cottage completed 29 October 2018.
   • (d) Email correspondence between Mr Ralph Hurst-Meyers and Mr Charlie Faulder, solicitor for the occupants, dated 7 November 2018.
3. On the same date, the occupants lodged another application for interim orders, that until further order of the tribunal, the owner be restrained from forcefully removing the occupants from the Cottage, changing the locks, and disposing of the occupants' property.
4. The matter was listed urgently for a hearing on 9 November 2018. The Tribunal made orders that the owner be restrained from:
   • (a) forcefully removing the occupants from the Cottage until further order of the tribunal;
   • (b) changing the locks; and
   • (c) removing the occupants' belongings.
5. The matter was adjourned to 14 November 2018.
6. On 12 November 2018, the owner lodged a separate application (RT 859/2018) against the occupants for a total claim of $6,600. This claim was comprised of:
   • (a) Repair costs - $3,200.
   • (b) Damages for the property not being "rentable" - $1,600.
   • (c) Rent arears - $400.
   • (d) Stolen linen - $3,000.
7. The owner sought orders that the occupancy agreement be terminated, and the owner be allowed to access the property to remove the occupants' belongings.
8. The Tribunal heard the two matters together on 14 November 2018 by which time the occupants had vacated the Cottage. At the hearing the Tribunal ordered by agreement:
   • (a) The occupancy agreement be terminated at 4pm on 14 November 2018.
   • (b) The owner, or its agents, will not enter the Cottage to remove the occupants' belongings until further order or by written agreement between the parties.
   • (c) If the property is vacated, further orders can be made in chambers by consent.
   • (d) Otherwise, the liberty to relist on short notice.
9. The matter was adjourned for further directions on 27 November 2018. The two matters were listed together for hearing on 28 and 29 March 2019. The occupants were ordered to file all evidence they wish to rely on in the hearings by 24 January 2019. The owner was ordered to file any evidence in reply and any counterclaim by 18 February 2019. The occupants were to file any reply to the counterclaim by 4 March 2019.
10. On 21 December 2018 the occupants filed their evidence including witness statements.
11. On 28 March 2019 Mr Faulder, solicitor, appeared for the applicants and Ms Bolas, solicitor appeared for the respondent. Mr Faulder advised that because the occupants had vacated the Cottage their claims were now only for compensation. The compensation claim was based on:
    • (a) the occupants' status as tenants under the RTA;
    • (b) wrongful eviction arising from the owner's actions in seeking and obtaining the personal protection order in the Magistrates Court. The terms of the order made the continuation of the tenancy impractical;
    • (c) breach of the occupants' quiet enjoyment arising from the presence of the asbestos in the Cottage, the actions of Ms Hurst-Meyers when serving the termination notice and the need to pack and move.
12. The owner raised:
    • (a) their intention to counterclaim for rent arrears and the replacement cost of laying new second-hand lino;
    • (b) their contention that the agreement between the parties was only an 'occupancy agreement' within the meaning of Part VI of the RTA and not a residential tenancy agreement;
    • (c) the existence of video taken inside the Cottage on 6 November 2018 without the occupants' consent; and
    • (d) an issue concerning the proper respondent to the occupants' application. It was said by the owner that they were not in fact the owner at the time of the occupancy agreement.
13. In the light of these developments the hearing was adjourned. The Tribunal made orders that the parties file and serve their evidence and submissions concerning the proper parties by 11 April 2019. The owner was again ordered to file and serve any counterclaim that they wished to press. The occupants were ordered to file and serve their amended claim setting out the causes of action relied upon and the particulars thereof by 11 April 2019.
14. In their amended claim filed 11 April 2019, the occupants objected to the inclusion of footage at the Cottage taken on 6 November 2018 without the occupants' knowledge or consent. The occupants sought compensation from the owner for:[24]
    • (a) leasing a property with "friable asbestos";
    • (b) issuing an immediate notice to vacate without legitimate basis;
    • (c) forcing the occupants to pack their belongings and move quickly, resulting in some items of sentimental value being broken; and
    • (d) "contra work" (contra) to the value of $600 per week.
15. The contra relates to an agreement between the parties in which the occupants would do work on the Cottage in lieu of rent.
16. On 16 April 2019 the matter was listed to deal only with the issue of the proper respondent. The parties appeared and advised that the issue of the proper respondent had been resolved and the matter should proceed with the existing parties.
17. The Tribunal made the following orders:
    • (a) The owner file and serve by 1 May 2019, written statements by every witness relied upon, any videos relied upon, and invoices for cleaning and repair.
    • (b) The occupants file and serve by 7 May 2019 submissions relating to:
      • (i) whether the agreement is characterised as a tenancy or occupancy agreement;
      • (ii) if the agreement is characterised as an occupancy agreement, what were the agreement's express and implied terms;
      • (iii) the owner's right to serve a notice of termination and its consequences;
      • (iv) the law relating to quiet enjoyment within the agreement and whether this was breached by the notice of termination;
      • (v) why the breakage of the bowl constitutes a cause of action; and
      • (vi) notification of witnesses intended to be called.
    • (c) The owner file and serve submissions in reply by 21 May 2019.
    • (d) The occupants file and serve submissions in reply by 28 May 2019.
    • (e) The evidence and submissions in RT 851/2018 be the same evidence and submissions in RT 859/2018.
18. On 2 May 2019 the owner filed submissions and witness statements relied upon including that of Ms Hurst-Meyers but not a statement by Mr Hurst-Meyers. On 7 May 2019 the occupants filed their submissions and witness statements.
19. On 17 June 2019 Mr Faulder, solicitor, appeared for the occupants and Mr Hurst-Meyers was the advocate for the respondent.
20. There was some discussion in an attempt to understand the scope of the issues.
21. The occupants argued that a video taken by Ms Hurst-Meyers on the night of 6 November 2018 should not be admitted into evidence. The film, which was recorded without the occupants' knowledge or consent, showed the interaction between Ms Hurst-Meyers and the occupants when Ms Hurst-Meyers personally delivered the notice to vacate at the Cottage. Ms Hurst-Meyers stated when she did this, Mr Stevens was "aggressive and abusive and threatening", "threatened to burn the house down" and "destroy Caloola and our lives".[25] The occupants submit the significance of this interaction was limited to the owner's application for protection orders at the Magistrates Court. The Tribunal was not satisfied that the filmed behaviour of the occupants was relevant to the current proceedings and did not admit it into evidence.
22. The bulk of the time was spent discussing who, and in what circumstances, cut and removed the sample from the lino flooring that Mr Sorenson took away for sampling. Mr Hurst-Meyers relied upon photographic evidence demonstrating that the lino, including the piece of the sample near the stove, was intact prior to the occupants moving into the Cottage. Apart from claiming for the repair cost of the lino flooring, the owner contend the removal of lino would have contaminated surrounding areas.
23. Ms Blaidd-Nixon was called and adopted her filed statement of 7 December 2018[26] in which she said she resided in the Cottage prior to the occupants but did not know the occupants. In oral evidence she affirmed that when she vacated the Cottage the lino was loose and lifting but not as badly as shown in the photograph taken on 7 November 2018.
24. Mr Sorenson was called and adopted his filed statement of 10 December 2018.[27] In his statement he said:
    • (a) he was a certified asbestos remover;
    • (b) he did not cut the lino sample; it was already loose when he took it for testing.
25. In oral evidence Mr Sorenson again denied cutting any of the lino in the Cottage. It was put to him that he took the sample from the Cottage for testing in retaliation for being told that he could no longer stay overnight at the Cottage. He denied the assertion. He testified that he removed the lino sample from the Cottage as he believed it contained asbestos, and took it away for sampling as he was concerned about the risk the lino exposed to the occupants,[28] although he could not remember the actual date he did this. Mr Sorenson contended that the lino sample was already a loose part of the vinyl flooring, he did not cut, rip or tear the lino.[29] Mr Sorenson said that because the lino sample was not attached to the floor, he was not required to engage an asbestos assessor to assess the flooring before he took the lino sample away for testing.
26. None of the parties, nor any witness, could provide a consistent explanation as to why the Keane report was not provided to the owner between 29 October 2018, the date the results of the Keane report was released, and 6 November 2018, the date the owner notified the occupants that Caloola would be tested for asbestos generally. Mr Sorenson did admit that, at the meeting on 21 October 2018, when the owner attended the Cottage and Mr Sorenson was present, he did not raise his concern of potential asbestos in the lino. Nor did Mr Sorenson discuss his concern with the owner at any other time prior to the Keane report. Mr Sorenson stated this was because the lino was not sampled in the original certificate Mr Hurst-Meyers provided to the occupants when they moved in, and, as such, Mr Sorenson did not believe that asbestos in the lino would be of concern.[30]
27. Mr Stevens was called and adopted his filed statement of 13 December 2018:[31]
    • (a) He said the lino in the kitchen was lifting when they moved in.
    • (b) He outlined the range of 'contra' work he had done in lieu of rent.
28. In oral evidence Mr Stevens said that the lino was always lifting but not as badly as on 7 October 2018. Mr Hurst-Meyers put to him that he had attempted to perpetrate a scam on the owner by conspiring with Mr Sorenson to charge the owner $15,000 to remove the asbestos. He denied the assertion. It was the case that he and Mr Sorenson were engaged in the asbestos industry and discussed with Mr Hurst-Meyers removing the asbestos at that charge, but this was only the commercial rate for doing the job properly. It was then put to him that he was a drug dealer, which he denied.
29. Ms Wicks gave evidence and adopted her filed statement of 20 December 2018[32] in which she said:
    • (a) She recalled the lino patch in the kitchen near the stove coming away when she was sweeping the floor and she recalls Mr Sorenson telling her to stop sweeping.
    • (b) On 7 November 2018 she returned to the Cottage and found someone had been inside. The patch area of the lino near the stove had been repaired with silver tape.
    • (c) She described the 'contras' they had done in lieu of rent.
    • (d) She listed the other defects in the premises.
30. In oral evidence Ms Wicks could not recall the date of the floor sweeping incident or when, and how, Mr Sorenson informed her of the Keane report.[33] She gave conflicting evidence of the date at which she removed her son from the Cottage after she became aware of the results of the Keane report.[34] Ms Wicks stated she did not raise the Keane report with the owner as she was afraid that she would be "kicked out".[35]
31. Ms Wicks was also uncertain and could not recall the dates surrounding the deteriorating condition of the lino flooring in the vicinity of the patch.[36] Ms Wicks gave evidence that the lino patch could have come apart from the flooring when she was sweeping one day, though she could not confirm what this date was and "didn't notice that it had come up, or it had - I don't know".[37] This evidence is not consistent with her written statement.
32. Mr Dickie gave evidence and adopted his filed statement of 7 November 2018[38] in which he said:
    • (a) He lived at Caloola.
    • (b) He was a plumber and did maintenance work around Caloola in lieu of rent.
    • (c) He had been into the Cottage before the occupants arrived and recalled the lino being in a reasonable state of repair and not damaged.
33. In oral evidence he conceded that he had not seen the lino after the events of 7 October 2018. It was put that he was tailoring his evidence at the behest of Mr Hurst-Meyers.
34. Mr Hurst-Meyers gave evidence. He adopted the contents of the statement that he had written which formed the original claim.[39]
35. In oral evidence he said:
    • (a) He had paid $200 for the second lino from the Green Shed at the tip.
    • (b) He paid Mr Leighton to lay the lino. Mr Leighton lived at Caloola. He performed maintenance duties in return for rent credits.
    • (c) Mr Leighton was not paid in money. He had been in a substantial rent arrears and Mr Hurst-Meyers allowed $1,000 rent credit.
    • (d) Mr Hurst-Meyers said he allowed rent credit for work based on $25-$30 per week.
    • (e) The occupants owed a week rent at the time they vacated. He did not have a rent ledger and had not undertaken any rent reconciliation that showed this.
    • (f) Erica (the partner of Mr Leighton) told him that the occupants were intending to perpetrate the asbestos removal scam on him.
36. Mr Hurst-Meyers was evasive in his evidence. He was keen to let the Tribunal know that the occupants and their solicitor were liars. The Tribunal did not find him to be a credible witness. He appeared to make things up as it suited. At the hearing there was a constant level of animosity directed from Mr Hurst-Meyers to Mr Faulder including some inappropriate personal remarks. Mr Hurst-Meyers had to be reprimanded on a number of occasions, and on one occasion was asked to leave the hearing.
37. Ms Hurst-Meyers gave evidence and adopted her filed but undated statement in which she:
    • (a) set out her version of her incident of 6 December 2018 when she attended the Cottage at night and served the notice of termination;
    • (b) the chronology of events in the Magistrates Court relating to the personal protection order.
38. Mr Leighton was called to give evidence by phone. He said he charged $180 per hour for maintenance work and that he had also charged $200 to remove rubbish to the tip that the occupants had left behind.
39. Mr Shepherd, Mr Hanks and Mr Lancaster were not required for cross examination. The filed statement of 1 December 2018 by Mr Shepherd was admitted into evidence. In his statement[40] Mr Shepherd said that he saw the damage to the lino in the kitchen on 1 December 2018.
40. Neither Mr Hanks nor Mr Lancaster had filed statements. Mr Lancaster was the author of the report from L & D Consulting.[41]
41. At the end of the evidence it was agreed that final submissions would be in writing. The Tribunal ordered the occupants to file and serve final submissions by 9 July 2019, and the owner by 23 July 2019 after which the Tribunal would proceed to a decision.
42. The occupants filed their final submissions on 10 July 2019. It addressed the issue of nature of the agreement, comparative verdicts of the general damages for breach of quiet enjoyment and their rebuttal of the owner's claims.
43. The owner filed its final submissions on 5 August 2019 in which it purported to enlarge their counterclaim to $35,332 including a claim for $25,000 for mental injury to Ms Hurst-Meyers, a claim for $2,700 for unperformed 'contras' and $1,232 for the cost of the L&D report.

1. The issues for determination are:
   • (a) Whether the agreement between the parties is a residential tenancy agreement or an occupancy agreement within the meaning of Part 5A of the RTA.
   • (b) Whether the termination of the agreement was wrongful at law so as to give rise of a claim for damages.
   • (c) Whether the occupants have a right to quiet enjoyment and was this right breached in the manner alleged by the occupants.
   • (d) Whether the lino same was cut and if so, who cut it.
   • (e) If the occupants cut the lino sample, then the measure of damages the owner is entitled to.
   • (f) Whether there were any rent arrears at the time the occupants vacated.

Whether the agreement between the parties is a residential tenancy agreement or an occupancy agreement within the meaning of Part 5A of the RTA

1. The rights and obligations of the parties can be significantly affected by the characterisation of the agreement as a residential tenancy agreement or a mere occupancy agreement. In the present case, and for the reasons given below, nothing actually turns on the point.
2. The primary characterisation is that of a residential tenancy agreement. Only if this question is answered in the negative is the further question asked whether the agreement fits the description of an occupancy agreement within the meaning of Part 5A of the RTA.[42]
3. The Residential Tenancies Act 1997 section 6A provides:
   • (1) An agreement is a residential tenancy agreement if, under the agreement:
     • (a) A person gives someone else (the tenant) a right to occupy stated premises; and
     • (b) The premises are for the tenant to use as a home (whether or not together with other people); and
     • (c) The right is given for value.
   • (2) The agreement may be -
     • (a) Express or implied; or
     • (b) In writing, oral, or partly in writing and partly oral.
   • (3) The right to occupy may be -
     • (a) Exclusive or not exclusive; and
     • (b) Given with a right to use facilities, furniture or goods.
4. The demarcation line between tenancies and mere occupancy agreements is a blurred one. It is addressed at [2.3.8] Anforth, Christenson and Adkins Residential Tenancies Law and Practice in NSW, which is adopted here. The occupants' submissions further develop the law on the issue.
5. Initially the Tribunal was inclined to view that the agreement was an occupancy agreement and not a tenancy mainly by reason of the terms within the agreement that were inconsistent with the standard tenancy in the RTA, including the termination clause, the rent clause and the 'contras' clause. The alternative constructions were:
   • (a) the inconsistent clauses were of sufficient significance that the agreement when viewed objectively was too far removed from a tenancy; or
   • (b) objectively, the core requirements for a tenancy were present, at least in a practical sense, and the inconsistent clauses were unlawful.
6. In the end the Tribunal was persuaded to the second construction, principally because of:
   • (a) the stand-alone discrete nature of the Cottage;
   • (b) the fact that the occupants were accorded the exclusive right of possession during their term; and
   • (c) the minor scale of the 'contras'.
7. The Tribunal finds that the agreement was a residential tenancy agreement and some of the terms of the agreement are therefore void by reason of section 10 of the RTA.

Whether the termination of the agreement was wrongful at law so as to give rise of a claim for damages

1. The service of the notice of termination by the owner did not operate to terminate the tenancy (nor would it have terminated an occupancy agreement), and the occupants did not in fact give up possession in response to the notice. An order of the tribunal was required, and those proceedings had in fact been commenced by the parties but not completed at the time the occupants vacated.
2. The occupants agreed to vacate following the personal protection order made by the Magistrates Court. The termination was thus consensual, in the nature of a 'surrender' at law. It was not an eviction and so cannot have been an unlawful eviction.
3. The occupants argued that the termination was a constructive eviction brought about by the illegitimate proceeding in the Magistrate Court (illegitimate in the sense of being brought for the purpose of circumventing the tribunal's processes). Even if this were so, the Tribunal cannot go behind the order of the Magistrates Court and question its legality. For present purposes the Tribunal must take the order as it appears on its face.
4. The termination was by way of 'surrender' (section 36(g) of the RTA) and not by force of any order of this tribunal, or by force of the notice of termination served by the owner. Accordingly, the occupants claim for damages for unlawful termination is denied.

Whether the occupants have a right to quiet enjoyment and was this right breached in the manner alleged by the occupants

1. All tenants have the right to quiet enjoyment per standard terms 52 and 53:
   1. The lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.
   2. Unless otherwise agreed in writing, the tenant has exclusive possession of the premises, as described in the agreement, from the date of commencement of the tenancy agreement provided for in the agreement.
2. In the case of occupancy agreements the occupancy principles in section 71E of the RTA reflect the common law. However, even if this was not precisely the case, they represent the legislative intent for occupancy agreements in the ACT and would be implied into occupancy agreements absent any explicit intention to the contrary in the agreement:

71E (1)In considering a matter, or making a decision, under this Act in relation to an occupancy agreement for premises, a person must have regard to the following principles (the occupancy principles ):

_(a) an occupant is entitled to live in premises that are - _

(b) an occupant is entitled to know the rules of the premises before moving in;

(c) an occupant is entitled to the certainty of having the occupancy agreement in writing if the occupancy continues for longer than 6 weeks;

(d) an occupant is entitled to quiet enjoyment of the premises;

(e) a grantor is entitled to enter the premises at a reasonable time on reasonable grounds to carry out inspections or repairs and for other reasonable purposes;

1. Hence, if the agreement were an occupancy agreement the occupants would be entitled to the quiet enjoyment of the Cottage.
2. The breaches alleged by the occupants are:
   • (a) leasing a property with "friable asbestos";
   • (b) issuing an immediate notice to vacate without legitimate basis;
   • (c) forcing the occupants to pack their belongings and move quickly, resulting in some items of sentimental value being broken; and
   • (d) contra work to the value of $600 per week.
3. The Cottage had asbestos in the lino. The asbestos report provided by the owner to the occupants in accordance with section 12(3)(B)(e)-(f) of the RTA did not disclose this fact. This causes the Tribunal to wonder whether in fact any tests had been undertaken for the purposes of section 12(3)(B)(e)-(f) of the RTA:
   1. Lessor's obligations

12(3) The lessor must provide the tenant with the following information:

(B)(e) if there is an asbestos assessment report for the premises and the lessor can obtain a copy of the report after taking reasonable steps - a copy of the report;

(f) if there is no asbestos assessment report for the premises or the lessor cannot obtain the asbestos assessment report for the premises after taking reasonable steps - an asbestos advice for the premises.

"asbestos advice" - see the Dangerous Substances Act 2004, section 47J.

"asbestos assessment report", for premises - see the Dangerous Substances Act 2004

1. The asbestos presence may result in a breach of standard term 51 in so far as it is not lawful to rent a premises infected with asbestos:
   1. The lessor guarantees that there is no legal impediment to the use of the premises for residential purposes by the tenant.
2. Irrespective of whether the asbestos represents a breach of standard terms 51, it is a breach of clause 54 of the standard terms to lease the Cottage with asbestos that interferes with the occupants' quiet enjoyment of the Cottage (Faulder v Tran [2018] ACAT 80)

_54(1) At the start of the tenancy, the lessor must ensure that the premises, including furniture, fittings and appliances (unless excluded from the tenancy agreement), are - _

(a) fit for habitation; and

(b) reasonably clean; and

(c) in a reasonable state of repair; and

(d) reasonably secure.

1. The owner's attendance at the Cottage at 10pm on 6 October 2018 to serve the notice of termination is a breach of standard term 76:

_The lessor must not have access to the premises - _

(a) on Sundays; or

(b) on public holidays; or

(c) before 8 am and after 6 pm.

The owner had a right to serve a valid the notice of termination but not at 10pm in non-urgent circumstances; and not to engage in an acrimonious argument when doing so. This is a breach of the occupants' quiet enjoyment.

1. The owner served the notice on the basis of uninhabitability of the Cottage by reason of the asbestos, in accordance with standard term 86:
   1. The lessor or the tenant may, by written notice, terminate the tenancy on a date specified in the notice on the following grounds:
      1. the premises are not fit for habitation;

A notice served under standard term 86 requires one week notice and the rent abates from the start of the period of uninhabitability. In the present case the notice was to have immediately effect and, if valid, would have carried the consequence that the rent abated immediately:

87(1) In either case the lessor must give not less than 1 week notice of termination of the tenancy, and the rent abates from the date that the premises are uninhabitable.

(2) The tenant may give 2 days notice of termination of the tenancy.

(3) If neither the lessor nor the tenant give notice of termination of the tenancy, the rent abates for the period that the premises are unable to be used for habitation, but the tenancy resumes when they are able to be used again.

1. The owner had a duty to investigate the existence of asbestos and to notify the occupants, both immediately before and during the tenancy. They did not do so, and this failure caused the train of events that led to the termination of the agreement which is also a breach of the occupants' right to quiet enjoyment. It led to the need for the occupants to pack and move with its attendant costs, stresses and inconveniences.
2. It does not follow that the owner is liable for the cost of the vase broken during the move. There is no evidence suggesting that this breakage was proximately caused by anything the owner did.
3. The amount of compensation payable to the occupants for the breaches of quiet enjoyment is determined by comparative verdicts. Mr Faulder brought various cases to the Tribunal's attention and the Tribunal had regard to [2.187.7] Anforth, Christensen and Adkins. The figure of $2,500 put by Mr Faulder was consistent with the comparative verdicts.

Whether the lino patch was cut and if so, who cut it

1. Much time was spent on this issue. The evidence suggests that the alternatives are:
   • (a) the lino patch became detached from the rest of the lino in the course of ordinary cleaning by Ms Wicks, which would probably fall into the category of fair wear and tear.
   • (b) Mr Sorenson cut the patch to take for sampling; or
   • (c) someone from L & D Consulting cut the patch when they entered the Cottage on 7 October 2018 to carried out their testing.
2. The Tribunal has probably allowed itself to be unnecessarily diverted in the attention given to this issue. In the end the issue assumes little significance because the damage was minor and was to old lino that was replaced in its entirety by cheap second-hand lino from the Green Shed recycling centre. The evidence on the issue was vague but of the above alternatives the more likely one is that the lino patch was cut by Mr Sorenson to take for sampling.

If the occupants cut the lino sample, then the measure of damages the owner is entitled to

1. Even if the occupants or their visitor, Mr Sorenson, did cut the lino sample, the measure of the owner's damages is just the loss in capital value of the worn lino, with and without, the sample (Bellgrove v Eldridge [1954] HCA 36); then discounted by the 'betterment' of the newer lino, discounted by the tax deductibility of the cost of the newer lino and labour costs ([2.187.8] Anforth, Christensen and Adkins). This would be a trivial amount.
2. The owner claims $1,200 as the replacement cost of laying new second-hand lino over the whole of the Cottage floor of which $200 was the cost of the lino itself and $1,000 was said to be the labour cost. The owner did not actually pay Mr Leighton for this work, rather there was a notional rent credit to Mr Leighton's rental account.
3. Mr Hurst-Meyers said that he assessed the value of the rent offset to Mr Leighton at $25-30 per hour. In order to justify $1,000 in labour it must have taken Mr Leighton near to 40 hours to lay the second-hand lino. Mr Leighton's evidence is that he just rolled the second-hand lino over the existing lino floor and secured the edges. At most this would have taken a few hours.
4. The evidence on this issue by Mr Hurst-Meyers was unconvincing and the Tribunal is not satisfied that any labour cost was paid at all, in cash or in kind, or that there was any measurable loss to the owner. The owner's claim on this issue is denied.

Whether there were any rent arrears at the time the occupants vacated

1. The owner did not appear to have any rent ledger or other systematic manner of recording rent received in breach of standard term 33 which provides:

33(1) The lessor must keep, or cause to be kept, records of the payment of rent.

(2) Those records must be retained for a period of not less than 12 months after the end of the tenancy.

1. When pressed on how he had calculated the alleged one week of rent Mr Hurst-Meyers was vague and unresponsive. There is no evidence before the Tribunal to support this part of the owner's claim.
2. The owner enlarged its rent claim to include $1,000 for lost rent following the termination of the tenancy. The tenancy terminated by way of surrender and not for breach and was initiated by the owner. At the end of the tenancy the occupants had no obligation to pay rent and so are not responsible for any loss allegedly suffered by the owner post termination.
3. It was also not clear whether the occupants had rendered any labour at Caloola as part of the contra agreement. An agreement that the tenants perform 'contras' is unlawful, in breach of section 15 of the RTA:

_15(2) A lessor must not require or accept any consideration for - _

(3) For subsection (1), a requirement that a tenant make alterations, improvements or repairs to the premises is taken to be consideration.

1. If the contras work has been done, then this would need to be accounted for in the calculation of the rent owing. It may even be the case that the owner owes the occupants a rent refund.
2. In the absence of any rent records and the contras' issue, it is not possible for the Tribunal to determine whether any rent was owing, or a refund was owing. The owner's rent claim is dismissed.
3. In their final submissions after the hearing had completed the owner purported to enlarge its claim to $35,332 as per paragraph 55 above. This claim:
   • (a) was above the jurisdictional limit of the Tribunal;
   • (b) contained claims that had no basis in law;
   • (c) was unsupported by the evidence;
   • (d) was made without leave of the Tribunal;
   • (e) was made in the final submissions which should have been limited to submissions on the evidence and law in issue in the hearing.
4. This ploy by the owner is patently without merit and it is difficult to escape the sense that it was intended to be provocative to both the occupants and the Tribunal. The submissions to the above effects have been wholly disregarded. The amount of public and private resources consumed in this matter is out of all proportion to the seriousness of the issues or the amount of money involved. It was a dispute motivated by acrimony between the parties and their representatives.

[3] MFI 32, ACT Revenue Office lessor receipt No. 126668

[4] Transcript of proceedings 17 June 2019 page 98 at lines 2-35

[5] Applicant's submissions filed 10 July 2019 at [57]

[6] Transcript of proceedings 17 June 2019 page 70

[7] MFI 9, statement of Ms Liza Hurst-Meyers at [4]

[8] MFI 21, Facebook messages between the owner and occupants dated 25 October 2018

[9] MFI 21, Facebook messages between the owner and occupants dated 25 October 2018

[10] Transcript of proceedings 17 June 2019 page 29 at lines 40-46

[11] MFI 4, certificate of analysis dated 29 October 2018

[12] Transcript of proceedings 17 June 2019 page 72 at lines 39-45

[13] MFI 11, Statement of Ms Keira Wicks at [22]

[14] Transcript of proceedings 17 June 2019 page 99 at lines 24-42

[15] Transcript of proceedings 17 June 2019 page 73 at lines 4-10

[16] Transcript of proceedings 17 June 2019 page 98 at lines 41-47

[18] MFI 25, L & D Consulting report dated 7 November 2018

[19] MFI 34, Statement of Mr Ralph Hurst-Meyers

[20] MFI 11, Statement of Ms Keira Wicks dated 20 December 2018 at [32]

[24] MFI 7 applicant's amended claim dated 11 April 2019

[25] MFI 9, statement of Ms Liza Hurst-Meyers at [7]

[28] Transcript of proceedings 17 June 2019 page 31 at lines 30-35

[29] Transcript of proceedings 17 June 2019 page 28 at lines 15-25

[30] Transcript of proceedings 17 June 2019 page 36

[33] Transcript of proceedings 17 June 2019 page 81 at lines 45-46

[34] Transcript of proceedings 17 June 2019 page 65 at line 5

[35] Transcript of proceedings 17 June 2019 page 74 at line 4

[36] Transcript of proceedings 17 June 2019 page 60

[37] Transcript of proceedings 17 June 2019 page 78 at lines 16-17

[40] Statement of David Shepherd filed 6 August 2019

[42] Bangura and Fan [2013] ACAT 38