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Summary – lessor is entitled to compensation in the amount of the bond

3. I find that the claim is made out. And, the respondent tenant has not persuaded me that that they are not liable for compensation.

4. I am not persuaded that the respondent tenant is, by application of the Diplomatic Privileges and Immunities Act 1967 (Cth) (the Diplomatic Privileges and Immunities Act), entitled to diplomatic immunity to the Tribunal’s residential tenancies jurisdiction. Because the respondent tenant no longer holds a diplomatic office, that Act does not apply to give them immunity in relation their residency as a tenant at the premises in Canberra. That residency does not fall within the exercise of the respondent tenant’s official functions as a member of the Embassy to which diplomatic immunity persists. The respondent tenant is subject to the Tribunal’s residential tenancies jurisdiction.

5. I am also satisfied that they are liable for the relevant damage (to floorboards) and for works (removal of dishwasher); they are relevantly required to return the premises to substantially the same condition as they were in at tenancy commencement.

Two claims for compensation to the value of the bond

6. The application for compensation is comprised of two claims. First, the sum of $2,188.52 for damage to the floorboards to the floor on the right-hand side of the kitchen bench (looking out to the lounge/dining area) in which the dishwasher was installed and into the lounge/dining area in front of, and to the side, of that bench. I note that I have corrected that sum from $2,091.07 included in the application because I have understood that the claim is for the entire bond and this is the sum remaining in the bond after account is taken of the other claim for works done by GHBILT Constructions, as set out further in the next paragraph.

7. Second, the applicant lessors claim compensation of $389, per GHBILT Constructions’ invoice for disposal of various items including the dishwasher.

8. The respondent tenant denies liability to the applicant lessors. First, they say that they did not breach clause 64 of the standard residential tenancy terms because they did not cause the damage to the floorboards and, for that portion of the invoice from GHBILT Constructions attributable to removal of the dishwasher, it was not theirs to remove. It was in the property on their assumption of possession of the premises.

9. Second, if the respondent tenant’s denial of liability is not accepted, the respondent tenant says that, by operation of the Diplomatic Privileges and Immunities Act, they are immune from the tribunal’s residential tenancies jurisdiction (which jurisdiction is conferred by operation of sections 9 of the ACT Civil and Administrative Tribunal Act 2008 and 76 of the Residential Tenancies Act 1997). Although some of their submissions referred to the Foreign States Immunities Act 1985 (Cth), because that Act applies to a state seeking to claim diplomatic immunity, it is not relevant to the circumstances before the Tribunal.

10. Despite the claim that the tribunal lacks jurisdiction to hear the dispute, the respondent tenant applies for an order that the bond is released to them.

Hearing

11. At the hearing the applicant lessors were represented by Ms Maddy Jeffery from Marq Property and the respondent tenant was represented by Mr Musab Agaab from the Embassy of the Kingdom of Saudi Arabia.

Applicant lessors’ evidence and submissions

12. The evidence on which the applicant lessors relied to claim compensation to the full amount of the bond included photographs of the floorboard damage. It also included an email dated 2 December 2025 from Capital Floors to the applicant lessors’ agent stating that, because the existing ‘product’ is no longer available, the entire floor required replacement. The follow up quote was for $20,781.00. Capital Floors surmised, without being certain of it, that the cause of the damage was water damage either as a leak from the dishwasher or tenants spilling the water excessively without wiping it up. Call Fyshwick Pty Limited also quoted water damaged floor replacement with associated works including skirting works at $39,561.25. No witnesses were called.

13. The applicant lessors’ evidence also included an invoice from GHBILT Constructions (dated 11 December 2025) for the works required to remove items, including the dishwasher, from the premises and to repair the ensuite vanity middle drawer.

14. Ms Jeffery also made oral submissions in support of the applicant lessors’ claim to the bond including, because the respondent tenant disputed responsibility for it, the history of the dishwasher at the premises. Ms Jeffery had been instructed by her clients that the previous tenants (also from the Embassy of the Kingdom of Saudi Arabia) had installed it, and it was agreed at commencement of the residential tenancy with the respondent that it remained the latter’s property. In support, they drew attention to the ingoing condition report which included a notation that ‘all items at the property are to be removed at the end of this tenancy by the tenant Muneef F Alkahtani’.

15. Ms Jeffery also drew attention to the undamaged state of the floorboards at the periodic inspection on 19 May 2025, as evidenced in photographs.

16. The applicant lessors made no submissions on the application of the Diplomatic Privileges and Immunities Act.

Respondent tenant’s evidence and submissions – dishwasher

17. The respondent tenant’s claim to compensation for that portion of the invoice from GHBILT Constructions attributable to removal of the dishwasher rested on their dispute of ownership of the dishwasher. Mr Agaab submitted that, first, a dishwasher is generally included in rental premises. Second, the ingoing condition report includes photos of the dishwasher. Third, the exit condition report included a notation that the dishwasher was dirty and required being cleaned. These three factors in support of dishwasher supply with the premises meant that it was not for the respondent tenant to remove it at lease termination.

Respondent tenant’s evidence and submissions – damaged floorboards

18. The respondent tenant denied liability for the damage to the floorboards. First, if there was a dishwasher leak, its path would not be to the damaged floorboards. It is to another place altogether which shows no damage. Second, they doubted that the damage of the kind noted at the exit condition report could have been sustained in the six months after the periodic inspection revealing no damage. Ms Jeffery noted that the periodic inspection report exclusively included a reference to the damage to the solar panels; it did not include any other damage including of the floorboards. Further, if indeed the damage is because of water, a laminated timber floor is meant to be waterproof. Any water damage is a failure of manufacturing. Alternatively, the damage may well have been caused by the sun. In this case, the damage is a function of how it was laid, it did not allow for the natural expansion over the lifetime of the floorboards. Expansion caused the floorboards to abut each other, in turn causing them to push up from the surface.

Respondent tenant’s evidence and submissions – diplomatic immunity

19. Mr Agaab also made written and oral submissions in support of the respondent tenant’s claim to diplomatic immunity. They also gave the Tribunal a copy of the respondent tenant’s red diplomatic card which expired in June 2025. They also included a copy of the ‘cheat sheet’ from the website of the Department of Foreign Affairs and Trade summarising immunities, under the Diplomatic Privileges and Immunities Act and the Consular Privileges and Immunities Act 1972 (Cth), covering foreign representatives.

20. A red diplomatic card holder is noted by the ‘cheat sheet’ as being immune from any jurisdiction.

21. I understood Mr Agaab to invite me to confirm their position with the Protocol Branch at the Department of Foreign Affairs and Trade.

22. Because it may determine the dispute, I turn first to consider the respondent tenant’s claim to diplomatic immunity.

Timeframe when the respondent tenant held a red diplomatic card

23. On inquiry the Protocol Branch at the Department of Foreign Affairs and Trade advised, on the information given to them including the name of the respondent tenant and their red diplomatic card with expiry in June 2025, that their accreditation as a diplomatic agent (red diplomatic identity card holder) in Australia ended on 31 December 2025. The Embassy of the Kingdom of Saudi Arabia informed the department on 9 January 2026 that the respondent tenant had left the country.

24. The Tribunal invited the respondent tenant (and the applicant lessors) to give to it (within seven days of the invitation) their views of the implications of the absence of their current diplomatic status for the exercise of the Tribunal’s jurisdiction.

Respondent tenant’s submissions – diplomatic immunity

25. The respondent tenant responded to the invitation. They submitted that at all material times they were a diplomatic agent attached to the Embassy of the Kingdom of Saudi Arabia. And that as the immunity was conferred at the time of the relevant conduct, the Tribunal is precluded from determining liability. They referred to In re Suarez [1917] 2 Ch 131 in which they said that the United Kingdom Court of Appeal ‘confirmed that diplomatic immunity attaches to acts performed during the period of diplomatic status and cannot be retrospectively withdrawn’. Their submission stated that, ‘article 39(2) of the Vienna Convention on Diplomatic Relations preserves immunity to official acts even after diplomatic functions end’. Accordingly, immunity is assessed during the period of the tenancy.

26. The respondent tenant also said that diplomatic card status is not the legal source of immunity and is merely evidence of accreditation. Its expiry or surrender is a matter of administration. The absence of the diplomatic card does not alter the respondent tenant’s status at the relevant time. Consideration – diplomatic immunity of the respondent tenant

27. I agree with the respondent tenant that: (a) the Diplomatic Privileges and Immunities Act gives persons with diplomatic status immunity from the tribunal’s residential tenancies’ jurisdiction; (b) they held diplomatic status during the residential tenancy; and (c) a diplomatic card is not the source of diplomatic immunity, that arises from the Diplomatic Privileges and Immunities Act.

28. This leaves the issue of the respondent tenant’s current status and its implications for the tribunal’s residential tenancies’ jurisdiction.

29. Having regard to the advice from DFAT Protocol Branch, I am persuaded that, as the respondent tenant no longer holds a relevant diplomatic card, they no longer hold diplomatic status. There is no other evidence before the Tribunal of their current diplomatic status.

30. So what are the implications, if any, of the current diplomatic status for the Tribunal’s jurisdiction?

31. There is superficial attraction to the view that diplomatic immunity extends to acts carried out when holding diplomatic status, when the residential tenancy was on foot. It would follow that the respondent tenant would not be liable for acts committed during that tenancy; the Tribunal would have no jurisdiction.

32. This view is not, however, consistent with the Diplomatic Privileges and Immunities Act, notably the operation of article 39(2) of the Vienna Convention 1 on Diplomatic Relations (schedule 1 of that Act and given effect by section 7(1)) to which the respondent tenant draws attention:

When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the

1 Opened for signature 18 April 1961, [1968] ATS 3 (entered into force 24 April 1964) exercise of his functions as a member of the mission, immunity shall continue to subsist.

33. The Federal Court, in Shergill v Singh [2023] FCA 1336, considered the application of this article to the circumstances of the Indian High Commissioner who engaged Ms Shergill for domestic duties whilst living in Australia, but who, at the time of the proceedings, was no longer resident in Australia. Ms Shergill’s ‘employment conditions bore no resemblance to what one would expect under Australian law – her passport was taken from her, she worked seven days a week, was never permitted to take leave and was only allowed outside the house for 2 brief periods a day when looking after the respondent’s dog’. Ms Shergill was successful in suing the respondent for significant breaches of Australian employment law including payment for unpaid wages.

34. The Federal Court applied the reasoning of the United Kingdom Supreme Court in Reyes v Al-Malki [2017] UKSC 61, which dealt with similar circumstances of a domestic worker seeking compensation for breaches of British employment law from a diplomat who no longer resided in the United Kingdom. That reasoning included this observation from Lord Sumption (with which every other member 3 of the court agreed):

A diplomatic agent who is no longer in post and who has left the country is entitled to immunity only on the narrower basis authorised by article 39(2). That immunity applies only so far as the relevant acts were performed while he was in post in the exercise of his diplomatic functions.

35. The Supreme Court held that the employment of the domestic worker and their maltreatment was not within the performance of the respondent’s diplomatic functions. 4

36. Applying that reasoning, in Shergill v Singh, Raper J concluded:

. . . it is my view that Mr Suri is not able to claim diplomatic immunity. This was so for the following reasons. First, Mr Suri is no longer in the post of Indian High Commissioner to Australia. Secondly, and as a result of Mr Suri not being in post, the only diplomatic immunity available to him is residual immunity under art 39(2) of the Convention. Thirdly, residual 2 Shergill v Singh [2023] FCA 1336 at [2] 3 Shergill v Singh [2023] FCA 1336 at [58] 4 Shergill v Singh [2023] FCA 1336 at [61] immunity only applies with respect to acts performed by Mr Suri in the exercise of his functions as head of mission. Fourthly, the engagement of Ms Shergill as a domestic worker does not fall within the exercise of Mr Suri’s official functions as a member of the mission and does not attract residual immunity in art 39(2).

37. Also see Danaratna v Arunatilaka [2024] FCA 918.

38. Turning to the circumstances of this matter, because the respondent tenant is no longer in the post of cultural attaché at the Embassy of the Kingdom of Saudi Arabia they continue to enjoy residual diplomatic immunity. This is limited to acts performed in the exercise of their official functions. Being resident as a tenant at the premises in Canberra does not fall within the exercise of the respondent tenant’s official functions as a member of the Embassy. It does not attract residual immunity in art 39(2). The respondent tenant is subject to the Tribunal’s residential tenancies jurisdiction. There is nothing in In re Suarez [1917] 2 Ch 131 that challenges this view.

39. For completeness, I note that I did not take into account the material that the respondent tenant gave to the Tribunal at the conclusion of the hearing of the circumstances of another tenancy. The details of those circumstances were not before the Tribunal in this matter.

Consideration - claim for compensation - dishwasher

40. I turn to consider the applicant lessors’ claim for compensation.

41. It is true that, in a residential tenancy, generally, where there is a dishwasher, it is provided with the premises. The photo of the dishwasher in the ingoing condition report and the outgoing notation that it required cleaning appear to be consistent with this observation. Further, the notation in the ingoing condition report is vague as to what ‘items at the property’ the respondent tenant was obliged, at the end of the tenancy, to remove.

42. However, the first and second observations in the previous paragraph are of a circumstantial kind and not conclusive. And the notation in the entry condition report at least alludes to the dishwasher being an additional item for which the respondent tenant was responsible. Further, the observations pale in persuasive value when cast in light of the clear recollection of the applicant lessors (even allowing for it being hearsay evidence). I am satisfied that, in the circumstances of the residential tenancy agreement to which the respondent tenant is a party, the dishwasher was the property of the respondent tenant and required removal on tenancy termination.

43. Accordingly, I order that the applicant is entitled to be compensated to the value of the entire invoice from GHBILT Constructions.

Consideration - claim for compensation – damaged floorboards

44. This leaves the claim for the repair to the floorboards. I understand that the premises is around 20 years old and that the floorboards have not been replaced in that time. It was apparently first leased in 2016. Floorboards deteriorate over time as a consequence of fair wear and tear. The Federal Commission of Taxation allows significant tax deductions for depreciation. Even if the floorboards need to be replaced as a consequence of damage for which a tenant is liable, the floorboards need to be valued with reference to their age at the time of its replacement, not the cost of replacement.

45. There is no dispute that the floorboards appear damaged – consistently with the notation in the exit condition report that ‘floor is gapping and moving’/flooring gapping and timber edging lifting’ and the relevant photos. The issue is causation, whether by the act of the respondent tenant or that it reflects the material from which the floorboards are made or fair wear and tear.

46. I note that I understood the respondent tenant’s submission about the impact of the sun to be that the damage was fair wear and tear.

47. As the Tribunal said in Tankard and Anor v Ogbonna and Anor [2017] ACAT 72 at [12]: As discussed in Maroney v Bullard [3] ‘wear and tear’ entails damage or disrepair arising from natural causes (sun, wind and rain) or caused by a tenant, or other persons on the premises with the consent of the tenants, as a normal and unintentional incident of their occupation of the property. ‘Fair’ contemplates reasonable, and does not include intentional or negligent damage.

48. I am not persuaded by the respondent tenant’s alternate explanations for the cause of the damage to the floorboards or by their doubt that it could have occurred in six months. The photographs from the final inspection contrasted with those from the periodic inspection, along with the email from the Capital Floors positing the reason for the damage, reasonably support the analysis that the damage is a result of some sort of water impact – whether by leakage of the dishwasher or by otherwise excessive water accumulation. The damage is concentrated in one area adjacent to the kitchen bench and the tiles in the kitchen galley. There is no evidence before me that the damage could not have been sustained in the intervening period between the periodic inspection and the final inspection. There is no evidence of a manufacturing failure in the floorboards or of sun related causes.

49. It is not a ‘normal and unintentional incident of occupation’ of the premises. I am not satisfied that it is within the ambit of fair wear and tear for the purposes of standard residential tenancy term 64(b).

50. For completeness, I note that ownership of the dishwasher, a leak from which may have caused the damage does not affect liability. It was, in contravention of the obligation imposed by standard residential tenancy term 55(2), unreported and the damage was sustained.

51. It is necessary to quantify the damage. I take into account the posited age of the floorboards and the depreciation over that period. Absent the damage, the floorboards could have continued their use without repair or replacement. I have also considered that the premises are of a reasonably high standard and commanded monthly rent of $3,000.

52. I have accepted Capital Flooring’s advice that the floorboards require replacement. And I have accepted their quote of around $20,000 (the lower of the two quotes) for replacement. The claim made by the applicant lessors is just over 10% of this replacement cost. I have accepted this as reasonable and therefore order that the respondent tenant pay $2,188.52 to the applicant lessors.

Order The Tribunal orders that: 1. ACT Rental Bonds on behalf of the Territory is directed to release the bond ($2,577.52) to the applicants.

……………………………….. Senior Member J Francis

Date of hearing: 24 April 2026 Applicant: Authorised representative Respondent: Authorised representative