VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Residential Tenancies DIVISION
Residential Tenancies LIST	
vcat reference No. R2022/2873	
CATCHWORDS	
Application for compensation by renter, alleged breaches of duty to ensure that the rented premises are maintained in good repair, alleged overpaid rent, disbursement of rent in rent special account, sections 210 and 452 of Residential Tenancies Act 1997.	

APPLICANTS	Stephen Cooper & Catherine Brommeyer	
RESPONDENT	Fu Yang Yang	
WHERE HELD	Videoconference	
BEFORE	N Campbell, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	6 April 2023	
DATE OF ORDER	19 May 2023	
DATE OF WRITTEN REASONS	19 May 2023	
CITATION	Cooper v Yang (Residential Tenancies) [2023] VCAT 543	

Order

1	The residential rental provider, Fu Yang Yang, must pay the renters, Stephen Cooper and Catherine Brommeyer, compensation of $7,904.43 for breaches of duty to ensure the premises were kept in good repair. 
2	The Tribunal directs the Director of Consumer Affairs Victoria to pay to:
(a)	the renters, Stephen Cooper and Catherine Brommeyer, the amount of $7,904.43 held in the Rent Special Account with respect to the rented premises in satisfaction of order 1;
(b)	the rental provider, Fu Yang Yang, the amount of $1,842.65 held in the Rent Special Account with respect to the rented premises.
3	Liberty to apply to the renters if for any reason the funds are not paid to them pursuant to order 2(a).
4	
All other claims are dismissed.

N Campbell
Member			

APPEARANCES:		
For Applicants	In person	
For Respondent	Mr Chung, property manager	

Reasons
The proceeding
1	The renters, Ms Catherine Brommeyer and Mr Steven Cooper, (“the renters”) claim $19,825.00 in compensation from their former residential rental provider, Fu Yang Yang (the rental provider) for breaches of duty under the Residential Tenancies Act 1997 (the RT Act) and overpayment of rent. The Tribunal must also deal with the disposition of the rent for the rented premises which remains in the Rent Special Account under section 77 of the RT Act.
Background 
2	The renters and the residential rental provider entered into a tenancy agreement in early October 2020, for a fixed term of 24 months at a rent of $3,520.00 per calendar month. The tenancy ended in October 2022. 
3	On 2 February 2022, the renters applied for urgent repair orders under section 73 of the RT Act and later added a claim for compensation under section 452 of the RT Act. The renters allege that the residential rental provider failed to ensure that the rented premises were maintained in good repair and that the renters overpaid rent. 
4	On 28 April 2022, the Tribunal made an urgent repair order in this matter requiring work to be completed by dates specified in the order. 
5	On 4 July 2022, the Tribunal made orders for the rent to be paid into the rent special account, as the rental provider had failed to carry out the repair work as ordered.
6	The Tribunal made directions for the conduct of this matter on 9 November 2022 and 3 February 2023. In accordance with these orders, on 29 March 2023, the renters provided particulars of claim, including details of the compensation items and amounts as well as the calculation of the compensation claimed. The renters also provided a bundle of documents on which they proposed to rely (156 pages). The rental provider did not provide any additional documents, but relied upon some of the documents provided by the renters.
7	The matter came on for hearing before me on 6 April 2023 by teleconference. 
8	The renters appeared for themselves at the hearing. The residential rental provider was represented at the hearing by their agent, Mr Chung (“the agent”). 
9	At the end of the hearing, I reserved my decision.
10	The following are the Tribunal’s reasons.
The Evidence 
11	I have below briefly summarised the relevant evidence given at hearing. I considered all the documents filed by the parties, including the entry condition report, photographs, correspondence, emails, quotes, invoices and miscellaneous other documents. 
Proving the Claims 
12	The RT Act relevantly provides that a renter or a residential rental provider may apply to the Tribunal for compensation because the other party failed to comply with the tenancy agreement or that party's duties under the RT Act (sections 210 and/or 452).   
13	The relevant duty at the time the tenancy agreement was in operation was:
a	Section 68 – a residential rental provider must ensure that the rented premises are maintained in good repair.
14	The burden of proof rests with whoever brings an application to the Tribunal. This means that an applicant must produce sufficient evidence during the course of a hearing to support what they say and to prove their case.  
15	Section 211 of the RT Act details matters which may be considered by Tribunal in making its decision in respect of applications made under section 210, including whether or not the person from whom compensation is claimed has taken all reasonable steps to comply with the duties under this Act or the tenancy agreement, whether or not the applicant has consented to the failure to comply with the duties, whether or not money has been paid to or recovered by the applicant by way of compensation, whether any reduction or refund of rent or other allowance has been made to the applicant, whether or not action has been taken by the applicant to mitigate the loss or damage, any offer of compensation, and any action taken by the person from whom compensation is claimed to repair the damage.  
16	My task is to consider the evidence that the parties bring to the hearing, and decide if an applicant has proven, through evidence, their claim. In assessing the amount of compensation claimed, I take into account whether the loss claimed is reasonable, having regard to the general conduct of the parties, the age and condition of any items, whether items have been repaired or replaced, and whether attempts have been made to ensure the loss is the least that is reasonably possible. 
17	The residential rental provider’s duty to keep the rented premises in good repair is strict and absolute. The duty is not qualified where the renter takes the premises in poor condition or where the rent is low, see Shields v Deliopoulos [2016] VSC 500 (7 September 2016). 
Consideration
18	The renters claim compensation on account of the residential rental provider’s failure to comply with the duty to ensure that the rented premises are maintained in good repair as well as for overpaid rent at the end of the rental agreement. The renters have eleven heads of claim, ten of which arise from damage caused by a storm on 1 November 2021. In summary, these items are as follows:
a.	Freestanding basketball ring;
b.	Queen size mattress;
c.	Bedsheets, pillows and books;
d.	Clothing items including woollen coats and jackets;
e.	14 pairs of leather shoes;
f.	Clothing in closet inclusive of scarves, hats, blouses, woollen tops and jackets;
g.	Loss of access to bedroom two and study;
h.	Electrical costs for use of fans and extractors;
i.	Removalist costs to move house;
j.	Health costs as a result of exposure to black mould;
k.	Refund of rent for period 14 October 2022 to 20 October 2022.
19	I will deal with each head of the claim separately.
Freestanding basketball ring (Item a.)
20	The renters claim the costs of a replacement freestanding basketball ring, which was destroyed by a tree that fell on it during the storm which occurred on 1 November 2021. The claimed amount is $500.00.
21	The renters claim that the rental provider has breached their duty to ensure that the tree on the rented premises was in good order. The renters stated that the tree had previously appeared to be in good order. It was a pine tree which, during the storm, snapped halfway up the trunk. Photographs have been provided which show that the basketball ring was struck and destroyed by the falling tree. 
22	I am not satisfied on the evidence before me that the rental provider failed to keep the tree in good order. There was no evidence to indicate that there was any noticeable issue with the tree prior to the storm or that the tree falling was anything other than as a result of a severe storm.
23	The claim for compensation for the damaged basketball ring is dismissed, because the renters have not proven it was damaged as a result of a breach of duty by the rental provider.
Queen size mattress (Item b.)
24	The renters claim the cost of a queen size mattress. The renters claim that the mattress was damaged by water seeping through the roof onto the bed. The evidence of the renters was that the tree hit the western side of the house, near two downstairs bedrooms and an upstairs study. The guttering, eaves and internal ceiling were damaged.
25	The renters gave evidence that they immediately contacted the agent about the storm damage. The agent or the rental provider’s insurer sent out contractors to remove the tree and place a tarp over the roof. There was no further action on the damage for some months. In about January 2022, the renters noticed that there was water entering the house, as it appeared that the tarp was ineffective. The renters notified the agent of the water entering the rented premises in about January 2022, but no further action was taken by the rental provider until after VCAT made the urgent repair orders on 28 April 2022. The house was not watertight until about May or June or maybe July 2022. 
26	The renters gave evidence that the mattress was in a downstairs bedroom and was purchased about three years ago for about $3,000.00. The water entered into the roof through the damaged eaves and ceiling. The renters were unable to produce any photographs of the damaged mattress, invoices or receipts for the original purchase or a replacement purchase, or replacement quotes. The mattress was disposed of in the hard rubbish.
27	The agent told the Tribunal that the rental provider took action as soon as possible after the storm. Every effort was made to make the property safe and then repair it. The insurer had to make the property safe. The rental provider assumed that the builders engaged by the insurer had made it safe. The agent had sent a handyman to the property to ensure that it was watertight. About three to four weeks after the storm, further heavy rain may have dislodged the tarp. The agent submitted that the rental provider was not responsible for the damage to any goods. 
28	The agent said that COVID-19 had a big impact on the availability of trades and builders. They were short staffed and short crewed. During lock downs, many jobs were not allowed to be attended to.
29	The agent submitted that the renters should produce invoices or receipts showing the age and value of each item. The agent also submitted that water damage to many items would not happen overnight and the renters should have kept an eye on the situation. The agent did not contest that the rental provider was on notice of water entering the rented premises from January 2022.
30	The agent told the Tribunal that the rental provider had offered $4,500.00 in compensation for all the renters’ claims. The agent argued that this was a reasonable offer on the basis that there were no invoices or receipts and considering depreciation of the goods. The agent stated that the rental provider cannot re-let the property as it is under construction for repair of damage from the storm. Lack of building crews have caused delays to the work and the rental provider has lost $20,000.00 in rent.
31	I find that the rental provider breached their duty to ensure that the premises were keep in good repair by failing to make the rented premises watertight for many months after the storm and, in particular from about January 2022, when the renters reported the failure of the tarp to keep water out.
32	The mattress was damaged by the water entering the rented premises in a period of months after the storm.
33	The amount of compensation for the queen size mattress is difficult to assess, as there was no documentary evidence as to the brand, value or age of the mattress. The renters stated that the mattress was purchased by one of their parents for $3,000.00 and they were seeking only $1,000.00 in compensation.
34	A $3,000.00 mattress is a higher end mattress and the renter should have been able to identify the brand and model and at least provide a quote or advertisement for the same or a similar mattress. In those circumstances, I am only prepared to accept that the mattress was more of a standard type with a purchase price of $1,000.00. I accept that the mattress was about three years old. I find that the life of a mattress is about 10 years. Therefore, allowing for depreciation, I will allow for an amount of compensation of $700.00 for the water damaged queen size mattress.
Bed sheets, pillow and books (Item c.)
35	The renters seek compensations for bed sheets, pillows and books which were in bedroom 2, being the same room as contained the damaged queen size mattress. The renters state that photographs of some of these items are at pages 87 to 89 of the bundle of documents provided to the Tribunal. The goods were disposed of by a disaster recovery organisation, which assisted the renters. The renters stated that the damage was from water entering the rented premises over the months after the storm, not at the time of the storm. The renters claim six pillows at approximately $50.00 each, the sheets on the bed at $200.00 and 10 to 12 books at a total of $200.00. The pillows and sheets were said to be about 18 months old. Most of the books were about golf and about three to five years old. 
36	The renters did not produce any invoices or receipt for the original purchase or replace of these items. In relation to the books, the renters did not produce any photographs or list of the damaged books. 
37	I find that there was damage to the bedsheets and pillows from water entering the rented premises due to the breach of duty by the rental provider discussed above. I find that a sheet set purchased for about $200.00 was damaged and disposed of and four pillows purchased for about $50.00 each were damaged. I am not satisfied that there were six pillows damaged, as it was likely there would only be four pillows on a bed and the photographs which have been provided to the Tribunal do not indicate the presence of six pillows. I am not satisfied that there were any books damaged due to the absence of any detail as to these books. I consider that the appropriate depreciation period for the sheets and pillows is five years. Therefore, the total new purchase price of the sheets and pillows of $400.00 is depreciated to $280.00. I will allow $280.00 for the sheets and pillows but dismiss the claim for the books.
Clothing items including woollen coats and jackets (Item d.)
38	The renters stated that two woollen coats, purchased for about $300.00 to $400.00 each, and two Kathmandu jackets purchased for approximately $300.00 each were damaged and disposed of. There are photographs of clothing in plastic bags which appear to include some jackets. The renters have not provided any invoice, receipts or quotes for these items.
39	The agent submitted that the renters should produce invoices or receipts showing the age and value of each item. The agent also submitted that water damage to many items would not happen overnight and the renters should have kept an eye on the situation.
40	I find that there was damage to the woollen coats and Kathmandu jackets from water entering the rented premises due to the breach of duty by the rental provider as discussed above. The total purchase price of these jackets on the evidence of the renters was a minimum of $1,200.00 (4 x $300.00). Allowing for depreciation, I will allow an amount of $600.00 for these jackets and costs.
Fourteen pairs of leather shoes/boots (Item e.)
41	The renters claim $3,000.00 for 14 pairs of leather shoes and boots damaged and disposed of due to the water damage. The renters rely upon photographs showing a large number of shoes in plastic bags. The renters say that the disaster recovery organisation bagged and disposed of the shoes, but they were able to count them.
42	The renters state that the shoes cost $200.00–250.00 each and were one to four years old. I find that there was damage to the shoes from water entering the rented premises due to the breach of duty by the rental provider as discussed above. I accept that the purchase price was $200.00 per pair of shoes and that the shoes were one to four years old. I find that shoes depreciate over four years. Doing the best I can on the evidence available, I will allow the total amount of $800.00 for the damaged shoes.
Clothing items in closet inclusive of scarves, hats, blouses, woollen tops, jackets etc. (Item f.)
43	The renters gave evidence that water seeped into the wardrobe in the upstairs study where Ms Brommeyer kept her work clothes. She was not accessing these clothes at the time, as due to COVID-19, she was working from home. The damage was only discovered in January 2022. The disaster recovery organisation told the renters not to deal with the items. The organisation later did this for the renters. The items were bagged and thrown away. The renters have not provided any invoices, receipts or quotes for the original damaged items or replacement items. 
44	The renters stated that the items included:
a.	15 to 20 woollen and cashmere scarfs purchased for $40.00–66.00 each, all one to three years old;
b.	20 to 25 blouses purchased for $60.00–80.00 each, all one to three years old;
c.	20 jumpers purchased for $60.00–80.00 each, all one to three years old;
d.	8 to 10 jackets purchased for $150.00 each and all one to five years old. 
45	The agent submitted that the amount of clothing claimed was a lot for one person. The agent submitted that the renters should produce invoices or receipts for each item showing the age and value. The agent also submitted that water damage to many items would not happen overnight and the renters should have kept an eye on the situation.
46	Doing the best I can on the evidence provided, I find that the renters have scarfs, blouses, jackets and jumpers damaged by water entering the rented premises due to the breach of duty by the rental provider as discussed above. The clothing was then disposed of. The amount of compensation is difficult to calculate.
47	I find that the scarfs, blouses and jumpers would each have a depreciable life of three years and the jackets a life of five years. Therefore, a number of the items claimed would have reached the end of their depreciable life. I will allow 12 scarfs at a purchase price of $40.00, 15 blouses at $60.00 each and 12 jumpers at $60.00 each, with each item depreciated on average by fifty percent. I will therefore allow the amount of $1,050.00 for the scarfs, blouses and jumpers.
48	I will allow 6 jackets at $150.00 depreciated on average by fifty percent. I will therefore allow $450.00 for the jackets. Therefore, the total amount allowed for this head of claim is $1,500.00.
Loss of access to Bedroom 2 and Study (Item g.)
49	The renters claim for loss of use of bedroom 2 on the ground floor and the study on the second floor. The renters relied upon the photograph at page 106 of their bundle, which they say was taken in January 2021, which shows severe cracking in the plaster ceiling. The renters say that in January 2021, the agent had a builder fix two pieces of ‘two by four’ to the ceiling to try to stop the ceiling collapsing. Bedroom 2 was used as a guest bedroom. The renters also provided photographs of the room they say was bedroom 2, with large amounts of water on the floor and large buckets half full of water. The renters stated that from January 2022 to July 2022, they were unable to use the room due to the water leaking and from August 2022, they were unable to use the room as it had been stripped back and plastic sheets were blocking access from the rest of the house. The renters relied upon photographs they say were taken late in the tenancy, showing a room completely stripped of plaster and floor coverings. The renters stated that bedroom 2 was one of the two smaller bedrooms in the house.
50	The renters stated that in relation to the upstairs study, they were aware of issues due to the smell. It turned out to be mould in the wardrobe as water got into the work clothes stored there. They stopped using this room in March 2022. It had been used as Ms Brommeyer’s home office due to the COVID-19 lockdowns. They were unable to use this room from March 2022, until they vacated the rented premises. The renters accepted that the study was the smallest room in the house.
51	The renters stated that there are seven main rooms in the rented premises. They have claimed one seventh of the rent for bedroom 2 for a period of ten months and one seventh of the rent for the study for the period of six months. They have claimed a total of $8,881.71 rent paid for loss of access to the two rooms. 
52	The agent submitted that the house was large and there was room to move things around. There is formal lounge/dining room and a huge upstairs rumpus room. The upstairs rumpus room was large enough to also be used as a home office. The agent did not concede that the two rooms were unable to be used, although he did later accept that bedroom 2 had been completely stripped of plaster and floor coverings towards the end of the tenancy. 
53	I find that the renters were unable to use bedroom 2 from January 2022 until the end of the tenancy in October 2022 and were unable to use the upstairs study from March 2022 until the end of the tenancy. I find that the unavailability of the rooms was due to the water entering the rented premises due to the breach of duty by the rental provider discussed above.
54	I am not satisfied that the appropriate measure of compensation for loss of use of each room is one seventh of the overall rent, in circumstances where the study was the smallest room in the house and bedroom 2 was one of the two smallest bedrooms. I find that there was considerable inconvenience to the renters due to the unavailability of these rooms, particularly the study which was used as a home office during the pandemic. The loss of bedroom 2, although a larger room, was less of an inconvenience as it was a guest bedroom. 
55	For each room for the relevant periods of unavailability, I will allow an amount of 7.5 percent of the rent. For bedroom 2, the period from mid-January 2022 to the end of the tenancy in October 2022, being nine months at a rent of $3,454.00 multiplied by 7.5 percent, equals $2,331.45.
56	For the upstairs study, the period from mid-March to the end of the tenancy, being seven months at a rent of $3,454.00 multiplied by 7.5 percent, equals $1,813.35.
57	I will therefore allow the amount of $4,144.80 for loss of use of bedroom 2 and the study.
Electricity costs (Item h.)
58	The renters also claim additional electricity costs for running two air filtration devices 24/7, to extract the mildew and mould from bedrooms 1 and 2 and the upstairs study in September 2022. They rely upon a comparison of energy bills from September 2021 and September 2022 and claim an amount of $97.20. Copies of the energy bills were provided to the Tribunal.
59	I find that there was additional expenditure on energy in September and October 2022, due to the rental providers breach of duty to ensure the rental premises were kept in good repair as discussed above. 
60	The calculation provided by the renters is incorrect as the price of electricity per unit had increased between the relevant periods, the comparison is of a different number of days and does not take in to account the fixed costs on the bills. A more appropriate calculation would be that the average daily use in September 2021 was 19.22 KWH per day and in September/October 2022 the average daily use was 22.27 kWh per day. Therefore, the additional daily use was 22.27 kWh less 19.22 kWh, equalling 3.05 kWh per day. The price per unit of energy in September 2022 was $0.24288 per kWh. Therefore, the additional electricity costs would be 40 days at 3.05 kWh multiplied by $0.24288, to equal the amount of $29.63.
61	I will therefore allow the amount of $29.63 for additional expenditure on energy in September and October 2022.
Removalist costs (Item i.)
62	The renters have claimed removalist costs of $1,061.90, as they say they were forced to move to alternative accommodation due to the breach of duty by the rental provider.
63	The renters moved at the end of their fixed term lease. No evidence was provided of the terms of their new accommodation. It is the nature of renting that renters will sometimes need to or choose to move house. I am not satisfied that the renters have made out their claim for the removalist’s costs being incurred due to the breach of duty by the rental provider. 
Health costs (Item j.)
64	The renters say they have health concerns from the mould in the property arising from the breach of duty by the rental provider. Ms Brommeyer stated that she used her asthma medication more and had an increase in stomach issues which she believes was contributed to by the mould. She also suffered an increase in headaches.
65	The renters did not produce any medical evidence to support the allegation that Ms Brommeyer suffered health issues or increased symptoms of existing health issues due to the presence of mould in the property. 
66	I am not satisfied that the renters have made out the claim that Ms Brommeyer’s health was impacted by the mould in the property.
Refund of rent from 14 October 2022 to 20 October 2022 (Item k.)
67	The renters told the Tribunal that they paid rent of $3,302.74 into the rent special account for August, September and October 2022. This amount included a $50.00 a month discount for the inconvenience of the situation. They paid rent to 20 October 2022 but vacated the rented premises on 14 October 2022. The renters stated that they had given written notice on 14 September 2022, that they intended to vacate on 14 October 2022.
68	The agent stated that notice of intention to vacate was not given by the renters until the renters sent an email on 10 October 2022, advising that they would be vacating on 20 October 2022. The agent stated that the renters moved out on 20 October 2022 and gave the keys to the builder on 21 October 2022. The keys were not returned to the agent’s office. 
69	Neither party produced the emails they state contained the renters’ notice of intention to vacate. In this case, as the renter is claiming compensation, it is for the renter to prove their case. Without the renters providing a copy of the written notice of intention to vacate, I am not satisfied that they gave the notice they state was given to the rental provider. I am not satisfied that there was any overpaid rent for the period 14 October 2022 to 20 October 2022. This claim is dismissed.
Conclusion on compensation claim
70	The Tribunal is therefore satisfied that the renters are entitled to compensation in the amount of $8,054.43 for the claims that have been proven above. The renters gave evidence that they received a $50.00 per month rent discount for three months due to the inconvenience. This was not contested by the rental provider. This amount should be deducted from the amount of compensation. Therefore, the amount of $8,054.43 less $150.00 equals an amount of compensation to be paid of $7,904.43.
Disposition of rent held in Rent Special Account
71	On 4 July 2022, the Tribunal ordered that rent be paid into the Rent Special Account from 20 July 2022 to 30 September 2022, subject to further order of the Tribunal.
72	The renters have paid rent into the Rent Special Account in the following amounts:
a.	$3,295.60 in July 2022;
b.	$3,148.74 in August 2022;
c.	$3,302.74 in September 2022
pursuant to the Tribunal’s order dated 4 July 2022. 
73	The amount in the Rent Special Account as at today is $9,747.08
74	The residential rental provider did not affect required repairs to the rented premises by the end of the rental agreement.
75	The renters renewed the application seeking further orders.
76	The rental provider owes the renters the amount of $7,904.43 in compensation. The rent in the Rent Special Account should therefore be disbursed to the renters in the amount of $7,904.43 and the remainder to the rental provider.
VCAT application fee
77	The renters claim the VCAT application fee of $65.30. The Tribunal may order the application fee be reimbursed by the rental provider if the applicant has been substantially successful in their claim. The renters in this case have not been substantially successful so are unable to recover this fee from the residential rental provider. This claim is dismissed.
Conclusion 
30 	I will therefore order the residential rental provider to pay the renters the sum of $7,904.43. Satisfaction of this order will be by payment of that amount to the renters from the Rent Special Account, with the remainder of the funds in the Rent Special Account to be paid to the rental provider. All other claims by the renters are dismissed. As the renters have not substantially succeeded in their claim, I will not order the reimbursement of the applicant fee. 

N Campbell
Member