VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
RESIDENTIAL TENANCIES DIVISION
RESIDENTIAL TENANCIES LIST	vcat reference No. R2022/17012
	
CATCHWORDS	
Claim for compensation by renter for three-month residential rental agreement – compensation payment by residential rental provider of a month’s rent taken into account – agreement reached to end rental agreement early – purpose of compensation discussed – distress and disappointment v pain and suffering - purpose of penalty provisions - claim dismissed.
Sections 63, 65, 68, 210, 211, 211B, 447, 452, 472(1)(f) of Residential Tenancies Act 1997 (Vic.) and Director of Consumer Affairs Guidelines and Young v CEO (Housing) [2023] HCA 31.  	

FIRST APPLICANT
SECOND APPLICANT	Samantha Daly
Joel Wenger	
FIRST RESPONDENT
SECOND RESPONDENT	Jason Suwignjo
Andrew Suwignjo	
WHERE HELD	Melbourne	
BEFORE	K Campana, Senior Member	
HEARING TYPE	Final Hearing	
DATE OF HEARING	30 August 2024	
DATE OF ORDER	15 October 2024	
CITATION	Wenger v Suwignjo (Residential Tenancies) [2024] VCAT 996	

Order

1	For the written reasons provided, the claim for compensation is dismissed.

K Campana
Senior Member			

APPEARANCES:		
For the Applicants 	In person	
For the Respondents	Justine Sawford, Agent
Belinda Bisogno, Agent	

Reasons
1	One month into, what ended up being, a three-month rental agreement, the renters lodged this claim for compensation against the rental providers related to the state of the rented premises.
2	On 17 June 2022, Samantha Daly and Joel Wenger (‘Renters’) sought $8,748.45 from owners Andrew and Jason Suwignjo (‘Rental Providers’) by an application lodged in the Residential Tenancies List of the Tribunal. Due to delays associated with hearing compensation claims, the matter came on for a final hearing before me on 30 August 2024.
3	At hearing the claim had reduced to $7,075.45 (taking into account the month’s free rent given to the Renters), with the rental agreement having ended on 15 August 2022. Voluminous documents, photographic evidence, invoices and statements were provided at hearing. 
4	The claim was summarised in a document titled Summary of Proofs for Renter Compensation, which combined the loss for various items under the following headings:
(a)	Provision of premises: $1,208.21
(b)	Rental Minimum Standards: $2,701.26
(c)	Provision of Information: $77.23
(d)	Quiet Enjoyment: $165.00 & $2,239.11
(e)	Duty to Maintain: $330.00, $66.00 and $182.93
(f)	 Record Keeping Duties: $77.23
(g)	Locks: $28.48
5	In order to undertake a proper assessment of the claim, I considered each of the following items of complaint separately, and determined the value of any compensation attributable to that item:(a) cleaning, (b) locks, (c) kitchen, (d) mould, (e) hole in dining room floor, (f) blinds, (g) bathroom fan, (h) gas leak and hot water unit, (i) return air unit of air-conditioner, and (j) general inconvenience.
6	With significant compensation having been given to the Renters by means of a rent waiver of one month and the parties agreeing to otherwise resolve the rental agreement by its early termination, the claim for compensation is dismissed for the reasons that follow. 
Principles of compensation in Residential Tenancies
7	Before turning to determine this claim, it is important to consider the matrix within which compensation claims are assessed.
8	When entering into a rental agreement, renters agree to pay rent, for not only a rented premises that will meet certain standards, but for rental providers to comply with their obligations as governed by the Residential Tenancies Act 1997 (Vic.) (‘RT Act’). If a renter does not receive the services that they contracted for, then they are entitled to be reimbursed the rent they paid, proportionate to that part of the service that they did not have the benefit of. 
9	Compensation is just that – a monetary award to a party to a contract to compensate that person for loss suffered as a result of the other party to the contract not complying with the terms of that agreement. 
10	Compensation is not designed to penalise a party or unjustly enrich another. Making an example of a party or wanting to take action for a wrong that is designed to benefit others is misconceived. The enforcement of obligations or the imposition of penalty provisions is a matter for the consumer watchdog - in Victoria - the Director of Consumer Affairs.
11	Compensation claims under the RT Act are discretionary. However, there are certain matters that the Tribunal may, and others that it must, take into account. The considerations under Part 5 headed “Compensation and compliance” should, in my view, apply to any claim for compensation under the RT Act, irrespective of where in the Act the claim arises, including applications under sections 452 and 472(1)(f).
12	Relevant to this application by the Renters, which sought compensation under sections 452, 472(1)(f) and section 209, are the following:
Section 211 Matters which may be considered by Tribunal
The Tribunal, in hearing an application under section 209, 209AAB, 210AA, 210, 210A or 210B, may take into account-
(a) 	whether or not the person from whom compensation is claimed has taken all reasonable steps to comply with the duties under this Act or under the residential rental agreement or site agreement in respect of which the claim is made; and
(b) 	in the case of a breach of a residential rental agreement, whether or not the applicant has consented to the failure to comply with the duties in respect of which the claim is made; and
(ba) ... (bb) …
(c) 	whether or not money has been paid to or recovered by the applicant by way of compensation, including money recovered or entitled to be recovered from the bond; and
(d) 	whether any reduction or refund of rent or other allowance has been made to the applicant; and
(e) 	whether or not action has been taken by the applicant to mitigate the loss or damage; and
(f) 	any offer of compensation; and
(g), (h) and (i).
Section 211B Director’s guidelines to be considered by Tribunal
The Tribunal must consider the Director’s guidelines when hearing an application under section 209, 209AAB, 210, 210AA, 210A or 210B.
13	The claims by the Renters relate to two distinct duty provisions of the Rental Providers under the RT Act: Cleaning (section 65) and Maintenance (section 68).
Section 65 of the RT Act: Rented Premises reasonably clean
14	The RT Act requires a rental provider to have the rented premises “in a reasonably clean condition” at the start of the rental agreement, and a renter must keep and leave the rented premises “reasonably clean” when they vacate. There is no definition of “reasonably clean” in the RT Act, and nor is it a Rental Minimum Standard. 
15	The Director’s Guidelines Number 2 on Cleanliness has referenced a number of decisions by the Tribunal and provides a summary of some of the interpretations that have been applied:
Cleanliness should be measured according to average standards in the community. It does not mean spotless or pristine nor does it mean terribly messy; the standard should sit somewhere in the middle and will depend on the nature, age, and circumstances of the rented premises.
Generally, an item or surface may be considered reasonably clean if it is free from marks, dirt, cobwebs, stains or dust etc. and cannot be further improved by additional cleaning to a reasonable standard (e.g. wiping down a benchtop again doesn’t produce a higher standard of cleanliness). 
16	Whether the obligation belongs to a rental provider at the commencement of a rental agreement, or a renter during or at the end of that agreement, the considerations and test for determining whether something is reasonably clean is the same:
…. the meaning of reasonably clean condition has been considered by the Tribunal to mean that the premises are the standard of a weekly clean, not a spring clean. The premises need not be kept in pristine condition.
17	In other words, while a renter may want a property to be spotless before moving family and furniture in, that level of cleanliness is not the benchmark that the RT Act sets. It is not expected that a rental provider will have every surface spotless, nor is that required when the renter vacates. A “reasonable clean” is a cleanliness to be expected from a house that is lived in: a Saturday morning clean, as opposed to a spring clean or a professional vacate clean.
Section 68 of the RT Act: Maintenance
18	A residential rental provider has a strict and absolute obligation to maintain the rented premises in good repair. Section 68 of the RT Act relevantly states:
S.68    Residential rental provider’s duty to maintain premises
(1) 	A residential rental provider must ensure that the rented premises are provided and maintained- (a) in good repair; and (b) in a reasonably fit and suitable condition for occupation.
(1A) 	Subsection (1) applies-
(a) 	whether or not the renter was aware of any disrepair at the rented remises before entering into occupation of the premises; and
(b) 	despite the amount of rent paid by the renter; and
(c) 	despite the age and character of the rented premises.
19	This strict and absolute obligation does not mean that a residential rental provider is in breach of the duty as soon as an appliance fails, or a fixture is broken. The provider is only in breach of this duty obligation, if they do not respond or have the item repaired in a reasonable period of time. What is considered a reasonable period of time will depend on a number of factors including when the rental provider received notification of the issue or item requiring repair, the work that is required to be undertaken, and the availability of trades and materials needed to carry out the work.
20	Director Guideline 4: Urgent Repairs provides further context on the duty provision as it relates to urgent, as opposed to non-urgent repairs, and reasonable expectations:
Consumer Affairs Victoria (CAV) research has found that half of the requests for urgent repairs are not dealt with promptly. Whether a repair can be dealt with ‘immediately’ may depend on the type of repair required, whether it poses a safety risk (for example, a gas leak) and the time the fault occurs, for example, after business hours or on a weekend or public holiday. In some cases a repair might involve multiple steps or may depend upon waiting for a suitably qualified person to undertake the work, and it may be appropriate for the RRP to organise a temporary fix. Both the renter and RRP may benefit from clear information on the expected timeframes for urgent repairs.…
Although section 3(1) of the Act provides a comprehensive definition of urgent repairs, and the Act provides for a renter to apply to VCAT at any time after informing the RRP of the need for urgent repairs, it is not likely that ‘urgent repairs’ can often be resolved within minutes of a renter informing a RRP of the need for repairs. There is often a gap between a renter’s expectations of when an urgent repair should be carried out, and when a RRP is able to arrange for the repairs to be completed. 
The interpretation of the term ‘immediately’ and the expectations regarding an RRP’s duty to undertake urgent repairs will be considered based on the factual circumstances and the following factors:
1.	The urgency of the repair.
2.	The complexity or significance of the repair.
The factual circumstances should be considered as a while in determining whether the RRP is meeting their obligations.
21	The above matters, as relevant, will be considered against each claim made.
Rental Agreement Overview
22	Before addressing each of the items of complaint, a brief overview of the rental agreement provides context for the assessment to be undertaken.
23	The rented premises is a two-bedroom, one bathroom art deco style weatherboard house which appears to have undergone little renovation since it was built post the Second World War. The property’s age and character is what the Renters say attracted them to the premises.
24	The Renters inspected the rented premises while it was occupied. The previous occupants vacated on 4 May 2022, with some cleaning undertaken on behalf of the Rental Providers on 11 May 2022 and the Renters moving in on 13 May 2022.
25	An entry condition report was completed on 12 May 2022 by the agents and the Renters made comments on the same on 18 May 2022 along with providing various photographs.
26	The Renters immediately raised issue with the state of the rented premises, identifying cleaning and maintenance items.
27	On 30 May 2022 the Renters served the Rental Providers with a breach of duty notice and on 17 June 2022, five weeks after moving in, made the Tribunal application for compensation.
28	On 20 June 2022 the agent acknowledged receipt of the application and responded that while much of the Renters’ $8,748.45 claim would not be paid, “The Rental Provider however has agreed to pay you compensation for $1673.00 (being the equivalent of one months rent) toward your request for compensation.” This month of rent was credited to the Renters’ ledger for the period from 13 June 2022 to 12 July 2022.
29	On 4 August 2022, following further complaints about the condition of the rented premises, the Renters offered to vacate without penalty:
We feel like a mutual termination is the best option for all parties, foregoing lease break costs instead of us issuing further breach notices and seeking reduction in rent (for the time period that we do not have full enjoyment of the property).
We propose the tentative termination date of Monday the 15th of August 2022 and are open to negotiation.
30	There was further negotiation about whether the current proceeding was included in the settlement and ultimately the parties agreed on the following terms:
Mutual Termination of Residential Tenancy Agreement
1. 	We, the undersigned, herby (sic) agree to terminate the tenancy at (address deleted) by Mutual Agreement.
2. 	The tenancy will terminate on Monday 15th August 2022.
3. 	The tenants agree to hand back vacant possession of the property and return all keys to Fletchers Blackburn by 5.00PM on the termination date stated above.
4. 	The tenants will return the property in a similar condition to that upon the commencement of tenancy, including additional cleaning arranged by the residential provider over this duration.
5. 	The tenants will pay the rental provider the sum of $165.01 for the final rent owing up to 15th August 2022.
6. 	The tenants will make no additional claims or requests for compensation against the rental provider, property or Fletchers, unrelated or after the effective date of any current proceedings. No forfeiture of rights or claims to dispute any amount of Bond payment entitled to the tenants, is intended under this clause.
7. 	The residential provider agrees the tenants will not be responsible for any rent after vacate date and will not be liable to pay any advertising re-letting costs or other charges associated with ‘lease break’ costs.
31	The Renters vacated on 15 August 2022 with a final inspection of the premises carried out on 19 August 2022. The bond was returned to the Renters.
The Claim for Compensation
32	Each of the items identified above and explored at hearing that form part of the application made on 17 June 2022 will now be considered in detail.
(a) Cleaning
33	While the entry condition report completed by the agent on 12 May 2022 conceded that the gardens needed to be attended to, the Renters say the report otherwise did not identify how unclean the rented premises was:
We are still in the process of completing the condition report as we have a significant number of items to document. The condition report that has been provided demonstrates many areas that are not clean to a reasonable standard and therefore do not meet the minimum standards outlined in the Residential Rental Agreement and the Residential Tenancies Act.
34	In essence the Renters complain that various parts of the property were “dirty”, “dusty”, “grimy”, “greasy”, “stained”, had “scuff marks” and otherwise had “soap scum”, “cobwebs”, “spiders” or “hair” on it. 
35	I have reviewed both the hard copy and soft copy photographic evidence of the Rental Providers from the entry condition report and the Renters’ additional photographs, comprising some 369 pages in total. 
36	The photographs from the agents show a rented premises that looks tired, scarred and every bit its almost 80 years of age. There are some marks around light and electrical switches, a few scuff marks on walls, dust on skirting boards and a number of cupboards that have not been wiped down. The blinds and lace curtains are old and well-worn and there are a few items such as coat-hangers, a plastic bag and some bottles that have been left in, and on top of, the cupboards. The bathroom has some discolouration in the bathtub and the kitchen has some grease splatters near the rangehood. The carpets have brush marks consistent with having been professionally steam cleaned. The inside photographs depict a premises that is generally in what I consider to be a reasonably clean condition. Outside there is some dirt buildup on the weatherboards, the grass is longer than to be expected, the garden beds are unkept and there is weeding that needs to be done. The old garage concreted floor has a thin layer of dirt build up and the greenhouse looks well used with the plastic sheeting dusty and dirty.
37	The photographs taken by the Renters provide a microscopic view of the premises and are closeup full page shots that run from pages 84 to 362 of the condition report. While most of the photographs reflect the ones taken by the agent, there are additional photographs of cobwebs in the corner of the ceiling above wardrobes and at the base of cupboards, some dirt inside the floor vents with the covers removed, dirt and grime buildup in window tracks, marks on the blind handles, and stray hairs in the bathroom. Outside there is some rubbish in the bins and some cardboard in the compost bin.
38	The Renters say they had their respective mothers attend to help clean over the weekend prior to moving their items into the rented premises.
39	The Rental Provider produced cleaning invoices from 11 May 2022 when a general clean inside the rented premises and steam cleaning of carpets was undertaken, two days before the Renters collected keys. The original cleaners returned to carry out further cleaning on 30 May 2022 and external cleaning works were undertaken on 3 June 2022 including cleaning the cobwebs outside the house and all windows and sills.
40	The Renters claim that despite the return of the cleaners on 30 May 2022, and the additional work undertaken outside on 3 June 2022, the premises remained in an unreasonably clean condition. There were no photographs produced after the cleaners returned.
41	This is the Renters’ claim and therefore they have the burden of proving that the rented premises was not in a reasonably clean condition, that the Rental Providers were responsible for the state of the premises at the commencement of the rental agreement and that they have suffered a loss arising from this breach of duty under the RT Act.
42	On the basis of the photographic evidence produced by both parties, I am satisfied that there were some items in the rented premises that were not reasonably clean and that many surfaces, inside and out, required some additional cleaning.
43	While the rental provider attended to the additional internal cleaning within 18 days of the rental agreement commencing, the Renters are entitled to compensation for this period where they had to carry out their own cleaning. These “surface cleans” in an empty property would have taken, no more than a few hours, in my view, to have the premises in a reasonably clean condition.
44	Conscious that the Renters have mitigated their loss (section 211(e)) by having relatives clean, and that had they not moved in they would not have been obliged to pay rent until the rented premises were reasonably clean (section 65), and that less than a day of cleaning would have remedied the condition inside, I consider one day’s rent as reasonable compensation for the state of the premises inside, being an amount of $55.
45	The state of the premises outside, and any loss actually incurred by the Renters, is harder to assess. I am satisfied, based on the photographic evidence, that the garage could have benefited from a sweep to place the same in a reasonably clean condition and that the exterior of the premises needed a hose down, but that the rest of the garden, including the compost bin, was in a reasonably clean condition.
46	The Renters did not say that they were prevented from using the outside, or could not use the garage to store items, because it was not clean. It took 3 weeks for the outside areas to be attended to by the Rental Provider. I consider the value of this area that was not reasonably clean, by reference to it being storage or aesthetic only, is around 10 percent of the daily rent of $55 for the period that it was not clean. $5.50 multiplied by 21 days is $115.50.
47	An appropriate amount of compensation for the premises not being reasonably clean, both inside and outside, is a combined amount totalling $170.50. 
(b) Locks 
48	The Renters say that they had difficulty using the keys they were provided in the back door and then the rear entry door mechanism seized on 9 June 2024 after which they were required to gain entry from the front door of the rented premises. They seek half an hour of time for the inconvenience in the amount of $28.48.
49	On notification of the keys not working, the Rental Providers’ agent immediately attended and confirmed that the correct key was provided and while stiff in the lock, it was able to be operated. When the lock faulted and could not be opened, a tradesperson was engaged and attended within 48 hours to replace the deadbolt mechanism. There was no issue with access through the front door at this time. 
50	I am not satisfied that the Rental Providers are in breach of their obligation to maintain the rented premises in good repair. They immediately attended to the issue when it was first identified by attending to check the keys provided and the locks operation. When notified that the lock had failed, the front door providing more immediate access continued to be operational, and the deadbolt on the backdoor was replaced within a reasonable time of receiving notice. 
51	Without being satisfied that the Rental Providers have breached their obligations under section 68 of the RT Act, this part of the claim by the Renters is dismissed.
(c) Kitchen
52	The Renters seek compensation related to an inability to use the stovetop at 10 percent of the daily rent from 19 May 2022 to 31 May 2022, being an amount of $66. They also seek compensation for inconvenience associated with this item.
53	Two out of the four hotplates were identified as failing to stay lit in a Gas Safety Check report conducted on 19 May 2022. The issue was not raised by the Renters prior to the report.
54	The Rental Providers say that they immediately obtained a quote for a new stovetop and it was installed on 1 June 2022.
55	I am not satisfied that the Rental Providers were in breach of their duty to maintain the rented premises in good repair. They responded immediately to an issue identified in the Gas Safety Report which affected the operation of half of the stovetop and was not a safety issue. Their response was to replace the entire unit within a relatively short period of time. Eleven days to source a replacement unit suitable for the space occupied by the existing stovetop, obtain a quote and arrange for the installation of the unit is a reasonable period of time.
56	Additionally, I note that the Renters had not identified the inability to use two of the four burners when they commenced living at the rented premises, and they still had the use of two burners for the 11 day period.
57	Without a breach of a duty obligation under the RT Act by the Rental Providers and no quantifiable loss by the Renters, this part of the claim is dismissed.
(d) Mould 
58	The Renters raise issue with mould identified in a report conducted at the rented premises on 24 August 2022 just prior to moving out of the rented premises.
59	This issue was not raised in the application to the Tribunal on 17 June 2022 by the Renters and was not identified as being an issue until late July 2022.
60	Any claim related to mould by the Renters, which came to their, and the Rental Providers’ attention, after the application was made to the Tribunal, cannot be made by reason of the Renters’ release contained in the Mutual Termination Agreement:
The tenants will make no additional claims or requests for compensation against the rental provider, property or Fletchers, unrelated or after the effective date of any current proceedings.
61	The effective date of the proceedings must be the date the application was made to the Tribunal and this claim is therefore limited to the information and issues identified by the Renters at that time. There had been no request for amendment to the claim to seek additional items in any event. 
62	This interpretation is consistent with the negotiations and intent of the Renters prior to the Agreement being signed which stated:
The current VCAT application will not be withdrawn, however we will agree not to submit further applications relating to issues that have occurred since the application date; on the basis of mutually terminating the lease agreement without the rental provider seeking lease-break costs.
63	The Renters are barred from bringing this claim by reason of the mutual release and as such this part of the compensation claim is struck out.
(e) Hole in floor 
64	The Renters seek to be compensated for what they describe as being a hole in the floor in the dining room:
Major gap and falling away from floor. Boards move and are separating near heating duct. Daylight visible. See attached.
65	The attached is a photograph of the ducted heating floor vent, which runs parallel to the wall with its closest edge some 10 centimetres from the skirting board and the gap in the floorboard running half that distance along the abutting edge of two floorboards. It is a gap at its widest depth of 10 millimetres.
66	The issue was again identified by the Renters in a breach of duty notice sent to the Rental Providers’ agent on 30 May 2022:
Flooring in dining room is not structurally sound or weatherproof as daylight can be seen through gap in flooring (agent’s stated in their condition report “no major damage” to wooden floors)
67	The Rental Providers had a tradesperson attend on 3 June 2022 who sealed the gap between the floorboards and stabilised the board.
68	I am satisfied that there was a gap in between the floorboards in an area of the dining room that needed repair. However, I am not of the view that this repair had any significant impact on the Renters. Given its location between a wall and heating vent, it would have been subject to minimal, if any, foot traffic. At most it may have allowed a draft to enter that part of the rented premises, or an access point for any insects or other creatures under the house. There was, however, no evidence of this by the Renters.
69	From being notified of the issue to having a tradesperson attend to carry out the repairs was a period of some two weeks. Given the nature of the repair required, there being no urgency or safety risk involved and the two week timeframe to attend to the repair, I am not satisfied that the Rental Providers were in breach of their duty to maintain the premises in good repair. Even if I was satisfied that there had been a breach of duty, the loss to the Renters was negligible and so no compensation would have been awarded.
70	This part of the Renters’ claim is dismissed.
(f) Blinds 
71	In addition to raising issue with the cleanliness of the blinds, the Renters say that the blinds were also difficult to operate.
72	The operation of the blinds was identified in the Entry Condition Report:
Agent’s comments: Bedroom 1: Blinds/Curtains: 
… blind currently does not retract. 
Renters’ comments: Kitchen: Blinds/Curtains:
Roller blind temperamental.
Renters’ comments: Entrance Hall: Blinds/Curtains:
Minor pulled thread on right side of drape curtain x 2. Loose stitching on roller left side.
Renters’ comments: Dining Room: Blinds/Curtains:
Curtain rod loose and end cracked.
Renters’ comments: Laundry: Blinds/curtains:
Blinds do not operate smoothly and difficult to retract. Tear in rod tab. Rod end cracked and broken.
73	The Renters additionally raised the issue with the blinds in the Breach notice dated 30 May 2022:
Window coverings in bedrooms and living areas cannot be relied upon to block light and provide privacy, as they are temperamental in functionality.
74	The agent says a tradesperson attended the rented premises on 1 June 2022 to measure the blinds and provided a quote on 2 June 2022, which was approved by the Rental Providers on 6 June 2022. The new blinds were installed on 29 June 2022.
75	Despite identifying the issue with the operation of at least one blind in the premises, the agent cannot explain why the blinds were not addressed earlier.
76	With the functionality of one blind presenting an issue from the commencement of the rental agreement and the Renters identifying difficulties with the operation of others, I find that the blinds were not in good repair from the commencement of the agreement. The photographs do however show that they were capable of blocking light as required. The issue becomes what period of delay in carrying out a repair contributed to any breach of the duty obligation by the Rental Providers and what loss to compensate the Renters for, for the inconvenience involved in operating those blinds that tended to “stick”.
77	Once the Rental Providers had a tradesperson attend the rented premises, I am of the view that the period of time of 4 weeks was reasonable for the inspection, quote, approval and installation of a made to measure product. However, this work should have been arranged as soon as the previous renters departed the premises shortly after 4 May 2022 and during that exit inspection. I am therefore of the view that there was an unreasonable delay of approximately 3 weeks and that the Rental Providers were in breach of their duty obligation over this period of time.
78	For the inconvenience of operating blinds that were difficult to roll up and down over a 21 day period, I consider two percent of the daily rent of $55 to be a reasonable amount of compensation, which equates to a total amount of $23.10. 
(g) Bathroom Fan 
79	The Renters say the bathroom fan was “inefficient” and identified in the entry condition report that it made a “dry rattling noise” when started.
80	An electrical safety check audit conducted on 28 May 2022 passed both the fan and the bathroom heater at the rented premises.
81	The issue was not raised again by the Renters and was not included in the 30 May 2022 Breach of Duty notice.
82	On the basis of the evidence presented, in particular the electrical safety audit which made a number of recommendations for items to be repaired that did not include the bathroom fan, I am not satisfied that this was an item requiring repair.
83	This part of the Renters’ claim is dismissed. 
(h) Gas Leak and Hot Water Unit
84	The Renters seek compensation related to the failure to conduct a gas safety check at the rented premises prior to them moving into the property and the resultant lack of hot water when some repairs were needed.
85	The Renters were contacted by the inspector on Friday 13 May 2022, the day after receiving the keys, and asked for a suitable time for a Gas Safety check to be conducted.
86	However before a time was arranged, there was an issue with the hot water unit not working. The Renters raised the issue using a renter maintenance app as an urgent repair on 16 May 2022 and a plumber attended and carried out a repair to the unit in less than 3 hours.
87	The Gas Safety Inspector then attended four days later on Thursday 19 May 2022 and advised that there was a leak at the rented premises:
Testing of the Gas Fitting Line over 5 minutes revealed a large pressure drop of 0.4 kPa which exceeds the allowable leakage rate.
Isolated all of the Gas Appliances to eliminate then as the possible cause of leak.
Tested gas fitting line at connections leading up to the appliances but was not able to detect the gas leak.
The gas leak is located somewhere else within the gas fitting line.
Requires further investigation and testing of the gas fitting line throughout the installation to find and repair the gas leak.
There was no smell of gas inside or outside the house. Therefore I left the gas meter ON as it is not an immediate risk to the tenants.
Advised Property Manager Peta who will be forwarding on this additional work to approved Plumbing Company selected by Fletchers.
88	The Plumber arrived the following day and inspected the rented premises and, as a result, disconnected the hot water unit.
89	The Renters, who were not home when the plumber attended, nor advised what had happened, say they returned home to find they did not have any hot water and had to go to a relative’s home to have a shower.
90	A new hot water unit was installed the following day on 21 May 2022.
91	Given the short turnaround time between the exiting renters leaving and the Renters moving into the property, and that most often safety checks on essential services require gas and electricity to be connected by a renter, I do not accept that the gas safety audit should have been conducted before the Renters moved into the premises.
92	I am further satisfied that the Rental Providers, on receiving the rectification notice, immediately responded and had a plumber attend the rented premises to carry out any necessary repairs.
93	I have no doubt that the Renters would have been frustrated by returning home to be without hot water on a Friday night. I also accept that the plumber who had contacted the Renters directly to arrange access should have advised the Renters what work had been done when he left. However, I also accept that it was reasonable for the agents to expect that this had been done by the plumber. Even if it was not a reasonable expectation, and the agents should have advised the Renters, it is not a breach of a duty provision in the RT Act.
94	With the gas leak being attended to and the hot water unit being fixed within 48 hours, I am not satisfied there has been any breach of the duty obligation of the Rental Providers to have the rented premises in good repair. This part of the Renters’ claim is accordingly dismissed.
(i) Return Air Unit of Air-Conditioner 
95	The Renters seek compensation related to the ducted heating and cooling unit at the rented premises. 
96	The Renters’ comments in the entry condition report claim the “intake vent is covered in a thick layer of dust”, while the cleanliness of the ducts and an inability to use the unit due to an allergic reaction was raised in an email of 24 May 2022 and the breach notice of 30 May 2022 which stated:
Ducted heating not in good working order. Eg. Use of heater elicits allergic reaction to dust/mould and other contaminants. No filter is installed.
97	The gas safety check report conducted on 19 May 2022 and the electrical safety audit of 27 May 2022 both passed the ducted heating unit as being operational and without issue.
98	The Rental Providers had a tradesperson attend to service the unit and conduct a general clean on 3 June 2022 and the ducts were further cleaned on 4 June 2022.
99	The service found the return air was making a noise and that one of the ducts had been partially pulled out and made the following recommendation:
Recommend replacement RA grill with replacement of broken section of ductwork.
100	These repair works to the ducted heating unit were completed by 20 June 2022. 
101	The cleanliness and noise of the ducted unit was raised in the entry condition report by the Renters. The noise issue was ultimately not resolved for a month which I consider to be an unreasonable length of time to address this issue. A two week period would have been acceptable to have this repair carried out.
102	I accept that there was one duct that was not operating efficiently, however there is insufficient evidence to support claims that materials causing allergens were being emitted from the unit.
103	For the inability to have heating supplied to one room of the rented premises over a 14-day period where there was unreasonable delay in having the repair carried out, I allow 2 percent of the daily rent of $55, being an amount of $15.40.
(j) General Inconvenience 
104	I identified at the outset that the Renters had presented their claim under more general headings of damages and as such it is important to address their claims for inconvenience associated with the overall condition of the premises. In a written statement to the Tribunal, they state:
It is incredibly difficult to quantify losses incurred from severe stress and the physical and mental health impacts that have resulted due to occupying a premises that did not meet minimum standards. The resistance and difficulty we faced in our attempts to rectify the issues with the rental provider, drastically reduced our quality of life. We contend that the simplest method of assigning a monetary value is in the form of our time that has been spent in order to make the place of our residence habitable. A great deal of our time and energy could have been put to more productive, lucrative and fulfilling endeavours, had the rental provider presented a property that met the minimum standards at the time of our occupancy. The resistance and denial that we encountered in our dealings with Fletchers exponentially increased the time we lost and inconvenience we experienced.
105	The Renters also provided a Personal Impact Statement dated 30 May 2022 which documented how they felt about moving into the property and their treatment when issues were raised:
As brand-new tenants, this left us feeling aghast and completely overwhelmed with the enormity of issues and amount of cleaning to be completed before our impending move in date.
The response from Fletchers throughout this entire experience has left us feeling belittled and uncertain, which has only compounded what has been an utterly devastating and stressful experience. The anxiety caused by the property manager’s negligence has flowed into every area of our lives.
The workload forced upon us since [the] tenancy began, whilst trying to balance our regular jobs, has seen us up at all hours of the night.
The time spent by us trying to educate ourselves, document and resolve all issues has severely impacted our jobs, finances and mental and physical health; Not only did we have all of the issues from (the rented premises) on our plate, but we were trying to move out of an existing rental property and live our lives amongst all of the uncertainty and disruptions. This includes disruptions from multiple tradespeople wanting access to the property weekdays and weekends.
106	There is no doubt that moving homes is a stressful event, and it is widely recognised as being one of the most stressful occasions in a person’s life. However, I consider it unreasonable to attribute that stress to the Rental Providers or their agents. 
107	It is also unrealistic to expect that renting a property will be without incident. Fixtures and fittings will break down, items will require repair and trades will have to attend a property to carry out those repairs. A renter is, however, entitled to an expectation that a residential rental provider will comply with their obligations under the RT Act and to be compensated accordingly when the provider does not comply with such an obligation. The Renters are not entitled to compensation when a rental provider does comply with their obligations because the carrying out of the repair is inconvenient or disruptive. 
108	The Tribunal cannot make any award for pain and suffering or physical injury in accordance with section 447(2) of the RT Act. It is acknowledged that “disappointment or distress” can be distinguished from “pain and suffering” and may give rise to a claim for compensation.
109	This “distress” or “disappointment” arises from a reasonable expectation that a party will comply with their obligation to provide the services that they were engaged for. In the case of this rental agreement, that is the obligations of the Rental Providers to the Renters under the RT Act. 
110	The Renters have been fairly compensated in the assessment above for each of the items they have established required repair or cleaning. In calculating any loss or compensation I have taken into account what the duties of the parties were and any reasonable expectation about compliance with that obligation. There is no additional amount for inconvenience, distress or disappointment.
Summary of claims and Conclusion
111	The rent payable for the 3 months of the Renters’ occupation at the rented premises was some $5,000. The Renters in this claim are asking for $8,748.45, less the month of free rent they were given of $1,673.00.
112	In summary, I have determined that the Renters are entitled to be compensated for the following issues that arose during the rental agreement, identified prior to this application being made, all other claims being dismissed:
(a) 	Cleaning of $170.50
(b) 	Blinds of $23.10
(c) 	Return Air Unit of Air-Conditioner of $15.40.
113	The amount of compensation payable to the Renters totals $209.00. They have received compensation of a month’s rent credited to their rental ledger in the amount of $1,673.
114	Therefore, with the Renters having received compensation above the amount determined to be payable by the Rental Providers, there is no order to be made and the application will, accordingly, be dismissed.

K Campana
Senior Member