VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
RESIDENTIAL TENANCIES DIVISION
RESIDENTIAL TENANCIES LIST	vcat reference No. r2018/44802
	
CATCHWORDS	
Residential Tenancies Act 1997 (“the Act”) Sections 68 & 210; tenants’ claims for compensation allowed in part.	

first APPLICANT	Seyed Abdolreza Mohseni	
second applicant	Seyedehmina Mousavi	
first RESPONDENT	Pankaj Khanna	
second respondent	Prabhjot Khanna	
WHERE HELD	Preston	
BEFORE	Hugh T. Davies, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	28 March 2019	
DATE OF ORDER	1 May 2019	
CITATION	Mohseni v Khanna (Residential Tenancies) [2019] VCAT 558	

ADDITIONAL Order

The respondents must pay to the applicants $882.00.

Hugh T Davies
Member
1 May 2019

APPEARANCES:		
For the Applicants: 	The first applicant in person	
For the Respondents:	Ms Scott and Mr Hatzistamatis - managing agents.	

REASONS FOR DECISION

THE BACKGROUND TO THE APPLICATION

1	At the hearing of this application on 28 March 2019, the Tribunal decision was reserved in part as the tenants requested written reasons for the decision.
2	The tenants seek compensation pursuant to Section 210 of the Act for the landlord’s alleged breach of their duties under Section 68 of the Act to maintain the rented premises at 4/20 Leonie Close South Morang (“the premises”) in good repair.
3	The tenants took possession of the premises on 1 November 2018 for a term of 1 year and, as at the date of the hearing, remained in possession.
4	The premises include 3 bedrooms and 2 bathrooms, an open living area and a garage and other amenities. The rent is $365.00 per week i.e. $52.14 per day.
5	From 9 November onwards, firstly by a notice to the landlords requiring 21 items to be repaired within 14 days, the tenants made a number of requests for repairs, some of which the landlords attended to at various times between 29 November 2018 and 5 February 2019.
6	On 11 December 2018 The Department of Justice and Regulation (“CAV”) issued a report requested by the tenants pursuant to Section 74 of the Act which related to Items 1, 3, 4, and 6-9 listed below; these constituted only some of the tenants’ claims in this proceeding.
7	On 15 January last the Tribunal made orders that the landlords attend to certain repairs, some of which now have been attended to.
8	The tenants later requested a renewal of the application to seek further repair orders and compensation for the landlords’ alleged breach of duty.
9	At the hearing, at which the first named tenant alone appeared, the landlords were represented by Ms Scott and Mr Hatzistamatis, the managing agents. (“The agents”). 
THE TENANTS’ CLAIMS
10	At the hearing, the tenants claimed that some of the repairs to which the previous Order of the Tribunal related had not been completed; that led to my making an order that the landlords arrange for repairs to part of the ducted heating system about which more will be said below.
11	Prior to the hearing, the tenants filed detailed particulars of their claims for compensation, as the Orders of the Tribunal made 15 January required, calculated to 28 February. At the hearing the amounts claimed were updated from 28 February until 28 March.
12	The amounts claimed, when accumulated for the period from late November 2018 until the end of February 2019, represented in excess of 55% of the overall rent paid.
13	The separate claims are dealt with below.
THE LANDLORDS’ RESPONSE
14	The landlords’ agents conceded that most of the 22 items listed above constituted repair items to which the landlords were required to attend.
15	They denied liability for items 2, 8 and 10 and claimed that the majority of the items had been attended to within a reasonable time frame.
16	They submitted that the total of the tenants’ claims was disproportionate to the total rent and that there was little or no evidence of any meaningful inconvenience to the tenants arising from many of the items for which compensation was claimed.
THE SEPARATE CLAIMS - FINDINGS
17	Many of the claims related to minor and or aesthetic issues where there was little evidence of significant inconvenience to or loss of enjoyment of the premises by the tenants. For these claims, in my view, it is not practical or necessary to assess compensation on a daily basis as a percentage of the rent as the tenants claimed initially; in these instances, I have made an award of general damages as indicated below.
18	When dealing with claims where more than general damages are appropriate, the assessment of the compensation must be looked at by the Tribunal objectively.
19	As this application illustrates, allowing compensation at daily rates as a percentage of the rent may bring about an unfair outcome in which the claims, as made and if allowed as such, may be totally disproportionate to the total rent paid
20	It is the Tribunal’s task to assess compensation where it finds that the landlord has breached a duty to maintain premises in good repair or has failed to respond to a request for repairs within a reasonable time frame; it is not for the Tribunal to punish landlords for not attending to repairs. In many cases a landlord may be given a reasonable time within which to effect repairs, once on notice that repairs are required.
21	However, with the exception of items 3, 9 and 19, all of these issues ought to have been discovered prior to the tenancy commencing if a proper inspection of the premises had been carried out leading to the premises being put into good repair
22	As stated in Shields v Deliopoulos, the duty to maintain premises in good repair includes the obligation to put the premises into good repair at the commencement of the tenancy. In my view therefore, for items 1, 4-6, 11-13, 16-48 and 20-22, where these tenants are entitled to compensation, the calculation of the days involved ought to be from the day the tenancy commenced because the landlord ought to have known from the outset of the tenancy that these repairs were required.
23	The tenants gave the landlord 14 days to repair all of the items reported on November 9, 2018
24	The scheme for compensation for which the Act provides is to compensate tenants for loss of enjoyment or the amenity or use of premises.
25	The tenants’ claims here exceeded 50% of the rent in circumstances where they had the substantial benefit of by far the majority of the premises and their facilities and were always able to occupy the premises. A claim of that magnitude cannot be justified in this application.

THE DETAIL OF THE CLAIMS - FINDINGS AND COMPENSATIOM

Item 1 Entrance door gaps

		Reported 9/11/18, repaired 	26/01/19		claim $560.00	
	Except for contesting the amount sought, the landlord offered little opposition to this claim.
In my view this is a compensable claim and was a repair CAV suggested be inspected and rectified.
The inconvenience complained of was that the defect caused the house to be affected by draughts and difficult to keep warm.
I find that the inconvenience to the tenants was likely to have been real but not severe having regard to the climate in late November – December.
Even allowing for the intervening Christmas period when it is not always easy to engage tradespersons, not that this is the tenants’ concern, the delay in attending to the repair request was not reasonable. The delay demonstrated, as was clear from the overall evidence, that the landlords were often slow to respond to the tenants’ complaints about repair issues.
The tenants’ claim for compensation exceeding 13% of the rent is not reasonable.
The compensation is to be $100.00.

Item 2 Missing flywire screen in laundry
Reported 09/11/18, 	 repaired 26/01/19		claim $160.00.
This is not a repair item, is not a compensable claim, and the claim is dismissed.	

Item 3 Faulty telephone port
Reported 09/11/18		repaired 17/01/19				claim $102.00.
This was a repair item upon which CAV reported and which the landlords ought to have remedied earlier.
iPower Electrics reported on 16 January that the phone line was incorrectly wired.
	The tenants’ claim is not unreasonable and is allowed as made		$102.00.

Item 4	Faulty range-hood	

Reported 09/11/replaced 17/01/19	 claim $497.00.	

This appliance was clearly defective and was replaced on 16 January.
The agents had little to say regarding this claim.
A claim for more than 13% of the rent as compensation is in my view clearly excessive. Compensation is allowed at $150.00.

Item 5	Faulty bathroom fan

Reported 07/12/18	 replaced 17/01/19	    claim $84.00.			

I accept the agents’ evidence that the fan always worked but was noisy; the tenants’ evidence that the fan did not work at all was not convincing.
The resultant inconvenience from noise was real but not serious and this claim is to be included in those for which there is to be an award of general damages.
The fan was replaced on 16 January 2019.
 
Item 6	Faulty light and Fan switches

Reported 09/11/18	 repaired 20/12/18		claim $205.00.20/12t

The claim was that the switches worked but were unreliable. Part of the fan mechanism was replaced by the landlord.
The tenants’ compensation will form part of the general damages.

Item 7	Missing TV antenna

Reported 09/11/18, installed 18/12/19	   claim $205.00.

There was no evidence that the premises were advertised as having a TV antenna and the tenants’ inspection should have revealed this.
Today’s technology being such, in the Internet and cable age, many tenants do not require an antenna and it is not the type of necessary a tenant should assume will be provided or that a landlord must provide.
The landlord installing an antenna was an improvement to the premises.
This claim is dismissed.

Item 8	Faulty doorbell	
Reported 09/11/18	never repaired	   claim $226.00.
The Tribunal accepts the agents’ evidence that this door bell was not the landlord’s installation but that of a previous tenant. The landlord had no obligation to supply a door bell and the claim for compensation is dismissed.	

Item 9	Ineffective heating	

Reported 9/11/18	not repaired	    claim $282.00.

Clearly there has been a breach of duty which continued up to the date of the hearing when I ordered it be rectified.
The complaint was not that there was no heating to the bedroom but that it was not as effective as in other areas of the house and was insufficient.
On 25 February, DJS Property Services (“DJS”) reported that there was a problem with the ducting to the room and recommended repairs which led to the Order I made on 28 March and with respect to which CAV had made a recommendation in its report.
From the evidence there can be no doubt repairs were required but, as was canvassed with Mr Mohseni at the hearing, the fault was mainly over the summer period when there would be days and nights when no heating was required and when the system did provide some heating to the room in question.
The compensation claimed is not unreasonable and is allowed.	$282.00.

Item 10 Faulty security alarm	

Reported 26/11/18 not repaired	 claim $496.00.

The Tribunal accepts the agents’ evidence that the tenants were advised prior to the commencement of the tenancy that the system was inoperative and would remain so. The landlord had no obligation to install or to maintain such a system.
The claim is dismissed.

Item 11	 Broken window winder 

Reported 09/11/18	 repaired 01/12/18	 claim $168.00.

There was no dispute that 1 window, as evidenced by a photograph put into evidence, could not be closed and was about 10cm ajar for just over 3 weeks affecting the temperatures in the premises.
To claim in excess of 12% of the rent, as the tenant has, on this account indicates the unreality of applying rent percentages to many claims of this type.
General damages will apply.

Item 12 	Laundry door fault	

Reported 09/11/18 repaired 01/12/18	  claim $21.00.

	There was an issue with an internal door not closing properly but involving minor inconvenience.
General damages are to apply.

Item 13. Bathroom drains	
Reported 09/11/18	rectified 1/12/19	 claim $144.00.
The tenants complained that the basins were blocked and would not drain.
An email put into evidence dated 27 March from Mr Schipano, who attended to many of the repair items, stated that there was hair in the drains which affected the water flow but that they were not blocked completely.
The Tribunal accepts his evidence which related to a minor inconvenience which lasted in total for 24 days but for which the claim as made was for more than 10% of the rent  
General damages will apply 

Item 14 Faulty air conditioners 

Reported 09/11/18		inspected 05/02/19	 claim $270.00.

The tenants claim that these units did not work for a period of 90 days and claim a modest amount of compensation
The invoice in evidence from DJS dated 7 February stated that there was some vibration in the equipment but that this was not abnormal, and no other faults were found.
This claim is dismissed there being no sufficient evidence of a fault requiring repair.
Item 15 	Bathroom door handle

Reported 09/11/18	 repaired 11/18   claim $21.00.

There is was an issue but of minor inconvenience. General damages are to apply.

Item 16 	Defective light bulb in bathroom		

Reported 09/11/18	 repaired 9/11/18	 claim $21.00.

There was a defect and related to the only downlight in the room.
The claim is made out and will be included as part of the general damages	
Item 17		Faulty garage door	
Reported 09/11/18	01/12/18	72.00.			
There was an issue with an internal door of minor inconvenience.
General damages are to apply

Item 18	  Faulty shower

Reported 9/11/18   repaired 01/12/18	 claim $72.00.			

The shower worked but did not hang from the wall properly as the agents agreed and was replaced within 3 weeks of the complaint being made. It was 1 of 2 showers in the premises.
General damages will apply.

Item 19 	Hall downlight

Reported 09/11/18	29/11/18	21.00.

There was an issue with 1 of 4 downlights where there were 6 others nearby; this, in my view, should have caused little or no inconvenience or lack of amenity warranting compensation.
This claim is dismissed.

Item 20 	No keys to windows

Reported 09/11/18	 replaced 01/12/18	 claim $48.00.

This claim to which the agents offered no opposition is allowed.
Most of the windows could not be opened.
The claim for $2.00. per day is not unreasonable even though it might have formed part of the general damages				$48.00.

Item 21 	Handle/storage room	

Reported 09/11/18		repaired 29/11/18	 claim $21.00.

This was an issue with an internal door and one of minor inconvenience. General damages are to apply.

Item 22	 Missing water strips in bathroom

Reported 15/11/18		repaired 01/12/18	   claim $36.00.

This was an issue which caused water to leak from the shower to the adjoining floor area but did not otherwise interfere with the use and enjoyment of the bathroom.
The problem was rectified within 2 weeks of it being reported.
General damages will apply.

26.	I award general damages of											 $200.00.

Total of individual items												$682.00.

ORDERS 

The landlords must pay to the tenants $882.00.

Hugh T Davies
Member

SCHEDULE OF RELEVANT LEGISLATION
The Act
Section 68 Landlord's duty to maintain premises
(1) A landlord must ensure that the rented premises are maintained in good repair.
(2) A landlord is not in breach of the duty to maintain the rented premises in good repair if—
(a) 	damage to the rented premises is caused by the tenant's failure to ensure that care was taken to avoid damaging the premises; and
 (b)  	the landlord has given the tenant a notice under section 78 requiring the tenant to repair the damage.
(3)  If a landlord owns or controls rented premises and  the  common  areas  relating to those rented premises, the  landlord  must take reasonable steps to ensure that the common areas are maintained in good repair.
Section 210 Application to Tribunal for compensation order on other grounds
(1)  A party to a tenancy agreement may apply to the Tribunal for an order for payment to the applicant by the other party to the tenancy agreement of compensation for loss or damage suffered by the applicant because—
(a)  		the other party failed to comply with the tenancy 	agreement or that party's duties under this Act relating to the tenancy agreement; or
(b)  	the applicant has paid to the other party more than the applicant is required to pay in accordance with this Act or the tenancy agreement.
(2)  This section does not apply to a duty under a duty provision or section 66.