VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
RESIDENTIAL TENANCIES DIVISION
RESIDENTIAL TENANCIES LIST	vcat reference NoS. R2018/42737 & R2019/5231	
CATCHWORDS	
Residential Tenancies Act 1997 - landlords’ application for rent arrears, tenant application for compensation due to landlords’ failure to maintain premises in good repair; landlords’ duty when rented premises contain asbestos. 	

R2018/42737	
APPLICANT	Simran Dhamija and Rekha Iyer	
RESPONDENT	Marina Rainbow	
R2019/5231	
APPLICANT	Marina Rainbow	
RESPONDENT	Simran Dhamija and Rekha Iyer	
WHERE HELD	Melbourne	
BEFORE	Member A. Treble	
HEARING TYPE	Final Hearing	
DATE OF HEARING	8 March 2019	
DATE OF ORDER	17 April 2019	
CITATION	Dhamija and Iyer v Rainbow (Residential Tenancies) [2019] VCAT 578	
OrderS
R2018/42737
For the written reasons provided, the Tribunal directs and orders that:
1	The Residential Tenancies Bond Authority pay to the landlords the sum of $2,520.00; and
2	The tenant pay to the landlords the sum of $2,104.39.

R2019/5231
For the written reasons provided, the Tribunal directs and orders that:
1	There is no amount payable by the landlords to the tenant. 

Dr A. Treble
Member			

APPEARANCES:		
For the landlords	Chris Parson, estate agent	
For the tenant	Marina Rainbow, in person
James Wise, legal representative	

Reasons
Background 
1	On 6 December 2018, Simran Dhamija and Rekha Iyer (the landlords), lodged an application with the Victorian Civil and Administrative Tribunal (VCAT) seeking an order for possession and rent owed in respect of rented premises situated in Doncaster East (application R2018/42737). 
2	On 2 January 2019, the Tribunal found that Marina Rainbow (the tenant) had vacated the property on 19 December 2018 and ordered that the landlords were entitled to possession of the rented premises on that date. Insofar as the landlords’ application sought an order for rent, the proceeding was adjourned to a date and time to be fixed, to enable the tenant’s lawyer to attend. 
3	On 7 February 2019, the tenant lodged an application with VCAT seeking the return of her bond and compensation in the sum of $2,910 for loss suffered because of the landlord’s failure to maintain the premises in good repair (application R2019/5231). In essence, the basis of the claim was that the tenant was unable to move into the rented premises because it contained asbestos that was in a dangerous state.
4	Both applications were heard by me on 8 March 2019, on which date I reserved my decision.
The landlords’ application in R2018/42737
5	The landlords’ agent, (the agent) provided a summary of proofs and rent records indicating that the rental of $2,520 per calendar month was paid to 20 October 2018. As the tenant vacated on 19 December 2018, the rent claimed to be owed at the end of the tenancy was $4,922.65. The tenant did not dispute that she had failed to pay rent for the period 21 October 2018 to 19 December 2018.  
6	As found by the Tribunal on 2 January 2019, the tenancy ended on 19 December 2018 with rent paid until 20 October 2018. The tenant owes rent for a 60-day period at $82.85 per day, a total of $4,971. However, the claimed amount is only $4,922.65 and that will be the amount payable by the tenant to the landlords under any order, subject to the outcome of the tenant’s application in R2019/5231.
The tenant’s application in R2019/5231
The evidence and submissions of the tenant
7	The tenant’s legal representative, James Wise, made written and oral submissions on behalf of the tenant. According to the material before me, the tenant signed a lease on 21 September 2018 for a twelve-month fixed term. She paid a bond of $2,520 and the first month’s rent of $2,520. She received the keys to the rented premises on 21 September 2018. 
8	On 24 September 2018, the tenant telephoned the agent, asking to be released from the tenancy agreement due to a family emergency in relation to her father-in-law in Japan. The request was refused. 
9	On 27 September 2018, the tenant and the agent attended the property to examine maintenance issues identified by the tenant. At the request of the agent, the tenant forwarded an email to the agent regarding her maintenance requests, which included wardrobes that needing painting, doors sticking or not closing properly, missing keys for the back door, open wiring in the living room, windows in the laundry not opening, and requests for a safety check of the gas hot water service and pool cleaning. At the hearing, the tenant clarified that these items were largely attended to by the landlords and she did not rely, in her claim for compensation, on any failure on the part of the landlords to maintain the premises in good repair in respect of these items.
10	According to the tenant, she was concerned that the property was in poor condition and she understood that some houses in Australia contained asbestos. She decided not to move in to the rented premises until she was satisfied that it was safe to do so. She undertook online research on the topic and then decided to engage Mr Jim Coghlan of Jim’s Building Inspection to inspect and document any instances of dangerous asbestos in the rented premises. 
11	Mr Coghlan attended the property on 12 September 2018 and prepared a report on 14 September 2018, which concluded that the rented premises, compared to others of a similar age and construction, was in a hazardous condition with asbestos present, whilst some items required urgent attention. 
12	On 19 October 2018, the tenant sent an email to the agent, attaching a copy of Mr Coghlan’s report, in which she stated: “Due to the serious danger identified in the Report we are yet to occupy the property. Further, we do not intend to occupy the premises unless and until the danger posed by the asbestos as identified in the Report is rectified.” The agent responded that the matter was being looked into. 
13	The tenant and Mr Wise subsequently followed the matter up on 1 November 2018, 2 November 2018, 7 November 2019 and 9 November 2018, by making enquiries of the agent as to what action the landlords were taking in response to the report of Mr Coghlan. 
14	On 12 November 2018, the agent emailed Mr Wise and stated that the inspector from Jim’s Building Inspection had deemed the premises to be safe for occupation. In emails dated 13 November 2018 and 28 November 2018, Mr Wise again requested further details of any rectification works undertaken by the landlords. There was no response from the agent to Mr Wise. On 19 December 2018, the tenant returned the keys, without having ever lived in the property.
15	At the hearing, Mr Wise submitted, in summary, that:
•	the rented premises were not safe to live in due to the presence of asbestos;
•	the tenant was entitled to the return of her bond and the compensation claimed, as she had never been able to live in the property;
•	the landlords had an obligation to ensure the premises were maintained in good repair, and they had not met this obligation;
•	the landlords should have been aware of the possibility of deteriorating asbestos; and 
•	the report from Mr Coghlan raised a “red flag”, but the obligation to ensure that the premises were in good condition was ignored by the landlords.
The evidence and submissions of the agent
16	The agent, Ms Parson, provided the agency records relating to the tenancy and gave evidence at the hearing. The records of the agent show that the tenant inspected the property on two occasions prior to signing the lease on 21 September 2018. 
17	The tenant was given information about the costs of breaking the lease on 26 September 2018, after she advised that her father-in-law was in hospital in Japan. On 29 September 2018, she advised the agent that she had decided to stay in the rented premises for a few months and she would then reassess her father-in-law’s situation.
18	After receiving an email from the tenant, dated 1 October 2018, requesting various maintenance items, the landlords approved the attendance of an electrician, plumber and handyman, work orders were raised, and the tenant was advised. The agent’s records show that they received the landlords’ approval for all maintenance items on 1 October 2018. On the same date, the agent advised the tenant that a painter and back door keys had been arranged, and that pool maintenance could be scheduled for 8 October 2018. On 2 October 2018, the agent advised the tenant that quotes had been approved for repair of windows, and that an electrician and plumber had been arranged to inspect the wiring in the living room and the gas hot water service respectively. 
19	A number of subsequent emails from the agent to the tenant show that the approved tradespersons were having difficulty contacting the tenant to arrange entry to the rented premises to carry out the repairs. 
20	Invoices produced on behalf of the landlords show that an electrician attended the rented premises on 5 and 9 October 2018, a plumber conducted work on 5 October 2018, painting was carried out on 28 October 2018 and swimming pool maintenance was undertaken on 13 November 2018.
21	On 19 October 2018, the agent received Mr Coghlan’s report. The agent’s records show that on 19 October 2018 they advised the tenant via email that the matter was being “looked into”. 
22	On 22 October 2018, the landlords obtained a quote from a tradesperson in respect of the asbestos issue. On 23 and 25 October 2018, the agent again advised the tenant the matter was being followed up. Invoices were produced by the agent to show that Hire a Hubby Doncaster attended the rented premises on 25 October 2018 to collect samples for asbestos testing. On 26 October 2018, the agent advised the tenant that an inspection had taken place on 25 October 2018 by a licensed asbestos removalist. 
23	EnviroScience undertook asbestos testing of two samples taken from the rented premises and reported their results on 31 October 2018, which confirmed asbestos was present in the vinyl laundry floor covering. 
24	On 1 November 2018, the agent forwarded an email to Mr Wise stating that the landlords were acting on the matter. On or about 8 November 2018, the agent spoke to Mr Coghlan, who confirmed that he had undertaken a visual inspection only and had not conducted any tests to confirm the presence of asbestos.
25	Esteem Group attended to inspect the rented premises on or about 15 November 2018, when it provided a quote for a scope of works to be undertaken “as a precautionary measure” to address the presence of asbestos. Esteem Group concluded that the existing asbestos in the rented premises was not airborne and was not a hazard whist in place and undisturbed. 
26	At the hearing, Ms Parson said that on 20 November 2018, the agent received an email from Esteem Group stating that they had contacted the tenant and booked an appointment to attend the rented premises to undertake work on 22 November 2018. The tenant had agreed to allow entry into the premises for Esteem Group to conduct works. However, Ms Parson said she did not directly advise the tenant of the nature of the works; she believed the tradesperson had done so. It is noted that, according to the agent’s records, the tenant was asked not to attend the rented premises on 22 November 2018, when Esteem Group was to undertake works, due to occupational health and safety issues. 
27	On 22 November 2018, Esteem Group undertook the precautionary works included in their quote of 15 November 2018. 
28	At the hearing, Ms Parson said that by the end of November 2018, the landlords had instructed her to issue a notice to vacate for rent arrears, and there was no further communication with the tenant or Mr Wise, about the issue of asbestos.
The expert evidence
29	Mr Jim Coghlan provided a report for the tenant, following an inspection of the rented premises on 12 September 2018. The report states:
•	Bungalow - suspected ceiling sheets, poor condition. The ceilings throughout the internal shed behind the bungalow are suspected to have been constructed with use of asbestos-containing materials (ACM). The ceilings have never been painted and as such the asbestos is not contained. ACMs have a higher probability of releasing airborne fibres.
•	Bungalow eaves - ACM suspected eave sheets. The eave sheets throughout the exterior of the bungalow appear to be ACM. The observable areas of eave sheeting appear to have no obvious signs of damage or deterioration, indicating that the asbestos is currently encapsulated and contained.
•	External toilet ceiling - The ceilings throughout the internal shed behind the external toilet are suspected to have been constructed with use of ACM. The ceilings have never been painted and as such the asbestos is not contained. ACMs have a higher probability of releasing airborne fibres.
•	Rear south eastern corner (on outside wall) - ACM suspected flue, poor condition. The flue is suspected to be an ACM. The flue appears to be in a poor condition, showing evidence of damage and deterioration. Damaged and deteriorated ACMs have a higher probability of releasing airborne asbestos fibres, creating a significant health safety risk. [The flue] is no longer in use.
•	Subfloor - suspected ACM was identified in debris or rubbish found in the subfloor. Discarding suspected ACMs as general rubbish constitutes improper disposal and represents a significant personal and environmental health risk.
•	Eaves – ACM suspected eave sheets. The eave sheets throughout the exterior of the property appear to be an ACM. Most of the observable areas of eave sheeting appear to have no obvious signs of damage or deterioration, indicating that the asbestos is currently encapsulated and contained. There are a couple of places where the eave sheets paint work is in poor condition and needs a fresh coat to contain the possible asbestos.
•	Window putty – While all the windows are in reasonable condition it is noticed that the window putty may contain asbestos and it is strongly recommended that if a window breakage occurs that the putty be tested before any works are carried out.
•	Accessory unit – cover of boxing. The boxing area in this area may be asbestos.
•	Kitchen – ACM suspected behind ceramic tiles. The sheet construction material behind the ceramic floor tiles in the kitchen area and behind the ceramic tiles in the kitchen splash back and benchtop pass through is suspected to be an ACM. This building material is often found in bathrooms and kitchen environments, in this construction context, in buildings constructed pre-1985. The observable areas of sheeting appear to be bonded, undamaged and free of deterioration.
•	Kitchen – ACM suspected wall sheets. The wall sheeting behind where you would put the fridge is suspected to have been constructed with the use of ACM. The observable areas of wall sheeting appear to have no obvious signs of damage or deterioration, indicating that the asbestos is currently encapsulated and contained.
•	Laundry - ACM suspected flue. The flue is suspected to be an ACM. The flue appears to be in a poor condition, showing evidence of damage and deterioration. Damaged and deteriorated ACMs have a higher probability of releasing airborne asbestos fibres, creating a significant health safety risk. The risk is further increased where the flue remains in use. A sample for lab analysis to confirm the presence of asbestos was taken from this location. (No such analysis was produced. Mr Coghlan subsequently advised the agent that he had only undertaken a visual inspection and did not take samples.)
•	Laundry - ACM suspected vinyl floor covering, poor condition. Vinyl floor covering may have several ACMs, which are generally within the vinyl body of the tiles/sheeting, used as a fibrous backing to the tiles, or in an asbestos based adhesive used to fix the tiles to the adjoining floor. The vinyl floor covering this area appears to be in poor condition. Damaged and deteriorated ACMs have a higher probability of releasing airborne asbestos fibres, creating a significant safety risk. This risk is further increased where the floor covering is in a high traffic area.
•	Laundry – ACM suspected behind ceramic tiles. The sheet construction material behind the ceramic floor tiles in the laundry is suspected to be an ACM. This building material is often found in bathrooms and kitchen environments, in this construction context, in buildings constructed pre-1985. The observable areas of sheeting appear to be bonded, undamaged and free of deterioration.
•	Laundry cupboard - ACM suspected wall sheets. A wall panel in the laundry cupboard is suspected to have been constructed with the use of ACM. The observable areas of wall sheeting appear to have no obvious signs of damage or deterioration, indicating that the asbestos is currently encapsulated and contained.
•	Back room vinyl floor – ACM suspected vinyl floor covering, Vinyl floor covering may have several ACM, which are generally within the vinyl body of the tiles/sheeting, used as a fibrous backing to the tiles, or in an asbestos adhesive used to fix the tiles to the adjoining floor. At the time of inspection, the observable areas of vinyl flooring appear to have no obvious signs of damage or deterioration.
•	Carport – ACM suspected ceiling sheet. The ceiling sheets in the carport area are suspected to have been constructed with the use of ACM. The observable areas of wall sheeting appear to have no obvious signs of damage or deterioration, which represents a lesser health risk than if they were in a poor, damaged or deteriorating condition.
•	Bungalow, bathroom, lounge, linen cupboard – no suspected ACM identified
Conclusion
The dwelling has some asbestos that is not contained and as such is hazardous. The external toilet and shed behind the bungalow have ceilings that are not painted and therefore don’t contain the asbestos. The old flue on the outside of the property is not in use and needs to be removed. The hot water flue needs to be contained. The eaves require painting to make them safe. Various areas in the report list the possible presence of asbestos the necessary steps to reduce the risk (sic).
30	The agent provided evidence to show that two samples were taken for testing by EnviroScience – a sample from discarded sheets under the house and a sample from the vinyl laundry floor covering. The first sample achieved a negative result and the second sample was positive for the presence of asbestos.
31	Esteem Group provided a report for the landlords, following an inspection of the rented premises on 15 November 2018.  The report states:
•	Ceiling internal shed good condition. Fit timber strap and seal and paint as precaution. 
•	External toilet and ceiling good condition. Fit timber strap and seal and paint as precaution. 
•	Laundry flue - agree asbestos, recommend replace rather than repair and paint. 
•	Laundry vinyl flooring - asbestos, seal. 
•	Rear south eastern corner flue - agree asbestos, remove. 
•	Sub-floor - cement sheeting offcuts. 
•	Eaves good condition, fit timber strap and seal and paint as precaution. 
•	Kitchen – ceramic tiles on floor, sealed and in good condition. No need to break seal and remove section of underlay to test if asbestos contained. Non-issue unless renovating.
•	Kitchen – splash back and benchtop, as above.
•	Laundry – behind ceramic tiles, sealed and in good condition. No need to break seal and remove section to test if asbestos contained. Non-issue unless renovating.
•	Window putty, good condition, no need to disturb and remove for testing.
•	Bungalow eaves – all eaves have plastic joiners on them which weren’t used until after asbestos banned.
•	Cover of boxing – good condition, seal and paint as a precaution.
•	Laundry cupboard – good condition, remove one loose asbestos panel and install a new panel. The rest is MDF.
•	Carport ceiling sheets – good condition, sealed and painted, no works required.
•	Back room vinyl floor covering – vinyl is of current style, is in good condition and appears new. No works required.
Notes
•	Where surfaces were not broken, in good condition or completely concealed, we have not broken those surfaces to take samples for testing.
•	We have found that there is asbestos in the fridge cavity wall and two flues identified in [Jim’s] report. 
•	All wall linings and under floor covering in the laundry are Masonite sheets minus one loose section in the laundry cupboard. 
•	All eaves have plastic joiners on them, which weren’t used until after asbestos was banned. 
•	Rear toilet ceiling is a new cement sheet.
•	None of the sheeting is damaged.
•	All tiled areas where Jim’s report suggests sub-floor and wall may contain asbestos are not of concern as the surfaces are in good condition, are not damaged and are in a contained state.
•	Upon our inspection we believe the existing asbestos is not airborne and is not a hazard whilst in place and undisturbed.
•	The property is in good condition and poses no risk to residents’ health.
•	In general, we find that the scope of works [quoted] may be required to be undertaken only as a precautionary measure.
What is the landlords’ obligation?
32	The landlords’ obligation under section 68 of the Residential Tenancies Act 1997 (the Act) is to ensure that the rented premises are maintained in good repair.  As noted in Shields v Deliopoulos [2016] VSC 500:
the duty imposed upon a landlord to ‘ensure that rental premises are in good repair’ is strict and absolute and imposes an obligation upon a landlord to identify and rectify any defects of which they are aware or ought to be aware. 
33	Daly AsJ also made it clear that there is an obligation to put the rented premises in good repair at the start of the tenancy. She stated:
… the term ‘good repair’ means ‘tenantable repair’, or ‘reasonably fit and suitable for occupation’, and that while what amounts to ‘good repair’ may be referable to the age and character of the relevant premises, it cannot ordinarily be qualified by the state of repair at the commencement of the tenancy, regardless of the state of repair. Again, the obligation to maintain rental premises in good repair imports an obligation to put them in good repair in the first place.”
34	The tenant in effect submitted that the landlords had an obligation to ensure the property was asbestos free or that all asbestos was contained. This obligation arose at the start of the tenancy, and more so, after the landlords were put on notice of the possibility of asbestos, following Mr Coghlan’s report. 
35	On the other hand, the agent tendered information from asbestos.vic.gov.au stating:
If a rented premises is in a state of disrepair to the extent that, for example, a wall is in a poor condition and is of an age that it could contain asbestos, it should be checked for asbestos and if present, treated as an urgent repair. As a tenant, you can ask for information about asbestos in the property before signing the rental agreement. Be aware that the landlord is not required to have this information. Asbestos generally poses little risk to your health, provided it is in good condition and is not disturbed.
36	I conclude that the landlords are not obliged under section 68 of the Act to remove asbestos from rented premises that are in good condition, but they will have an obligation to repair, and/or remove or replace asbestos, if the item containing asbestos is in poor or deteriorated condition or has otherwise been disturbed. If at the start of, or during a tenancy, there is evidence of an item that is in poor condition and that item is of an age that it could contain asbestos, it should be checked by the landlords for asbestos and repaired. 
37	To succeed in her claim the tenant must prove her case. That is, she needs to prove on the balance of probabilities, that asbestos was present in the rented premises, that the item containing asbestos was in a state that required repair, that the landlords were aware or ought to have been aware of the defect, that the landlords failed in their obligation to effect repairs, and that the tenant has suffered a loss as a result.
Was asbestos present in the rented premises?
38	I note that Mr Coghlan’s report covers many areas of the rented premises in which he suspected the presence of asbestos. However, there was no area where the presence of asbestos was confirmed.  
39	The reports from EnviroScience and Esteem Group, on the other hand, confirm the presence of asbestos in the following areas – laundry flue, laundry vinyl flooring, laundry cupboard – one loose asbestos panel, rear south eastern corner flue, fridge cavity wall. I find, based on the evidence presented, that asbestos was present in those areas of the rented premises. 
40	The evidence does not establish that asbestos was present elsewhere, although it remains a possibility that there are other areas in the rented premises containing ACM. According to Esteem Group, those areas were not tested because the surfaces were unbroken and in good condition. I accept this was the case.
41	Of the remaining items identified by Mr Coghlan as being areas where ACM was suspected, Mr Coghlan stated that the bungalow ceiling sheets were in poor condition and that there were a couple of places where the eave sheeting on the main building was in poor condition and needed fresh paint. He made no comment on the condition of the external toilet ceiling and the accessory box unit, except that they were not painted. He stated that the bungalow eaves, the majority of the main building eaves, the window putty, the kitchen ceramic tiles, the laundry ceramic tiles, the backroom vinyl flooring and the carport ceilings were in good condition.
42	Esteem Group found that the bungalow ceiling sheets, external toilet ceiling, main building eaves, window putty, accessory box unit, kitchen ceramic tiles, laundry ceramic tiles and car port ceilings were in good condition and did not pose a risk. The bungalow eaves and vinyl flooring in the backroom were not likely to contain asbestos. Debris under the subfloor was found not to contain asbestos.
43	To the extent that there is a difference of opinion between Mr Coghlan and Esteem Group, I prefer the report of Esteem Group. Mr Coghlan’s report included photographs of the bungalow ceiling sheets and eave sheets on the main building that were stated to be in poor condition. However, the photographs did not support Mr Coghlan’s contention. 
Were there areas of the rented premises containing asbestos that were in a poor or deteriorated condition?
44	The material before me establishes the following in relation to items containing asbestos:
•	The laundry flue – This item was noted by Mr Coghlan to be in poor condition, while a photograph in Mr Coghlan’s report shows evidence of discolouration of the flue. Esteem Group recommended replacement of the flue, without indicating its condition. I am satisfied that this item was in a poor or deteriorated condition.
•	The laundry vinyl flooring – This item was noted by Mr Coghlan to be in poor condition, while a photograph in Mr Coghlan’s report shows a ridge where a join occurs in the vinyl (otherwise no evident damage). Esteem Group recommended the laundry floor should be sealed as per required works (which were precautionary in nature). I am satisfied that this item was in deteriorated condition in that the laundry vinyl flooring had started to lift at the join.
•	The rear south eastern corner flue - This item was noted by Mr Coghlan to be in poor condition. However, photographs do not show any immediately evident damage or deterioration. Esteem Group recommended removal as per required works (which were precautionary in nature) without indicating the flue’s condition. I am not satisfied that this item was in deteriorated condition, as the photographic evidence did not show any damage.
•	The laundry cupboard – one loose asbestos panel. Mr Coghlan stated that the observable areas of wall sheeting in the laundry cupboard appeared to have no obvious signs of damage or deterioration, indicating that the asbestos was currently encapsulated and contained. Esteem Group noted that the laundry cupboard was in good condition but recommended one loose asbestos panel should be removed and replaced. I am not satisfied that this item was in deteriorated condition, but repairs were required to ensure the loose panel was rectified, with removal and replacement being the best option for safe repair.
•	The fridge cavity wall - Mr Coghlan stated that the observable areas of wall sheeting appear to have no obvious signs of damage or deterioration, indicating that the asbestos is currently encapsulated and contained. Esteem Group recommended the fitting of a timber strap, sealing and painting as per required works (which were precautionary in nature). Elsewhere, Esteem Group recorded that “none of the sheeting is damaged”. I am not satisfied that this item was in a deteriorated condition.
Were the landlords in breach of their obligations under section 68 of the Act?
45	I have found that there were two items requiring repairs because of their poor or deteriorated state and one item requiring repair because a wall panel had come loose. However, I must also consider whether the landlords were aware, or whether they ought to have been aware, of these defects. 
46	I find that the deteriorated laundry flue and the lifted join in the vinyl flooring would have been evident on visual inspection at the start of the tenancy. Although the landlords did not know that the items contained asbestos until alerted by the tenant on 19 October 2018, there was evidence of items that were in poor condition at the start of the tenancy and those items were of an age that could contain asbestos. As such, those items should have been checked by a tradesperson for asbestos and repaired. 
47	I find that the landlords were in breach of the obligation to maintain the rented premises in good repair at the start of the tenancy because the laundry flue and laundry vinyl floor required repair or replacement, and this was not attended to before the tenancy commenced. 
48	I find that the loose panel in the laundry cupboard was not evident until discovered by Esteem Group in November 2018. The loose panel in the laundry cupboard was repaired as soon as discovered and there was no breach of the landlord’s obligation to maintain the rented premises in good repair in respect of this item.
What is the tenant’s claim for compensation?
49	The tenant claims by way of compensation:
•	$2,520.00 being the rent paid during the tenancy;
•	$240.00 being the cost of the asbestos report from Jim’s Building Inspection;
•	$150.00 being the cost of garden maintenance. 
50	The claim for rent is based on the assertion that the tenant could not move into the premises due to the presence of asbestos, and that in essence the property was not fit to live in. 
51	It is noted that the tenant chose not to end the tenancy on the basis that it was unfit for human habitation, by serving the relevant notice under the Act. She wrote to the agent on 19 October 2018 indicating that although she felt she had the right to end the tenancy, she chose not to do so. Neither did she serve any formal notices to repair or breach of duty notices on the landlords.
Was the property unfit to live in?
52	The test as set down by the House of Lords, to establish whether premises are reasonably fit for human habitation, is to be found in Summers v Salford Corporation [1943] AC 283 as paraphrased by Chesterman J in Gray v Queensland Housing Commission [2004] QSC 276. “[If] the state of repair is such that injury is to be expected, or will naturally occur, from the ordinary use of the premises they cannot be regarded as fit for human habitation.” 
53	Mr Coghlan’s report states, “In summary the building, compared to others of similar age and construction is in a hazardous condition with asbestos (ACM or ACD) present with some items requiring urgent attention…The dwelling has some asbestos that is not contained and as such is hazardous.” However, it is evident on reading the content of the report that Mr Coghlan had not confirmed the presence of asbestos in any area of the home. Rather, he suspected there was asbestos in many areas. One of those areas has been proved not to include asbestos on formal testing and some areas have been said not to include asbestos when examined by another tradesperson. There are also differing views as to the condition of certain parts of the premises. I do not find Mr Coghlan’s conclusions to be well founded, as I am of the opinion that his conclusions are largely unsubstantiated.
54	Esteem Group’s report states, “Upon inspection we believe the existing asbestos is not airborne and is not a hazard whilst in place and undisturbed. The property is in good condition and poses no risk to residents’ health. In general, we find that the following scope of works may be required to be undertaken only as a precautionary measure.”
55	The items that have been confirmed to have asbestos and require repair were confined to the laundry. Asbestos represents a risk of harm to health if airborne. There was no evidence presented to me to establish that asbestos was airborne in the laundry or any other part of the rented premises. Nor is there any evidence that loose asbestos fibres or dust, that could potentially become airborne, were found in any area of the property.
56	The tenant did not prove to my satisfaction that the rented premises were unfit to live in, that is, that injury was to be expected, or would naturally occur, from the ordinary use of the premises. However, I accept that it would have been prudent for the tenant to avoid use of the laundry area, pending repairs.
What compensation should be awarded?
57	Section 210(1) of the Act enables a party to a tenancy agreement to apply for a compensation order for loss or damage caused by the other party’s failure to comply with a duty under the Act. Section 211 specifies the matters that the Tribunal may take into account, including:
•	Whether or not the person from whom compensation is claimed has taken all reasonable steps to comply with their duties; and
•	Whether or not action has been taken by the applicant seeking compensation to mitigate the loss or damage.
58	The tenant has established that the landlords were in breach of the obligation to maintain the rented premises in good repair in respect of two items affecting the laundry. Whilst the history of the tenancy shows that the landlords have responded to all of the tenant’s requests for maintenance in a reasonably timely fashion, I have accepted that they ought to have been aware of the need to repair the two items in question at the start of the tenancy and should have undertaken appropriate works at that time.
59	I accept that the lack of repairs would have affected the tenant’s capacity to use the laundry, had she chosen to occupy the rented premises. The repairs were completed on 22 November 2018. The tenant was asked by the tradesperson not to attend on that day, apparently because the work involved removal of asbestos. 
60	There appears to have been a breakdown in communication between the tenant and the agent around the time the repairs were completed by Esteem Group and the agent did not directly communicate to the tenant that Esteem Group was completing asbestos related works on 22 November 2018. However, I am also not satisfied that the tenant remained ignorant of the work being undertaken, given that there is some evidence of direct communication between Esteem Group and the tenant. In addition, the tenant was in possession of the premises and able to ascertain the work done. She did not mitigate her loss by properly following up the matter after 22 November 2018, either by directly contacting the agent, or by serving a formal notice if she believed the landlords were still in breach of their obligations. I do not consider it is appropriate to award compensation for any period after 22 November 2018.
61	I consider that the tenant is entitled to compensation for the period 21 September 2018 to 21 November 2018 in relation to concerns regarding the use of the laundry at the rented premises, pending repairs. There is no evidence to show that the tenant was unable to use the rest of the rented premises which comprised three bedrooms, a kitchen, large lounge, bathrooms, bungalow and a pool. I assess the compensation payable at 5% of the total rent, for 62 days, a total of $256.84. 
62	I also note that the tenant was unable to attend the property on 22 November 2018, apparently because the work included asbestos removal. Had the landlords conducted the works to the laundry as they should have, before the tenancy commenced, the tenant would not have been placed in this position. As such, I will also award the equivalent of one half of that day’s rent by way of compensation – a sum of $41.42 representing the daytime period when the tenant was asked not to be in attendance.
63	I am not satisfied that the tenant should be awarded the cost of the report from Jim’s Building Inspections. She did not make any attempt to address the issue of suspected asbestos with the landlords prior to commissioning that report. Had she done so, it is very likely that the landlords would have followed the matter up. The landlords had promptly attended to all other maintenance and repair issues raised by the tenant. They also took steps to address the tenant’s concerns as soon as they were provided with Mr Coghlan’s report. I am not persuaded that it was necessary for the tenant to commission an independent report in order to have her concern about asbestos addressed by the landlords. In addition, I have not found Mr Coghlan’s report to be persuasive. 
64	I am not satisfied that the cost of gardening is a loss arising from the landlords’ breach and I dismiss this aspect of the claim.
65	In total, I award compensation in the sum of $298.26 to the tenant.
Conclusions
66	I have found that the tenant owes the landlords the sum claimed of $4,922.65 in rent arrears, whilst the tenant is entitled to compensation in the sum of $298.26. In total therefore, the tenant must pay to the landlords the sum of $4,624.39.
67	The bond paid in relation to this tenancy is a sum of $2,520. Pursuant to section 472(1)(g) of the Act, I order and direct that the Residential Tenancies Bond Authority pay the full amount of the bond to the landlords. The tenant must pay to the landlords the difference, being a sum of $2,104.39.

Dr A. Treble
Member