VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
RESIDENTIAL TENANCIES DIVISION
RESIDENTIAL TENANCIES LIST 	

vcat reference No. R2018/41261, R2018/42395	
CATCHWORDS	
Applications for return of bond and compensation pursuant to sections 416(1) and 210 of Residential Tenancies Act 1997; landlord’s failure to maintain and repair premises.   	

APPLICANT	Marguerite Johnson	
RESPONDENT	Mike Pan	
WHERE HELD	Frankston Law Courts	
BEFORE	K. Kirmos, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	11 December 2018 and 26 March 2019	
DATE OF ORDER	4 July 2019	
CITATION	Johnson v Pan (Residential Tenancies) [2019] VCAT 1000	
OrderS
The Tribunal orders and directs:
1	The Residential Tenancies Bond Authority to pay the tenant the bond of $2825. 
2	Taking into account the amounts to be paid by each party to the other, the landlord to pay the tenant $6162.38, which amount includes the previously unsatisfied order in R2018/34209. 
3	All other claims are dismissed.

K. Kirmos
Member			
APPEARANCES:		
For Applicant: 	Ms Marguerite Johnson, in person.	
For Respondent: 	Mr Mike Pan, in person.

Reasons
Background
1	Ms Johnson (the tenant) has brought an application against Mr Pan (the landlord) in respect of consecutive tenancies at addresses in Garden Street and Collison Road. 
2	She rented Garden Street from the landlord from 3 November 2017 until 21 April 2018 for $2390 per month. After that, she moved to Collison Road, where she agreed to pay rent of $2825 a month. She vacated Collison Road on 12 November 2018.
3	There was a previous application in R2018/34209, in which the Tribunal (differently constituted) found the landlord had breached his obligation to maintain Collison Road in good repair, because of his failure to rectify the water supply. On 18 October 2018, the Tribunal awarded compensation in the tenant’s favour of $5,854.82. 
4	The tenant now claims compensation on account of the landlord having breached his obligation to maintain both premises in good repair, and she also seeks the return of her bond for Collison Road. 
5	The landlord has also brought an application against the tenant, claiming the bond and compensation for unpaid rent at Collison Road from 22 August 2018 until 12 November 2018 of $7395.18 plus letting fees, making a total of $7600 according to the application.
The evidence
6	I was given documents by the parties, including correspondence, emails and invoices, the condition report and lease for Collison Road, photographs and advertisements. I have briefly outlined the relevant points of the parties’ oral evidence at the first and the resumed hearing below. 
The tenant’s application
Garden Street
The tenant’s evidence
7	The tenant said that when she rented the premises at $550 a week, there was a clause in the lease stating that there was no hot water service in the premises, and she would need to connect it herself at her own cost. The tenant had the hot water service connected by a friend at cost to her of, she thought, possibly $200, and a barbecue meal. She was unsure about the amount she had paid her friend.
8	The Garden Street premises were disgusting. They were not habitable. Although she paid a bond, she was never given a condition report for Garden Street. The premises were on acreage and were not connected to town water. They were advertised as having water, and there was a 9000-litre tank for drinking water connected to the house, but it leaked. The grass was green from water leaking out of the water tank.
9	The tenant had to have tank water trucked in. The landlord’s plumber came out and said that the tank required major repairs. She had to bring in water every fortnight at a cost of $170. She did not keep any receipts. She could not have a shower, and there was never any running water. All the pipes under the tank had collapsed. There was run-off from the back veranda and sewerage was backing up. This was never rectified.
10	She said it was not a farming property. There was meant to be a bore to supply the land with water, but there was no pump for the bore. The bore never worked during her tenancy. There was bore water before she moved in, but there was no outside water available to her. There were holes in fences. While she had animals as pets, she did not agist or do any farming. She had a rescue horse and two sheep to keep the grass down. She could not tell that the bore didn’t work when she first moved in, until the electricity was connected. 
11	Garden Street was so bad, she wanted to move out. She wrote an email to the landlord’s agent on 4 April 2018 in which she praised Garden Street, just so she could secure Collison Road, and not because it was true. The agent had told her to write it, because she would be considered favourably. The tenant stated that she fitted a showerhead and taps, curtains and replaced the dishwasher herself in Garden Street because the landlord would not. During the tenancy, she showed the landlord the improvements she had made, and spoke to the landlord about the water issues. She had no receipts or invoices her improvements, or for the barbecue, or the payments she made to her friend. She thought she might be able to get receipts for the water she had trucked in, although she paid cash. If the house tank hadn’t been leaking, she would not have had to pay so much for water. 
12	At the end of the tenancy, the bond for Garden Street was transferred across to pay the bond for Collison Road, and the bond of $2825 for Collison Road was still lodged with the Residential Tenancies Bond Authority (RTBA).
13	The tenant said that she was seeking a refund of the agent’s commission of $157.74, which the landlord had taken from her bond, and compensation totalling $6618.36 in respect of her tenancy at Garden Street, because of the landlord’s failure to maintain the premises, the improvement she had to make and the lack of amenity. She had based her calculations on a half the rent for the entire tenancy of 24 weeks. 
The landlord’s evidence
14	The landlord said that both premises were managed by an agent before the agency closed. He argued that Garden Street was a farm, and it had no water. The RT Act did not apply. The tenant had a horse and some sheep, so it was clearly a farm. He said there was no underground water, the tenant had inspected the premises before she rented it, and she took possession of the premises as inspected. He thought that his agent had completed a condition report, and he would chase it up. The landlord said that he had bought Garden Street from the previous owner, and only trucked-in water was available.
15	He said he did not know about the hot water service not working. He fixed everything straight away. Garden Street was an excellent property, evidenced by the tenant’s email to his agent on 4 April 2018, in which she indicated how happy she was living at Garden Street.
16	He was not aware of any repairs needed at Garden Street, and believed everything was good. He said he spent $30,000 on repairs for both Garden Street and Collison Road. The bond was been returned to the tenant, from which only the agent’s commission was deducted. He confirmed that the tenant made no applications to the Tribunal in respect of this tenancy, and she had not served any breach of duty notices on him.
17	At the resumed hearing he said he was unable to obtain a condition report from his agent, as she had returned to South America.
Collison Road
The tenant’s evidence
18	The tenant sought return of her bond together with compensation of $4095.13, being 30 per cent of the rent from 1 June 2018 until 20 October 2018. She said that the landlord had made no claim against her, until she had brought her application.
19	She said the ducted heating didn’t work, the pool could not be used, there was no outdoor shed, no heating and her clothes became mouldy. There was no drinking water, and the landlord would not fix the water supply until the Tribunal ordered him to do so in R2018/34209. She first notified the landlord of the water problems on 1 June 2018. For three months, the tenant had no water at all, and had to bring her own water in. The Tribunal awarded her compensation solely for the lack of water, but she did not apply for or was paid any compensation for the lack of heating.
20	The tenant was never given a copy of the lease, however there was a condition report which she signed three or four days after she moved in. She did not know at the time that that the heating didn’t work. The tenant showed photos she had taken on her telephone at Collison Road of a large hole in the ground, rubbish, of the overgrown garden, of electric wires and pool fittings. The tenant said that the landlord admitted that things were broken on 25 September 2018.
21	The tenant stated that the landlord still had not paid her $5854, which the Tribunal ordered him to pay, and she wanted another order for this amount. It was explained that this could not be ordered again, but I would note it as an unsatisfied order. 
22	Her rent was paid until 21 August 2018, when she stopped paying rent because the landlord refused to fix the water supply. She was going to the laundromat weekly and trucking in water. The cause of the lack of water was the pump from the house tank to the house had broken. The house was built of brick approximately 30 years ago. Although the premises were advertised as having ducted heating, there was no heating. It was never looked at and never fixed. There was mould in the premises, and the children became ill. There was a Coonara heater, but it did not heat the whole house.
23	The backyard was torn apart as it had been flooded with sewage. She said that there had been a sewage problem, and she was aware that the previous tenants had been affected, but she believed everything had been fixed up before she moved in. She said that there was still a big hole in the yard, and it had not been filled in. The hole was still there when she vacated. Her children had to be careful when they played in the yard. There were exposed wires, a power board and exposed leads in the backyard, powering the new sewerage system, which she felt were dangerous.
24	The tenant disagreed with the landlord’s claims that everything in the premises worked. She said she did not stop the landlord from coming to inspect things that needed repair. Instead, it was the landlord who told her he could not attend, and he never rescheduled.
25	The tenant moved into her new home on 21 October 2018, which was before the vacate date for Collison Road. After she vacated, the premises were listed for lease at $100 less per week, without any of the features that appeared in the original advertisement.
The landlord’s evidence
26	The landlord said he did many repairs before the tenant moved in. Everything in the premises worked. He acknowledged that on 25 September 2018, some things did not work, but it was already at the end of the lease, and the tenant would not allow him to inspect things that needed repair. The landlord texted her, but she refused to allow him access. He did further repairs after the tenant moved in.
27	The landlord said that the water pump was stolen before the previous tenants moved in, but it had been replaced, and so it was a new pump. There were no holes in the backyard, it was flat and even. He showed me a photograph of the backyard, which he had taken with his telephone as at 21 April 2018, which, he said, proved that the backyard was perfectly fine. He then showed a photograph of the power pole as evidence that the exposed leads had also been repaired.
28	He did not believe it was possible to have ducted heating in such a massive house.  He said that it was a very large house of many small bedrooms, which would be easy for her to heat. The tenant could easily section off rooms, and use electric heating. There was no gas connection anyway, and therefore no gas ducted heating.
29	The tenant broke the lease and moved out, and threatened to go make an application in the Tribunal, unless the rent was rebated. The property was still vacant at the time of the hearing. He reiterated that everything in the premises worked.
The landlords’ claims
Rent owing 
30	The landlord said that the tenant owed rent from 22 August 2018 until 12 November 2018 (a total of $7600), and that he would have paid her the compensation that the Tribunal had ordered, if she had paid the rent.
31	The landlord said that the water issues had been dealt with in the Tribunal’s order, and she was therefore not entitled to any further compensation. The tenant would not allow his plumber access to repair the water. He was overseas when the tenant notified the agent about the lack of water, and he didn’t attend the Tribunal hearing of R2018/34209.
32	The tenant agreed that she had not paid the rent. 
Loss of rent
The landlord’s evidence
33	The landlord said that the tenant had signed a 12-month lease from 21 April 2018 to 21 April 2019. The rent was reduced from $750 a week to $650 a week. She wanted it reduced again to $550 a week, and then left the house when he refused. When she failed to pay the rent, he had no option but to serve her with a notice to vacate. Although November was a bad time to relet a house, he did not seek any additional compensation for rent loss, but he sought the rent arrears, advertising fees and reletting fee of two weeks’ rent plus $500. He said he paid $380 to advertise the premises on Domain.
The tenant’s evidence
34	Had the landlord fixed the water supply and maintained the premises, the tenant would have paid the rent and remained in the premises. She returned keys to the Collison Road premises on 12 November 2018, although she moved into her new house on 21 October 2018.
35	She only asked for a rent reduction, when they were coming to the Tribunal for the hearing of R2018/34209. The landlord asked the tenant to leave. She should have to pay nothing, as she would have stayed there, if he had fixed the water.
Reasons for Decision
Proving the claims
36	Both parties are seeking compensation. Anyone who brings an application to the Tribunal must prove their claim. That means that an applicant is expected to produce sufficient evidence during the course of a hearing to support what they say, and to establish their case. It is not usually enough for an applicant to merely assert that they have a right to an outcome. Generally, they must also have quality evidence to back up what they say.
37	The RT Act relevantly provides that a tenant or a landlord may apply to the Tribunal for compensation because the other party failed to comply with the tenancy agreement or that party's duties under the Act (section 210).
38	Section 211 of the RT Act details matters which may be considered by Tribunal in making its decision in respect of applications made under section 210, including whether or not the person from whom compensation is claimed has taken all reasonable steps to comply with the duties under this Act or the tenancy agreement, whether or not the applicant has consented to the failure to comply with the duties, whether or not money has been paid to or recovered by the applicant by way of compensation, whether any reduction or refund of rent or other allowance has been made to the applicant, whether or not action has been taken by the applicant to mitigate the loss or damage, any offer of compensation, and any action taken by the person from whom compensation is claimed to repair the damage at that person's own expense. 
39	My job is to consider the evidence that the parties and their witnesses bring to the hearing and decide if an applicant has proven—through evidence—their claim. In assessing loss, I take into account whether the loss is reasonable, having regard to the general conduct of the parties, the age and condition of any items damaged, whether items have been repaired or replaced, and whether attempts have been made to ensure the loss is the least that is reasonably possible.
40	In summary and relevant to this application, a tenant is expected to pay rent until they vacate the rented premises, unless the Tribunal orders otherwise. A landlord must allow a tenant to have quiet enjoyment of all of the rented premises (section 67) and to maintain the rented premises in good repair (section 68).
41	In Vicki Shields v Peter Deliopoulos [2016] VSC 500, Her Honour Daly AJ found that the duty imposed upon a landlord under s.68 of the Act to ‘ensure that the rental premises are maintained 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.
42	Her Honour found that in circumstances where a condition report had been prepared at the commencement of the tenancy agreement identifying the repair issues at the premises, the question of whether the landlord was on notice of any defect did not arise. A landlord who fails to act with reasonable diligence to repair those defects will be in breach of their obligation to repair under section 68 of the RT Act.
43	As to defects which occur or develop during a tenancy, a landlord is not in breach of the RT Act unless he or she has notice of that defect and fails to act with reasonable diligence to repair it. To maintain the premises in good repair during the course of a tenancy places an obligation on the landlord to put them in good repair at the commencement of the tenancy. This obligation cannot be diluted by charging lower rent.
Was either property a farm?
44	Section 11 of the RT Act says that it does not apply to a tenancy agreement if the rented premises are being used, or are ordinarily used, for the purpose of grazing, including agistment, or farming. Section 507 of the RT Act places the onus of proving the RT Act doesn’t apply on the person who claims it.
45	In hearing and making its order in R2018/34209, the Tribunal found that the RT Act did apply to Collison Road, and there is no basis for me to overturn that finding.  I consider that neither Collison Road nor Garden Street were suitable for farming, and while the tenant kept some animals there, neither property was used as a farm. The RT Act therefore applies to the tenancies.
The tenants’ claim
46	I do not agree that the email the tenant’s wrote to the agent in April 2018 proves that Garden Street was in good repair. I accept the tenant’s explanation for sending that email. I accept that she was so desperate to leave Garden Street, that she felt sending the email would secure her Collison Road. Based on the representations of the landlord’s agent and the advertising, she erroneously believed Collison Road would afford her, her family and her animals suitable housing. I consider she was optimistic in her belief that the landlord would honour his repair obligations at Collison Road, when he had not done so in Garden Street.
47	It is evident that the landlord or his agent on his behalf described Collison Road as having ducted heating, full fencing, gas heating and solar panels when he ought to have known that they were either not there or not working. He cannot hide behind his agent to limit his culpability. I consider that, whether the landlord or his agent intended it or not, the advertising was misleading and the tenant was misled. 
48	I consider a reasonable landlord could not have failed to notice that substantial repairs were needed throughout both of the properties. The landlord asserted that he did do repairs and he tendered some invoices, but I find that he failed to accurately describe the dates, scale and type of repair some of the invoices related to. I could not tell from the parties’ photographs what worked, what had been fixed and what hadn’t. The photographs were not helpful. The Tribunal was unable to discern anything much from the landlord’s photograph of the backyard.
49	A landlord cannot place the burden of maintaining rented premises on the tenant. A landlord cannot avoid fixing taps, shower heads or hot water services by saying it wasn’t working when the tenant inspected it and thereby shifting the obligation onto his tenant. If a landlord fails to maintain the premises in good repair, a tenant has a number of options, including the giving of a breach of duty notice or making an application to the Tribunal for a repairs order. The tenant did not give any breach of duty notices or make application to the Tribunal in respect of Garden Street, or in respect of most of the repairs that were needed at Collison Road. 
50	The RT Act does not require a tenant to be present when repairs are being done, although many prefer to do so. I accept that the tenant suffered from a lack of quiet enjoyment that resulted from the continual disruption, because of the poor state of repair of both Garden Street and Collison Road. I am satisfied that she is entitled to be compensated for that. 
51	There were remedies readily available to the tenant to limit that disruption to her life and to ensure the repairs were done in a timely manner. She only brought an application to the Tribunal for repairs to the water at Collison Road, but not in respect of other repairs. While I consider that she did not do enough to progress the other repairs and mitigate her discomfort and loss, I accept that she was still subjected to an unacceptable, ongoing fetter to her right to peacefully enjoy the premises, because the landlord did not comply with the provisions of the RT Act. I was astounded to learn during the hearing that the landlord had not paid the compensation ordered in R2018/34209.
52	Whether either property was habitable or not, the tenant did inhabit the properties. She was nevertheless entitled to have the features that were advertised, fully functioning, and for the duration of her tenancies. 
53	Having regard to the above and the compensation ordered in R2018/34209 which remains unpaid, I assess the tenant’s entitlement to compensation to be equivalent of the full rent at Garden Street and half the rent at Collison Road, each for a period of two months. She might have mitigated her loss thereafter, if she had taken appropriate remedies available to her in the RT Act. She is also entitled to the return of the deducted agent’s commission of $157.74 and her bond. The total is $7702.74, exclusive of the bond of $2825. In addition, the landlord still owes the tenant $5854.82 previously ordered and still unsatisfied.
The landlords’ compensation claim
The rent owing
54		Having considered the documents submitted by the parties, I am satisfied that the rent of $2825 was paid up to and including 21 August 2018, with rent owing from 22 August 2018 to 12 November 2018 inclusive. The total owing is $7395.18. The landlord gave the tenant a notice to vacate, and is not entitled to be compensated for her vacating. The application for further compensation is dismissed 
Conclusion
55	The landlord is required to pay the tenant $13,557.56 which includes the earlier unsatisfied order, and the tenant is required to pay the landlord $7395.18. The balance owed to the tenant is $6162.38. I direct the Residential Tenancies Bond Authority to pay the tenant the bond of $2825. Taking into account the amounts to be paid by each party to the other, I order the landlord to pay the tenant $6162.38. All other claims are dismissed.

K. Kirmos
Member