ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ANDERSON & ANOR v FITZGERALD (Residential Tenancies) [2018] ACAT 88

RT 399/2018

Catchwords: RESIDENTIAL TENANCIES – reasonable state of repair – defective hot water system – limitation on number of occupants – water charges

Legislation cited: Residential Tenancies Act 1997 standard term 54

Cases cited: Faulder v Tran [2018] ACAT 80

Tribunal: Senior Member A Anforth

Date of Orders: 12 September 2018Date of Reasons for Decision: 12 September 2018

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 399/2018

BETWEEN:

HEATHEN ANDERSONALISON SWEENEY

Applicant

AND:

DANIEL FITZGERALDRespondent

TRIBUNAL: Senior Member A Anforth

DATE: 12 September 2018

ORDER

The Tribunal orders that:

1. The respondent is to pay the applicant the sum of $1,600 in full and final

satisfaction of all claims between the parties other than any claim for personal

injuries.

2. The respondent is to pay the above amount immediately.

………………………………..Senior Member A Anforth

REASONS FOR DECISION

Summary of the matter

1. The male tenant (Heathen Anderson) and his female partner (Ms Sweeny) live

in a three bedroom house leased from the respondent. Their tenancy

commenced on 25 May 2015 and was initially for a one year fixed term after

which it became periodic. The tenancy was continuing at the date of the hearing

of this matter.

2. Part way through the tenancy Ms Sweeney had a baby. Mr Anderson also had

two children from a prior relationship who stayed with him for the week days

on each alternate week, that is, five days a fortnight.

3. Only Mr Anderson is a tenant on the residential tenancy agreement. Ms

Sweeney is not a tenant although throughout the dealings between the parties

and at the hearing Ms Sweeney was the directing mind and spokesperson. There

is no criticism implied. The tenant can act through an agent and he can appoint

his partner as his agent.

4. The matter was primarily a dispute over a defective solar hot water system. The

house had a 250L tank that was half heated by mains power and half heated by

solar. The mains power was at the bottom of the tank and the solar half way up

the tank. Unbeknown to the tenant or the lessor at the start of the tenancy in

May 2015 the water from the solar system had been disconnected from the hot

water tank prior to start of the tenancy. This had the effect that only the bottom

125L of water was heated.

5. Once this amount of hot water was used the water was cold. The hot water was

not sufficient to fill a bath for the children or to have two consecutive showers.

It took about four hours to reheat the water after the initial use. The tenant and

Ms Sweeney came to arrangements with a neighbour to use her shower and bath

particularly when the other children were visiting.

6. The tenant and Ms Sweeney made various complaints to the lessor orally and in

writing from the start of the tenancy about the scarcity of hot water.

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7. The lessor had plumbers visit on several occasions, the first being on 5 June

2015, but they failed to correctly diagnose the problem with the result that the

lack of hot water problem continued. The problem was not fixed until 24

February 2018 when a new 250L mains power system was installed.

8. On the lessor’s part, the agent argued ignorance of the cause of the hot water

problem and that the lessor moved promptly once the problem was identified.

The agent, Mr Yip, said that he had not even looked or checked the hot water

system before leasing the premise to the tenant. He did not himself carry out any

of the periodic inspections.

9. The tenant and Ms Sweeney gave evidence of the occasions in which they

reported the defective hot water system by email, sms and phone as well as to

the agent conducting periodic inspections from the start of the tenancy. The

lessor conceded that the first written complaint was on 5 June 2015 but denied

that there was any other notice until 2017. The lessor then later conceded that

there was further written notice on 18 February 2016.

10. The principal agent, Mr Yip, denied receiving these phone and sms messages

from the tenant/Ms Sweeney and testified that he was assiduous in logging

incoming messages and returning them. The tenant and Ms Sweeney took

vigorous issue with this assertion and maintain the converse was true.

11. Mr Yip produced a log of messages passing between the tenant/Ms Sweeney

and his office which he testified under affirmation was a ‘running list’ and

accurate. During the course of the hearing it became apparent that the log was

not a ‘running list’, was not contemporaneous and was not accurate. The log

was not just inaccurate but came in the face of Mr Yip’s assertions of the

thoroughness with which he keep his records and the denial of the tenant/Ms

Sweeny’s communications with him. The Tribunal informed the parties that this

disclosure substantially affected the credibility of Mr Yip’s evidence including

his denials of the communications asserted by the tenant/Ms Sweeney. In short

the Tribunal accepted the evidence of the tenant and Ms Sweeney on this issue.

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12. The tenant complained that Ms Sweeney suffered a fall in the garden on

7 December 2017 due to the uneven mulch. At the hearing the tenant advised

that this matter was not being pressed and withdrew this claim.

13. There were other failures to do minor repairs that the tenant complained of

including a broken towel rail, a noisy pump on rain water tank and the failure of

the rain water tank to service the toilet. The evidence supported these claims

although the significance of the loss or inconvenience caused by them appeared

to be nominal.

14. The lessor sought possession of the property based on the tenant’s failure to pay

the water accounts for the property. At the hearing it came to light that the

lessor had not provided the tenants with the water bills for the duration of the

tenancy until December 2017 by which time the bills amounted to an agreed

total of $1,400. The tenant had not since paid these bills on the basis that extra

mains water had been used to service the toilet in lieu of the working rain water

tank. The lessor cross claimed for these charges. At the hearing the Tribunal

informed the lessor that he could not plead a failure to pay the water bills if they

have not been served. No order for possession would be made on this ground.

15. The tenant was unable to provide a realistic assessment of the extra water used

in the toilets. The tenant rightly complained that the receipt of the water

accounts in one lump sum caused inconvenience to them. The Tribunal

acknowledged this fact but also noted that the tenant knew of the obligation to

pay for the water consumed and he had the advantage of the interest free loan in

this period. The tenant agree to pay the water bill of $1,400.

16. The lessor also issued a notice to remedy to restrict the occupants of the three

bedroom house to one adult and two children in accordance with clause 6 of the

residential tenancy agreement signed by the parties. At one point in time there

were two adults (the tenant and Ms Sweeney), a new born baby and two of the

tenant’s other young children. The Tribunal took the view that this clause was

of an indicative or aspiration character and not binding on the tenant. A clause

of this kind was at odds with the fundamental right for which the tenant

bargained, namely the right to quiet enjoyment of the premises as a home. This

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is not to say that there cannot be overcrowding which may accelerate the wear

and tear on the premises but a couple with a new baby and two young children

visiting each alternative week is not overcrowding of a three bedroom premises.

17. It was pointed out that if this clause was construed as binding on the tenant then

Mr Anderson would need the lessor’s permission for his partner to live with him

or his mother to visit. He would need the lessor’s permission to have their new

baby with them during the time that his two other young children were visiting.

This would represent major inroads into the tenant’s human rights and personal

dignity and could not have been intended by the Legislature to operate in this

way.

18. At the end of the hearing the Tribunal announced its decision, namely that the

tenant be awarded $3,000 for the defective hot water based on an average of $25

per week and that the lessor be awarded $1,400 for outstanding water

consumption leaving a balance to the tenant of $1,600. There was no award for

the other minor issue of the towel rail or the rain water tank. The basis of the

decision was explained to the parties at the time.

19. Following some dialogue with the parties the Tribunal determined to give the

decision in writing.

History of the procedures in the Tribunal

20. On 15 May 2018 the tenant lodged an application with the Tribunal seeking

compensation for a defective solar hot water system in the rented premises in

additional to other minor repair issues:

For the duration of the tenancy, since moving in around March 2015, we have advised the agent there were significant issues with the water function of the home with no resolution achieved until this month (April 2018).

We have occupied the property for three years and recently obtained our own plumbers report confirming that the hot water system did not work properly, the solar panels on the roof were disconnected and the pump on the rain water tank was not working. This has resulted in significant expenses for electricity and out of pocket expenses paying rent for fixtures that were not working.

Other issues that were not fixed until recently and were with the agent include:

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- maintenance of the front yard as Alison fell over with our newborn on the edge of the driveway where the ground had subsided

- repairing the towel rail that was faulty and unable to be used since the first week of the tenancy

- door handles on all the doors were so loose the doors wouldn’t shut properly.

21. The tenant sought the following orders:

That the landlord reimburse the tenant for funds paid for rent for the duration of the lease March 2015 to April 2018 in the amount of $30per week for the above mentioned faults;

1. That the landlord pay damages to the tenant for the inconvenience that that living with a dysfunctional property has caused in the amount of $5000;

2. All monies be paid to the tenant’s nominated bank account.

22. The application annexed:

(a) A copy of the residential tenancy agreement dated 27 May 2015 for a

fixed term of one year showing rent of $395.00 per week and a bond of

$1,580. There were no relevant endorsed or special terms.

(b) An email of 18 February 2016 from the tenant to the lessor’s agent

advising “…are you able to review are rent? Particularly based on things

such as no screen door, the solar that doesn’t work increasing our hot

water bills, the leaking hot water system and the various other items.”

(c) A notice of rent increase from the lessor to the tenant dated 28 July 2017

increasing the rent to $410 per week.

(d) A email from the lessor to the tenant dated 14 December 2017 attaching

water consumption charges.

(e) An email from the tenant to the lessor dated 12 February 2018 attaching a

report from Spencer and Sons Plumbing of 31 January 2018. The report

relevantly read:

Found the pump in the water tank is not working and toilets are therefore only working on the mains water and not tank water. Pump will need replacing for this to work.

Solar panels are no longer connected to the not water unit which means its working as a normal electric storage hot water unit.

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Even though the tank size is 250L, the heating element is located mid level on the tank and therefore is only heating 125L of the water and is inadequate to fill the bath.

Recommend replacing it with a standard 250L storage hot water unit.

(f) An email of 14 February 2018 from the tenant to the lessor requesting

copies of water charge account.

(g) An invoice from Gungahlin Landscape to the tenant dated 14 March 2018

in the sum of $836 for mulch.

(h) An email from the tenant to the lessor dated 26 February 2018 claiming

compensation until 23 February 2018 when the hot water system was

finally fixed. The claim was for $30 per week composed of $10 per week

for each of:

(i) the electricity costs to reheat the water;

(ii) “compensation for paying full market price for a property in which

we had the reasonable expectation that the fixtures on the house

worked – which they did not from the very start of our tenancy”;

and

(iii) “a reduction for the items we have listed that have never been fixed

and remained unrepaired for the entire duration of the tenancy. For

example, the towel rail, the toilet seat etc.”

(i) An email of 15 March 2018 from the lessor’s agent to the tenant rejecting

any claim for compensation.

(j) An email of 22 March 2018 from the tenant to the lessor pressing his

claim for compensation.

(k) An email of 23 March 2018 from the lessor’s agent to the tenant saying:

…

Also the tank water is only use for laundry or toilet and garden use (the garden is very low maintenance).

We have fixed the towel rail in the beginning of the lease.

3 times when you say the hot water is not working we sent a plumber to repair the work and each time repaired you had no problem.

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When the house was purchased almost 10 years ago my vendor did not know the grey water was not plumb into the house.

We have appointed Mitch from Town and Country plumbing to look into the water tank issue…

(l) An email of 6 April 2018 from the lessor’s agent to the tenant asking how

the $10pw for electricity charge was arrived at. A return email of the same

date from the tenant to the lessor advising that $10 was the approximate

daily use and the tenant considered it reasonable for the lessor to pay the

cost for one day a week.

(m) An email from the lessor to the lessor’s agent of 13 April 2018 suggesting

that $5 a week for the electricity and $2.5 per week for the water would be

reasonable to run from four weeks after it was reported until it was fixed.

(n) An email of 16 April 2018 from the tenant to the lessor’s agent rejecting

the above offer.

23. The matter was listed for a conciliation on 18 June 2018 but the dispute was not

resolved in that process. Procedural orders were made for the filing evidence

and submissions and the matter was listed for hearing on 27 July 2018.

24. On 2 July 2018 the tenant filed his evidence and submissions. The tenant

considerably amended his claim which read as follows:

The application fee of $150 plus any additional filing fees and hearing fees to be paid in full by the lessor to the tenants;

1. The amount of $966 to be paid by the lessor to the tenants for time taken off work and to prepare for hearing;

2. $80 to be paid by the lessor to the tenant for lack of notice on rental increase dated 28/7/2017;

3. $13,875 to be paid by the lessor to the tenant in compensation being for 25% of the rent paid over the period since the issues were first proven in writing to have been reported;

4. $5000 to be paid to the tenant by the lessor for damages in relation to lack of enjoyment and fall that occurred on 14/11/17.

25. The tenant annexed the documents previously filed and in additional annexed:

(a) A chronological timeline of contacts with the lessor over the repairs.

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(b) A ‘Property and Inventory Report’ of 2 July 2014 bearing the signature of

Alison Sweeney as the tenant.

(c) An email of 18 February 2016 from Ms Sweeney to the lessor asking for a

rent reduction.

(d) A email of 15 April 2016 from the lessor’s agent to the tenant making

demand for rent arrears , and in default of which, threatening eviction.

(e) An email of 3 May 2016 from the lessor to the tenant inviting him to re-

sign a further 12 months fixed term lease and an email in response asking

that the lease continue as a periodic lease.

(f) An email of 28 July 2017 from the lessor to the tenant advising a rent

increase of $15 per week commencing on 1 September 2017.

(g) Reports from periodic inspections of 22 September 2017 with

photographs.

(h) An email of 29 March 2018 from the tenant to the lessor saying that the

towel rail had fallen off subsequent to its last being fixed, the toilet seat

was loose, the heat light cover in the bathroom had not been fixed, several

door handles were loose and reiterating the problem with the hot water.

(i) Photographs of the broken towel rail.

(j) a series of emails between the parties dated 25-29 May 2018 about

arranging for a handyman to fix the towel rail.

(k) A series of photographs of the premises.

(l) A statement from Marlene Valenzuela neighbour to the tenant setting out

the superior performance of her hot water system and that she permitted

the occupants of the tenanted property to use her shower about once or

twice a month.

26. On 18 July 2018 the lessor filed his response and counter claim through his

solicitors, Capital Lawyers. The response:

(a) denied each element of the tenant’s claim;

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(b) noted the large increase in the claim made and the lack of particulars in

support of the claim;

(c) denied that the rent increase notice provided inadequate notice. It was

asserted that the notice was sent on 24 June 2017 with a date of increase

of 1 September 2017 which exceeds the eight weeks required in the

Residential Tenancies Act 1997;

(d) asserted that the towel rack had been fixed before the tenant move in and

again on 29 July 2015;

(e) asserted that the solar hot water system had been serviced before the

tenant moved in and again in 2015 and 2017;

(f) asserted that the hot water system was replaced after receiving the

plumber’s recommendation;

(g) asserted that the respondent had in fact been paying all the water and

sewerage charges for the premises;

(h) denied liability for the alleged fall by Ms Sweeney in the front garden on

or about 11 January 2018 on the bases that:

(i) no fall had actually occurred;

(ii) there was no evidence as to the time of the alleged fall;

(iii) the lessor had no prior notice of problem with the mulch that was

said to have caused the fall.

27. In the counter claim the lessor:

(a) claimed for the water and sewerage charges paid by the lessor over the

tenancy in the sum of $1,407.74;

(b) alleged that in June 2018 5 people were living in the premises which was

said to be a breach of clause 6 of the tenancy agreement which limited the

number of occupants to one adult and two children; and

(c) asserted that he had serve a notice to remedy on the tenant on 13 July

2018 based on the failure to pay water charges and the excess occupants.

28. The lessor annexed the following documents not already noted above:

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(a) a time line of events;

(b) water and sewerage invoices;

(c) the notice to remedy of 13 July 2018;

(d) statements showing the income and outgoings of the lessor in relation to

the premises;

(e) invoices and statement showing repairs made including:

(i) an order for a new hot water system placed on 24 February 2018;

(ii) invoice for plumber repairs on 7 August 2017;

(iii) invoice for plumber attendance on rain water tank on 26 April 2018;

(iv) invoice for plumber repairs on leading hot water system of 7 June

2015

(v) invoice for handyman attendance to fix towel rail on 26 May 2015;

(vi) invoice for handyman attendance to fix towel rail on 1 March 2018;

(vii) invoice for electrician to fix circuit breaker on 4 December 2015 and

18 September 2016;

(f) an advertisement of the premises on All Homes which did not show any

mention of the solar hot water.

29. On 19 July 2018 the lessor filed and served a statement by Mr T Yip, the

lessor’s managing agent. In the statement Mr Yip affirmed that he had arranged

and paid for the various work reflected in the above invoices. Mr Yip stated:

(a) that he had attended to the repairs of the hot water system on or around

6 June 2017 and had not had further complaints from the tenant until

8 January 2018;

(b) once he was aware of the disconnected solar hot water system in the

reports of Spencer and Sons he arranged for its replacement which

occurred on 24 February 2018;

(c) he arranged for the repair of the water tank on 12 April 2018;

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(d) “throughout the tenancy whenever the tenants have informed me of any

repairs required to the premises, I have informed the landlord who has

endeavoured to make the repairs within a reasonable period of time”;

(e) on 28 July 2017 the tenant informed him that he had not received the rent

increase notice;

(f) on 11 December 2017 Mr Yip spoke with Ms Sweeney who informed him

that she had almost fallen in the uneven mulch in the front yard. He

started to arrange more mulch to even the ground but in the meantime the

tenant had arranged it. The tenant was reimbursed.

30. Mr Yip appended a ‘Record of Conversations’ purporting to be a running log of

his telephone communications with the tenant.

31. The matter was heard on 27 July 2018. The tenant appeared in person and

Mr Byrnes, solicitor appeared for the lessor.

32. At the commencement of the hearing the Tribunal identified the elements of

each party’s claim. The tenant’s claim was for:

(a) the defective hot water system, the failure of the lessor to repair it and the

inconvenience caused ($13,875 being 25% of the rent paid until the

repairs were effected);

(b) the broken towel rails;

(c) the loose door handles;

(d) defective rain water tank;

(e) $80 for inadequate notice of the rent increase;

(f) the alleged fall by Ms Sweeney in the garden and breach of quiet

enjoyment ($5,000);

(g) a refund of the Tribunal lodgement fee ($150);

(h) time off work to deal with the dispute ($966)

33. The Tribunal informed the tenant that items (e) and (h) were not claims the

Tribunal could entertain. There was neither breach nor loss associated with item

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(e) and item (h) was inconsistent with the fact that parties bear their own costs

in the Tribunal unless the Tribunal orders otherwise.

34. The tenant confirmed that item (f), namely the fall by Ms Sweeney was not

pressed. The tenant advised that the breach of quiet enjoyment claim was only

another way of stating the claim for the defective hot water system and did not

constitute a separate claim. Accordingly it was not addressed separately to the

claim for the defective hot water system.

35. The lessor’s counter claim was for the unpaid water ($1,400) and damages for

the alleged overcrowding. The tenant agreed to pay the water claim. The

Tribunal informed the lessor that the claim for overcrowding was not a valid

claim for the reasons set out at paragraphs 16-17 above.

36. This left only the hot water issue and the minor repairs of the rain water tank,

towel rail and loose door handles to determine. In each case the tenant asserted

that the defects were present in the premises at the commencement of the

tenancy and accordingly standard term 54 of the tenancy agreement applied:

54(1) At the start of the tenancy, the lessor must ensure that the premises, including furniture, fittings and appliances (unless excluded from the tenancy agreement), are—(a) fit for habitation; and(b) reasonably clean; and(c) in a reasonable state of repair; and(d) reasonably secure.

(2) An exclusion must be in writing and may, but need not, be included in the tenancy agreement (if in writing).

37. For the benefit of the unrepresented tenant the Tribunal outlined the relevant

principles of law it intended to apply by reference to the decision in Faulder v

Tran [2018] ACAT 80. This case concerned the analogous situation of a heating

system that was defective from the start of the tenancy unbeknown to the lessor:

23. Standard Term 54 deals with the lessor’s duty when handing over the premises at the start of the tenancy. There are a number of things to note about Standard Term 54:

(a) It only addresses the lessor’s duty in handing over the premises at the start of the tenancy. Other Standard Terms deal with the duty of repairs for defects that arise during the tenancy.

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(b) The Standard Term is couched in mandatory language, that is, the lessor ‘must’ ensure that the premises comply with it.

(c) The Standard Term is couched in outcome language, that is, the lessor must ‘ensure’ that the Term is complied with. It is not enough that the lessor did his or her best or ‘had a go’ at complying with the Term. It is not a defence for a lessor to plead that reasonable steps were taken to rectify defects. There is only one permitted outcome. The lessor must ensure that (a)-(d) are satisfied (unless they are excluded from the tenancy agreement).

(d) The duty does not just apply to the premises as a whole in some global sense. The definition of ‘premises’ in the Dictionary to the RT Act defines premise to include any habitable structure, part of the premises, and any buildings or structures belonging to the premises. Standard Term 54 expressly applies to all furniture, fittings and appliances provided with the premises (unless they are excluded from the tenancy agreement).

(e) Each of the sub-paragraphs stands alone, so that the lessor’s duty applies to each of the listed items separately.

…

(h) The lessor is required to ensure that the premises and its contents are all in a reasonable state of repair.

…

117. Standard Terms 55 and 57 are also framed in mandatory terms, that is, the lessor ‘must’ maintain the premises and make the repairs within this statutory time frame unless there is agreement with tenant for a longer period. The ‘reasonableness’ requirement goes to the state of the repair and not the efforts made by the lessor, that is, the lessor must undertake the maintenance and repairs and the result must be to render the premises in a ‘reasonable state of repair’. As the Original Tribunal noted it is not sufficient that the lessor take reasonable steps if that does not result in the premises being in a ‘reasonable state of repair’.

118. Whether premises are in a ‘reasonable state of repair’ at the commencement of the tenancy is a question of fact.….

210. The Appellant submitted that some matters covered by Standard Term 54 might not be noted at the start of the tenancy. For example, the fact that a heater is faulty might not be apparent (at least to the tenant) until the tenant attempts to use the heater sometime after the tenancy commences. The Appellant submitted that if it can be shown that the lessor knew or ought to have known at the commencement of the tenancy that the heater was not working, then Standard Term 54 applies. Consequently, the breach runs from day one of the tenancy (in this case, 31 August 2016). Otherwise Standard Terms 57 and 59 will apply from the time when the fault became evident. Whether something was working at the commencement of the tenancy is a question of fact.

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211. The Appellant accepted that, in light of the decision of the High Court in Northern Sandblasting Pty Ltd v Harris, a lessor will have constructive notice of anything that they could have discovered by looking and turning on switches, but not something that would have required tradesperson or specialist to check.

…

215 It was the lessor’s duty to provide the heating system in a working condition at the commencement of the tenancy and to maintain it during the tenancy (excluding any damage caused by the tenant). The ducted heating should blow hot air to heat the unit to the programmed temperature. It might not be working properly for any number of reasons, but it was not the tenant’s duty to perform that diagnosis. Even in the case of a defect arising during the tenancy, the tenant need only put the lessor on notice that the heating is not working property. The tenant does not have to put the lessor on notice of the cause of the functional failure of the heater.

38. In short, it was the lessor’s duty to ensure that the premises were in a reasonable

state of repair at the start of the tenancy. Even if the lessor did not know at the

start of the tenancy that the solar hot water had been disconnected he was on

notice of the problem from when the tenant first complained. At that point in

time it was for the lessor to diagnose and fix the problem. Strict liability

attached to this duty. It was not sufficient that the lessor sent out a number of

plumbers over time who each failed to diagnose and fix the problem. The lessor

cannot delegate his duty in this way. The fact that lessor made unsuccessful

efforts to fix the problem is not sufficient to satisfy the lessor’s strict liability.

39. The tenant and Ms Sweeney were affirmed and adopted their filed statements.

Each gave evidence of their endeavours to communicate with Mr Yip. The

tenant said he made “a million calls” that went unreturned and then just gave up

trying. Each were cross examined by Mr Byrne for the lessor and asked

questions by the Tribunal.

40. Mr Yip was affirmed and adopted his filed statement. He was cross examined

by Ms Sweeney and asked questions by the Tribunal.

41. During the cross examination of Mr Yip it emerged that his purported complete

and contemporaneous running list of communications with the tenant was not in

fact of this nature. It contains obvious handwritten insertion in different styles

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that appeared to be from different authors. Most significantly it contained such

an insertion for the date 7 December 2016 recording the complaint by the tenant

that Ms Sweeney had fallen in the garden. This event did not happen until

7 December 2017 that is, a year later. Mr Yip had no explanation for this.

42. The Tribunal informed Mr Byrne at the time that it did not believe Mr Yip and

did not accept that the log was accurate. The Tribunal did not accept Mr Yip

and a witness of truth. Given the stark difference in the evidence of the

tenant/Ms Sweeney and Mr Yip concerning the regularity of reports concerning

the hot water system, the Tribunal preferred the evidence of the tenant and Ms

Sweeney.

43. At the conclusion of the evidence the Tribunal informed the parties of its

decision, namely that the tenant be awarded $3,000 for the defective hot water

based on an average of $25 per week and that the lessor be awarded $1,400 for

outstanding water consumption leaving a balance to the tenant of $1,600. There

was no award for the other minor issue of the towel rail or the rain water tank or

tribunal filing fee. The award of $3,000 made an allowance for these small

amounts. The basis of the decision was explained to the parties at the time.

44. There were questions raised by the lessor concerning the precise calculations

and the basis for the award. The lessor was told the basis of the award was that

of the Tribunal experience and comparative verdicts. The figures were rounded

and approximate consistent with the error margin involved in this kind of award.

………………………………..Senior Member A Anforth

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HEARING DETAILS

FILE NUMBER: RT 399/2018

PARTIES, APPLICANT: Heathen Anderson, Alison Sweeney

PARTIES, RESPONDENT: Daniel Fitzgerald

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT N/A

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT Capital Lawyers

TRIBUNAL MEMBERS: Senior Member A Anforth

DATES OF HEARING: 27 July 2018

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