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BONKE v HENNOCK & ANOR (Residential Tenancies) [2022] ACAT 93 (8 November 2022)

Last Updated: 17 February 2023

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BONKE v HENNOCK & ANOR (Residential Tenancies) [2022] ACAT 93

RT 53/2022

Catchwords: RESIDENTIAL TENANCIES – where no written agreement – whether occupation of premises on the basis of a residential tenancy agreement – whether essential terms sufficiently certain – reliability of uncorroborated evidence – entry into agreement – rent – start of tenancy – end of tenancy – lessor’s interference with peace, comfort and privacy of tenants – where work proposed to be done in lieu of rent – state of premises at start of tenancy – whether tenants paid for all or part of work on fence – state of premises at end of tenancy – compensation

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 53

Residential Tenancies Act 1997 ss 6A, 6B, 6C, 6D, 6E, 6F, 7, 8, 11, 12, 15, 19, 29, 30, 36, 71C, 71E, 82, 83, standard terms 5, 9, 11, 11A, 12, 13, 26, 46, 52, 53, 54, 55, 63, 64, 65, 75, 76, 84, 88, 99

Cases cited: Adhikari v Walshe [2022] ACAT 67

Andrew Britten and Commissioner for Housing [1999] ACTAAT 41

Bangura v Fan  [2013] ACAT 38 

Marlow v Coe [2007] ACTRRT 2

Qin v He [2020] ACAT 116

Sonia Jones and Commissioner for Housing [1999] ACTAAT 23

The Hurst-Meyers Charity Ltd v Khan [2020] ACAT 33

The Hurst-Meyers Charity Ltd v Wellings [2020] ACAT 102

Verma v Chilukuri [2017] ACAT 12

Xia v Wang & Bian [2009] ACAT 21

Texts/papers

cited: Allan Anforth, Peter Christensen and Christopher Adkins, Residential Tenancies: Law and Practice, New South Wales (Federation Press, 7th ed, 2017)

Jeannie Paterson, Andrew Robertson and Arlen Duke, Principles of Contract Law (Thomson Reuters, 3^rd ed, 2009)
Tribunal: Senior Member M Hyman

Date of Orders: 8 November 2022

Date of Reasons for Decision: 8 November 2022

AUSTRALIAN CAPITAL TERRITORY )

CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 53/2022

BETWEEN:

JUANITA BONKE

Applicant/Lessor

AND:

SHANE HENNOCK

First Respondent/Tenant

KELSEY BETTS

Second Respondent/Tenant

TRIBUNAL: Senior Member M Hyman

DATE: 8 November 2022

ORDER

The Tribunal orders that:

1. Within four weeks from the date of this decision, the respondents are to pay the applicant $1,805.74.

......................................

Senior Member M Hyman

REASONS FOR DECISION
Introduction

1. Ms Juanita Bonke, the applicant, owns a house in Page. In November 2015, she advertised her house as available for rent. Ms Kelsey Betts and Mr Shane Hennock, the respondents, looked at the house and expressed interest in it. Ms Bonke lives in Queensland, and for that reason and because of family commitments, she was absent from Canberra from mid-December 2015 until mid-January 2016. In mid-December 2015, the respondents moved into Ms Bonke’s property. When Ms Bonke returned, there was a falling out between her and the respondents. Mr Hennock and Ms Betts advised Ms Bonke that they would vacate the premises on 22 February 2016. They left the premises, and Ms Bonke asserts that they paid her no rent, did not undertake the painting they had promised to do at the house, and left the premises damaged, dirty and unkempt. She applied to this Tribunal for compensation, claiming $6,209.02 in unpaid rent and utilities, in future rent foregone, in cost of cleaning and repairs, and for her filing fee. The respondents contest these claims but have agreed to pay for a damaged window and for water consumption.
2. The matter came before me on 25 July 2022. Ms Bonke and Ms Betts, both of whom were interstate, appeared by telephone, and Mr Hennock appeared in person, although he was compelled for family reasons to leave the hearing early, and he re-joined it by telephone after a short absence. All three parties gave evidence and were cross-examined. Mr Hennock and Ms Betts had been partnered at the time of the events covered by the hearing but are no longer so. The parties each had provided a witness statement and attachments, and these were taken into evidence as Exhibits A1 (Ms Bonke’s statement dated 30 March 2022), R1 (Mr Hennock’s statement dated 6 June 2022) and R2 (Ms Betts’s statement dated 3 June 2022). A police report dated 19 January 2016, obtained by the respondents under subpoena, was also taken into evidence and identified as Exhibit R3. Ms Bonke lodged two applications, dated 13 January 2022 (first application) and 30 March 2022 (second application), each with attachments. Ms Bonke’s witness statement was included among the attachments to the second application. Ms Bonke also provided an additional statement with further attachments, received by the Tribunal on 5 May 2022; this document is not in the form of a witness statement and does not contain the usual formulae as to its truth, but is in other respects similar to a witness statement, and I have also taken it into evidence (the applicant’s supplementary statement). Finally, Ms Bonke provided a response to the witness statements of Mr Hennock and Ms Betts, also with attachments; these documents are largely in the form of submissions but contain assertions of fact and are also taken into evidence with their attachments (the applicant’s responses to the first and second respondents).
3. The matter came before me for hearing by a circuitous route attended by a degree of conflict. Ms Bonke lodged her application initially on 13 January 2022, although the matter concerns events occurring in the period between November 2015 and February 2016. This first application was brought with Mr Hennock identified as the respondent, and Ms Bonke claimed $5,498 in rental arrears and compensation. Ms Bonke lodged an amended application on 30 March 2022, again with Mr Hennock as respondent, now seeking $6,209.02. Mr Hennock applied for interim orders joining Ms Betts as respondent, on the grounds that she had shared the premises with him at the time. The Tribunal joined Ms Betts as respondent on 6 May 2022 and made orders for the two respondents to provide witness statements and supporting evidence.
4. On 9 May 2022, Ms Betts applied under freedom of information legislation seeking a police report of matters that occurred at the premises on 18 or 19 January 2016. On 10 May 2022, Ms Betts applied for a subpoena for the same police report; the material sought under the subpoena was returned on 23 May and Ms Bonke applied under section 53 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) for interim orders, objecting to the returned material being made available to the respondents. Release of the material was stayed; I heard the objection on 6 June 2022 and lifted the stay, so that the material returned under subpoena was then made available to the respondents. The same material sought under freedom of information came with redactions, and so the version before the parties and the Tribunal was that returned under subpoena.
5. Reference is made below to various documents from the material outlined above that the parties put on as evidence; one critical document is a compilation of text messages from November 2015 to February 2016. All three of the parties provided this compilation; when I have quoted it, I have used the version attached to Mr Hennock’s witness statement (identified as ‘text message compilation’) because it identifies separately by number each extracted section, making references easier to find.

The issues

6. Several sets of issues arise for resolution in this matter. The first set of issues concerns the nature of the agreement entered into by the respondents to occupy the applicant’s premises. A number of other issues are more readily framed once that is resolved, because the rights and obligations of both applicant and respondents depend on the nature of that agreement. These preliminary issues can be identified as:

   (a) whether a binding agreement was formed between the parties;

   (b) if so, the nature of that agreement; and

   (c) the essential terms of any agreement, in particular any amount to be paid by the respondents and when the agreement started and finished.

7. The question posed above regarding the existence of a binding agreement reflects some of the uncertainty surrounding what the parties might have agreed on. If the answer to that question is sufficiently unclear, it might be that any agreement between the parties regarding occupation of the premises is void for uncertainty. If an agreement were in fact formed, the leading options for the kind of agreement are a residential tenancy agreement, an occupancy, and a contractual licence to enter the property and undertake various activities. For the reasons explored below, I have concluded that from 12 December 2015 until their departure, the respondents were in a residential tenancy agreement with the applicant.
8. The nature of the agreement having been decided, the following further issues flow from that decision. In part, these issues reflect the rights and obligations of the parties under a residential tenancy agreement:

   (a) What were the terms of the residential tenancy agreement other than those already specified?

   (b) What obligations under the agreement were met and failed by each of the parties?

   (c) What compensation does each party owe, and to whom?

The legislative framework

9. If the agreement entered into between applicant and respondents was a residential tenancy or occupancy, then the governing legislation is the Residential Tenancies Act 1997 (the RTA). At the time of the events that this matter relates to, the applicable version of the RTA was version R46, which applied between 13 November 2015 and 8 March 2017. In what follows, therefore, a reference to ‘the RTA’ is to the Act as it stood at the time of the events set out in this decision.
10. The RTA sets out a number of obligations that apply to the lessor and tenant under a residential tenancy agreement. Some of these are in the Act itself and some are in Schedule 1 to the Act, which sets out the standard terms of residential tenancy agreements. These standard terms become the terms of the contract between lessor and tenant as provided in section 8 of the RTA. These terms repeat, or reinforce, or supplement, what is set out in the RTA itself.
11. If the respondents were present under a licence to be on the premises and undertake work, then in general it would be the common law, especially the law of contract, that would determine the rights and obligations of the parties.

The evidence

12. As noted above, there was a witness statement from each party, and all three gave evidence under oath and were cross-examined. There were very significant contradictions, however, on a number of matters relevant to the issues to be decided. The parties exhibited at times a remarkable recall of details from particular dates more than six years ago, and at other times forgot details they might have been expected to remember. The applicant has in her various statements and submissions advanced a number of alternative lines of argument as she is permitted to do, but these alternatives rely on sets of facts which are inconsistent with one another – that is, the applicant seems to me to have made assertions of fact that cannot all be true at the same time. Some of the evidence given at the hearing seemed inherently very unlikely, and that is true for all three parties. Indeed, none of the parties impressed me as witnesses on whose evidence I could completely rely. Accordingly, wherever possible, I have preferred to rely on the contemporaneous documentation, especially where it originates with third parties. I have viewed with scepticism evidence that is without any corroboration from the documentary material. I have also dealt cautiously with evidence that meets too obvious a test of convenience or where a party puts forward evidence that no other party is in a position to contradict. I have also kept in mind that Ms Betts and Mr Hennock admitted to preparing their witness statements in cooperation with each other. While it is common for parties in their position to make contact and check their memories against each other, their witness statements are close to identical, and that may carry implications for the extent to which they can be relied on to corroborate each other.
13. It is also perhaps worth making the obvious point that the events the subject of the application are highly irregular, with frequent departures from compliance with the RTA. In these highly irregular arrangements, all the parties seem to have taken part without any of them attempting to put the matter into a more compliant and manageable framework; it is not as if one side were a victim of the other’s irregular behaviour. Nevertheless, the RTA places particular responsibility on a lessor to set up a tenancy in specific ways, and Ms Bonke showed herself only too willing to depart from those requirements where it suited her.
14. There are four main areas where questions of fact need to be determined. These, taken in turn below, are the facts surrounding entry into the agreement to occupy the premises, in November and December 2015; the events of 17 to 19 January 2016; the condition of the premises when first occupied by the respondents; and the condition of the premises when vacated by the respondents.
15. It is perhaps worth noting at the outset that section 82 of the RTA gives this Tribunal jurisdiction to decide residential tenancy disputes about an agreement that is no longer in force, provided that the Act applied to the agreement when it was in force, and the application has been made no more than six years after the events, or the last day of the events, that gave rise to the dispute. Ms Bonke’s application was made on 19 January 2022, which means that she came within this limitation by a few weeks, the events having come to an end around 22 February 2016; that brings the matter within jurisdiction, with the proviso that this is a matter that properly falls under the RTA.

Entry into an agreement to occupy the premises

16. The first and threshold question is whether a binding agreement was entered into by the parties.
17. Ms Bonke advertised the house on the marketing website Gumtree on 3 November 2015 under the heading “Stunning Red Brick Home in quite street in Page ACT 2614 $410.00” (sic – presumably $410 was a weekly rent).^[1] Mr Hennock responded expressing interest on 20 November 2015: “ Hey I was just wondering if you still have the house in page available ...”^[2] On 22 November 2015, Ms Bonke responded by email as follows: “G’day S, House ain’t ready. Unless you want to rent it unpainted for $390/week. Otherwise it will be a couple more weeks away. Sorry for the delay.”^[3] Mr Hennock replied by text message on 28 November 2015: “Hi there I will take the house Ill give you a call this arvo just flat out at work sorry”. Ms Bonke replied “OK. talk then”.^[4]
18. There is a good deal of evidence in the witness statements and given in oral evidence about the period leading up to and immediately following this point, especially relating to whether the parties agreed that the respondents, as part of the conditions for occupation of the premises, would paint the premises and have their efforts recognised in a discounted rent. In a letter of 21 January 2016,^[5] Ms Bonke set out various matters relating to the understanding she said that she had with the tenants; part of that understanding, she said in the letter, was that they would finish the painting that needed to be done and sand and seal the floors of some rooms. This was to have been complete by 13 December 2015 and would be paid at $20 per hour. In her supplementary statement, Ms Bonke said that the respondents had only done some of the painting at the time of her departure from Canberra, and when she left Canberra to fly to Queensland on 12 December 2015, “the respondent had been painting when I had to leave to go to the airport”. Yet in her response to the witness statements of the respondents, Ms Bonke says that there was no agreement that the respondents would paint, and in fact, she did all the painting herself.^[6] To the contrary, Mr Hennock lists extensive days and hours in his witness statement when he says that he was painting the house.^[7]
19. As explored below, the evidence as to who did the painting and when is contested and unsatisfactory. Regardless of what might have been agreed between the parties about the painting, however, it is common ground that the respondents, along with Mr Hennock’s two children, moved into the house on 12 December 2015, and on that same day Ms Bonke left Canberra by air, expecting to be away for a few days, but instead being absent for about five weeks. She returned on 13 January 2016. During her absence, she continued to have an exchange with the respondents by text message and email, dealing with issues such as work that was done in her absence on the front fence (completed on 27 December 2015).
20. That much is common ground or can be gleaned from the documentary evidence. At different times, to different people and in different statements, the parties have presented the agreement in different terms – what might have agreed by telephone, what discount might have been offered for painting or other work done, when the respondents were to start paying rent, who in fact did the painting. The evidence is contested at every step on these points, and in most cases, there is little or no corroborative evidence.
21. The RTA sets out the rules governing residential tenancy and occupancy agreements in the ACT, but it does not dictate any special or particular rules about how such agreements ought to be construed. Such agreements are contracts, and their interpretation follows the rules of contract law. Most agreements are written, and this provides certainty about the terms; what is more, when a contract is fully set out in writing, the parol evidence rule precludes the use of extrinsic evidence to construe the contract. The present matter, however, concerns an agreement – if there was such an agreement – that was largely not committed to written form, and I am compelled to rely on an incomplete exchange of text messages and emails to understand what the parties said to each other and what promises they may have made. In that process extrinsic evidence, such as context and conduct of the parties, may be of help.^[8]
22. The definition of a residential tenancy agreement at the time of the events is given in section 6A of the RTA:

    What is a residential tenancy agreement?

    (1) An agreement is a residential tenancy agreement if, under the agreement—

    (a) a person gives someone else (the tenant) a right to occupy stated premises; and

    (b) the premises are for the tenant to use as a home (whether or not together with other people); and

    (c) the right is given for value.

    (2) The agreement may be—

    (a) express or implied; or

    (b) in writing, oral, or partly in writing and partly oral.

    (3) The right to occupy may be—

    (a) exclusive or not exclusive; and

    (b) given with a right to use facilities, furniture or goods.

    (4) This section is subject to the following sections:

    • section 6D (Certain kinds of agreements not residential tenancy agreements)

    • section 6E (Certain people given right of occupation not tenants)

    • section 6F (Certain kinds of premises mean no residential tenancy agreement).

23. The definition of an occupancy agreement is given in section 71C:

    What is an occupancy agreement?

    (1) An agreement is an occupancy agreement if—

    (a) a person (the grantor) gives someone else (the occupant) a right to occupy stated premises; and

    (b) the premises are for the occupant to use as a home (whether or not with other people); and

    (c) the right is given for value; and

    (d) the agreement is not a residential tenancy agreement.

    (2) The agreement may be—

    (a) express or implied; or

    (b) in writing, oral, or partly in writing and partly oral.

    Note After 6 weeks, the occupancy agreement should be in writing (see s 71E (c)).

    (3) The right to occupy may be—

    (a) exclusive or not;

    (b) given with a right to use facilities, furniture or goods.

    (4) The person given the right to occupy the premises may be—

    (a) a boarder or lodger; or

    (b) someone prescribed by regulation for this section.

    Note This Act does not apply to nursing homes, hostels for aged or disabled people or other prescribed premises (see s 4).

24. It is apparent from these definitions that the scheme the RTA establishes is that where one person gives another the right to occupy premises as a home, for value, the agreement covering that arrangement is a residential tenancy agreement unless the agreement falls under one of the defined exceptions. Sections 6B and 6C specify that in certain particular circumstances, which might otherwise lead to doubt about the agreement, the arrangement is a residential tenancy agreement; and sections 6D, 6E and 6F specify circumstances where the arrangement is not a residential tenancy agreement; these exclusions include where the occupation of the premises arises under a mortgage, or as a holiday rental, or for occupation of a caravan or mobile home in a mobile home park, or a hotel or motel, or a club or an educational institution. The examples also include one potentially relevant exclusion, which is where the person occupying the premises does so as a boarder or lodger (section 6E(1)(b)), a form of occupancy also implied by section 71C(4)(a).
25. Section 8 of the RTA includes into each agreement between the lessor and tenant, expressly or impliedly, all the standard terms set out in the Schedule to the RTA. Even where, as here, the express agreement is extremely limited and informal, the standard terms nevertheless are taken to be included. Thus, the definition of a residential tenancy agreement is very broad; even where the agreement is implied rather than explicit, once section 6 establishes that it is a tenancy agreement, section 8 then implies the entire set of rights and obligations set out in Schedule 1 of the RTA into the agreement. In the case of an occupancy, section 71E of the RTA sets out “occupancy principles” that must be taken into account in considering a matter or making a decision about an occupancy. Many of the rights given to tenants by the standard terms under a residential tenancy have their equivalent in the occupancy principles; for example, principle (d) is that “an occupant is entitled to quiet enjoyment of the premises” which is broadly similar to standard term 52 under a residential tenancy. It follows that the distinction between residential tenancy and occupancy may not be significant in a particular instance.
26. The exchange of emails and text messages from 20 to 28 November 2015 suggests to me that Ms Bonke made an offer to allow the respondents to occupy the house for the payment of rent with the rent revised down from her advertisement of earlier in the month. The timing of the messages suggests that Mr Hennock’s acceptance on 28 November 2015 (“I will take the house”) can only be for the house as unpainted, since Ms Bonke had said that it would be longer if they were to wait for the house to be repainted. Mr Hennock’s message can only be understood as acceptance of an offer to live in the house and pay rent for it. This was an agreement that the tenants would occupy the house as a home (it is common ground that Mr Hennock, Ms Betts and Mr Hennock’s children moved into the house on 12 December 2015); and it was for value.
27. Ms Betts and Mr Hennock contended that the arrangement was different from that outlined above. They say that they reached an understanding with Ms Bonke that they would be liable for rent once the painting of the house was complete, the oven was repaired, and the back fence had been made secure enough for their dogs. This is not an impossible proposition: it is at least conceivable that a tenancy agreement was arrived at, but that the parties agreed that no rent should be paid until a certain level of amenity had been provided at the premises. Some later messages seem potentially consistent with an arrangement of that kind. When Ms Bonke asked for $2,460 in order to pay for the replacement for the back fence, in a text message exchange of 17 January 2016, Mr Hennock replied “... I thought bond will be paid when kitchen was done or at least an oven” and when Ms Bonke insisted, replied “... you said you were going to replace the kitchen and stove and I want at least an oven so as I can cook properly”. Mr Hennock followed that up with the message: “And you also said rent was 380 so 2460 is wrong”. Ms Bonke’s response was “All good. How much money r u going 2 give me 2morrow?”. It is possible to read Ms Bonke’s “All good” as an acceptance of the proposition that it had not yet been settled that rent was currently owed.^[9]
28. This is not the only evidence on the issue. Ms Bonke has contributed herself by an assertion in her witness statement that she had an oral exchange with Mr Hennock in December 2015 before leaving Canberra, in which he told her that he did not have money to pay a bond. She then continued: “I decided not to take any rent or have a lease signed. I let Mr Hennock know that I could not give him any keys to the property but left the paperwork.”^[10] It appears that “the paperwork” is a reference to an incoming condition report.
29. It is difficult to know what to make of this assertion. On the one hand, it could be read as an admission by Ms Bonke that she was prepared to allow the respondents to occupy her house without paying rent, unlikely as that might seem. Perhaps more likely is that this is put forward as an explanation of why no rent was demanded at the start of the occupation of the house when it would be usual to have rent paid for an initial period. But then, the assertion, made six years after the events in question, seems to lack logical coherence. I note that Mr Hennock denies ever having said that he and Ms Betts had been unable to pay a bond as he says they were both employed at the time. Even if he had made the statement Ms Bonke attributes to him, the leap to not entering into a lease seems illogical; and without a residential tenancy agreement, what was the purpose of a condition report? Other possible explanations seem more likely to me; for example, perhaps Ms Bonke was anxious to be paid rent in cash, and when her absence from Canberra was extended, found herself unable to collect from the respondents for a longer period than she had expected. I can only conclude that this is another example of Ms Bonke dressing up the events of late 2015 and early 2016 to suit some purpose she now identifies. In the absence of any corroboration of the assertion, I do not believe that it should carry much weight in my analysis of the nature of the agreement struck by the parties.
30. The main problem with the contention put forward by the respondents for not having to pay rent – and with the assertion by the applicant, considered immediately above – is that there is no shred of evidence from the time when the tenancy agreement was entered into that it came with qualifications about when the obligation to pay rent would start. Such a qualification would surely have been fundamental, and there would be some reference to it at the time the agreement was reached. There is none, or at least, none is recorded. As I read it, Ms Bonke did not clearly state when the rental obligations would begin and made no attempt until mid-January to extract rent from the respondents. Mr Hennock and Ms Betts appear to have tried thereafter to delay or minimise any financial obligation they might be under. It seems that when the time came for Ms Bonke to pay the fencer, she was perhaps faced with a cash flow challenge and accordingly did her best to persuade the respondents to pay enough to meet her immediate needs. However, despite Ms Bonke’s failure to demand rent any earlier, I do not think that the evidence as a whole allows me to accept that the agreement reached by Ms Bonke and the respondents was that the respondents could occupy her house for an extended period without paying rent.
31. In her letter of 21 January 2016, Ms Bonke suggests that she was expecting to occupy one of the bedrooms of the house when she was in Canberra, but that on returning to Canberra on 5 January 2016, she had found that Mr Hennock’s children were there, and all bedrooms were occupied. If the agreement was that a bedroom would be kept for Ms Bonke’s use, that puts it on a potentially different footing. It might be possible to conclude that it was an occupancy agreement under section 6E(1)(b) of the RTA, which specifies that where the person given the right to occupy premises is a boarder or a lodger the agreement conferring that right is not a residential tenancy agreement. But there is no evidence from the start of the tenancy that that was the basis on which the agreement was entered into; once the respondents moved in they completely occupied the premises, apparently leaving no room for the applicant; and around the events of 18 to 19 January 2016, the respondents sent a sternly worded message that they needed two weeks’ notice of any intention of the lessor or her agents to enter the premises. At the outset, neither the advertisement of 3 November 2015 (“Stunning Red Brick house in ... Page $410”) nor the critical email/text message from Mr Hennock (“I’ll take the house”) suggests that occupation of the premises came with such a significant qualification. The facts of the occupation of the premises – whatever Ms Bonke’s intentions might once have been – are inconsistent with an occupancy.
32. I have also considered whether the respondents might have been present under a licence: a tradesperson who enters premises to undertake work, for example, does so under an implied licence to be on the premises. But while the respondents might have been operating under such an implied licence up to 12 December 2015, while (they say) they were painting the house but not living in it, from that date on the evidence is clear that they were living in the house, Mr Hennock’s children were with them, and they had an agreement to pay rent. The text message exchange of 17 January 2016 referred to above, when Mr Hennock queried the rental amount Ms Bonke was asking for, is compelling evidence that they had accepted that their occupation of the house was for value, even if the amount of the weekly rent was in dispute. And if at any stage there was a contractual licence, the evidence is so uncertain, sketchy and contested that, as explored below, the terms of such a contract cannot be determined and any contract would be void for uncertainty.
33. Accordingly, the arrangement, although clearly irregular in a number of ways, was a residential tenancy agreement: it was for occupation of the premises as a home; it was for value; and none of the exceptions apply. The text message and email exchange in late November 2015 is a record of the agreement entered into. There is an implied promise by Mr Hennock to pay rent and an implied promise by Ms Bonke to allow the house to be occupied. Some of the other evidence, considered later in this decision, might lend itself to alternative conclusions; but for the reasons given, I have not found that it does so with the necessary persuasion.
34. My conclusion that the agreement was a residential tenancy agreement still leaves a further question to be resolved: whether there was sufficient certainty about the essential terms of the agreement for it to be enforceable. In what follows, I draw on the analysis offered by Anforth et al^[11] which puts forward five essential terms about which certainty is required for a residential tenancy agreement to be formed. The five terms are: the identity of the parties; the premises; the duration of the tenancy; the rent; and the commencement of the tenancy.^[12]
35. The first point is that the initial exchange between Ms Bonke and Mr Hennock does not mention Ms Betts, leaving the possibility that the tenancy extended only to Mr Hennock. When he accepted Ms Bonke’s offer, he texted “I’ll take the house” without reference to Ms Betts. When Ms Bonke applied to the Tribunal in this matter, she nominated Mr Hennock only as the respondent. The Tribunal’s decision to join Ms Betts as a party is one clear signal, but if any doubt remains there might be added Ms Betts’s close engagement with Ms Bonke from the early part of the arrangements; her presence in the house with Mr Hennock at the time of Ms Bonke’s departure from Canberra on 12 December 2015 and thereafter until she and Mr Hennock left the premises; her exchanges of emails and text messages with Ms Bonke regarding the house; and the absence of any attempt by Ms Betts to distinguish her interests from those of Mr Hennock. I am satisfied that the acceptance of Ms Bonke’s offer was made by Mr Hennock on Ms Betts’s behalf as well as his own, and that they occupied the premises together as joint tenants.
36. There is no dispute about the identity of the premises at [address redacted], in Page, in the ACT.
37. No duration for the tenancy was spelt out in the exchanges relating to occupation of the premises. However, the necessary certainty is given by standard term 5 in Schedule 1 of the RTA which provides that a tenancy with no fixed term is a periodic tenancy.
38. The exchange of text messages in late November 2015 agreed on rent of $390 per week. The rent advertised by Ms Bonke in early November 2015 was $410 without specifying the period for which that was payable, but her amended offer of 22 November 2015 was for “$390/week” on the basis that the house was unpainted, and the message of 28 November 2015 from Mr Hennock can best be understood as acceptance of that reduced rent. Ms Bonke tried to assert a rent of $410 per week when she first demanded payment, and she says that was the rent set in a telephone conversation with the respondents at the time. She has made her present claim on the basis of that figure, but her assertions are uncorroborated and seem simply an attempt to maximise returns. They are not aligned with the agreement she entered into.
39. Certainty is given to the start of a residential tenancy agreement by section 7 of the RTA, which reads as follows:

    When does residential tenancy agreement start?

    A residential tenancy agreement starts on the earliest of the following days:

    (a) the day stated in the agreement;

    (b) the 1st day both parties have signed the agreement and received a copy signed by the other;

    (c) the day the tenant takes possession of the premises;

    (d) the 1st day the lessor receives rent from the tenant.

40. The relevant date in the present case is 12 December 2015, the date the respondents moved into the premises, since none of the other events triggering the start of an agreement occurred at any time. The respondents say they spent time in the house doing painting up to 12 December; any such work was done under a licence – implied or express – to be on the premises. The tenancy agreement had not started, as they had not occupied the premises.
41. There is enough certainty about the essential terms to allow the conclusion that a residential tenancy for the premises was entered into by the parties, commencing on 12 December 2015 at a rent of $390 per week.
42. As for when the tenancy came to an end, section 36 of the RTA states that a tenant can give a notice of termination to the lessor and vacate the premises in accordance with the notice. Two different standard terms refer to termination by a tenant. Standard term 84 states that if a tenant gives the lessor a notice of termination and vacates in accordance with that notice, the tenancy terminates on the tenant’s vacation. The lessor can then accept the termination or apply to this Tribunal for confirmation of the tenancy, compensation, or both. Standard term 88 applies in particular to periodic tenancies; it requires the tenant to give at least three weeks’ notice of an intention to vacate; the tenancy then ends on the date specified in the notice. It appears that term 84 is intended to be used when a tenant is ending a fixed term tenancy (thus reflecting section 84 of the RTA) and term 88 is intended for use in a periodic tenancy. It is the latter term, then, that applies to present circumstances. The respondents gave five weeks’ notice and specified 22 February 2016 as the date of vacation. They say that they actually left the premises on 16 February, but that date is uncorroborated, and it is not the date specified in the notice of termination. My conclusion is that the tenancy came to an end on 22 February 2016.

Was there a term to make improvements to the premises?

43. The respondents’ witness statements and some of those of the applicant suggest that the tenancy agreement came with a rental discount for work done on the house. The parties’ accounts of what was agreed and the path to that agreement, show considerable divergence.
44. Section 15(1) of the RTA, however, provides that the only consideration a lessor may require or accept for the right to occupy premises is rent or a bond. Section 15(3) goes further, specifying that a requirement that a tenant make repairs to premises is taken to be consideration (and standard term 65 reinforces the point by prohibiting a lessor from requiring tenants to make improvements to premises). The result of applying these provisions is that in requiring or accepting painting of the house or any other work by the tenants in substitution for rent, Ms Bonke was engaging in a contractual arrangement inconsistent with section 15 of the RTA.
45. Sections 8, 9 and 10 of the RTA deal with the terms of a tenancy agreement. Section 8 adopts the standard terms into each agreement and provides in paragraph 8(1)(d) that an agreement may include other terms consistent with the standard terms, and terms inconsistent with the standard terms if they have been endorsed by this Tribunal. Section 9 provides that a term is void if it is inconsistent with a standard term and has not been endorsed by this Tribunal and is void if inconsistent with the Act. A term by which a lessor requires or accepts consideration other than rent or a bond is inconsistent with section 15 of the Act and is therefore void.
46. There is a long list of cases in which this Tribunal has found terms void for inconsistency with section 15 of the RTA. The nature of the additional consideration has varied considerably: repayment of a debt;^[13] a guarantee (in addition to or in excess of the bond);^[14] paying for electricity and water supply;^[15] a fee for supplying keys to the premises;^[16] a fee for supply of the written tenancy agreement;^[17] and, in cases similar to the present matter, work done to improve the rented property.^[18]
47. The evidence about who painted various rooms of the house and when, is again divergent. It seems that the front hallway, the three bedrooms, the living room and the walls of the bathroom were painted by 12 December 2015, and little or no painting was done after that date. The respondents listed a number of days in which they claimed to have painted leading up to 12 December 2015, complete with a detailed and precise record of the hours on each day.^[19] Ms Bonke claimed to have painted in late November those parts of the house that were painted. She included as attachments to her response a number of photographs of painted rooms each accompanied by a digital record including a date to attest to this work. This evidence sits strangely with some of Ms Bonke’s evidence in her witness statements, for example in her further statement of 5 June 2022, she says that the respondents had painted a little, but when she departed for the airport on 12 December 2015, they were in the house painting.
48. I cannot accept the evidence on either side as convincing. How can the respondents have such a detailed recollection of the hours they put in more than six years ago? And if they kept a ledger or diary, would not that have come forward as evidence? As for Ms Bonke’s record, given the contradictions and inconsistencies in her various versions of the matter, I would need something more compelling before I would accept her photographic record – perhaps expert evidence regarding the digital records of her photographs, including persuasive links between those photographs and the premises in the present matter. In my view, neither the applicant nor the respondent has satisfactorily made a case for having completed the painting.
49. Since the term of the tenancy agreement relating to the painting is void, any contractual arrangement must be regarded as a separate contract, not falling under the tenancy agreement. Payments have been ordered under such contracts,^[20] but only where the tribunal was persuaded of the existence of a contract and of the work done by the tenant. I am not so persuaded on either front in this case; the terms of any contractual arrangement are uncertain, probably to the point where any contract is void for uncertainty; and while I think it likely that the respondents, or perhaps mainly Mr Hennock, did some painting, I do not have any evidence that could form the basis for determining an amount of payment. Accordingly, I decline to make any order in this matter in relation to the painting or any other work that may have been done on the premises by the respondents.

Rent

50. During January 2016, Ms Bonke contracted with a fencer to have the back fence replaced. On 17 January 2016, Ms Bonke, who at this stage had not received any payment of rent for the property, initiated a text message exchange with Mr Hennock as follows:

    Bonke: need2 get $2460 off u 2morrow/monday. fence is $1260 so need money by 1pm. can travel 2 meet up with u if I hav 2. ... wil get in am

    Hennock: ... I thought bond will be paid when kitchen was done or at least an oven

    Bonke: No. U hav thought incorrectly. Bond is paid at start of any tenancy n not when certain things r done. The kitchen window needs 2b fixed2 so I can paint frame. ^[21]

51. At a later point in the exchange:

    Hennock: And you also said rent was 380 so 2460 is wrong

    Bonke: All good. How much money r u going to give me 2morrow? Pls let me no.n were we can meet. I need2 sort out with fencer n delay job if he is not goin 2b paid in full^[22]

52. Mr Hennock’s account of this was that Ms Bonke had asked for a large amount to be paid in cash as a bond. His father had told him that a bond should not be paid in cash to a lessor, but rather the bond should be deposited with the government rental bonds board, and Ms Bonke had not made the arrangements – such as bank details or what he described as a ‘bond board number’ – so this could be done. Mr Hennock insisted that there was no impediment to his paying any of these amounts if arrangements had been properly set up as both he and Ms Betts had been in employment.
53. In a letter to the respondents dated 21 January 2016,^[23] Ms Bonke included a demand for six weeks rent totalling $2,460 and gave details of a bank account into which it could be paid. In that letter, she also stated that the respondents had agreed to stay at the property “instead of a motel”; to pay rent at $410 per week starting on 12 December 2015; and to keep one bedroom for her to occupy on her return to Canberra. She also said that on returning to Canberra, she had dropped off the curtains at the house, discovered that no further painting had been done and that the house was fully occupied so that she could not stay there. Finally, Ms Bonke laid out the amounts of rent that she said would be required to the end of the tenancy on 22 February 2016, namely a total of $4,275.71, consisting of rent for ten weeks and three days.
54. The respondents paid no rent to Ms Bonke for the period that they stayed in her house. It was their contention that the understanding reached was that rent would only be due once some of the deficiencies of the house were remedied – the house painted and fenced and the oven operational.
55. Standard term 26(1) requires that the tenants pay the rent on time. Although no clear schedule for payment of rent was ever set, the tenancy was taken up on the basis of a weekly rent of $390, and Ms Bonke made a demand for payment on 17 January 2016. I note that that demand did not specify the basis on which payment was sought. The respondents referred to it as a request for a bond, but also queried the amount on the basis of a weekly rent. Ms Bonke did not help her case by being so unspecific about the kind of payment she was seeking. Regardless, the respondents occupied the premises, and they are obliged to pay rent for having done so. They occupied the premises for ten weeks and three days, meaning that, at $390 per week, the total rent owed is $4,067.14.

The events of 18 and 19 January

56. The respondents obtained, under subpoena, a police report relating to events at the premises on 18 or 19 January 2016. The report appears to be a record of a telephone conversation (the telephone record) followed by a report of a visit by police to the premises (the visit report), prompted by the conversation. The telephone record is dated 18 January 2016, and the visit report is dated 19 January 2016. In general, the evidence points to the events occurring on a single day; indeed, the reports taken together can only be sensibly understood if treated as the events of a single period of time in which the police visit is a response to the telephone call and made immediately after the call. It seems likely that the attending police made notes at the time and later transcribed them, possibly inserting a wrong date. Nonetheless, it seems to me that nothing turns on whether the events took place on 18 January or 19 January, and I have proceeded on the basis that I do not need to determine which date applies.
57. The telephone record, from 19 January 2016 is as follows:

    POI: KELFEY BETTS POI WAS PREVIOUSLY A HOUSE SITTER SHE KEEPS COMING TO THE PREMISES AND WON’T LEAVE WHEN ASKED SHE IS THERE NOW POI’S VEHICLE IS PARKED OUT THE FRONT COMP CAN’T SEE THE POI AT THE MOMENT BUT NO ONE IS IN THE VEHICLE POI PREVIOUSLY CHANGED LOCKS ON THE COMP’S HOUSE AND REFUSED TO LET HER IN...

    ...

    ANOTHER CALL FROM COMP STATES FEMALE IS STILL AT LOCATION...

COMPL IS ABUSIVE ON THE PHONE...

***COMPLAINANT FROM [address redacted] – [address redacted] THINKS IT IS [THE PROPERTY] – LOTS OF YELLING AND SCREAMING***...

COMP HAS CALLED BACK – STATES THAT THERE IS PEOPLE IN HER HOUSE THAT HAVE BROKEN IN AND ARE STEALING HER STUFF...

58. The visit report reads as follows:

    About 12.03 hours on Tuesday 19 January 2016 police entered [address redacted] Page, ACT, in response to a reported disturbance at the location.

Police spoke with Kelsey BETTS now known as the complainant. The complainant stated her landlord (Juanita BONKE) attended the location without notice while BETTS and her partner Shane HENNOCK where not present. The complainant states that when she arrived home to [address redacted], BONKE was inside the premises with the door locked telling the complainant that she had to go because she is trespassing.

Police spoke to Juanita BONKE, who told police that the property had previously been advertised on Gumtree for rent and that is how she met her current tenants. BONKE explained that the complainant and HENNOCK had agreed to help BONKE renovate the premises as it was currently not ready to be tenanted. (the oven doesn’t work, painting and floor coverings were to be replaced), with a view to taking on a permanent tenancy.

BONKE allowed the complainant and HENNOCK to “house sit” the premises while she was away. BONKE was of the understanding this would be for three days while she was away from Canberra. Subsequently BONKE did not return to Canberra for 5.5 weeks. At the time BONKE allowed the complainant and HENNOCK to house sit, BONKE was not in possession of the front door keys and did not provide any keys to the complainant and HENNOCK. Due to the considerable time BONKE was away from the ACT, the complainant and HENNOCK installed a new front door lock to enable them to secure the premises.

Upon return to the ACT, BONKE told the complainant and HENNOCK to vacate the premises, calling them trespassers after the complainant and HENNOCK refused to directly pay BONKE a cash bond. Due to having moved considerable personal items into the home, the complainant and HENNOCK agreed via text message with BONKE for the complainant and HENNOCK to move out on 22 February 2016.

Shortly after the complainant and HENNOCK arrived at the location an altercation took place between the parties. The complainant sustained scratch marks to her chest and BONKE was struck to the nose, resulting in a minor injury. Police received differing versions of events from the two parties. Neither the complainant and HENNOCK or BONKE wished to provide statements to Police regarding the alleged assaults. The complainant described the situation as “pathetic” and apologised for requiring Police attendance.

BONKE made several further accusations regarding alleged property damage but would not provide a formal statement to Police.

The complainant agreed to make a front door key available to BONKE’s estate agent for the purposes of showing prospective new tenants through the property. The complainant and HENNOCK will vacate the property on 22 February 2016.

The complainant and HENNOCK will seek a protection order through the courts.

...

59. The police report includes a statement that no offences were disclosed.
60. Mr Hennock’s oral evidence was that on 18 January 2016 Ms Betts had called him from work, saying that Ms Bonke was in the house and that they (the respondents) were not allowed back in the house. Ms Betts then went to the house, and he arrived 20 minutes later. He had a key to the front door, and went in, pushing aside some barricading that he said Ms Bonke had put in the way; Ms Bonke attacked him. He was able to get her out of the house. Shortly afterwards, the police arrived. Ms Bonke told them that he and Ms Betts were house sitting for her and she wanted them out of the house. The police separated lessor and tenants. Mr Hennock suggested at the hearing that Ms Bonke had either broken in, or else a neighbour had let her in after entering through the roof cavity and the ceiling manhole.
61. Ms Bonke said at the hearing that the events of 18 January 2016 were ‘irrelevant’. She later said, under cross-examination, that on 18 January she was at the property with the respondents’ knowledge and permission trying to complete the painting. She had no need to break into the house, as she had a key to the back door. Ms Betts came home, became angry and started making accusations. She (Ms Bonke) became scared and rang the police. She said that at this point Mr Hennock left the house and went to talk to the neighbours. In her supplementary statement, Ms Bonke levelled accusations at the respondents with regard to the presence in the house of drugs and drug paraphernalia, saying that Ms Betts had flushed the drugs down the toilet and put the paraphernalia in her car before the police arrived.
62. Following these events, Ms Betts took out an apprehended violence order against Ms Bonke, and Ms Bonke took the same action against Ms Betts and Mr Hennock.
63. Although the evidence about the events over these days is contested, the broad outline seems clear. Ms Bonke entered the premises when the tenants were absent, had a confrontation with the tenants on their return, and either before or after that confrontation, called the police. I have mainly relied on the police reports, as well as on any points in the oral evidence on which the parties are in accord with each other.
64. Ms Bonke says that she arranged with the respondents to enter the premises in order to paint them. That is at odds with the evidence of the tenants, and it is their evidence that I prefer on this point. Their precipitate departure from their workplaces in order to return to the premises suggests to me that the applicant entered the premises without prior arrangement or warning. There was a good deal of oral evidence about who among the three parties had a key to which door (front and back) to the premises, although no submissions were made to me about the significance of this point. However, I assume that Mr Hennock and Ms Betts wished to corroborate their account that Ms Bonke had broken into the premises, possibly with the help of a neighbour, and for her part Ms Bonke wanted to establish that, to the contrary, she had entered using her own key. The evidence is inconclusive on the point, so far as I can see; but I am satisfied that Ms Bonke entered the premises without the authority of her tenants and did her best to persuade the police to compel the tenants to leave. The police report records that Ms Bonke suggested that Ms Betts and Mr Hennock were merely house sitters, with no continuing right to be on the premises. Ms Bonke suggested that the police had made an inaccurate report on this latter point, but I can see no reason why I should prefer her account to that of the police.
65. There were additional points made in evidence, some with a degree of heat. Ms Betts said at the hearing that Ms Bonke locked Mr Hennock’s dogs in the garage in the summer heat, for an extended period; Ms Bonke denied doing so. The police record that both Ms Betts and Ms Bonke suffered minor injuries, apparently as a result of a scuffle.
66. Regardless of what appears to be a mutual assault, and regardless of what might have happened to the dogs, this was an extraordinary breach of the tenants’ right to peace, comfort and privacy.^[24] The tenants had been resident for a month in the premises without paying rent and without having paid a bond, and it is reasonable that Ms Bonke might have wished to take action to remedy the situation; but the applicant had in the RTA a way of dealing with tenants who did not pay rent, through the usual processes of notices to remedy and to vacate, and if necessary application to ACAT for a termination and possession order. A breach by one party to a contract does not entitle the aggrieved party to commit a breach in retaliation; doing so merely leaves both parties in breach. In invading the premises as she did, Ms Bonke breached standard term 52 in an egregious fashion.
67. Standard term 52 reads as follows: “The lessor must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use by the tenant of the premises.” Plainly Ms Bonke’s behaviour was a breach of that term, and a serious breach both in its aggressive manner and in the attempts to persuade the police to evict the tenants.
68. I do not see these events changing my conclusion about the nature of the agreement between applicant and respondents. The respondents’ conduct suggests that they thought of their occupation of the premises as giving them exclusive possession, one of the hallmarks of a residential tenancy. As for Ms Bonke, on 17 January, she was trying to extract rent from the respondents, and on the following day she told the police that they had been house sitting and were now trespassing. A house-sitting arrangement generally takes place under a contractual licence, whether express or implied. It would be unusual, to say the least, to ask rent from house sitters; and such a request would give the arrangement with them the appearance of a residential tenancy agreement. It seems that Ms Bonke was willing to present the agreement to others in any way that suited her at the particular moment. But how she represented the agreement to the police bears no connection to how the agreement was struck at the start; and it is the latter that determines the kind of agreement entered into.

The fences

69. Work was done during the period in question on both front and back fences. Ms Bonke said that she arranged for a tradesman named ‘Kevin’ to fix the front fence and gate in December 2015. She entered into a separate contract with a different fencer for the rear fence, and an exchange of emails with that fencer was included in her evidence. The work on the front fence was finished on 27 December 2015 and that on the back fence on 18 January 2016. Ms Bonke asked Mr Hennock to pay Kevin $200 for the front fence; at the hearing she said this was the total for the work done. The fencer complained that he was not paid on the basis he expected.^[25]
70. Mr Hennock said that the cost of the fencing work was $400, and that Ms Bonke asked him to pay the fencer $200, on the basis that she would pay the remainder, and he did so. The fencer gave him a receipt, and he handed that receipt to Ms Bonke. Ms Bonke said that $200 was the full price, and Mr Hennock had not paid it, and that she had later done so. A receipt for that amount was in evidence.^[26]
71. I accept that work was done both on the back fence and on the front fence. Although a good deal was made at the hearing of the work done on the fences, I do not believe that there is much that affects the outcome of the matter. So far as I can see, the respondents accepted the house as it was; there may have been an understanding that the fences would be improved, but that does not appear to have been part of the bargain originally struck and they seem to have made no complaint at the time that the house was unsatisfactory with the fences in an imperfect state. It is clear that this presented a problem for Mr Hennock’s dogs, but he does not seem to have made an issue of the fences at the start of the tenancy. Nor did he make representations at the hearing that the premises were unfit for habitation or insufficiently secure because of the fences.
72. What was more at issue at the hearing was Mr Hennock’s claim that he paid $200 towards the cost of repairing and improving the front fence, that amount being half the total. The statement seems to me implausible. The contemporaneous evidence is that the contractor for the front fence was dissatisfied by whatever occurred on the morning that he finished the work; he did not receive what he was expecting. Although $200 seems decidedly low for work of this kind, I am limited by not having a clear picture of the extent of the work needed. The most likely scenario seems to me to be that Ms Bonke asked Mr Hennock to pay $200 to the contractor, being the entire cost, but he did not do so. The division of a contract price of $400 into two separate payments of $200 seems inherently unlikely, especially while Ms Bonke, who seems to have liked paying in cash, was absent in Queensland. Mr Hennock’s account would also require that he kept custody of the receipt that he said he was given for several weeks before handing it over to Ms Bonke on her return to Canberra. My conclusion is that it is more probable than not that Mr Hennock made no contribution to the cost of repairing the front fence, and I so find.
73. The back fence became an issue for the parties at the time because the need to pay a more substantial sum to the contractor who had done the work occasioned Ms Bonke’s first demand for payment. But the payment she was seeking has already been considered under the heading of rent, and the fact that it was the fence that prompted the demand is of no consequence in respect of the issues to be decided.

The premises at the beginning of the tenancy

74. The evidence suggests that in a number of ways the premises were lacking in some of the amenity that might be expected in rented premises. Among the concerns were the incomplete painting, some of the floor coverings, the curtains and the kitchen, especially the stove.

The kitchen, stove, and oven

75. Mr Hennock said that the stove, a free-standing unit consisting of a cooktop and oven together, did not work properly at any time. He said that when he and Ms Betts moved into the house only one small hotplate on the cooktop was operational and the oven not at all. He had been compelled to use an electric frypan to cook for his children. Despite complaints to Ms Bonke, she had not fixed the stove by the time they had left the premises. At various times, the applicant had made suggestions that she was thinking of redoing or renovating the kitchen and had even obtained quotes for this work, but none of these ideas had ever come to anything.
76. The text message exchange of 17 January 2016 between Ms Bonke and Mr Hennock includes mention of the oven twice by Mr Hennock: “... I thought bond would be paid when kitchen was done or at least an oven”, and later in the exchange, “... you said you were going to replace the kitchen and stove and I want at least an oven so I can cook properly.”^[27]
77. Ms Bonke said at the hearing that the stove was quite old but fully operational. She was contemplating replacing it, but Ms Betts rejected her offer to do so in an email of 4 January 2016. This email read: “... instead of getting the oven replaced I would prefer to wait and get the whole kitchen done. I thought that was the plan.”^[28] Ms Bonke said that she had been planning to do some repairs and renovations, including replacing the stove, and was going to organise an electrician for some of this work, but did not proceed after receiving Ms Betts’s email. After the respondents had left the property, she found that the stove continued to work. In her supplementary statement, however, Ms Bonke admitted that the oven did not work, but said the respondents accepted the house knowing that.

Painting, floors, and curtains

78. It is common ground that on 12 December 2015 some rooms were painted, and some were not; and that no work had been done on any of the floors identified as needing work. At the end of the tenancy, no further painting had been done, so far as the evidence discloses, and the only work done on the floors was the removal of some of the existing finishes, with no further work, such as sanding and sealing, being undertaken by the time the respondents left the premises.
79. It is also common ground that the house was without curtains at the start of the tenancy; and that Ms Bonke supplied curtains for the house, dropping them off on 16 January 2016. Mr Hennock and Ms Betts say that no curtain rods were ever supplied; Ms Bonke said that she supplied rods as well as the curtains themselves.
80. The obligation of a lessor to maintain rented premises, set out in standard term 55, and the obligation of the tenant to care for the premises, during and at the end of the tenancy, set out in standard terms 63 and 64, use as their reference the state of the premises at the start of the tenancy. Thus, tenants may take on a tenancy with premises in a state that is less than perfect; they are free to do so and the requirement for them to maintain the premises and for the lessor to make repairs varies accordingly. But the state of the premises at the outset of the tenancy is not entirely at the discretion of the lessor: standard term 54 sets a minimum standard that premises must meet when the tenancy starts:

54 Lessor to provide premises in a reasonable state at the start of the tenancy

(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).

(3) The lessor or the tenant may change locks (at his or her own cost unless otherwise agreed) with the agreement of the other party (which will not be unreasonably withheld).

(4) The lessor or the tenant may change locks (at his or her own cost) in an emergency without the agreement of the other party.

(5) If a lock is changed, a copy of the key to the changed lock must be provided to the other party as soon as possible.

81. It must be doubted whether the premises in the current matter met this minimum standard. The evidence is quite clear that the premises were not pristine in late November 2015. By 12 December 2015, all the bedrooms, the living room, and the front hallway had all been painted, as well as the walls of the bathroom. So, at the time of occupation, some of the limitations on the house’s level of amenity had been ameliorated, but other rooms remained unpainted or only partially painted. The rent that the parties agreed on reflected the unpainted or partially painted nature of the premises, but it cannot be said to have reflected all the other inadequacies, if only because the respondents were unlikely to have been aware of them until they moved in.
82. The evidence shows that there were no curtains in the house. The evidence is not adequate for me to make a finding on whether Ms Bonke provided the rods for the curtains, but it is plain that, if this ever occurred, it was not before 17 January 2016, meaning that the house was without this level of amenity at the start of the tenancy and for more than a month afterwards.
83. There is also the question of the stove. The evidence on this point is contested. In terms of contemporaneous evidence, there is the message of 17 January 2016 from Mr Hennock asking that at least the oven be repaired, so he can cook; and there is the visit report by the police in which Ms Bonke puts forward the non-functional oven as one of the aspects of the premises that required fixing before the premises could be let. It is clear that there was a problem with the oven; I think it likely that Ms Bonke was being economical with the truth when she said the stove was without any problems; and Mr Hennock similarly when he said that only one hotplate was working. My conclusion is that, on the balance of probabilities, the oven was out of order throughout the tenancy, but the cooktop was operational.
84. Although the evidence regarding the provision of keys and the availability and custody of the keys is somewhat contested, it does not seem to be in dispute that keys to the front door were not given to the respondents. Mr Hennock, a locksmith, said that he made a key to fit the lock on the front door himself; he made that key available to Ms Bonke on 21 January 2016 by leaving it at the police station (as had been agreed with the police at the time of their visit to the premises). But it seems that the tenants had at least one key to the back door (Ms Betts states that this was the case in her witness statement). Although it must have been unsatisfactory not to have been provided with the front door key, I do not think that the house was provided in an insecure state, given that there were locks on the doors and a back door key was available.

The end of the tenancy

85. The respondents said that after the events of 18 January 2016, they decided they did not want to remain in the property and that same day they advised the applicant that they would vacate the property on 22 February 2016. They said that in the event they left earlier, on 16 February 2016, and they tidied the property upon leaving. They did not do a full clean because the property had been run down and untidy when they arrived.
86. Ms Bonke said that after the date that the tenants had nominated to vacate, she had gone to the house and had found that the premises had not been cleaned, the garden was unkempt, and the lawn not mowed. The tenants had left debris of various kinds in the garden and other goods, including abandoned furniture, in the house. Ms Bonke said that the house was very dirty; that she put a great deal of her own work into cleaning it; that the garden was full of rubbish that had to be removed; and that she hired a lawn mower and mowed the lawn herself. Ms Bonke produced photographic evidence of debris in the garden. The tenants had left no forwarding address. Ms Bonke included with her second application incoming and outgoing condition reports.^[29]
87. Section 30 of the RTA specifies the way in which a condition report for premises at entry into a tenancy agreement can be used as evidence later. If a condition report has been prepared, given to the tenant and signed by the tenant, then the condition report is evidence of the state of the premises at the start of the tenancy, taking into account any annotations or disagreements by the tenant. If the report has been given to but not signed by the tenant, then the lessor’s assessment of the condition of the premises in the report is evidence of the state of the premises. If no report has been prepared, then the tenant’s account of the state of the premises is evidence of their state at the start of the tenancy.
88. In the present instance, Ms Bonke provided an incoming condition report signed only by herself and dated 11 December 2015, and an outgoing condition report, again signed only by herself, dated 23 February 2016. The report is evidence of the state of the premises on 12 December 2015 when Ms Betts and Mr Hennock moved in. But section 30 of the RTA does not say that the report is the only evidence; the contradictions between Ms Bonke’s various statements and the absence of signatures of the respondents suggest to me that I should treat the condition report with some caution. It is at least unusual that a lessor who has neglected to prepare a tenancy agreement nevertheless prepares a condition report.

Compensation

89. Section 83 of the RTA allows this Tribunal to make orders for compensation for breaches of a residential tenancy agreement. Both lessor and tenants in the present matter breached many of the standard terms in the tenancy agreement. Whether a breach is a basis for an award of compensation depends in each instance on the consequences – that is, on the detriment and loss of amenity to the other party. One of the obligations of a lessor is to give a copy of the tenancy agreement to the tenants: section 12 of the RTA requires the lessor to give the tenant a copy of the agreement before signing, and also to give various other information to the tenant; section 19 requires a copy to be given to the tenant once signed within three weeks of signing; these requirements are repeated in standard terms 9 and 11. By section 8 of the RTA and standard term 12, the standard terms have effect as terms of the tenancy agreement even if a copy has not been provided. In the present circumstances, therefore, the respondents were bound by the standard terms even if unaware of them.
90. Ms Bonke claimed compensation of $6,209.02 comprising:

    (a) rental arrears of $4,275.71;^[30]

    (b) ten days of rent foregone (because the house needed cleaning and repairs) for $585.71;^[31]

    (c) cleaning expenses of $725;^[32]

    (d) $175 for work on the garden, including hire of a lawn mower at $35;^[33]

    (e) the cost of replacing the broken window at $198;^[34]

    (f) unpaid water consumption of $80.60;^[35] and

    (g) the tribunal filing fee of $169.^[36]

91. The respondents’ case was that the terms of their agreement with Ms Bonke means that they owe no rent; they are willing to pay $200 for the window that they admitted damaging and $80.60 for water they used while staying there. The respondents did not lodge a counterclaim seeking compensation for breach of a tenancy agreement. Since their principal line of argument was that no tenancy agreement was entered into – an argument that I have not accepted for the reasons set out above – it seems likely to me that they have held back from making any claim for compensation for fear of appearing to concede on their principal argument. As self-represented applicants, they may be unaware of the practice of parties before courts and tribunals adopting alternative lines of argument, so that although one line may not be accepted, another may be. Nevertheless, the respondents went to some lengths to pursue issues that can only be relevant in the context of a compensation claim, in particular regarding the confrontation of 18 or 19 January 2016, for which they sought a subpoena in order to access the police report of the events and applied for the same material under freedom of information legislation. In my view, a claim for compensation is implicit in the way they presented their case, and I have proceeded accordingly.
92. I deal in turn with the events that might underpin a claim of compensation by either party.
93. It flows from my determination that the applicant had entered into a residential tenancy agreement with the respondents that they owe her rent for the period they occupied the premises. I award $4,067.14 in arrears of rent to the applicant, for the period of 12 December 2015 to 22 February 2016. No payment or discount is owed to the respondents for work done, as neither party has established to my satisfaction what the arrangement was, or what work was done and when.
94. About the respondents’ loss of peace, comfort and privacy, I note that in Qin v He,^[37] where the breach of standard term 52 has some features in common with the present matter, the tribunal ordered that the lessor pay $1,500 to each of the tenants. An order of that magnitude seems to me to be appropriate here, and I award each tenant $1,500 for breach of standard term 52.
95. In my view, a house without curtains or other window treatments is doubtfully “fit for habitation”; and a house where the oven does not work is not “in a reasonable state of repair”. These are breaches of standard term 54 and justify the payment of compensation. For the oven, which was never in working order, I award compensation of the equivalent of a discount on rent of $25 for 10 weeks. It is not clear to me whether curtain rods were ever supplied, but it is certain that they were not made available at any time up to 18 January 2016, and I think compensation equivalent to a discount on rent of $25 for five weeks is appropriate.
96. No compensation is awarded in respect of the work done on the front fence as I am not persuaded that Mr Hennock was out of pocket.

The end of the tenancy

97. In addressing this part of the claim, I need to avoid granting compensation to Ms Bonke for work that she was obliged to do anyway to bring her substandard property into a state suitable for the rental market.
98. Despite all the considerations raised earlier, I am inclined to believe that considerable work was needed in late February and early March 2016 before the house returned to anything like its condition on 12 December 2015. Generally speaking, Ms Bonke’s claims do not seem exaggerated. She has claimed $725 for cleaning; $145 for work on the garden, including removal of rubbish, costed as hire of a lawn mower ($35) and her own labour at $20/hour; $198 for replacing the window that is admitted having been broken; and $80.60 for unpaid water consumption. All expenses except the work in the garden are supported by receipts, and some by photographic evidence. The photographs of the garden, and of the waste in it, are especially telling. The respondents said that the material left in the garden could have been put there between their purported departure date of 16 February 2016 and the end of the tenancy on 22 February; but I cannot see any rationale for large piles of debris to be brought to the site in that intervening week, and I conclude on the balance of probabilities that there was substantial debris to be cleaned up in the garden. I am not persuaded that the inside of the house would, in those circumstances, have been reasonably clean and tidy, even taking into account the run-down state of the house at the start of the tenancy. Accordingly, I grant all Ms Bonke’s claims with the exception of the lawn mower hire; it is up to a lessor to supply equipment such as a mower, with the tenant to fill it with fuel and keep it in working order.
99. Compensation under this heading to be paid to Ms Bonke is $1,113.60.
100. Ms Bonke’s claim for lost rent after 22 February 2016, while the house was brought back to a state in which it could be rented, is denied. The house, on the available evidence, was not in a highly rentable state at the start of the tenancy with some rooms unpainted and floor coverings in need of work. Ms Bonke rented it to the respondents as a house that was offered at a discount in recognition of the work needed. Her letter of 21 January 2016 to the respondents lists a number of other items needing maintenance. In my view, the days after 22 February 2016 would have been needed to bring the house up to a state – better than that of 12 December 2015 – in which it could be offered to prospective tenants. No submissions were made by the applicant that the premises were rented in March 2016 as a house needing further work.

Conclusion

101. Both lessor and tenants in this matter have departed a long way from the expectations set in the RTA. For her part, Ms Bonke, in failing to have a written tenancy agreement, would appear to be at odds with at least sections 11, 12 and 19 of the RTA; and she has also breached standard terms 9, 11, 13, 52, 54 and 55; and advertising the premises without an energy rating would appear to be an offence under section 11A of the RTA. For their part, the respondents appear to have breached standard terms 26, 63, 64 and 99 (the last requiring a forwarding address to be left with the lessor at the end of a tenancy).
102. What is more, both lessor and tenants have, at the time of the tenancy and in the context of the hearing, tried to present their circumstances in ways that are to their advantage without proper regard for the facts of the matter. Ms Bonke clearly wished to extract rent but did not wish the tenants to have the right to exclusive occupancy and peace comfort and privacy; and she has been entirely happy to present the arrangement as nothing more than a licence to be on the premises when circumstances suit her. The tenants were happy to occupy the property but unwilling to pay for the privilege of doing so.
103. Ms Bonke is entitled to compensation of $4,067.14 in unpaid rent and $1,113.60 for cleaning and maintenance at the end of the tenancy, totalling $5,180.74. The tenants are entitled to compensation of $1,500 each for loss of privacy for the events recorded in the police report, and $375 for the absence of the oven and curtains, totalling $3,375 between them. That leaves the tenants owing $1,805.74 to Ms Bonke.

Order

104. Within four weeks from the date of this decision, the respondents are to pay the applicant $1,805.74.

......................................
Senior Member M Hyman

^[1] First application, attachment, page 1

^[2] First application, attachment, page 3

^[3] Exhibit R1, attachment, page 9

^[4] Exhibit R1, text message compilation, text 2

^[5] Second application, attachment 14

^[6] Applicant’s response to first respondent at [7]-[8]

^[7] Exhibit R1 at [8]-[18]

^[8] Jeannie Paterson, Andrew Robertson and Arlen Duke, Principles of Contract Law, (Thomson Reuters, 3^rd ed, 2009) at [14.10]-[14.95]

^[9] Exhibit R1, text message compilation, texts 5 and 8

^[10] Exhibit A1 at [7]
^[11] Allan Anforth, Peter Christensen and Christopher Adkins, Residential Tenancies: Law and Practice, New South Wales (Federation Press, 7th ed, 2017) [2.13.1]-[2.13.17]
^[12] Allan Anforth, Peter Christensen and Christopher Adkins, Residential Tenancies: Law and Practice, New South Wales (Federation Press, 7th ed, 2017) [2.13.3]
^[13] Sonia Jones and Commissioner for Housing [1999] ACTAAT 23; Andrew Britten and Commissioner for Housing [1999] ACTAAT 41

^[14] Adhikari v Walshe [2022] ACAT 67; Xia v Wang & Bian [2009] ACAT 21

^[15] Verma v Chilukuri [2017] ACAT 12; Bangura v Fan  [2013] ACAT 38 
^[16] Qin v He [2020] ACAT 116

^[17] Marlow v Coe [2007] ACTRRT 2
^[18] The Hurst-Meyers Charity Ltd v Khan [2020] ACAT 33; The Hurst-Meyers Charity Ltd v Wellings [2020] ACAT 102

^[19] Exhibit R1 at [8]-[18]

^[20] See for example The Hurst-Meyers Charity Ltd v Khan [2020] ACAT 33 at [199]- [213]

^[21] Exhibit R1, text message compilation, text 5

^[22] Exhibit R1, text message compilation, text 8

^[23] Second application, attachment 14

^[24] Residential Tenancies Act 1997, standard term 52

^[25] Applicant’s response to Ms Betts, attachment U

^[26] Applicant’s response to Ms Betts, attachment U

^[27] Exhibit R1, text message compilation, text 8

^[28] Applicant’s second application, attachment 8

^[29] Applicant’s second application, attachment, 21

^[30] Exhibit A1, attachment 14

^[31] Exhibit A1 at [31]

^[32] Exhibit A1 at [26]

^[33] Exhibit A1 at [27]

^[34] Exhibit A1 at [28]

^[35] Exhibit A1 at [29]

^[36] Second application, page 4

^[37] [2020] ACAT 116