3. During the Tenancy

Contributed by x current to [insert date]

3.1 Rent

3.1.1 Rent in advance

3.1.2 Payment methods

3.1.2.1 Cash or cheque

3.1.2.2 Direct Deposit

3.1.2.3 Other methods

3.1.2.3.1 Deduction from pay

3.1.2.3.2 Direct debit

3.1.2.3.3 Centrepay

3.1.2.3.4 Third party payment methods (e.g. DEFT)

3.1.3 Receipts/records

3.1.4 Overpayment and apportionment

3.1.5 Failure to pay rent with intention it be recovered from the security bond

3.1.6 Rent increases

3.1.7 Rent reductions

3.1.8 Rent not to be used for other purposes

3.1.9 Penalties for failing to pay rent

3.1.10 Rent arrears

3.2 Repairs and Maintenance

3.2.1 Lessor's duty to repair

3.2.1.1 General duty to repair (s 42)

‘It is a term of every residential tenancy agreement that the lessor - (a) must deliver up to the tenant vacant possession of the premises in a reasonable state of cleanliness and a reasonable state of repair having regard to its age and character; and (b) must maintain the premises in a reasonable state of repair having regard to its age and character and conduct any repairs within a reasonable period after the need for repair arises; and (c) must comply with all requirements in respect of buildings, health and safety under any other written law insofar as they apply to the premises.’(1)

The lessor is also responsible for the repair of fixtures (e.g. lights, fitted carpets and swimming pools) and chattels (e.g. white goods and furniture) provided with the premises.(2)

The lessor is not, however, required to repair any fixture or chattel they disclosed as not functioning before the agreement was entered into, or ‘any other fixture or chattel that the tenant could not reasonably have expected to be functioning at the time the agreement was entered into.’(3)

The duty to maintain the premises may include some work in anticipation of likely defects, to prevent further maintenance later (‘stitch in time which saves nine’).(4) This means that work is still repair work even if it is done in anticipation of repairs that are not yet necessarily required, but could become major issues if work is not done soon.

3.2.1.1.2 Before moving in:

Tenants should check that the premises are in a reasonable state of repair and cleanliness before moving in. Note maintenance and repairs issues on the property condition report. If the premises are not satisfactory, contact the lessor as soon as possible to discuss repairs and maintenance. Get any agreement for repairs, maintenance or cleaning in writing.

3.2.1.1.3 What does 'premises' mean?

Section 42 requires the lessor to repair ‘premises’. ‘Premises’ is defined in s 3 of the RT Act as including ‘(a) any part of premises; and land and (b) appurtenances appurtenant to premises’. For the purposes of s 42, 'premises' includes ‘fixtures and chattels provided with the premises, but does not include - (a) any fixture or chattel disclosed by the lessor as not functioning before the agreement was entered into; or (b) any other fixture or chattel that the tenant could not reasonably have expected to be functioning at the time the agreement was entered into.’ The combined effect of these two definitions is that the lessor has a duty to not only repair the physical structure of the building itself, but also any furniture or other items provided with the premises (eg air-conditioners, fridges, carpets, beds, garage, fences, swimming pool). The lessor does not, however, have to repair a fixture or chattel included with the premises if:

1. before the tenant entered into the agreement, the lessor told the tenant it was not working; or
2. the tenant could not reasonably have expected it to be working at the time the agreement was entered into.(5)

3.2.1.1.4 What does 'maintain' mean?

The duty to provide and maintain premises in a reasonable state of repair does not require the lessor ‘to replace items which are undamaged and in good working order’.(6) Further, the duty does not require the lessor to improve the premises or necessarily replace the structure of the premises if it does not have any defects but is merely aging. However, in some cases replacement of the structure may be necessary – this will depend on the facts of each individual case.(7) Whether improvements to or replacement of a structure is classed as ‘repairs’ and therefore required under the lessor’s obligation, was discussed by Latham CJ in Graham v Market Hotels Ltd: It is now well established that the repair of a structure may involve the removal or rebuilding of part of it and that all repairs involve renewal to some extent. There is a difference between repairing a house and building a new house in place of an old house. It is a question of degree whether rebuilding part of a house does or does not fall within the category of repairing a house. The covenant to repair does not involve the covenantee in an obligation to make improvements but if he cannot perform his covenant to repair without making improvements, then the expense of making the improvements falls upon him. This is the case whether the necessity arises from physical causes or from legal causes.(8)

3.2.1.1.5 Reasonable [...] having regard to its age and character

‘Reasonable’ is defined in the Macquarie Dictionary as ‘not exceeding the limit prescribed by reason; not excessive’.(9) The term is defined in The New Shorter Oxford English Dictionary as ‘[w]ithin the limits of reason; not greatly less or more than might be thought likely or appropriate; moderate’.(10)

With regard to the previous South Australian legislation (which also referred to a ‘reasonable’ state of repair) Bradbrook, MacCallum and Moore submit that ‘reasonable’ is synonymous with ‘good'. The authors base this conclusion on dicta in Anstruther-Gough-Calthorpe v McOscar (1924) 1 KB 716, 729 (CA) (Scrutton LJ) and Proudfoot v Hart [1890] UKLawRpKQB 72; (1890) 25 QBD 42, 55 (Lopes LJ).(11) Lopes LJ in Proudfoot v Hart defines ‘good tenantable repair’ as ‘such repair as, having regard to the age, character, and locality of the house, would make it reasonably fit for the occupation of a reasonably minded tenant of the class who would be likely to take it.’(12)

‘A reasonable state of repair is a higher standard that [sic] habitability and requires a reasonable comfort by the inhabitants judged according to contemporary standards of the time and place….(13)

It is important to remember that what is a ‘reasonable state of repair’ must be measured according to the ‘age and character’ of the premises. For example, brand new premises with non-structural cracks in interior walls might not be in a reasonable state of repair, but the same could probably not be said for a house built in the 1940s.

3.2.1.1.6 Latent defects

The duty of a lessor to inspect premises prior to the commencement of the tenancy has been considered by the High Court in both Northern Sandblasting Pty Ltd v Harris and Jones v Bartlett.(14) The question particularly arises as to whether the lessor’s obligation to deliver up the premises in a reasonable state of repair involves inspecting the premises for latent defects. A ‘latent defect’ is defined as ‘[a] flaw, fault, imperfection, or irregularity not readily observable or easily discovered: not patent. Such a defect only comes to light when it causes an accident.’(15) A ‘latent defect’ is a defect of which the lessor ‘has no notice and is reasonably unaware.’(16) The significance of Jones v Bartlett and Northern Sandblasting for the purposes of residential tenancy law in WA is that subsections 42(2)(a) and (b) of the RT Act(17) do not require the lessor to inspect the premises for latent defects before the tenant moves in and to guarantee that everything in the premises are in good working order at all times as there is no guarantee of absolute safety. The lessor’s duty to deliver up the premises in a reasonable state of repair does not generally ‘require a landlord to commission experts to inspect premises to look for latent defects, nor is it a duty to make premises as safe as reasonable care can make them. In general terms, the duty of the landlord is to be determined by reference to foreseeable risk of harm and what a reasonable person who do in response to that risk.’(18) The nature and extent of the duty will depend on the circumstances of the case.(19) the High Court by a 4:3 majority held that the lessor was liable for breach of its duty of care to inspect the premises prior to the tenant taking possession. This overruled the common law position as set out in Cavalier v Pope that the lessor owed no duty of care to the tenant or any other user of the premises to ensure the premises were kept in a reasonable state of repair.(20) In this case the tenants’ daughter was electrocuted and suffered severe brain damage after she grasped a water tap affected by an electrical fault (caused by an incompetent repair two days earlier). The lessor was unaware of the electrical fault and no inspection was carried out prior to the tenants moving into the premises. The decision of Northern Sandblasting Pty Ltd v Harris (by her next friend Harris) contains no ratio – while the majority held that the lessor was liable in negligence, there is ‘no majority in favour of any particular ground justifying it’ as the Judges all had different reasons for coming to the conclusion.(21) Three years later, the High Court had the opportunity to clarify the law in the case of _Jones v Bartlett

In Jones v Bartlett, the tenants’ son was injured when he walked into an internal glass door on the premises. The appellant argued that the lessor breached their duty of care by failing to have an expert inspect the premises before the tenancy commenced, and failing to have the glass door replaced with thicker glass which would comply with safety standards at the time of the accident. In this case however, the High Court rejected the appellant’s claim by a 6:1 majority (McHugh J dissenting) in finding that there was no breach of sections 42(1)(b) and 42(1)(c) of the RT Act, and even if there was a breach, the appellant was not a party to the agreement and therefore had no rights against the lessor under the agreement.(22)

According to Gummow and Hayne JJ in Jones v Bartlett, the lessor has a duty to ‘not let premises that suffer defects which the landlord knows or ought to know make the premises unsafe for the use to which they are to be put. The duty with respect to dangerous defects will be discharged if the landlord takes reasonable steps to ascertain the existence of any such defects and, once the landlord knows of any, if the landlord takes reasonable steps to remove them or to make the premises safe. This does not amount to a proposition that the ordinary use of the premises for the purpose for which they are let must not cause injury; it is that the landlord has acted in a manner reasonably to remove the risks.’(23) Examples of ‘dangerous defects’ may include defective flooring (which a person falls through), live wires or electrical circuits that are incorrectly installed, light switches delivering an electric shock when turned on with dry hands, defective stairs, and a defective roof (that could not support a person authorised to work on it), and possibly untempered panes of glass that could easily shatter.(24)

Callinan J confines the duty to ‘no more than a duty to provide, at the inception only of the tenancy, habitable premises.’(25)

In referring to her own judgment in Northern Sandblasting, Gaudron J was of the view that ‘before the tenancy commenced, it was reasonable both to inspect the premises and to remedy existing defects that gave rise to a foreseeable risk of injury. And in the case of defects or potential defects which posed special dangers (for example, electrical wiring and gas connections), it was reasonable to have an inspection carried out by persons skilled or expert in that regard. So far as concerns defects which were not present at the commencement of the lease, reasonable care required only the remedying of those defects of which the landlord was or ought to have been aware.’(26)

Gleeson CJ states that the duty on the lessor is ‘to take reasonable care to avoid foreseeable risk of injury to their prospective tenants and members of their household.’(27) He goes on to state that “reasonableness” will depend on the circumstances of each case – ‘There is no answer which is of universal application.’(28) Gleeson CJ’s reasoning is based on the principle of control – the lessor is in control of the premises prior to the tenants entering into occupation and therefore the lessor is required to inspect the premises. Once the tenant however enters into occupation of the premises the duty shifts to the tenant to inspect the premises for repairs and to inform the lessor accordingly.(29) Gummow and Hayne JJ state further that this rule ‘would not cover cases in which the landlord never had control, either de facto in the case of back-to-back tenancies, or de jure in the case where a landlord assumes ownership after the tenant has gone into possession.’(30)

Kirby J in the majority states that the lessor may discharge the duty ‘by undertaking an inspection of the premises prior to each lease or renewal of a lease, by responding reasonably to defects drawn to notice, and by ensuring that any repairs are made which such inspection or notice discloses to be reasonably necessary’.(31)

3.2.1.1.7 Light bulbs, tap washers, batteries and similar items.

According to Anforth, Christensen and Bentwood, ‘[t]he general rule is that structural repairs (not being those caused by the tenant) are the landlord’s responsibility. Repairs of a consumable nature such as washers, globes, batteries etc...are the tenant’s responsibility.’(32) It is important to note that:

• by clause 16.4 the NSW standard form residential tenancy agreement the tenant agrees "that it is the tenant's responsibility to replace light globes and batteries for smoke detectors on the residential premises"
• by clause 17.5 of the same agreement the tenant agrees to "make sure all light fittings on the premises have working globes" at the end of the tenancy"
• by clause 18.2 of the same agreement the lessor agrees to "make sure that all light fittings on the residential premises have working light globes on the commencement of the tenancy"

There is nothing in the NSW standard form agreement making washers, batteries (other than smoke alarm batteries) or any other "repairs of a consumable nature" the tenant's responsibility to replace. It is not clear why, in the absence of any agreement between the parties, they should not be the lessor's responsibility.(33)

In WA, there is nothing in the prescribed form residential tenancy agreements which covers responsibility for such items. It is fairly common, however, for lessors to add additional terms which purport to make the tenant responsible for replacing light bulbs. For example, the following term:

Light Globes 2.17. The tenant agrees to replace all broken light globes and fluorescent light tubes and save for matters required to be attended to by the lessor as part of its obligations to maintain the premises in a reasonable state of repair (having regard to its age and character), ensure all light globes and fluorescent light tubes are kept in good working order.(34)

Even without the express reference to s 42,(35)this term would not be inconsistent with the Act so long as it was read to only apply where the tenant has actually negligently or intentionally broken the light globe or tube.(36) However, light globes or fluorescent tubes cease working after a number of hours of normal use, due to fair wear and tear – they simply wear out. See section 4.7.3 Fair Wear and Tear. It is also difficult to see how light bulbs or fluorescent tubes could not be covered by section 42 of the RT Act, given they are either a chattel or part of a fixture or chattel, without which the fixture or chattel does not function.(37)Strictly speaking, therefore, light bulbs or fluorescent tubes should probably be the lessor's responsibility to replace, both during the tenancy (under s 42)(38) In practice, most tenants replace their own light bulbs during the tenancy as and when they fail. At the end of the tenancy, however, lessors sometimes claim against the security bond for dead light bulbs. It is submitted that such claims cannot be maintained, unless the tenant has negligently or intentionally broken the bulbs. If the tenancy agreement contains a clause purporting to make the tenant liable for replacing light bulbs whatever the reason for their failure, such a clause would be void for contracting out of the RT Act.(39)

The same arguments also apply to other "consumables", such as batteries and tap washers. If they are provided with the premises they are caught by s 42 and are the lessor's responsibility to replace when they wear out in normal use.

In the case of tap washers, we should note here that it is also illegal in WA for a person who is not a licensed plumber to change them, subject to a fine of up to $5000.(40)

3.2.1.2 Urgent Repairs (s 43)

In Western Australia, urgent repairs are divided into two categories:

1. Repairs necessary for the supply or restoration of an essential service:

• electricity;
• gas;
• a functioning refrigerator (if provided with the premises);
• sewerage, septic tank or other waste water management treatment; or
• water, including the supply of hot water (burst or broken hot water service).(41)

1. Other urgent repairs: These are repairs that are necessary to avoid:

• exposing a person to the risk of injury;
• exposing property to damage; or
• causing the tenant undue hardship or inconvenience.(42)

If the repairs are urgent, the tenant is required to contact the lessor as soon as practicable.(43) If it is after hours and the premises are managed by a real estate agent, contact the after-hours numbers they have provided.

Once the tenant has notified the lessor of the need for urgent repair, the lessor is required to arrange for the repairs to be carried out by a suitable repairer as soon as practicable – within 24 hours (for repairs to an essential service), or within 48 hours (for other urgent repairs).(44)

If the tenant is unable to contact the lessor within the prescribed period or the lessor fails to ensure the repairs are carried out by a suitable repairer as soon as practicable, the tenant may arrange for the repairs to be carried out by a suitable repairer. The repairs must be made to the minimum extent necessary and be carried out by a suitably qualified tradesperson. The lessor must then reimburse the tenant for any reasonable costs as soon as practicable after the repairs are carried out.(45)

If the lessor fails to reimburse the tenant for reasonable expenses incurred in arranging (and paying) for the repairs to be carried out, the tenant can apply to the Court for a tenant compensation order against the lessor.(46) The Court will determine the amount, and make the order if satisfied that it is appropriate to do so in the circumstances.(47) The Court may also order the lessor to pay a tenant compensation bond to the Bond Administrator to cover any future tenant compensation orders that might be made against the lessor in respect of a tenant or residential premises of the lessor.(48) The lessor may, however, apply to the Court for an order that the whole, or part of, the tenant compensation bond be paid back to the lessor.(49)

A ‘suitable repairer, in relation to urgent repairs, means a person who is suitably qualified, trained or, if necessary under any written law, licensed or otherwise authorised to undertake the work necessary to carry out the repairs’.(50)

The lessor is not required to reimburse the tenant for repairs necessary to rectify the tenant’s breach of agreement (e.g. the tenant negligently or wilfully caused the damage, or it was caused by using the premises for an illegal purpose).(51)

Modified requirement for urgent repairs if Housing Authority premises outside metropolitan region: If the Housing Authority is the lessor and the premises are outside the metropolitan region (as defined in the Planning and Development Act 2005 (WA) s 4(1)),(52)section 43(3) is modified to the effect that: if the lessor fails to ensure that the repairs are carried out by a suitable repairer as soon ‘as practicable after that notification [by the tenant], or fails to keep the tenant regularly informed of the efforts being made to do so’(53) the tenant may arrange for the repairs to be carried out by a suitable repairer to the minimum extent necessary, and the Housing Authority must, as soon as practicable, reimburse the tenant for any reasonable expense incurred.(54)

3.2.1.3 Tenant's duty to notify lessor of repairs

The tenant is required to notify the lessor ‘as soon as practicable’ after the need for urgent repair arises, in the case of both urgent and non-urgent repairs.(55)

3.2.1.4 Limitation periods for repairs

Section 42 repairs: the tenant has 6 years from when a reasonable time in which to carry out the repairs has passed, after the need for repair arises, to commence proceedings against the lessor. What is a reasonable time in which to carry out the repairs will depend on the facts and circumstances of each case. In every case, however, time cannot start running before the lessor has become aware of the need for repair.

Section 43 urgent repairs: the tenant has 6 years from as soon as practicable after notification of the need for urgent repairs to commence proceedings against the lessor.

3.2.1.5 Contracting out of repairs and maintenance

The lessor cannot ‘contract out’ of any of the above responsibilities. This means that the lessor cannot include any special conditions in the agreement that ‘purports to exclude, modify or restrict’ their responsibilities.(56) See 3.20 (‘Contracting Out’) for further discussion.

3.2.1.6 Practical tips for getting repairs done

The first step to getting repairs or maintenance done is to make sure that the lessor knows about the issue. The tenant is responsible for notifying the lessor as soon as the need for repair or maintenance arises. Even if that were not the case, the lessor cannot be held responsible for not carrying out repairs where they have no knowledge of the need for them.

Process for getting repairs or maintenance done:

1. Discuss the problem with the lessor and ask them to fix it. Confirm this in writing.
2. Write to the lessor with the request, stating clearly what needs to be repaired or replaced, and by when. Include details of how the problem is affecting you. Template letters for requests for maintenance, repairs, reimbursement and compensation are included at Appendix.
3. If no response is received or no action is taken, the tenant can issue the lessor with a Form 23 (Notice to Lessor of Breach of Agreement) from the Consumer Protection website.(57) On the form, clearly outline the required maintenance and repairs and give a time frame for the lessor to fix the issues. It is important to keep a signed copy on record.
4. If all of the above has been done and the problem has not been fixed, the tenant can apply to the Magistrates Court for a performance order to carry out the maintenance or repairs. This application is made on a Form 12 (Application for Court Order) from the Magistrates Court of WA website.(58) The tenant can apply to the Court without issuing a breach notice first, but it is advisable to put the lessor on notice of the breach to try to resolve the issue before commencing court proceedings.
5. If the lessor fails to conduct the work within the time periods set out under the legislation, the tenant can seek a rent reduction for loss of use of the facilities provided with the premises, and/or compensation for inconvenience, loss or damage suffered as a result of the breach. See further discussion at 3.2.1.7 (‘orders, compensation and rent reduction’).

Withholding rent

Withholding rent because of a lessor’s failure to complete maintenance is a very high risk strategy.(59) Even where a lessor is in breach, failure to pay rent is a breach of agreement. A tenant withholding rent is then at risk of termination proceedings, even where a lessor is also in breach. A court considering a termination application may consider the failure to pay rent a more serious breach, and may make termination orders. This is because the Court expects a tenant to make application for orders for the lessor to complete maintenance, rather than breaching the agreement by withholding rent – see below for more about these applications, and for details about rent reductions. If the tenancy is terminated by the Court because of the non payment or rent, or the tenant owes more than the bond at the end of the tenancy, withholding rent in a maintenance dispute could ultimately lead to the tenant being listed on a residential tenancy database (blacklisting).

Ending the tenancy early by abandoning a fixed term tenancy because the lessor has failed to conduct repairs may result in the tenant owing significant compensation to the lessor. The tenant may be able to counterclaim for some compensation, but this is generally limited as the Court expects the tenant to mitigate their losses by applying to Court for orders that lessor complete the maintenance, or applying to Court for termination of the lease because of the lessor’s breach by failing to maintain the premises. The tenant however, does have the option of paying rent to the Magistrates Court and they can withhold it from the lessor.(60) The tenant would still need to make a court application before doing this.

3.2.1.7 Orders, compensation and rent reduction

If the lessor does not carry out repairs within the required time period, the tenant can apply to the Magistrates Court for a specific performance order(61) to carry out the repairs and/or orders for compensation and rent reduction. The tenant can apply for termination of the agreement, however, this is ordered in rare cases.

Rent reduction: The tenant can request a rent reduction where there has been a significant reduction in the chattels or facilities provided with the premises, through no fault of the tenant.(62) For example, if the tenant has not been able to use the bedroom due to a collapsed ceiling and the lessor has failed to arrange for repairs despite the tenant notifying the lessor 3 weeks ago, the tenant could claim a rent reduction for loss of use of this room. The tenant and the lessor can negotiate an amount they both feel is reasonable in the circumstances. If the lessor refuses to provide a rent reduction, the tenant can apply to the Magistrates Court.(63) The tenant has 30 days to apply from when the facilities were first reduced, however, the Court can extend this period having regard to the justice and merits of the case.(64) Rent reductions can be backdated.(65) The Court will decide how (and if) the rent should be reduced and the extent to which the facilities have been reduced.

Compensation: The tenant could apply in the alternative for compensation for the inconvenience, loss or damage caused by the lessor’s breach.(66)For compensation, the tenant has 6 years to commence court action for breach of the RT Act, which starts running - for urgent repairs: from as soon as practicable after notification of the urgent repair; and for general repairs: from a reasonable time period after the need for repair arises.

Compensation for personal injury cannot be claimed under the RT Act,(67)however that does not mean that a residential tenant cannot bring a personal injury claim against their lessor in the appropriate court. Seek separate legal advice for personal injury claims.

The tenant has a duty to mitigate loss and must take reasonable steps to reduce their losses as a result of the lessor's breach. A failure to do so will result in a reduction of the compensation which the tenant is entitled to. In some interstate cases the tenant's compensation has been restricted by reference to the period up until which the tenant would likely have obtained a performance order, and had it carried out. In Hewage v Vanikiotis, the tenant’s claim for compensation for the lessor’s failure to maintain the premises in a reasonable state of repair (which was made 3 weeks from the end of the agreement for longstanding breaches) was significantly reduced for the tenant’s failure to mitigate by not seeking performance orders or doing urgent repairs themselves when it became apparent that the lessor was not going to take action to repair.(68)

Termination orders: See 4.1.2. for discussion of termination for breach by the lessor (fixed or periodic).

3.2.2 Tenant's responsibility for cleanliness and duty not to damage the premises

The tenant must ‘keep the premises in reasonable state of cleanliness’.(69) The tenant is also obliged to ‘not intentionally or negligently cause or permit damage to the premises.’(70) These responsibilities extend to chattels provided with the premises for use by the tenant (whether under the agreement or not).(71)

If any damage is caused to the premises (including chattels), the tenant must notify the lessor ‘as soon as practicable’ after that damage occurs.(72)

A tenant is not responsible for damage resulting from fair wear and tear. See discussion of fair wear and tear at 4.7.3 (‘Fair wear and tear’).

If repairs are required because the tenant (or someone with permission from the tenant to be on the premises(73) caused damage, the tenant is required to pay for the repairs. The tenant should negotiate with the lessor about the repairs, and should not undertake their own repairs without the lessor’s consent. If the tenant undertakes their own repairs, they could be liable for further damage from poor or faulty repairs. The lessor may want the tenant to arrange for the repairs, or may prefer to arrange their own repairs (at the tenant’s cost). The lessor may also choose to claim under their insurance, in which case the insurance company is likely to pursue the tenant for the whole cost of repairs.

The lessor has a duty to mitigate loss under s 58 of the RT Act.(74) For discussion of the duty to mitigate, see 4.7.5 (‘Mitigation of loss and bond disposal’).

3.2.3 Examples of repairs and urgent repairs

RCDs and smoke alarms A lessor who fails to install RCDs and smoke alarms will be in breach of the term implied in every residential tenancy agreement by s 42(2)(c) of the RT Act,(75) by failing to comply with building, health and safety laws. Smoke alarms: Part 8 Division 3 of the Building Regulations 2012 (WA) sets out the requirements as to smoke alarms. Under these Regulations, the lessor must ensure the smoke alarms fitted are:

• No more than 10 years old
• In working order; and
• Permanently connected to the mains power supply.(76)

The Building Regulations permit installation of battery-powered smoke alarms so long as:

• There is no mains power supply to the building;(77) or
• There is no hidden space in which to run the necessary electrical wiring and there are no appropriate alternative locations for the smoke alarms; or
• Local government approval is granted, which requires the local government to be satisfied that installation of a mains powered smoke alarm would involve - (a) a sufficient problem of a structural nature; or (b) a sufficient problem of any other nature, the cause of which is not within the control of the property owner.(78)

If battery-powered smoke alarms are used, they must have a 10-year life, non-removable battery.(79)

RCDs: Regulations require all rental premises to be fitted with at least two Residual Current Devices (RCDs) protecting all power and lighting circuits in the premises.(80) Tenants should check RCDs are working every 3 months by pushing the test button. To restore power simply move the ‘on/off’ switch. If power is not lost, contact the lessor for a licensed electrical contractor to further test the RCD. If there are no RCDs installed, contact the lessor to request installation. If the lessor refuses to install RCDs, contact EnergySafety.

Repairs to smoke alarms and RCDs are urgent (if they stopped working during the tenancy) as urgent repairs include repairs that are necessary to avoid exposing a person to the risk of injury.(81)

Replacement of batteries in battery-powered devices supplied with the premises is generally the responsibility of the lessor. See above 3.2.1.1.

Note that the REIWA standard Residential Tenancy Agreement places the responsibility on the tenant to check RCDs and smoke alarms, however, this does not extend to cover the situation where a lessor has not complied with building regulations: The tenant must take reasonable steps to regularly check and test whether all smoke alarms and residual current devices on the premises are in good working order. If any smoke alarm or residual current device is not at any time in good working order, the tenant must give the lessor immediate notice in writing of that fact. Note: Nothing in this clause lessens the obligations upon lessors in relation to smoke alarms under the Building Regulations 2012 and/or in relation to residual current devices under the Electricity Regulations, 1947.(82)

Gutters and tree lopping In Long v Paetzold the NSW Tribunal held that the lessor was responsible for cleaning the gutters on a two-storey building because the tenant could not have cleaned the gutters themselves.(83)

Cleaning of gutters appears to be the lessor’s responsibility more broadly (even if the gutters are not located in a hard-to-reach area such as the second floor of a building). In Zahle v Bowman the Tribunal held that pipes and guttering are maintenance issues that are the responsibility of the lessor.(84) Similarly, the Tribunal in Batkin v Kinna stated that gutter cleaning is maintenance and would not be the tenant’s responsibility.(85) In Foster v Gardiner the Tribunal stated that the tenant is not responsible for cleaning gutters or pruning trees.(86)

Tree lopping (as opposed to pruning of shrubs or hedges) probably comes under the lessor’s responsibility for maintenance, at least where it involves large trees and specialist skills and/or equipment.(87)

Note however that the tenant has an obligation to deliver up the premises in as close as possible to the same condition as when the tenant moves in, minus fair wear and tear. This could mean that a tenant who does not prune could be in breach for failing to deliver up the premises to the required standard. It is also important to check the RT Agreement to see if there are any clauses on gardening and/or pruning. The REIWA standard Residential Tenancy Agreement has the following clause regarding gardens: Gardens 2.18. The tenant must attend to the garden, lawns, lawn edges, hedges, shrubs and trees so that they are kept in the same condition as at the commencement of this lease as described in the Property Condition Report, to water and fertilise them regularly and adequately, to keep all the grounds clean and tidy and free from rubbish, to keep the flower beds and lawns free of weeds, and not to remove or cut down any plants, trees or shrubs.

While this clause does not specifically cover pruning, the duty to 'attend to the garden…hedges, shrubs and trees so they are kept in the same condition as at the commencement of this lease’ may mean that it is required.

Oven Repairs to an oven are given as an example in the Explanatory Memorandum to the Residential Tenancies Amendment Bill 2011 as a 48-hour urgent repair.(88)

Swimming pool and spa The lessor is responsible for repairs to swimming pools and spas.(89) The tenant is responsible for keeping the pool/spa clean.(90) Responsibility for pool maintenance during the tenancy, including who is responsible for the purchase and use of items such as necessary pool chemicals, should be set out clearly in the agreement.

The REIWA standard Residential Tenancy Agreement has a clause about pool and spa cleaning being the tenant’s responsibility: If the premises includes a swimming pool or spa, the tenant must keep the pool or spa and any associated equipment in a properly treated and clean condition and observe all legal requirements relating to pools and/or spas during the period of this lease. The tenant must not drain the pool without the lessor’s written consent.

*If a tenant becomes aware of any matters that may render any swimming pool or spa on the premises unsafe, the tenant must report those matters to the lessor as soon as practicable. Further, tenants should note that they are entitled to notify local governments about matters relating to the safety of swimming pools or spas.*(91)

Pool and spa fences: Lessors must ensure that pools and spas are adequately fenced in accordance with the Building Act 2011 (WA) and the Building Regulations 2012 (WA). Failure to comply with the legislation would be a breach of the term of the residential tenancy agreement implied by s 42(2)(c) of the RT Act.(92) The Department of Mines, Industry Regulation and Safety has developed a publication called ‘Rules for Pools and Spas’, which can be found on the Consumer Protection website.(93)

In Knowles v Anthony, the NSW Consumer Trader and Tenancy Tribunal ordered the tenancy to be terminated for the lessor’s failure to provide and maintain the premises in a reasonable state of repair by having a pool fence that did not comply with the relevant pool fence regulations and was in fact dangerous for the tenant’s 3-year-old daughter.(94)

Blinds and curtains Product safety legislation requires that all blind and curtain cords and chains supplied since 2004 meet national safety requirements to prevent child strangulation.(95) This means that Lessors are responsible for ensuring blinds & curtains meet these standards, for all blinds and curtains supplied since 2004. For disputes about blinds supplied before 2004, seek further advice, as the above legislation may not cover the lessor, however at common law a lessor who supplies premises with corded curtains or blinds that it was reasonably foreseeable could be dangerous could be liable in negligence for any injury which occurred to a child as a result. The potential for liability in negligence may be a good basis for negotiating for a lessor to ensure that older blinds and curtains meet standards.

Tenants are still responsible for securing blinds and curtain cords with the supplied safety devices, and to ensure furniture is not placed near curtain cords.

The Department of Mines, Industry Regulation and Safety has developed a guide to blind and curtain cord safety, which can be found on the Consumer Protection website.(96)

Roof/ceiling Repairs to the roof and ceiling are given as an example in the Explanatory Memorandum to the Residential Tenancies Amendment Bill 2011 as requiring urgent repairs. The Explanatory Memorandum states that ‘prescribed essential repairs [requiring repair within 24 hours] are likely to include…holes in any of the external surfaces of the premises, including the roof, windows and doors. Urgent repairs requiring attention within 48 hours are likely to be repairs to…minor leaks in the ceiling’.(97)

In Van Ristell v Director of Housing, the Victorian Civil and Administrative Tribunal found the lessor liable for damage to the tenant’s possessions and the tenant’s moving costs due to a ceiling collapse after the tenant had complained of cracks and dust falling down, and the lessor had inadequately repaired it several years earlier. The Tribunal found that the lessor merely replacing the ceiling plaster and a few tiles without investigating the cause of the cracking and whether other parts of the ceiling needed to be replaced failed to meet the lessor’s duty to ensure the premises were in good repair.(98)

In Matthews v Huppert the development of damp areas in the ceiling in 2014, and the tenant’s reporting of this matter to the real estate agent, put the lessor on notice as to the propensity of the premises to sustain water damage. For this reason, the Tribunal found that the lessor breached her obligation to ensure the premises were maintained in good repair.(99)

Taylor v Wise involved a similar situation, whereby 2.5 metres of the ceiling was damaged by water in the past and roughly repaired, which meant the area looked unsightly and the tenant had some concerns about its safety. The ceiling remained unrepaired for 2 years. The District Court of South Australia found that the lessor had failed to keep the premises in a reasonable state of repair, however, compensation was reduced to $300 because the problem was mostly aesthetic, and the tenant did not pursue repairs vigorously and delayed in bringing an application for compensation.(100)

In Sulusulu v Trumble, the NSW Consumer Trader and Tenancy Tribunal found the lessor’s delay in repairing was unreasonable and awarded the tenant 2.5 weeks’ rent ($862.50) as compensation.(101) In this case, 3 serious roof leaks caused water to run down the walls of the lounge room for 3 months. The tenant made a number of complaints to the real estate agent. There was no damage to furniture or belongings.

Burst water pipe A burst water pipe is an urgent repair because repair is necessary for the supply of water.(102) However, the lessor will not be in breach if they arrange for repairs in accordance with the time periods set out in s 43 of the RT Act.(103)

For an example of a case involving a spontaneous bursting of a water pipe in the bathroom, see Mcalindon v Maddock. In this case the lessor was found not to be in breach of his obligation to repair because the flood was a spontaneous event unrelated to any failure by the lessor to maintain the premises, and upon notification by the tenant the lessor and his agent acted immediately to have a plumber conduct the repairs that evening.(104)

Similarly, in Xiao v Duggan the Tribunal held that the lessor was not in breach in regards to a burst water pipe because the agent sent a plumber the same day as the tenant notified the agent about the burst pipe.(105)

In Bersten v Di Sarno there was a burst water pipe that was not due to any act of the tenant or lessor, which was apparently repaired within 2 or three days. The Tribunal held that the pipe had not been repaired as quickly as it should have been done and ordered the tenant's water bill to be reduced accordingly.(106)

Hot water system A repair to a hot water system is an urgent repair because it is necessary for the supply of hot water.(107)

In Sanders v Hughes, the South Australian Residential Tenancies Tribunal found that the lessor was not liable for excessive electricity bills received by the tenant due to a leak in the valve in the hot water system. After the tenant reported the high bills, the lessor promptly engaged an electrician who found no problem with the hot water system. The tenant then abandoned the premises and engaged his own plumber who found a leak in the system, but said the problem was ‘impossible to see’. The Tribunal found that the lessor was not liable because, after being notified by the tenant of the issue, she ‘acted reasonably and without delay to engage a reputable electrical contractor to investigate the problem and on the strength of that report found no reason to carry out further investigation’, along with the fact that the plumber engaged by the tenant said the problem was ‘impossible to see’.(108)

The lessor is only liable to arrange for the repairs once they are notified of the issue.

In Pabon v Fang, the Victorian Civil and Administrative Tribunal found that the lessor had no way of knowing of a stuck float in the water tank which led to a high water bill of $10 600 for one quarter.(109) The tenant did not report the issue to the lessor, and the first the lessor heard of it was when the real estate agent noticed water on the ground and heard water flowing. The same month, the real estate agent sent a plumber around to investigate, and the plumber found and fixed the problem.

Call out fee where no actual repair is needed

Sometimes a tenant informs the lessor of an item requiring repair and the lessor engages a tradesperson, who finds that the item did not need repair after all. For example, the tenant may complain that there is an electrical fault because the RCD is constantly tripping. The lessor promptly engages an electrician who finds that there is a fault with one of the tenant's appliances which is causing the RCD to turn off the power. In these circumstances the lessor may be entitled to charge the call out fee to the tenant, so long as the RT Agreement contains a term which makes the tenant liable for unwarranted callouts.(110)

3.3 Cleaning

3.3.1 Lessor's duty to deliver up premises in a reasonable state of cleanliness

3.3.2 Tenant's duty to keep the premises in a reasonable state of cleanliness

3.4 Pests and vermin

3.5 Mould

3.6 Asbestos

3.7 Quiet enjoyment

3.7.1 The meaning of quiet enjoyment

3.7.2 Right to reasonable, peace, comfort or privacy

3.7.3 Disputes with neighbours

3.8 Security

3.8.1 Lessor's duty to ensure premises are reasonably secure

3.8.2 Locks and keys

3.9 Lessor's right of entry

3.10 Alterations, fixtures and renovations

3.10.1 Tenant's right to affix fixtures etc.

3.10.2 Lessor's right to affix fixtures etc.

3.11 Land tax, council rates and water supply or sewerage charges

3.12 Strata Company Contributions

3.13 Utility Services

3.13.1 Water

3.13.2 Electricity

3.13.3 Gas

3.13.4 Telephone and internet

3.14 Sub-letting and Assigning

3.15 Illegal use of premises

3.16 Nuisance

3.17 Vicarious liability

3.18 Pets

3.19 Gardens

3.20 Contracting out

3.21 Penalty Clauses

Notes

1 : Residential Tenancies Act 1987 (WA) s 42(2).

2 : Residential Tenancies Act 1987 (WA) s 42(1).

3 : Residential Tenancies Act 1987 (WA) s 42(1).

4 : Adrian J Bradbrook, Susan V MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Ltd, 1983) [1317], citing the following from the judgment of Pearson L.J. in Day v Harland and Wolff Ltd [1953] 2 All ER 387 at 388: 'Very broadly speaking, I think that to repair is to remedy defects, but it can also properly include an element of the "stitch in time which saves nine". Work does not cease to be repair work because it is done to a large extent in anticipation of forthcoming defects or in rectification of defects which have already become serious. Some element of anticipation is included.'

5 : For example, the premises may come with an old outside spa that has been filled in with earth and been converted into a flowerbed. The tenant could not insist on it being emptied of earth and restored to working condition.

6 : Jones v Bartlett [2000] HCA 56 (16 November 2000) [75].

7 : Adrian J Bradbrook, Susan V MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) [1317].

8 : Graham v Market Hotels Ltd [1943] HCA 8; (1943) 67 CLR 567, 579, quoted in Adrian J Bradbrook, Susan V MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) [1315].

9 : Macquarie Dictionary (Macmillan, 6th ed, 2013) 1224.

10 : The New Shorter Oxford English Dictionary (Oxford University Press, 4th ed, 1993) vol 2, 2496.

11 : Adrian J Bradbrook, Susan V MacCallum and Anthony P Moore, Residential Tenancy Law and Practice: Victoria and South Australia (Law Book Company Limited, 1983) [1366].

12 : Proudfoot v Hart [1890] UKLawRpKQB 72; (1890) 25 QBD 42, 55.

13 : Dupont v Lawrence [1997] NSWRT 213 (1 September 1997).

14 : Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; Jones v Bartlett [2000] HCA 56.

15 : Butterworths Concise Australian Legal Dictionary (LexisNexis Butterworths, 3rd ed, 2004) 252.

16 : Jones v Bartlett [2000] HCA 56 (16 November 2000) [75], [249].

17 : Residential Tenancies Act 1987(WA) ss 42(2)(a)-(b).

18 : Ahluwalia v Robinson [2003] NSWCA 175 [23] (Hodgson JA), quoted in Loose Fit Pty Limited v Marshbaum [2011] NSWCA 372 (30 November 2011) [87].

19 : Jones v Bartlett [2000] HCA 56 (16 November 2000) [58], [186], cited in Gove v Black [2006] WASC 298 (21 December 2006) [426], [432].

The reasoning of both decisions is set out in further detail below:

In Northern Sandblasting Pty Ltd v Harris{{Northern Sandblasting Pty Ltd v Harris [1997] HCA 39.

20 : Gove v Black [2006] WASC 298 (21 December 2006) [420]; Loose Fit Pty Limited v Marshbaum [2011] NSWCA 372 (30 November 2011) [83].

21 : Peter Handford, ‘Through a Glass Door Darkly: Jones v Bartlett in the High Court’ (2001) 30(1) UWA Law Review 75,94; Danuta Mendelson, ‘Jones v Bartlett: Landlords’ Liability to Tenants and Members of their Household in Negligence’ [2001] 6(1) Deakin Law Review 174, 177. See also Gove v Black [2006] WASC 298 (21 December 2006) [423] where the Supreme Court of WA stated that ‘[n]o principle of universal application…emerges from Northern Sandblasting (supra).’

22 : Peter Handford, ‘Through a Glass Door Darkly: Jones v Bartlett in the High Court’ (2001) 30(1) UWA Law Review 75, 80-82; see also Danuta Mendelson, ‘Jones v Bartlett: Landlords’ Liability to Tenants and Members of their Household in Negligence’ [2001] 6(1) Deakin Law Review 174, 179.

23 : Jones v Bartlett [2000] HCA 56 (16 November 2000 [173) (Gummow and Hayne JJ).

24 : Jones v Bartlett [2000] HCA 56 (16 November 2000) [176].

25 : Jones v Bartlett [2000] HCA 56 (16 November 2000 [289] (Callinan J).

26 : Jones v Bartlett [2000] HCA 56 (16 November 2000 [88] (Gaudron J). (footnotes omitted).

27 : Jones v Bartlett [2000] HCA 56 (16 November 2000) [57] (Gleeson CJ).

28 : Jones v Bartlett [2000] HCA 56 (16 November 2000) [58] (Gleeson CJ).

29 : Jones v Bartlett [2000] HCA 56 (16 November 2000 [50] (Gleeson CJ).

30 : Jones v Bartlett [2000] HCA 56 (16 November 2000 [50] (Gummow and Hayne JJ).

31 : Jones v Bartlett [2000] HCA 56; 205 CLR 166; 176 ALR 137; 75 ALJR 1 (16 November 2000 [237] (Kirby J), cited in Gove v Black & Ors [2006] WASC 298 (21 December 2006) [434].

32 : Allan Anforth, Peter Christensen and Sophie Bentwood, Residential Tenancies Law and Practice New South Wales (The Federation Press, 6th ed, 2014) [2.63.3].

33 : It also seems to be arguable that the prescribed form terms 16.4 and 17.5 are inconsistent with the NSW RT Act, sections 62 and 63(1).

34 : REIWA Form 303(c) Residential Tenancy Agreement.

35 : Residential Tenancies Act 1987 (WA) s 42.

36 : Which would be a breach of the term implied by s 38 (1)(c) of the Residential Tenancies Act.

37 : Residential Tenancies Act 1987 (WA) s 42.

38 : Residential Tenancies Act 1987 (WA) s 42.}and at the end of the tenancy (due to clause 38.2 of the prescribed form 1AA and clause 40.2 of form 1AB).{{Residential Tenancies Regulations 1989 (WA) sch 4.

39 : Residential Tenancies Act 1987 (WA) s 82.

40 : Plumbers Licensing and Plumbing Standards Regulations 2000 (WA), reg 4 and 9. There is a limited exception in certain circumstances for persons carrying out some plumbing work in remote Aboriginal communities – see part 4A. The same regulations are so broadly drafted that they appear to also outlaw the use, by an unlicensed person, of a sink or toilet plunger to clear a blocked drain.

41 : Residential Tenancies Act 1987 (WA) s 43(1)(a); Residential Tenancies Regulations 1989 (WA) r 12A.

42 : Residential Tenancies Act 1987 (WA) (1)(b).

43 : Residential Tenancies Act 1987 (WA) s 43(2)(a).

44 : Residential Tenancies Act 1987 (WA) ss 43(1)(a), (2).

45 : Residential Tenancies Act 1987 (WA) s 43(3).

46 : Residential Tenancies Act 1987 (WA) ss 59D, 15(2)(b).

47 : Residential Tenancies Act 1987 (WA) ss 59D(3), (5).

48 : Residential Tenancies Act 1987 (WA) s 59D(2).

49 : Residential Tenancies Act 1987 (WA) s 59D(4).

50 : Residential Tenancies Act 1987 (WA) s 43(1).

51 : Residential Tenancies Act 1987 (WA) s 43(2) (‘if a need for urgent repair arises otherwise than as a result of a breach of agreement by the tenant’).

52 : Planning and Development Act 2005 (WA) s 4(1).

53 : Residential Tenancies Act 1987 (WA) s 43(3).

54 : Residential Tenancies Regulations 1989 (WA) r 6.

55 : Residential Tenancies Act 1987 (WA) ss 43(2)(a) (urgent repairs), 38(1)(b) (non-urgent repairs).

56 : Residential Tenancies Act 1987 (WA) s 82.

57 : Form 23 can be downloaded at: Government of Western Australia Department of Mines, Industry Regulation and Safety, Notice to lessor of breach of agreement – Form 23 (4 October 2017) Department of Mines, Industry Regulation and Safety <https://www.commerce.wa.gov.au/publications/notice-lessor-breach-agreement-form-23>.

58 : Magistrates Court of WA, Form 12 – Application for Court Order (25 July 2013) Magistrates Court of WA , <https://www.magistratescourt.wa.gov.au/_files/RT_Form_12_Court_Order.pdf>.

59 : Residential Tenancies Regulations 1989 (WA) sch 4, Form 1AA cl 4.

60 : Residential Tenancies Act 1987 (WA)s 15(2)(d).

61 : Residential Tenancies Act 1987 (WA) s 15(2)(a).

62 : Residential Tenancies Act 1987 (WA) ss 32(1), (2)(b).

63 : Residential Tenancies Act 1987 (WA) s 32(1).

64 : Residential Tenancies Act 1987 (WA) s 32(2).

65 : Residential Tenancies Act 1987 (WA) s 32(3A).

66 : Residential Tenancies Act 1987 (WA) ss 15(2)(b), (c).

67 : Residential Tenancies Act 1987 (WA) s 15(2)(c).

68 : Hewage v Vanikiotis [2016] VCAT 1376 (22 August 2016) [27]-[29]; See also Jones v Lo [2018] VCAT 485 (28 March 2018) [26], where the tenant's compensation was limited to 12 weeks, which the Tribunal considered "a reasonable time to have progressed and ultimately resolved the failure to repair, under various provisions of the Act available to [the tenant]."

69 : Residential Tenancies Act 1987 (WA) s 38(1)(a).

70 : Residential Tenancies Act 1987 (WA) s 38(1)(c).

71 : Residential Tenancies Act 1987 (WA) s 38(2).

72 : Residential Tenancies Act 1987 (WA) s 38(1)(b).

73 : Residential Tenancies Act 1987 (WA) s 50 (Vicarious responsibility of tenant for breach by other person lawfully on premises). See 3.17 for discussion of vicarious liability.

74 : Residential Tenancies Act 1987 (WA) s 58.

75 : Residential Tenancies Act 1987 (WA) s 42(2)(c) is given effect by clause 21.3 of Form 1AA and clause 23.3 of Form 1AB.

76 : Building Regulations 2012 (WA) reg 60(2).

77 : See Building Regulations 2012 (WA) reg 60(2)(a), Building Code of Australia Part 3.7.2.2 (c).

78 : Building Regulations 2012 (WA) regs 60(2)(d), 61.

79 : Building Regulations 2012 (WA) reg 60(2)(d).

80 : Electricity Regulations 1947 (WA) reg 13, 14.

81 : Residential Tenancies Act 1987 (WA) s 43(1)(b)(i).

82 : REIWA standard Residential Tenancy Agreement Part C, cl 2.16.

83 : Long v Paetzold [2010] NSWCTTT 509.

84 : Zahle v Bowman [2017] VCAT 205 (13 February 2017) [41].

85 : Batkin v Kinng [2018] VCAT 669 (26 April 2018) [56].

86 : Foster v Gardiner [2018] VCAT 342 (6 March 2018) [49].

87 : See for example, Edwards v Izzard [2016] ACAT 91 at 42: 'Some simple pruning may be expected to prevent the garden from becoming unduly overgrown. However, a tenant is not expected to maintain a garden to a professional standard, and nor is a tenant expected to undertake, for example, tree lopping or mulching.'

88 : Explanatory Memorandum, Residential Tenancies Amendment Bill 2011 (WA) 21.

89 : Residential Tenancies Act 1987 (WA) s 42(2)(a) and (b).

90 : Residential Tenancies Act 1987 (WA) s 38(1)(a).

91 : REIWA standard Residential Tenancy Agreement Part C, cl 2.19.

92 : Residential Tenancies Act 1987 (WA) s 42(2)(c) provides that it is a term of every residential tenancy agreement that the lessor must comply with all requirements in respect of buildings, health and safety under any other written law insofar as they apply to the premises.

93 : Government of Western Australia Department of Mines, Industry Regulation and Safety, Rules for Pools and Spas (20 October 2016) Department of Mines, Industry Regulation and Safety <https://www.commerce.wa.gov.au/publications/rules-pools-and-spas>.

94 : Knowles v Anthony [2009] NSWCTTT 187 (21 April 2009).

95 : Competition and Consumer (Corded Internal Window Coverings) Safety Standard 2014; Competition and Consumer (Corded Internal Window Coverings) Safety Standard 2014; Order (Curtain Blind Cords), published in the Government Gazette of Western Australia No. 15 on 23 January 2004, and Amendment to Order (Curtain Blind Cords), published in the Government Gazette of Western Australia No. 65 on 16 April 2004.

96 : Government of Western Australia Department of Mines, Industry Regulation and Safety, Blind and curtain cord safety (9 August 2016) Department of Mines, Industry Regulation and Safety <https://www.commerce.wa.gov.au/consumer-protection/blind-and-curtain-cord-safety>.

97 : Explanatory Memorandum, Residential Tenancies Amendment Bill 2011 (WA) 21.

98 : Van Ristell v Director of Housing [2017] VCAT 480 (6 April 2017) [42].

99 : Matthews v Huppert [2017] VCAT 395 (10 March 2017) [22].

100 : Taylor v Wise [2011] SADC 6 (3 February 2011).

101 : Sulusulu v Trumble [2012] NSWCTTT 520 (14 December 2012).

102 : Residential Tenancies Act 1987 (WA) s 43(1)(a); Residential Tenancies Regulations 1989 (WA) r 12A.

103 : Residential Tenancies Act 1987 (WA) s 43.

104 : Mcalindon v Maddock [2014] VCAT 96 [16]-[17].

105 : Xiao v Duggan [2017] VCAT 718 (23 May 2017) [26].

106 : Bersten v Di Sarno [2004] NSWCTTT 609 (22 October 2004).

107 : Residential Tenancies Act 1987 (WA) s 43(1)(a); Residential Tenanices Regulations 1989 (WA) r 12A.

108 : Sanders v Hughes [2003] SARTT 8 (3 April 2003) 3.

109 : Pabon v Fang [2017] VCAT 543 (27 April 2017).

110 : If there is no such term in the RT Agreement, the lessor may have a cause of action in negligence against the tenant. An action for negligence per se could not be brought under the Residential Tenancies Act 1987 (WA) – s 15 (2)(c) only permits the payment of compensation for loss or injury caused by any breach of the residential tenancy agreement. The lessor would therefore have to bring a separate action in the small claims division of the Magistrates Court for the callout fee.

---