Join Australia's most dynamic and respected property investment community

Advice sought for first time tribunal appearance

Discussion in 'Property Management' started by JenW, 19th Oct, 2015.

  1. JenW

    JenW Well-Known Member

    Joined:
    19th Jun, 2015
    Posts:
    365
    Location:
    Perth, WA
    Hi all! After being in the property game since 2007, we are coming up to our first tribunal experience (NB: we are in WA). I have prior experience in representation in industrial courts, so the formal aspect of it doesn't particularly concern me, but I would love any advice that might assist me in my prep.

    Currently I have originals and copies of the following:
    - proof of ownership (certificate of title)
    - lease and bond paperwork
    - initial property condition report and inventory report (we do fully furnished, so this is both important and comprehensive)
    - all receipts covering expenditure to get property back to a habitable condition

    I am also prepared to approach potential witnesses - the lady who did the final clean, the plumber who re-siliconed the kitchen bench (mould had completely infiltrated it, so it needed replacement) and the drycleaner who did all the linen (sheets, towels, mattress protectors etc).

    The basic issue behind the claim and counter claim is that we withheld money from the bond for a range of things, cleaning, resiliconing, drycleaning of linen, etc. Ex tenants consider that this is unreasonable and that we should only charge for the cleaning. Hence the dispute going before the magistrate's court for resolution.

    Any other advice would be most appreciated - thank you!! :)
     
  2. Scott No Mates

    Scott No Mates Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,544
    Location:
    Sydney or NSW or Australia
    Photos to accompany ingoing condition and outgoing condition.
    Any midterm inspections
     
    JenW likes this.
  3. Jackson

    Jackson Member

    Joined:
    18th Jun, 2015
    Posts:
    24
    Location:
    Somewhere in Aus
    Any records of correspondence of the issues raised during the term of the tenancy.

    Who lodged the application and is it a for 6 or 12?

    Can you advise which court you will be attending as each court house has its own process.
     
    JenW likes this.
  4. D.T.

    D.T. Adelaide Property Manager Business Member

    Joined:
    13th Jun, 2015
    Posts:
    5,569
    Location:
    Adelaide, SA
    Why is it going to magistrates rather than tribunal?

    In any case, no such thing as too much doco. In addition to what you've listed, take all inspections, ledger, diary/ copies of all correspondences and any notices served. I'd probably just get statements / reports from plumber and cleaner; tribunal doesn't have time to call upon multiple people.
     
    JenW likes this.
  5. Jackson

    Jackson Member

    Joined:
    18th Jun, 2015
    Posts:
    24
    Location:
    Somewhere in Aus
    Magistrates court has exclusive jurisdiction to determine the application pursuant to the RTA. If it's over the prescribed amount ($10k), then any court that is competent to determine the amount of the claim has jurisdiction to hear the application eg Magistrates court jurisdiction is up to 75k, district court is up to 750k and Supreme Court 750k onwards.

    The court won't accept statements if the other side attends simply because witness statements cannot be tested in court.
     
    JenW likes this.
  6. thatbum

    thatbum Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    893
    Location:
    Perth, WA
    WA doesn't have a tenancy tribunal. Tenancy matters generally get heard as a minor case claim in the civil jurisdiction of the Magistrate Court. Its pretty much equivalent to a tribunal in other states though.

    For the OP, well I could write a book on the issue really. Firstly you need to understand the procedure before any of the substantive stuff - you seem to be worrying about "proving" your case, when really there are many other issues to deal with first. It might never make it to defended hearing for example.

    Have you lodged your application yet or not even? Have you formally terminated the agreement?
     
    JenW likes this.
  7. D.T.

    D.T. Adelaide Property Manager Business Member

    Joined:
    13th Jun, 2015
    Posts:
    5,569
    Location:
    Adelaide, SA
    Ah that's good of WA, that'll be better procedure than what we deal with here.
     
    JenW likes this.
  8. thatbum

    thatbum Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    893
    Location:
    Perth, WA
    Do you understand the legal principles applicable to this sort of claim?

    1. The tenant is only liable for damage that is intentionally or negligently caused.

    2. The tenant only has to keep the premises reasonably clean.

    The first point especially is often confused - negligence whens that the tenants did something they shouldn't have (or didn't do something they should have), which led to the damage.
     
    JenW and D.T. like this.
  9. JenW

    JenW Well-Known Member

    Joined:
    19th Jun, 2015
    Posts:
    365
    Location:
    Perth, WA
    Thanks for everyone's feedback, it is very much appreciated.

    Theobserver, we lodged a form 6. We do have correspondence from during the tenancy, all of which reflects that we have done the right thing with maintenance queries followed up and resolved in a timely fashion, etc. Don't know which court house yet, apparently they will notify us at the end of this month.
    Thanks DT - will do!

    At this stage I believe there is likely to be a conference beforehand, in which case mediation will be tried. We have already informally tried this, to reach agreement to get the bond disposed of, and they wouldn't budge, so the likelihood is high that it will go to a hearing.
    Application has been lodged - see above. As it's a bond disposal matter, the tenants have obviously moved out.
    I'd appreciate any advice you might have, as you seem to be familiar with the process!
    Yes I'm familiar with the definition of negligence. This is the key issue which underlies our case - a lot of the remedial work we've had to do has been because they let the place get into such a state. eg. removal of the silicone in the kitchen and bathroom.
    But any specific advice you might wish to offer would be very much appreciated :D
     
  10. D.T.

    D.T. Adelaide Property Manager Business Member

    Joined:
    13th Jun, 2015
    Posts:
    5,569
    Location:
    Adelaide, SA
    Just to clarify, what was the resilicon for? Something the tenant had actually caused, or just wear and tear?

    And you provide linen as part of your lease? Expecting it to be cleaned upon exit is different to dry cleaned. I'm not sure you can expect the latter. There's precedents for carpet cleaning.
     
    JenW likes this.
  11. JenW

    JenW Well-Known Member

    Joined:
    19th Jun, 2015
    Posts:
    365
    Location:
    Perth, WA
    Re-siliconing was because the silicone in the bathroom and kitchen was riddled with mould. My husband actually had to go there mid tenancy for a maintenance issue and was completely horrified by the state of the bathroom - fortunately he managed to take some pictures of it, while making it very clear that it was not acceptable. Anyhow, after the cleaning, the silicone was still mould ridden, hence the resiliconing.
    2015-08-03 16.22.30.jpg 2015-08-03 16.22.36.jpg
    The kitchen was the same - it's the first time I've seen black mould on a kitchen bench top (and around the taps, and in the silicone and grout....)
     
  12. DiligentPM

    DiligentPM Well-Known Member Business Member

    Joined:
    18th Jun, 2015
    Posts:
    443
    Location:
    Brisbane
    It sounds as though you are well prepared. The key issues will be what constitutes 'reasonable wear and tear' and what constitutes 'negligence' ...the court wants evidence as per Entry Condition Report and Exit Condition Report (variation taking into account reasonable wear and tear), get statutory declarations signed as per DTs sound advice from tradies and all relevant docs ready particularly regular and detailed routine inspection reports
     
    JenW likes this.
  13. Jess Peletier

    Jess Peletier Mortgage Broker - Australia Wide Business Member

    Joined:
    18th Jun, 2015
    Posts:
    2,756
    Location:
    Perth WA
    That's disgusting - how does anything get that mouldy in such a short space of time? I don't think I could force my house to get that mouldy even if I left it for 6 months!

    Good luck Jen, I hope you're successful in court.
     
    JenW likes this.
  14. wylie

    wylie Moderator Staff Member

    Joined:
    18th Jun, 2015
    Posts:
    2,920
    Location:
    Brisbane
    Our shower silicone went mouldy in our new bathroom. Nothing I did stopped the spread along the floor/wall join. We had to replace it.

    I would say it could be a case of the cubicle not drying out due to them not leaving the shower door open or bad airflow or ventilation in the room itself. It may not be due to their lack of cleaning... except that first photo clearly shows the area where their feet are is clean and so I suspect they just haven't attempted to clean those times... ever.

    When my parents took a filthy tenant to tribunal I watched the face of the "judge" as he looked through the photos. I was sure we would win as I watched him try to hide his disgust.
     
    JenW likes this.
  15. JenW

    JenW Well-Known Member

    Joined:
    19th Jun, 2015
    Posts:
    365
    Location:
    Perth, WA
    Wow, I go and teach a couple of flute students and come back to heaps of responses... You guys are great :D

    Normally I'd agree with you Wylie, but we've had this property for nearly three years now, and have had various different tenants through it in that time, and we've never ever had a problem like this with the bathroom before (or the hand basin silicon. Or the kitchen silicon. Etc etc..)

    Anyhow, keep the advice (and stories!) coming, and thanks again everyone :)
     
  16. Perthguy

    Perthguy Well-Known Member

    Joined:
    23rd Jun, 2015
    Posts:
    4,666
    Location:
    Perth
    @JenW I have been through this process in WA and thought I was ready for anything as I had proof (photos and receipts) to back up all my claims. We were given the choice of mediation with a registrar? before going to full hearing. Basically, the registrar let the tenant run the show, lapped up everything she said and dismissed everything we said, even dismissing our documentary proof. The last straw for us was when she produced a letter from a real estate agent with a fake settlement date, claiming we charged her rent when we were not the owners. Of course that wasn't true but it didn't occur to us that she would challenge the settlement date. The registrar also went hard on us for not issuing breach notices during the tenancy. Our mistake because we thought we had a reasonable relationship with the tenant. We didn't.

    Anyway, with the registar blatantly on her side, we backed down and elected not to go to hearing. It took over 4 hours to get to that point and we really needed to get back to the property to make it habitable. Our choice. We accepted a low settlement to get out of there. My advice would be:
    * decide what you want
    * be prepared for a long day
    * don't let the registrar bully you if you decide to go to mediation
    * if you elect for mediation, take control of the situation
    * don't accept a low settlement if you want more

    I haven't been to hearing because we elected to settle, so I can't give you advice about that but you do seem very well prepared. Good luck! :)
     
    JenW likes this.
  17. Jackson

    Jackson Member

    Joined:
    18th Jun, 2015
    Posts:
    24
    Location:
    Somewhere in Aus
    There could be a possibility that you may not need to attend court and the court may make orders by default. You will only receive notification of the hearing date if the tenant formally disputes the application.

    Be mindful that if you call tradies in to give evidence they may not be able to recover the costs for their time in court. You may want to consider putting your husband in the witness box and give evidence given that he had discussed this with the tenants.
     
    JenW likes this.
  18. thatbum

    thatbum Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    893
    Location:
    Perth, WA
    I agree with most of what you said - but this part isn't true. Its a shame you were dissuaded from proceeding with your claim by the Registrar, but the truth is that the Registrar isn't really a good measure of whether your claim has prospects of success.

    They aren't involved at all in the final hearing of the matter - and there's really no 'points' to be scored in front of them if the matter is adjourned for hearing. I've been there plenty of times with a skeptical Registrar and been successful at trial.

    Best advice for a pre-trial conference or listing conference in front of the Registrar is to have a table with your outline of claim, and prepare (and stick to) what you are willing to settle for, taking into account the time, effort, and risk going to trial.
     
    JenW and Perthguy like this.
  19. Perthguy

    Perthguy Well-Known Member

    Joined:
    23rd Jun, 2015
    Posts:
    4,666
    Location:
    Perth
    Thanks for confirming that. That's just what I was trying to say. The registrar basically told us we had no case but that is not necessarily true.

    Also, I forgot to mention that if you are not happy with the settlment offer at mediation, you don't have to take it and you can go to a hearing. Of course there is a risk with doing this so you should consider carefully.
     
    JenW likes this.
  20. JenW

    JenW Well-Known Member

    Joined:
    19th Jun, 2015
    Posts:
    365
    Location:
    Perth, WA
    Wow. Thanks for the info Perthguy and thatbum. I understood mediation was a possible part of the process. Given the fact we have already discussed this with our ex tenants, can we omit the mediation part and go straight to a hearing? I would rather not waste everyone's time through the mediation process, and go straight to the hearing, to be honest.