Premium Members Blog – 30th April, 2018

 

HI Folks,

Well it’s been a tough Week and right now my Wife is in Bed with a bad migraine.

We spent 3 long hard physical Days at Gainsborough, prior to the hard Weekend, getting Home at 8.30pm last Night. I always feel sorry for the Horses…..and You should have seen the Dog 🙂

I fed up this Morning and the Horses and Dog were so happy :)////Bella and Celeste were yelling out to say they had missed us. Very cute. 🙂

 

STATE CHAMPIONSHIPS.

Well call me the Taxi Driver 2laughing-smilies I made 10 round trips x 30k, in between Tests, picking up and dropping off either Cappo or Dulce, because we didn’t want to risk any Mare Gelding calling out or loss of concentration ( now that there are only the two of them here at Home now.) Not bad but we will not allow it.)

Because of sheer exhaustion, Mrs HP got lost twice and once was with Cappo,. now a 2% penalty 🙂 I felt so sorry, but the Weekend got better and I am always so proud of my Wife.!!!

You can check the Results on the Net. I don;t have time to look at them. We hardly read Dressage Tests. That is not what nit is all about. We know what is right and wrong and let the Horses do the talking.

 

MUSCLE TONE VERSUS SYSTEMS

Both of Mrs;. HP’s Horses stood out from the Crowd, in Muscle tone. Correct Muscles. Both stood out in their attitude, their will to win, their proudness to try their best. Both grow a Hand now, when they enter the ring. This is what it is all about Folks.

 

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SWAB

The only Horse to get swabbed Folks, was Cappo. What a waste off money, but never mind. Doesn’t matter. The Swabbing People were raving about the handling of Cappo and were shocked at how small he was.  “He looks so much bigger in the ring” !!!!!!!

Anyhow, basically, Dolce got 70% in this Test, the 4.2 and that’s what it is all about!!!!.

 

In this Test, she arrived as a truly serious Dressage Horse. Note the DANCE, for which she had none prior to training as she is not EU Bred and $100,000, like the rest. She came second to the Squillion Dollar EU imported Stallion 🙂

 

and then Cappo. 12 Months off with his very bad injury, where his Collateral ligament came away from his Coffin Bone. Wonderful rehab efforts by Mrs. HP and this Weekend, he was back.

The other Grand Prix Horse scratched from the second Day, when the Rider realized he couldn’t do it WITHOUT A WHIP. Yes….no Whips at the Champs. No whips in Holland either. Dressage is about Dressage, not whips.

He became the following.:

  • Champion Grand Prix Horse
  • Champion F.E.I. Horse
  • Champion F.E.I. Freestyle Horse ( which was a wonderful result given the difficulty for the Grand Prix Horse) 68%
  • He qualified for the Nationals as well, at Grand Prix.

Please enjoy his Freestyle Test and please watch his excitement and proudness.

 

 

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UNSOUND HORSES AT THE DRESSAGE – HOW CAN IT BE?????

 

This is the STATE CHAMPS, what in the Hell are unsound Horses doing at the Dressage??? How did they qualify? Where are the Coaches????/////Blind?????????????????

I saw 7 unsound Horses at the Champs and on the Saturday, 3 going at once. NOT 1 GOT PULLED UP and ALL got into the Competition Ring. I am not talking subtle unsoundness, I am talking Horses SCREAMING their Heads off, incapable of Cantering, rearing, balking, ears flat back and more. Phew

I casually asked a number of EA People during the course of the Weekend. They unanimously made the comment that the Horses have to be BEFORE THE JUDGES before anything can be done. Nothing was done, nothing ever gets done Folks. They shout the new and enlightened Days of HORSE Welfare, they write impressive Horse Welfare policies and nothing happens Folks. It’s all Political spin.

Who’s looking after the Horses” ?

 

 

THE SURFACE OF THE  F.E.I. ARENA

 

 

 

Cappo tells us all.

 

HORSELAW

 

Baddeley is now based at https://darby-lodge-equestrian-centre.webnode.com/ in the Adelaide Hills.

He did also attempt to lease Gainsborough smile_omg

 

Hi John,

I am still in shock, I harassed him so much sending the court order to many of his contacts requesting if they could forward the court order onto  him as he refused to give me a postal address. In my letter box today I received the full amount in an Australian Post Order.

Please see attached photos 2,4,6,10 of the condition the 10 horse paddock were left in.  Photos 2015, 2015 1, 2015 2 are photos 2 days before Baddeley moved in and were taken by the Property Manager.  I have managed to receive 2015 photos via Baddeley’s lawyer, as Property Manager refused to provide in going inspecting photos to me.

Regards

Margaret Pearce

 

Hearing held on:                                         15 March 2018

Before Tribunal Member:                          M Kennedy

In attendance: Terry Baddeley (in person), Margaret Pearce (in person).

 

Tenancy address          704 Harris Rd, WASLEYS SA 5400

 

 

Compensation & Related Orders – Tenant and Landlord applications

Made under the Residential Tenancies Act 1995 section 68

 

 

Procedural

 

  1. These orders finally determine a number of disputes between Mr Baddely (former tenant) and Ms Pearce (former landlord). The dispute has generated a proliferation of applications before the During the hearing, I took care to ensure that all outstanding claims for compensation from the former tenant and the former landlord were ventilated.
  2. The former landlord’s claims will be dealt with in application SH010053, which I note was the application dealt with in part by Member Files on 1 September 2017 where an order for possession was granted and then adjourned on the question of further
  3. The former tenant’s application will be dealt with in application
  4. To avoid doubt, all other applications are administratively dismissed being either overtaken by events or otherwise redundant.

 

Background

 

  1. The premises in relation to which these disputes arise is a large equestrian property of 45 acres at The tenancy agreement however is essentially a standard form residential tenancy agreement entered into by the tenant on or about 9 July 2015 for a fixed term tenancy agreement commencing 4 September 2015. The tenancy agreement was extended from time to time, before it was terminated, and vacant possession returned to the landlord by order of the Tribunal on 4 September 2017. I note that the Tribunal as previously constituted made orders in respect of the bond and a further order for compensation for unpaid rent.
  2. The tenancy agreement and annexure make no express provision for the various atypical matters that might be predicted to arise between a landlord and a tenant, where the agreement is for the letting of a large semi-rural equestrian
  3. Sometime between the signing of the tenancy agreement by the tenant and the tenant taking possession of the premises, a further addendum was signed by the This addendum is poorly and inaccurately drafted, but it purports to partially exclude parts of the property from the tenancy agreement, in the sense of restricting the access and use by the tenant of parts of the property, during poorly specified periods of time.
  4. Also, there is before the Tribunal a ‘pet application and agreement’, with general terms, purporting to authorise 15 horses and two dogs to be present on the property, dated 18 August”
  5. In the course of the hearing, the Tribunal has come to understand that the landlord is in dispute with her former agent, Marley Duncan Real Estate, over issues relating to entering into the tenancy agreement with the tenant contrary to The landlord also has stated that she did not authorise 15 horses to be on the premises, but only six. The landlord denies ever signing the pet application document, and the copy before the Tribunal is signed only by the tenant.
  6. To avoid doubt however, I have proceeded on the basis that so far as the legal agreement between the tenant and landlord has been documented, it is documented by the written agreements entered into on behalf of the landlord by her then Issues arising in the course of the relationship between the landlord and her former agent cannot be resolved by the Tribunal, and I understand that the landlord is litigating various matters with her former agent elsewhere.
  7. For the record, I also indicate that Ms Marley Duncan purported to represent the tenant in these proceedings against her former I declined permission for the tenant to be represented by a professional representative in accordance with section 113 of the Residential Tenancies Act (the Act). I then excluded Ms Duncan from the hearing room on the basis that the tenant may have called her as a witness. On resumption of the proceedings, Ms Duncan was not present and was not called. Correspondence before the Tribunal indicates that Ms Duncan had informed the landlord that photographic evidence of the state of the premises at the commencement of the tenancy had been lost. I note that during the hearing, the tenant was able to produce some photographs of the premises that had been taken at an ingoing inspection by the agent.

 

The landlord’s claims

 

  1. The landlord seeks compensation in respect of unpaid water usage and supply, damage to two gates, damage to a ‘c-section of a carport, costs incurred in removing non-combustible rubbish from a burn-pile and predicted costs to remediate a round yard, and predicted costs to remediate horse
  2. As to the water usage and supply, I note the standard-form tenancy agreement entered into by the parties provides that the tenant is liable to pay for all water usage and supply I accept the landlord’s evidence that the following invoices have been provided to the tenant but have not been paid (identified by reference to supply periods on SA Water invoices):

 

-Supply period ‘April to June’ 2017: Supply charge $71.60, Usage $693.36

-Supply period ‘July to September’ 2017: Supply charge $73.10, Usage $482.76

-Supply period ‘October to December’ 2017: Supply charge $73.10, Usage (8 June 2017 to 12 September 2017)

$378.54.

 

  1. The tenancy ended on 4 September The landlord has purported to adjust the supply charges and water usages accordingly. I am unable to reproduce the calculations of the landlord because the supply charges for the last period relates to periods outside the tenancy (ie. from October 2017), and thus one supply charge appears to have been duplicated. By my calculations, the tenant is responsible for supply charges from the first SA Water invoice (falling wholly within the tenancy), not for the last invoice (falling wholly outside the tenancy) and with an adjustment from the second invoice in accordance with the landlord’s printed invoice. By my calculations, the liability for water supply is $123.74. I accept the landlord’s calculations in respect of water usage, and find the tenant is liable for water usage costs of $1545.48.
  2. The tenant has raised issues relating to leaking pipework at the premises, but I will deal with that under the tenant’s claims.
  3. I find that the tenant must compensate the landlord for unpaid water usage and supply charges under the tenancy agreement of $1669.22.
  4. As to damage to two gates at the premises, I have examined photographs of one rectangular rural paddock

There are no photographs of the second gate the subject of the claim.

 

  1. As to the first gate, it appears that weight has been applied to the middle of the gate with the effect that the welding has come undone by the hinge and the gate has essentially been damaged beyond The damage appears consistent with having been inflicted by a horse becoming caught on the gate, and I note the tenant can recall a horses blanket becoming damaged possibly by being caught on a gate. The tenant argues that the gate had been previously repaired poorly, and a weld had failed.
  2. In relation to the first gate, I am satisfied that it is ancillary property on the premises that has been damaged by the tenant (in the sense of being damaged by the tenant’s animals). The tenant is obliged to return the premises and its ancillary property free of damage, and has failed to do so in relation to this The tenant must compensate the landlord for costs incurred in relation to replacing and fitting the gate.
  3. As to the second gate, the tenant argued that this gate had been previously repaired and the repairs had

The gate had been removed from its hinges, and a request for repair had been made – but this did not take place. The landlord had provided no photographic evidence of the second gate, and did not press the claim. I am not satisfied that the second gate was damaged by the tenant on the evidence before me.

 

  1. As to the amount of compensation for the first gate, the landlord relies on an invoice by a handyman who performed various work at the The particular value of the first gate and the time spent fitting it is not individually particularised.
  2. I will allow half the materials charged on the invoice, and a proportion for labour to total $200 in respect of the first
  3. As to damage to a c-section of the carport, the landlord believes the section has been bent by a heavy object being hung from the section, although told the Tribunal she had not actually observed that to be the The tenant claims that the carport was repaired when the roof was observed to be lifting during a storm, and attributes the bent c-section to that event. The tenant denied that a heavy object was hung from the c-section, and points out it was a carport and vehicles were parked under the c-section, so items were not hung over vehicles. On this issue I accept the tenant’s evidence as in my view it is unlikely a person would hang an object heavy enough to bend a c- section over a vehicle in a carport. I am not satisfied that the damage to the c-section was caused by the tenant, and find on the balance of probabilities it was damaged due to the roof lifting in a storm. This is not tenant damage and the tenant is not responsible for its repair.
  4. As to costs incurred in removing non-combustible rubbish from a burn-pile, I recognise it is common rural practice to maintain a burn pile, and it is commonplace for non-combustible material to However, in the context of a tenancy, I agree that the burn-pile must be cleared of rubbish at the time the premises are returned to the landlord at the end of a tenancy, and the landlord legitimately incurred expense in clearing the burn pile of non-combustible rubbish. I will make provision for the landlord to be compensated for that expense, although again the costs have not been particularised in the invoice relied upon.
  5. I have determined that dump fees for a single axle trailer at the Northern Adelaide Waste Management facility is

$50. I consider this is sufficient compensation for costs incurred in removing the non-combustible rubbish from the burn pile as the volume was not extensive from the photographs I have examined.

 

  1. As to the landlord’s claim for compensation for costs to remediate a round yard and horse yards, I take note of the landlord’s position that she had not authorised 15 horses to be present on the premises, and the circumstances in which the tenant was given written authority to have 15 horses on the premises are Nonetheless, I accept that from the tenant’s perspective the round yard and horse yards were being used for the purpose that they were intended, and as had been authorised.
  2. This issue has been difficult to determine because of the unusual nature of such a claim in a tenancy dispute, particularly where the agreement between the landlord and the tenant contains no express provisions dealing with land management and maintenance and rehabilitation of equestrian
  3. I consider that a round yard and horse yard on a rural property will inevitably require ongoing maintenance and occasional remediation, such as treatment for weeds, reseeding, replacement of aggregate and repair of weather- related As mentioned above, it is unfortunate that written agreement was not reached between the landlord and the tenant as to responsibility for these matters in the context of a large semi-rural equestrian property.
  4. The photographs of the round yard and horse yard at the outgoing inspection were taken at a point in the annual cycle when they are likely to be relatively water-logged, weed control will be at its most difficult, and prior inadequate weed control will be most The photographs in this regard show the yard and round to be in relatively poor condition.
  5. In relation to the horse round, the tenant attributes increased wear and tear on the aggregate surface of the horse round to the loss during a bushfire of a rubber bund installed to retain the aggregate on the horse The tenant argues that because this was not replaced, the aggregate inevitably dissipated from the round through normal use. I accept the tenant’s observations in this regard, and agree that the absence of the retaining rubber bund after the fire (because it was not replaced) has had the effect that the surface of the horse round has deteriorated.
  6. I have formed the view that the condition of the yard and round are consistent with fair wear and tear of these aspects of the To put this another way, as the tenant had kept 15 horses on the premises on the basis that the landlord’s agent had provided him with written authority to do so, the state of the yard and round is consistent with ordinary use of that nature in my assessment.
  7. I do not consider that the tenant has damaged the premises in this regard, and do not consider that remedial work on equestrian yards and facilities fall within the concept of regular garden maintenance or pet Absent any express agreement about responsibility for these matters in the tenancy agreement (recognised by all parties now as an oversight) I do not accept that the tenant is liable for these costs at the end of the lease.
  8. As a result of the landlord’s claims for compensation, I will make orders on the basis that the tenant has a liability to compensate the landlord in the amount of $1919.22. I make this order in matter

 

The tenant’s claims

 

  1. The tenant seeks compensation arising out of restricted use of the premises through entering into the addendum to the tenancy agreement, and further restricted use of the premises arising out of bushfire damage to
  2. The tenant also seeks compensation arising out of alleged breaches by the landlord of the landlord’s duty to maintain the premises in a reasonable state of repair relating to leaking rural plumbing, leaking pipes to a hot water service, damaged flyscreens, loss of the rubber bund at the horse-round, an incomplete repair to the toilet wall and the incomplete removal of a fallen tree in the horse arena
  3. The tenant seeks compensation for time he invested in rendering an electric fence operable after it had been installed
  4. Also, the tenant seeks compensation on the basis that his right to quiet enjoyment of the premises was infringed upon.
  5. As to the tenant’s claim arising out of the addendum to the tenancy agreement, as I have mentioned above, following the signing of the ‘main’ tenancy agreement, the tenant signed an addendum to the tenancy agreement that stated that a smaller paddock will be available only after a crop was harvested, while a larger ‘paddock on the northern side of the tenancy would be share farmed six months throughout every year of the life of the tenancy’ (implying that it would not be available to the tenant). The use of the smaller paddock proceeded in accordance with the
  6. The tenant’s argument was that the restriction on his use of the larger paddock (which is agreed is in fact on the southern side of the tenancy) required him to hard-feed the horses more extensively than he otherwise would have, incurring costs and explaining why the horse facilities deteriorated in the way they
  7. Noting that the addendum was entered into a number of weeks after the main tenancy agreement, I asked the tenant why he had signed the document if his position was that he had been misled as to his access to these large parcels of I noted that the first tenancy agreement itself described the entire premises and made no exclusions, and arguably the tenant could have proceeded on the basis that this document constituted a binding

 

agreement. On this basis it would seem that the tenant was entitled to have possession of the entire premises without permitting access by share farmers or restricting his use of the small and large paddocks.

 

  1. The tenant explained that he wished to remain in the premises long term, and believed if he did not sign then the tenancy would not be His evidence was that he had been told as much by the landlord’s agent. The tenant believed he had ‘no choice’ but to sign the addendum.
  2. I do not accept that The tenant had every right not to agree to what, on any view, represents a significant dilution of the agreement adverse to his interests. Likewise, if the tenancy agreement had been offered to the tenant without exclusion in error, the landlord had every right to terminate the agreement at the end of its term.
  3. The tenant did however enter into that addendum, and the agreement between the landlord and the tenant, in my view, changed There is no basis to now order compensation against the landlord in relation to the restrictions and exclusions placed on the tenant’s use of the premises which he agreed to. In this regard, it is not to the point on which basis the property was marketed by the landlord’s agent (and I accept it was marketed without describing any restrictions as to the use of the entire premises) or the basis on which the request to sign the addendum was represented to the tenant. In my view, by signing the addendum the legal rights of the tenant to use the premises changed, and it is not appropriate to compensate the tenant as if they had not. Furthermore, the tenant has rested on any rights he may have had arising out of the poor drafting of the addendum or the circumstances in which it was presented to him by remaining in the premises on this basis for years, including agreeing to lease extensions.
  4. As to the tenant’s claims regarding further restricted use of the paddocks arising out of damage inflicted on the premises by a bushfire, I understand that the Pinery fire effectively destroyed the fencing to the property and reduced the paddocks to The damage to the large paddock was inflicted during a period when under the addendum the tenant would have had use of the paddock. He could not however use the paddock for his horses because the fencing was destroyed, although I suspect the paddock would have been of limited use in any event if the pastures had been destroyed by the fire.
  5. The landlord gave evidence that she arranged for the urgent restoration of the fencing, and paid a premium for this to be achieved She stated that she was the first victim of the Pinery fire to her knowledge to have remedial fencing work completed. She stated that the fences had been replaced by February 2016.
  6. I will consider the additional restricted use of the paddock as a consequence of the Pinery fire as an issue in its own right, and also as an issue relating to the repair of
  7. As to the consequences of a bushfire damaging the premises, it is difficult to see how the consequences of bushfire damage should be visited on the landlord in a tenancy The remedy for a tenant where premises are rendered partially destroyed otherwise than through the breach of a tenancy agreement is provided for in section 86B of the Act, and also the discretion of the Tribunal to terminate a tenancy agreement on the grounds of hardship. Other than recognising that a tenancy agreement can be terminated in these circumstances, there is no justification in principle to require a landlord to compensate a tenant on account of adverse consequences of a natural disaster.
  8. The tenant stated that he was unaware of his right to seek termination of the tenancy through frustration of the agreement in this It is most unfortunate that the restricted use of the large paddock, and also the use of other paddocks at the premises were affected by the natural disaster of the Pinery fire, but these are not matters in my view amenable to financial compensation from the landlord.
  9. As to the tenant’s claims for compensation arising out of the landlord’s duty to maintain the premises in a reasonable state of repair, I note the following
  10. Section 68 of the Act states that a landlord must provide premises in a reasonable state of repair taking into account their age, character and prospective life, and must maintain them in that Section 68(2) states that a landlord will not be regarded as being in breach of the obligation under that section if once notified of a defect, the landlord uses reasonable diligence to carry out repairs. If a landlord is in breach of the obligations under Section 67 or Section 68 then the Tribunal may award compensation for loss or inconvenience suffered by the tenant as a result of the landlord’s breach (Section 110(1)(c) of the Act).
  11. A tenant cannot claim compensation for personal injury (such as stress or another medical condition – Section 110(2) of the Act). The Tribunal does not have power to order compensation for distress or loss of enjoyment of the property. However, the Tribunal does have power to award compensation for inconvenience or financial loss (per Justice Parker’s decision in Tronnolone v Edwards & Bryan (2016) SACAT 27) and this means that the Tribunal cannot make an order for compensation for claims such as the reimbursement of medical expenses, stress).
  12. Any amount of compensation to be awarded is not determined in accordance with any set scale or The amount of any compensation to be awarded is a global amount taking into account all of the factors in the particular dispute. (This was the approach taken in Varricchio v Wentzel and confirmed by Parker J in Tronnolone v Edwards

& Bryan (at para 17)).

 

  1. Section 78 of the Act applies the common law principles about mitigation of loss to any claim for compensation arising from a breach of a residential tenancy Therefore in making such a claim a tenant is required to take reasonable steps to mitigate any loss and is not entitled to compensation for damage that could have been avoided by those steps.
  2. I return to the issue of damage to the fencing at the premises caused by the Pinery bushfire. It is not in dispute that the landlord was immediately aware of extensive damage to the premises caused by the
  3. I consider however, accepting the landlord’s evidence, that she then acted with reasonable diligence to have the extensive repairs required to remedy the fencing It is notoriously difficult and expensive to have fencing work undertaken in the aftermath of a bushfire, and the landlord’s actions to have the fences repaired within a few months demonstrates to my satisfaction that she attended to these matters with reasonable diligence. It follows that in relation to bushfire damage to fencing, the landlord is not in breach of her duty under section 68 of the Act.
  4. As to water leaks, the tenant has provided evidence of a leak to a hot water service that appeared in October The landlord has provided records of communication with the tenant and a handyman in response that demonstrate the leak was repaired almost immediately. The tenant gave evidence that the repair was not effective, and the tenant then attended to a more durable repair himself without again resorting to the landlord.
  5. I consider that the landlord has demonstrated reasonable diligence in attending to the first report of a water leak at the hot water service and is not in breach of her duty under section 68 in these It does not appear that the landlord was then notified of the failed repair as the tenant attended to the matter himself. Therefore the landlord is not in breach of the duty on this occasion either. The tenant did not seek any specific compensation in relation to these matters, and I understand the fitting he purchased to effect a more durable repair was not expensive.
  6. Further as to water leaks, the tenant explained that the premises were supplied by mains water, but there was extensive rural plumbing serving the horse facilities and paddocks fed by the mains There was no way of isolating the rural plumbing system (which tends to be less reliable than ordinary household plumbing and exposed to greater scope for failure) from the residence. In other words, if one wished to stop the supply of water to the rural plumbing system because of minor or major leak, the residence would also be without water.
  7. There are limited specific examples of leaking plumbing at the premises in the evidence before In one instance, an obvious wet patch is evident in a photograph but it was accepted that the landlord’s handyman attended promptly to excavate the area, and the landlord gave evidence that she repaired the leak herself after obtaining the necessary fitting.
  8. I have insufficient evidence to identify when this defect was notified to the landlord and when it was
  9. In another instance, the tenant relies on a photograph showing a horse trough was leaking, although I am unable to see any obvious leak from the There is no clear evidence showing that the defect was brought to the landlord’s attention, and I understand from the tenant the leaking trough was never repaired by anyone (including himself). In these circumstances, the evidence is insufficient for me to be satisfied that the landlord is in breach of the duty under section 68 in relation to this specific leak.
  10. I also note photographs of rural plumbing pipework showing a fine high pressure There is however insufficient specific evidence of the need for repairs in relation to these matters being brought to the landlord’s attention for me to be satisfied that the leak was not repaired by the landlord with reasonable diligence.
  11. Finally as to water leaks, I note also that the rural plumbing work at the premises was extensively damaged by the Pinery fire, indeed the pipework was damaged to the The remarks I have made above in relation to the impact of a natural disaster on the premises apply equally to this issue. I do not understand there has been an issue raised in relation to the diligence with which the landlord replaced the rural plumbing after the fires.
  12. Having considered all aspects of the tenant’s claim in respect of leaking water pipes and damage to plumbing, I am not satisfied that the landlord is in breach of her duty under section 68 in relation to these
  13. As to damaged flyscreens, the evidence of the parties was that there were two damaged flyscreens to be repaired from rear bedrooms, and this was identified by the landlord at the commencement of the The landlord’s evidence was that the tradesman engaged to repair the flyscreens lost his business during the Pinery fires, but she had agreed not to take the work elsewhere. The consequence was that the flyscreens were not in fact repaired during the entire tenancy.
  14. The tenant gave evidence that he was aware the flyscreens were to be repaired, but he did not take any specific steps to again agitate the issue of the flyscreens during the tenancy, other than perhaps mentioning the matter during an The tenant did not have any particular basis for compensation in mind, but stated that it was inconvenient not being able to have the window open in the two rear bedrooms affected. I note the premises were air conditioned.
  15. As mentioned above, section 68(1) requires the landlord to ensure that the premises are in a reasonable state of repair at the commencement of the tenancy and the landlord will be in breach of this obligation if there is a defect in the premises which ought reasonably to have been apparent upon an inspection at that point (Varricchio v Wentzel (2016) SASC 86 at para 47).
  16. On the issue of the flyscreens, I find that the landlord is in breach of the duty under section 68 of the However, it is not apparent to me that the tenant took any particular step to press the issue of the flyscreens. I draw from this that the tenant has not undertaken any action to mitigate the inconvenience caused by damaged flyscreens, and furthermore that the inconvenience caused by the defect is minimal. In these circumstances I am not minded to make any award of compensation in relation to the flyscreens.
  17. As to the loss of the rubber bund on the horse round, there is no specific evidence that the tenant notified the landlord that the bund needed to be replaced, although I consider that as it was damaged during the bushfire the landlord was aware of
  18. The tenant told me that he continued to use the horse round despite the absence of the I am not satisfied that the lack of repair to the rubber bund has caused any particular inconvenience to the tenant. I understand that the matter was raised in part in response to the landlord’s claim for compensation to remediate the horse round, but I have not allowed that claim. As I am not satisfied of any particular inconvenience caused to the tenant by the loss of the rubber bund to the horse round, I will make no award for compensation in respect of it.
  19. As to the incomplete repair to the toilet wall, the tenant told me that a leak or mould had become evident, and the landlord’s repairman had removed the plasterboard to access the wall This repair was undertaken in about March 2016. The repairman needed further materials to complete the repair, but did not return. Eventually the tenant covered the hole in the wall with cardboard.
  20. As the issue relates to an incomplete repair, no issue arises as to the landlord beware of the However, the landlord’s case is that she and the repairman attended at the premises in order to complete the repair among other outstanding maintenance issues in December 2016, but were unable to gain access. There was some dispute between the landlord and tenant as to whether the tenant was at home and refused access or whether the tenant was not at home despite the maintenance visit being arranged.
  21. There is no written correspondence regarding a request to complete the repair between March and December 2016. It is not clear when the fact that the repair was incomplete was either brought to the landlord’s attention or re-agitated.
  22. I consider that the landlord is in breach of the duty under section 68 of the Act because the repair was not completed with reasonable I consider that where a repair was commenced in March 2016 but not completed by December 2016, the landlord has not acted with reasonable diligence to remedy the defect in the

 

toilet wall. However, all the circumstances behind the lack of agitation on the part of the tenant during the tenancy, and the failure to provide access in December 2016 for the landlord to complete the repair leads me to conclude that the incomplete repair in the toilet wall caused no particular inconvenience to the tenant. In these circumstance I will not award compensation for inconvenience, and I note no other basis for compensation has been raised by the tenant in relation to this defect.

 

  1. As to the tree stump encroaching on the horse arena, a large tree fell across a fence between a paddock and the horse The landlord was notified of this event and the bulk of the fallen tree was removed promptly. However, the tenant complains that the stump of the tree was left remaining, and this protruded onto the horse arena. The photographs provided by the landlord of the area before and after the fallen tree was removed shows minimal intrusion onto the arena. The tenant told me that he believed a tractor was required to drag the stump away from the arena because it was too large to cut.
  2. It is difficult to conceive of the fallen tree and its remnants as a defect in the premises and the ancillary

Similarly, attending to a large fallen tree is more than is envisaged as being the tenant’s responsibility for lawns and gardening as set out in the annexure to the tenancy agreement. It is apparent that the landlord viewed the removal of the tree after it fell as her responsibility, as she arranged for that to happen (other than the stump) relatively quickly. It is indeed another example of why a standard form residential tenancy agreement has proven not to be suitable for a property of this nature. However, I have considered the issue in the context of maintenance, noting that the landlord acted on the basis that it was her responsibility to attend to the fallen tree.

 

  1. The tenant has said that he was inconvenienced by the fallen tree stump because he had to place tyres around it so the horses did not approach I understand also that the tenant was injured in a horse-related incident that may have involved the stump. It is however clear that the Tribunal has no jurisdiction to entertain claims for personal injury so I will not consider the tenants claims in that regard further, and restrict my consideration to his claim regarding inconvenience. I view the inconvenience of a stump slightly protruding into a large horse arena as minor.
  2. Furthermore, as mentioned above, in assessing compensation, the tenant had a duty to mitigate any inconvenience arising from the failure of the landlord to fully remove the fallen The tenant described that what was required was a tractor to pull the stump away from the fence line, but the tenant took no such action for himself.
  3. Having regard to the absence of any mitigating step by the tenancy, and the very minor inconvenience that would have been caused by the protruding stump, I have decided that no compensation is to be awarded in respect of this
  4. As to the electric fencing repair, the tenant explained that he is an electrician by trade and had observed that electric fencing had been installed incorrectly in a particular part of the He explained that when he inspected the property it had been agreed with the landlord that the electric fencing would be fixed. Eventually, the tenant spent about 4 to 6 hours correcting the incorrect installation of the electric fencing.
  5. The landlord pointed out that she had arranged for new electric fencing to be installed on a 10 acre paddock, and now believes she had misunderstood the full extent of what the tenant was asking
  6. I am satisfied that the incorrect installation of the electric fencing in the horse yard is a defect in the premises, but in the circumstances is not a defect that was reasonably apparent at the commencement of the The identification of the defect required a degree of specialist knowledge. I am not satisfied that the landlord was notified of the defect with sufficient clarity (in the absence of any written communication regarding this specific issue) in order to assess whether the landlord then failed to act with reasonable diligence up until the point in time (which is also not specified) that the tenant took matters into his own hands as a qualified electrician and corrected the installation error. In these circumstances, I am not satisfied that the landlord is in breach of her duty under section 67 or 68 of the Act.
  7. I observe in any event that the raising of the issue in relation to the incorrect installation of the electric fence may in itself have been a defence against a claim for damage caused to the rural fencing at the property, possibly caused by horses leaning on the Although there is a mention of this issue in the photographic evidence, the landlord has not advanced a claim in this regard and so I have not considered it.
  8. The tenant seeks compensation for breach of his right to quiet enjoyment of the The tenant claims that at the beginning of the tenancy, the landlord’s maintenance man would attend the premises from time to time without prior agreement and was observed in the paddocks picking up pipes. The tenant confirmed that no particular issue was raised with the landlord at the time, but the maintenance man eventually stopped attending. The tenant also mentioned that he observed the landlord driving by the property on occasion on the public road that passes it. The tenant also questioned whether the landlord’s attendance at the premises to serve a Form 2 for non-payment of rent constituted a breach of his right to quiet enjoyment of the premises.
  9. I consider the tenant’s allegations and claims in relation to this mater to be vague and The unauthorised presence of a third party on the premises on a few occasions at the commencement of the tenancy is undesirable, but it is difficult to view it as an infringement on the tenant’s right to quiet enjoyment of the premises by the landlord when he took no action to raise it with the third party or the landlord contemporaneously.
  10. Similarly, the landlord may lawfully drive down a public road that passes the premises, and may lawfully attend at the premises to deliver a statutory notice such as Form
  11. I am not satisfied that there has been a breach of the tenant’s right to quiet enjoyment of the premises on any particular occasion, or

 

Conclusion

 

 

  1. Having considered all the matters raised by the landlord and tenant, I have found that the tenant must compensate the landlord $1669.22.for unpaid water usage and supply, $200 for damage to gates and $50 for rubbish
  2. I have found that none of the matters outlined in the tenant’s application seeking compensation from the landlord is to be the subject of an award of I will dismiss the tenant’s application.

 

Orders of the Tribunal

 

Matter SH010053

 

  1. The tenant must pay to the landlord the sum of $1919.22 within 14 days of the date of this order. This order may be enforced in the Magistrates Court.

 

Matter SH012534

 

  1. The application is dismissed.

 

M Kennedy

Tribunal Member

 

20 March 2018

 

TENANCY INFORMATION

 

Tenancy address        704 Harris Rd, WASLEYS SA 5400

Tenancy commenced

4 September 2015

 

Tenancy term              2 years

 

Tenancy type               Fixed Term

 

Tenant name               Terry Baddeley

 

Landlord name            Margaret Pearce

 

Rent                              $625.00 Weekly

 

Bond                             $3600.00 (Bond No. 4025400) | Total $3600.00

 

 

FEEDBACK = O’Leary Running Reins system

 

Paul Dopper

John Oleary this is the after from your running rein system. This is the before……

31154143_10156281574389084_6872676453361610611_n-e1524390463508

 

31143695_10156281407494084_4575789801149407120_n

 

Well done Paul. Outstanding. Great result!!!

 

 

GAINSBOROUGH SOAP UNCUT

 

A couple of Weeks back, two Mature aged Ladies went at it with each other, one issuing a Death threat on a Horse and the other getting an AVO on Her. Mature aged Ladies acting like Kindy Kids. It’s all over the Inudstry, from one end of the Country to the other. Get a Life for God’s sake!!!!!!!!

Not Madam Death Threat sends us this just now

 
Hi Linda. 
 
I am writing to inform you that your staff and a couple of Agistees have been talking about me in a defamatory and slanderous manner, to other Agistees. 
 
Since leaving, I have heard from 3 Agistees, 3 different reasons as to my leaving your Agistment Centre. This is not Professional from your employees, nor does it promote a Professional Agistment Centre to others within or outside. I left your Agistment Centre when advised to and have given no reason for yourselves or your staff to continue to Slander my name. 
 
It has now come to my attention that your employee Sondra has been telling Agistees that I have Mental Health issues and other defaming comments. I assure you that I will not stand for this kind of behaviour and will take this matter further, if I hear one more comment. If Agistees are leaving your facility, that is your issue, not mine. 
 
Thank you 
 
Fiona
 

 

 Gues what….she does have Mental Health issues hahahahaha

 

 

 

BACK NEXT WEEK with full Blog. Regards to all.

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