Bolitho-Howell v Kerrison and Tyler; Kerrison and Tyler v Bolitho-Howell

NCAT Consumer and Commercial|2022-12-07

Parties

The Applicants in application RT 22/44607 were the tenants of premises at x Nungeroo Avenue Jamisontown ("the premises"). The Respondents in the application are the Landlords. For the sake of convenience, the Applicants shall hereinafter be referred to as "the Tenants". Application RT 22/44607 shall hereinafter be referred to as "the Tenants' application".
The Applicants in application RT 23/08134 are the owners and Landlords of the premises. For the sake of convenience, the Applicants shall hereinafter be referred to as "the Landlords". The Respondents in the application were the Tenants. Application RT 23/08134 shall hereinafter be referred to as "the Landlord's application"

The Applications

The Tenants' application was filed in the Tribunal on 6 October 2022. The Tenants sought an order for the payment of the rental bond pursuant to section 175 of the Residential Tenancies Act 2010 ("the RTA").
The Landlord's application was filed on 20 February 2023. The Landlord alleged the Tenants had caused damage to the residential premises, failed to maintain the garden and did not clean the premises properly when they vacated. The Landlord claimed compensation of $12088.00 for damage and repairs, $396.00 for cleaning and the rental bond. The Landlords contested the Tenants' claim for the rental bond and requested an order the bond be paid to them.

The Rental Bond

The rental bond of $2,400.00 was lodged with Rental Bond Services and remains frozen pending the determination of the applications.

Procedural Directions

The Tribunal made procedural directions for the parties to file and serve any documentary material upon which they intended to rely at the hearing. In compliance with the directions both parties filed and served bundles of documents which were tendered and admitted into evidence as exhibits.

The Tenancy

It was common ground the parties entered into a residential tenancy agreement on 17 September 2021 for a period of 12 months from 17 September 2021 to 16 September 2022 ("the tenancy agreement")
Clause 53 of the tenancy agreement allowed the Tenants to keep 2 pets subject to clauses 54 and 55, and the special condition on page 25 of the agreement.
At the commencement of the tenancy, the parties conducted an ingoing inspection. A copy of the ingoing inspection report and photographs dated 14 September 2021 ("the ingoing report") was tendered and marked as exhibit 2.
The Tenants were given a copy of the ingoing report. They made comments on the report, signed it on 23 September 2021 and returned it to the agent.
The tenancy ended on 21 September 2022 when the Tenants gave vacant possession of the premises to the Landlords. The outgoing inspection was completed on or about 23 September 2022. The Tenants were not present at the inspection but received a copy of undated outgoing inspection report and photographs of the premises ("the outgoing report") on 10 October 2022.

Jurisdiction

The jurisdiction of the Tribunal to hear and determine the application was not in dispute. The application involves a residential tenancy agreement made pursuant to the provisions of the RTA. The Tribunal has jurisdiction to hear and determine applications pursuant to the RTA including orders for compensation and rental bond disputes.

The Landlord's Claims against the Tenants

The Landlord made the following claims against the Tenants: 1. Repair of damaged front door $165.00 2. Replacement of loungeroom blind $474.91 3. Repair of subfloor manhole door $320.00 4. Repair of scratched window tint $560.00 5. Replacement of kitchen cooktop $1078.00 6. Repair of damaged kitchen benchtop $737.00 7. Repair of damaged kickboard in kitchen $181.50 8. Repair of damaged kitchen cupboards and doors $528.00 9. Replacement of kitchen sink mixer $385.00 10. Repair of cracked tiles in living room/bedroom $550.00 11. Repair of damaged screen door $480.00 12. Replacement of back door weather strip $88.00 13. Repair of front handrail $198.00 14. Replacement of toilet seat in main bathroom $165.00 15. Garden maintenance $1371.01 16. Repair of damage to the polished floors $3200.00 17. Claim for painting $924.00 18. Claim for cleaning the premises $396.00 19. Pest control treatment $165.00 20. Replacement of light bulbs $12.00
At the hearing the Tenants conceded damage to the front door ($165.00), the pest treatment ($165.00) and the replacement of light bulbs ($12.00). The remaining items were in dispute.

Landlord's Evidence

The Landlord's bundle of documents included the following: 1. Exclusive management agency agreement between the Landlords and Stanton and Taylor Real Estate; 2. Residential Tenancy Application received from the Tenants; 3. Entry Condition Report dated 14 September 2021; 4. Residential Tenancy Agreement dated 17 September 2021; 5. Property visit report dated 2 December 2021 and accompanying photos; 6. Notice of Termination dated 8 August 2022; 7. Undated and unsigned exit condition report with accompanying photos; 8. Various invoices and quotes for repairs with photographs; 9. Photographs of the rented premises; 10. Emails to the Tenants regarding damage to the premises; 11. Routine Inspection Report dated 18 May 2022; 12. Photographs of the rented premises taken 17 and 23 September 2022; 13. Quote from Tile-Kote Specialist dated 29 September 2022
The documentary material was supplemented by sworn evidence from Jamie Tyler.

Tenant's Evidence

The Tenants' bundle of documents included the following: 1. Email from Michelle Roberts of Morton Real Estate dated 19 May 2022; 2. Quote from Acumen Property Cleaners dated 18 October 2022; 3. Receipt from Lux Pro Cleaning Co with photographs; 4. Email correspondence with Stanton and Taylor Real Estate; 5. Tenants Response to Pre- Tenancy/ Repair Quotations; 6. Tenants Response to Photos Cleaning Items/Damages
The documentary material was supplemented by sworn evidence from Kathy Bolitho-Howell.

Relevant Law

Each party claimed the rental bond should be paid to them. The bond belongs to the tenant unless the landlord can prove an entitlement to all or part of the bond.
Section 166 of the RTA provides: 166 MATTERS THAT MAY BE SUBJECT OF RENTAL BOND CLAIM (1) A landlord is entitled to claim from the rental bond for the residential tenancy agreement any of the following: (a) the reasonable cost of repairs to, or the restoration of, the residential premises or goods leased with the premises, as a result of damage (other than fair wear and tear) caused by the tenant, an occupant or an invitee of the tenant, (b) any rent or other charges owing and payable under the residential tenancy agreement or this Act, (c) the reasonable cost of cleaning any part of the premises not left reasonably clean by the tenant, having regard to the condition of the premises at the commencement of the tenancy, (d) the reasonable cost of replacing locks or other security devices altered, removed or added by the tenant without the consent of the landlord, (e) any other amounts prescribed by the regulations. (2) This section does not limit the matters for which the landlord may claim from the rental bond for a residential tenancy agreement.
The landlord can claim from the rental bond the reasonable cost of repairs to, or restoration of the residential premises because of damage other than fair wear and tear caused by the tenants. Additionally, the landlord can claim the reasonable cost of cleaning any part of the premises not left reasonably clean.
The Tenants argued some of the items claimed by the Landlords were "fair wear and tear".
What does the phrase "fair wear and tear" mean? In Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWCA 224, the Court of Appeal relied on the interpretation of this phrase "fair wear and tear" in Haskell v Marlow [1928] 2 KB 45 where the court stated that "[R]easonable wear and tear means the reasonable use of the house by the tenant and the ordinary operation of natural forces". It follows that both natural forces and the actions of tenants can constitute wear and tear.
Section 29 of the RTA provides a condition report must be completed before or when the residential tenancy agreement is given to the tenant for signing.
The evidence established a copy of the ingoing condition report for the premises was provided to the Tenants by the agent on or about 23 September 2021.
The ingoing report was signed by the Tenants electronically and returned to the agent with their comments.
Section 30 (1) of the RTA provides that a condition report that is signed by both the landlord and the tenant is presumed to be a correct statement, in the absence of evidence to the contrary, of the state of repair for general condition of the residential premises on the day specified in the report.
Section 30(2)(b) permits a tenant to make a written dissenting comment on the copy of the report provided by the agent.

Extension of Time

The Landlords sought an extension of time in which to file their application for compensation. The application was filed out of time.
The tenancy ended on 21 September 2022. The Landlords' application was filed on 20 February 2023 which was more than 3 months after the end of the tenancy.
Any application for compensation under section 187 of the RTA must be instituted within 3 months after the Landlords became aware of the breach of the residential tenancy agreement (section 190 of the RTA and Regulation 39(9) of the Residential Tenancies Regulation 2019).
The relevant principles in considering whether to extend time were summarised by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (hereinafter referred to Jackson). It is useful to consider the following passages: Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the Act that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings". An informative exposition of the role and nature of provisions which permit a Court or Tribunal to extend the time limits established for the orderly conduct of proceedings, including the time in which to lodge an appeal, is found in the decision of McHugh J sitting as a single justice of the High Court in Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2]: The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. [1978] VicRp 27; (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg [1967] VicRp 113; (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935: "The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.." Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice. The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
At the first day of the hearing on 7 December 2022, the Landlords were advised by the Tribunal to file a cross application if the amount claimed by them for compensation exceeded the rental bond. It was clear from the documents filed by the Landlords the compensation sought was more than the bond.
On 7 December 2022, the Landlords were within time to file their application. The Tenants were on notice the Landlords sought $363.00 for cleaning and $12088 for damage to the premises. Details of the Landlords' claim were particularised in Notation 2 of the Tribunal orders made on 24 October 2022.
At the hearing on 2 March 2023, the Tribunal considered the Landlords' application to extend time to file the application. The Tribunal applied the principles referred to in Jackson.
The delay in filing the application was 56 days. The delay was significant and counts against granting an extension of time.
The Landlords submitted the reason for the delay was advice received from the Penrith Registry. They stated the officer told them to file their application when submitting their evidence. Had they been advised otherwise, they would have lodged the application earlier. Although there is no evidence to confirm the advice given by the officer, I can understand the confusion and accept that submission.
I am satisfied the Landlords have a strong arguable case and good prospects of success. The evidence filed by the Landlords persuaded me the case against the Tenants has merit.
The Tenants have not suffered any significant prejudice. The Tenants were on notice from 24 October 2022 the Landlords intended claiming compensation for damage to the premises and cleaning costs. The amounts claimed were particularised in the orders made on 24 October 2022. The Tenants argued it was 7 months since the tenancy ended and they were prejudiced by the delay. I reject that submission.
Adopting the reasoning in Jackson to the present case, I exercise my discretion to extend the time to file the Landlords' application to 20 February 2023.
I grant leave to the Landlords to amend their application filed on 20 February 2023 to seek an order for compensation under section 187(d) of the RTA.

Landlord's Claims

The Tribunal will now consider each of the claims made by the Landlords.

Claim for Cleaning

The Landlords claimed $396 for the cost of cleaning the premises at the end of the tenancy.
The evidence relied upon by the Landlords included the ingoing report, the outgoing report done on or about the 27 September 2022, and the photos taken at the outgoing inspection. Additionally, the Landlords relied on the quote from Acumen Property Cleaners dated 18 October 2022.
At the commencement of the tenancy, I find that the premises were undamaged and in a clean condition.
The Tenants submitted the house was professionally cleaned when they vacated. They tendered an invoice from Lux Pro Cleaning for $390 and photos taken after the premises had been professionally cleaned.
The Tribunal considered the evidence and is satisfied part of the premises were not left reasonably clean by the Tenants, having regard to the condition of the premises at the commencement of the tenancy.
There is no dispute the Tenants had 2 greyhounds which from time to time were in the premises. I am satisfied further cleaning was required to remove dog hair, dust and stains at the end of the tenancy as noted in the quote from Acumen Property Cleaners.
The Tenants requested an opportunity to send Lux Pro Cleaning back to the premises to carry out further cleaning. Once the tenancy ended, there was no obligation on the Landlords to allow the Tenants or their cleaners to return to the property.
The Landlords have proved their claim and I allow them $396.00 for internal cleaning.

Claim for Damage to Front Door

The Landlords claimed $165 to repair the damaged front door. The Tenants conceded the claim.
I award the Landlords $165 for this item.

Claim for Damage to the Back Door

The Landlords claimed $165 to repair the damaged back door. The Tenants disputed the claim.
The Tenants argued there were no photos of the damage to the back door.
The Landlords relied on the ingoing report, the outgoing report, photos and the quote from Great Australian Services Pty Limited dated 10 October 2022 ("the GAS Quote").
Item 3 off the GAS Quote noted the work required as "sand and paint the inside/ internal of the back door and architrave -heavily scratched and chipped".
I am satisfied on the evidence the Tenants' dogs caused the damage to the back door. There is no evidence before me the damage was pre-existing or was fair, wear and tear.
The Landlords have proved their case and I allow them $165.00 for this item.

Claim for Garden Maintenance/Damage to Backyard

The Landlords claimed $1371.01 for garden maintenance and repair of damage to the backyard.
The Landlords relied on the quote from Central Concreting and Landscaping dated 26th of September 2022. The quote sets out the scope of works.
The Landlords relied on the ingoing report and photos which are on pages 209-214 of the report. The photos confirmed the lawn was patchy with some weeds.
The agent noted on the ingoing report that the yards and grounds were "in overall good and maintained condition. lawns have been mowed after these pictures were taken". The Tenants made no comment in the report.
The notation in the ingoing report is taken to be a correct statement of the condition of the lawns and gardens at the commencement of the tenancy as there is no evidence to the contrary.
The photos taken at the outgoing inspection on the 23 September 2022 show the lawns in poor condition with numerous holes throughout the yard. Some plants were missing.
The Tenants submitted the condition of the lawn was due to weather conditions. They asserted the yard had poor drainage and often flooded. They denied liability.
During the tenancy, the Tenants arranged for a garden maintenance service to trim the hedges.
Having reviewed the evidence, I am not satisfied the Tenants should pay the total amount claimed by the Landlords. Whilst the lawns and gardens were not in the same condition as they were at the commencement of the tenancy, I find the Tenants responsible for a portion of the damage. Environmental factors such as the weather conditions have contributed to the deterioration of the lawns and gardens.
I am satisfied the Tenants' dogs caused damage to the lawns and gardens. The evidence persuades me it was more likely than not the dogs were responsible for the numerous holes in the lawn depicted in the photographs.
I am not satisfied the loss of 3 established plants was due to the neglect of the Tenants.
I allow $500 for garden maintenance and damage to the lawns.

Claim for Internal Painting

The Landlords claimed $924.00 including GST as per item 1 on the GAS Quote for painting. The premises were last painted in July 2021. The premises were vacant from 18 July 2021 to 17 September 2021.
The GAS Quote is to "wash, repair, undercoat and paint all walls in the main bedroom", paint damaged skirting boards and windowsills which were heavily scratched.
The Tenants disputed the claim. They contended the photos from the cleaner show the room was left clean and tidy and undamaged. They argued the whole room did not require painting.
After considering the evidence, particularly the ingoing and outgoing reports, and the photos, I am satisfied the Tenants damaged the walls, skirtings and windowsills. The Landlords have proved their claim.
I reduce the amount claimed by 20% to allow for depreciation. I award the Landlords $739.20 for painting the main bedroom.

Claim for Sanding and Polishing Floors

The Landlords claimed $3200 for sanding and polishing the damaged floors.
The Landlords tendered an invoice from Mister Stain Floor Sanding which confirmed they paid $3750 to have the floors polished in July 2021. The floors were sanded just prior to the Tenants moving into the property.
The ingoing report notes the floors were clean and in excellent condition.
The ingoing photos dated 14 September 2021 confirm the floors were clean and undamaged. The Tenants ticked the box on page 10 of the report to acknowledge their agreement with this assessment.
The outgoing report and accompanying photos show the floors were heavily scratched. The numerous photographs of the rooms throughout the premises taken on or about 23 September 2022 confirm the notations in the outgoing report "Floor boards heavily scratched by dog claws, visible fine dog hair."
In response to the Landlords' claim, the Tenants asserted the Landlords agreed to allow the dogs into the premises. In their submissions the Tenants state: "the tenants agreed that the dogs are kept outside and were only let in at the request of owner Jamie Tyler."
The Landlords disputed the Tenants' evidence. They deny giving consent to the Tenants for the dogs to live inside.
Even I accept the Tenants' evidence, it does not absolve them from liability for damage caused by their dogs. I am satisfied the dogs were frequently inside the premises in breach of the tenancy agreement and caused damage to the floors and other areas.
The evidence is compelling and persuasive. The report from Hugo Erich of Mister Stain Flooring states:
"There is evidence of scratching all over the floor most likely caused by having large to medium sized pets inside the house, dogs have large nails and can do large amounts of damage in a short period of time by running and scratching the timber floorboards. The damages sustained are more than what would be considered " normal" wear and tear, which is typically around 10% per year. The damage is to this floor based on size and damages per m2 is around 80% which is 70% more than the average"
I find the heavy scratching on the polished floors was caused by the dogs being inside. The damage is throughout the premises. There is no other plausible explanation for such extensive damage to the floors and it is consistent with dogs being regularly in the premises.
The quote from Mister Stain Floor Sanding to re-sand and reseal the damaged section of floor was $3200.00.
I reduce the amount claimed by 20% for depreciation and award the Landlords $2560.00 for this item.

Claim for Repair of Loungeroom Blind

The Landlords claimed $474.91 for the cost of replacing the loungeroom blind. The Landlords tendered a quote dated 9 October 2022 from Spotlight for the replacement blind.
The Tenants disputed the Landlords claim. They argued the blind was not damaged.
After considering the evidence, I accept the Tenants' submissions. The damage to the blind is minimal and can be classified as fair wear and tear.
I reject the Landlords' claim for the cost of replacing the blind.

Claim for Repair of Damaged Manhole Door

The Landlords claimed $320 to repair the damaged manhole door. They tendered a quote from Edies Flyscreens dated 12 October 2022 to supply and install subframe hinged door.
The evidence relied upon by the Landlords include the ingoing and outgoing reports, and photos taken at the commencement and end of the tenancy.
The Tenants submitted the timber door was water damaged following a flood in the backyard. They deny liability and argued the damage was not caused by them.
The Landlords have not proved their case. I am satisfied the damage to the manhole door was not caused by the Tenants. I accept the Tenants' submissions about the cause of the damage.
I reject the Landlords' claim for this item.

Claim for Replacement of Window Tint

The Landlords claimed the Tenants damaged the window tint. They contended the window tinting in the loungeroom was badly scratched by the Tenants' dogs.
The ingoing report records the loungeroom windows in a clean and good condition. The outgoing report noted "tint scratched on window, window sill scratched".
Photos 25 and 26 in the outgoing report satisfy me the tinting on the loungeroom window was badly scratched and needed replacement.
The evidence is compelling and persuasive. I find that the Tenants either caused or were responsible for the damaged window tinting.
The Landlords tendered a quote from All Aspects Window Tinting dated 11 October 2022 for the supply and installation of new window tinting. The quotation noted 'the existing scratched film was to be removed." The cost of removing the existing window tinting and replacing it with new film was $560.00.
The Landlords have proved their claim and I allow $560.00 for this item.

Claim for Replacement Cooktop

The Landlords claimed $1078.00 for the full replacement cost of the damaged cook top. The evidence was the Landlords installed a new cook top about 2 weeks prior to the Tenants moving into the premises.
The ingoing report and attached photos confirmed the cook top was clean and excellent condition at the start of the tenancy.
The outgoing report noted "Cooked on ring around element, heavily scratched". Several photos attached to the outgoing reports which show the extent of the damage to the cook top. It has been badly scratched and is in poor condition.
The Landlord claimed $1078 to purchase and install a new Bellini cook top as per the GAS Quote.
The Landlords have proved their case. I find the Tenants damaged the cooktop and it needed replacement. I award the Landlords $1078.00 for this item.

Claim for Damage to Kitchen Benchtop

The Landlords alleged the Tenants damaged the kitchen benchtop. They contended the Tenants scratched and cut the benchtop.
Ms Tyler stated the kitchen was near new and installed about 6 months before the Tenants moved into the premises. The property had not been previously tenanted. The Tenants were the first occupants after the renovation.
The ingoing report showed the benchtop was clean and in good condition. The photos attached to the report do not disclose any damage.
The outgoing report records 2 cuts in benchtop laminate. The Landlords' photos taken at the outgoing inspection show large cuts on the laminated kitchen benchtop.
The Tenants conceded there were scratches on the benchtop and argued they were fair wear and tear. I reject the submission.
The scratches and cuts are more than fair wear and tear. They are not the result of normal everyday use of the premises but rather neglect or misuse of the premises.
I find the Tenants caused the damage to the benchtop and are liable for the damage. I award the Landlords $737.00 as per the GAS Quote.

Claim for Damage to Kitchen Kickboard

The Landlords claimed $181.50 to repair damage to the kitchen kickboard as per the GAS Quote.
At the commencement of the tenancy, the ingoing report noted the kickboard in good condition.
Photo 29 in the outgoing report shows the kickboard has been damaged.
The Tenants submitted the kickboard was never installed correctly and was always loose. In their written response to the Landlords' claim they asserted they discussed this issue with the Landlords when the new dishwasher was installed.
Given the evidence of the Tenants, I am not satisfied the damage to the kickboard was caused by the neglect or misuse of the Tenants. It may have been a pre-existing issue or fair wear and tear.
I reject the Landlords' claim for this item.

Claim for Damaged Kitchen Cupboard

The Landlords claimed $528.00 to supply and install a new kitchen cupboard door and 3 drawer fronts which were damaged. The GAS Quote confirmed the repair cost as $528.00.
The ingoing report and photos disclosed the kitchen cupboards were in near condition. They were clean and undamaged.
The outgoing report and photo 10 noted some minor scratching to the kitchen cupboard and draw fronts. I classify this damage as fair wear and tear.
In their response to the claim, the Tenants argued the Landlords photos do not show any damage to the cupboard or drawer fronts.
I am not satisfied on the evidence the Landlords have made out their claim. If there is any damage, it is difficult to see the extent from the outgoing report and photo which has been tendered by the Landlords.
I reject the Landlords' claim for this item

Claim for Replacement Kitchen Sink Mixer

The Landlords claimed $395.00 to supply and install a new Dorf kitchen mixer tap.
The ingoing report showed the mixer tap was clean and in good condition. The ingoing report includes a photo of the mixer tap. I accept the mixer tap was installed as part of the kitchen renovation a few months before the Tenants took possession.
The outgoing report noted "the mixer tap broken and turn backwards".
In response to the claim, the Tenants stated there is no evidence they caused the damage to the mixer.
The Landlords bear the onus of proof. I am unable to conclude from the evidence the Tenants damaged the mixer tap. I do not know the reasons the mixer tap failed. It could have been a manufacturing fault, or the Tenants neglect or misuse.
For those reasons, the Landlords have not discharged their onus of proof and I dismiss the claim.

Claim for Cracked Tiles

The Landlords claimed $550.00 to remove and replace 3 cracked tiles.
At the commencement of the tenancy, there was no evidence of any cracked tiles. The ingoing report noted the tiles throughout the premises in good condition.
The outgoing report and attached photos revealed two cracked tiles in bedroom 4. The photos tendered by the Landlords confirm the cracking to the tiles is very slight.
The Tenants disputed the Landlords' claim. They argued there was no evidence to show cracks or damages to the tiles.
After considering the evidence, I find the damage to the tiles was fair wear and tear and not as a result of the Tenants misuse or neglect.
I dismiss the claim for this item.

Claim for Damaged Screen Door

The Landlords arranged for Edies Flyscreens to install a new screen door on 30 March 2022.
The outgoing report and attached photo confirmed the frame of the door was heavily scratched. The Landlords claimed $480 for a replacement screen door.
The Tenants disputed the claim. They argued there is no mention in the outgoing report of damage to the screen door.
I find the damage to the screen door was caused by the Tenants neglect or misuse. It is probable the 2 dogs scratched the doors. I am satisfied the door needs replacing. The Landlords have proved their claim and I award then $480.00 for this item.

Claim for Damaged Backdoor Weatherstrip

The Landlords claimed $88.00 for the cost of replacing the weatherstrip on the backdoor.
The Landlords relied on the ingoing report and attached photo, the outgoing report and attached photos, and the GAS Quote "to supply and install weather door seal to back door…"
In response to the claim, the Tenants submitted the weather seal was not broken. They asserted the "rubber on the weather seal was forever sliding and during our tenancy we needed to slide the rubber back into place weekly."
I have considered the evidence and am not satisfied the weather seal was damaged by the Tenants. Photos 4 and 25 on pages 21 and 24 of the outgoing report support the Tenants' submission. There is no mention in the outgoing report of the damaged weather seal.
For the above reasons, I dismiss Landlords' claim for this item.

Claim for Damaged Front Handrail

The Landlords claimed $198.00 to repair damage to the front handrail. The Landlords alleged the handrail was scratched by the Tenants.
The Landlords relied on the ingoing report which noted the handrail "in clean and good condition." The attached photos confirmed the railing was undamaged.
The photos taken at the outgoing inspection showed the railing was marked in several places. The cost to "prime and repaint portion of front handrail-scratched and chipped to metal" as per the GAS Quote was $198.00.
The Tenants disputed the claim. They argued "this is an external handrail, and we claim wear and tear and the elements." They contended the handrail was not damaged or unusable.
I reject the submission. The damage to the handrail is not fair wear and tear. I am satisfied the damage has been caused by neglect or misuse. I find the Tenants are liable for the damage and award the Landlords $198.00 for this item.

Claim for Replacement of Bathroom Toilet Seat

The Landlords claimed $165.00 to replace the bathroom toilet seat. The Landlords alleged the toilet seat and lid had cracks caused by the Tenants' misuse.
The Landlords relied on the ingoing report and 3 photos taken on 14 September 2021. The toilet seat was in a clean and good condition.
The outgoing report referred to cracks on the toilet lid. The photos of the toilet seat and lid are unclear.
The Tenants submitted "no evidence supplied by the respondent of damages."
I am not satisfied on the evidence the Tenants damaged the toilet seat and lid. I reject the claim for this item.

Conclusion

In summary, the Tribunal makes the following determinations in respect of each item claimed by the Landlords: 1. Repair of damaged front door (conceded by Tenants) $165.00 2. Replacement of loungeroom blind $Nil 3. Repair of subfloor manhole door $Nil 4. Repair of scratched window tint $560.00 5. Replacement of kitchen cooktop $1078.00 6. Repair of damaged kitchen benchtop $737.00 7. Repair of damaged kickboard in kitchen $Nil 8. Repair of damaged kitchen cupboards and doors $Nil 9. Replacement of kitchen sink mixer $Nil 10. Repair of cracked tiles in living room/bedroom $Nil 11. Repair of damaged screen door $480.00 12. Replacement of back door weather strip $Nil 13. Repair of front handrail $198.00 14. Replacement of toilet seat in main bathroom $Nil 15. Garden maintenance $500.00 16. Repair of damage 2 the polished floors $2560.00 17. Claim for painting $739.20 18. Claim for cleaning the premises $396.00 19. Pest control treatment $165.00 20. Replacement of light bulbs (conceded by Tenants) $12.00 21. Repair of damage to backdoor (conceded by Tenants) $165.00 TOTAL: $7755.20
I award the Landlords $7755.20 as compensation. I order Rental Bond Services to pay the Landlords the whole bond and any amount received is to be deducted from the award of compensation.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 25 July 2023 - Correction of parties. 15 August 2023 - Formatting amendments. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 August 2023

At a glance

Court

Decision date

Source

Judgment (34 paragraphs)

Cases Cited (10)