Cheslett v Cloros

The Application

1. In an application filed in the Tribunal on 21 December 2022, the Landlord requested an order for the payment of the rental bond.
2. The claim was amended on 25 January 2023 to seek compensation of $6535.00 and payment of the rental bond.

Jurisdiction

1. The parties did not dispute the jurisdiction of the Tribunal to hear and determine the application. The dispute involves a residential tenancy agreement between the parties entered on or about 5 July 2021.
2. The premises are "residential premises" within the meaning of section 3 of the Residential Tenancies Act 2010 ("the Act"). The agreement is a "residential tenancy agreement" as defined in section 13(1) of the Act. Matters arising under the Act are allocated to the Consumer and Commercial Division of the Tribunal under Schedule 4 of the Civil and Administrative Tribunal Act 2013.
3. I find that the Tribunal has jurisdiction to hear and determine the application.

The Rental Bond

1. The rental bond of $1920.00 was lodged with Rental Bond Services and remains frozen pending the outcome of these proceedings.

Procedural Directions

1. The Tribunal made procedural directions 25 January 2023 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 admitted into evidence as exhibits.

The Tenancy

1. It was common ground the parties first entered into a residential tenancy agreement on 5 July 2021 for a period of 12 months from 7 July 2021 to 6 July 2022.
2. The weekly rent was $480.00.
3. At the commencement of the tenancy, the parties conducted an ingoing inspection. A copy of the ingoing inspection report and photographs dated 6 July 2021 ("the ingoing report") was tendered and marked as an exhibit.
4. The Tenant was given a copy of the ingoing report. On 9 July 2021, the Tenant returned a signed copy of the ingoing report with her comments.
5. The tenancy ended on 19 December 2022 when the Tenant gave vacant possession of the premises to the Landlord.
6. The first outgoing inspection was completed on 21 December 2021. The Tenant received a copy of the first outgoing inspection report and photographs of the premises ("the first outgoing report").
7. The first outgoing report noted items which required attention. The Tenant was given an opportunity to return to the premises to rectify the outstanding items. The Tenant returned on 6 January 2023 with her cleaner. The Landlord was present whilst further cleaning was done.
8. A second inspection was carried out by the agent on 11 January 2023 and a further outgoing inspection report was completed (the second outgoing report").
9. Both outgoing inspection reports were tendered and are in evidence.

Landlord's Claims

1. The Landlord made the following claims against the Tenants: 1. Internal Cleaning $275.00 2. Removal and cleaning of mould $690.00 3. Cleaning of carpets $110.00 4. Replacement of damaged kitchen mixer $433.77 5. Replacement of damaged/stained carpet $1049.76 6. Replacement of stained blinds $524.88 7. Painting of damaged walls and ceilings $1320.00 8. Staining of timber planks on balcony $1210.00 9. Tribunal application fee $54.22 10. Travel costs $100.00 11. Printing of documents $500.00 $6267.63
2. The documentary evidence was supplemented by oral sworn evidence from Kevin Cheslett.
3. The Tenant disputed the Landlord's claims.

Landlord's Evidence

1. The Landlords' bundle of documents consisted of more than 1435 pages in 3 folders. The Landlord's documents included the following: 1. Chronology and Summary of Claims. 2. Residential Tenancy Agreement dated 5 July 2021; 3. Ingoing Condition Report dated 6 July 2021; 4. Ingoing Condition Report Photographs; 5. Outgoing Inspection Reports dated 21 December 2021 and 11 January 2023; 6. Photographs taken at end of the tenancy; 7. Entry Condition Report dated 19 January 2023; 8. Routine Inspection Report dated 14 June 2022; 9. Location map and photos of the unit block; 10. Airconditioning manual; 11. Quotation from Absolutely Amazing Cleaning dated 8 January 2023; 12. Tax invoice no 25417 from MouldMen Pty Ltd dated 12 January 2023; 13. Customer Quotation from MouldMen Pty Ltd dated 6January 2023; 14. Quotation from Ash Sutton Plumbing dated 17 January 2023; 15. Quotation from Andrew Vanny Plumbing dated 16 January 2023; 16. Quote no 15030 from Carpet Right dated 5 January 2023; 17. Quote from Ahoora Painting and Decorating dated 3 February 2023; 18. Various Articles on the causes of dampness and mould; 19. Repair invoices; 20. Email correspondence; 21. Enlarged photos
2. The above list is not exhaustive and is a summary of the documents in the Lamdlord's folders.
3. The documentary material was supplemented by sworn evidence from Kevin Cheslett.

Tenant's Evidence

1. The Tenant's bundle of documents included the following: 1. Chronology of events; 2. Written submissions addressing each of the claims made by the Landlord with supporting documents. 3. Email correspondence. 4. Photographs.
2. The documentary material was supplemented by evidence on affirmation from Annabelle Cloros.

Relevant Law

1. 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.
2. Section 166 of the Act 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.
3. 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 tenant. Additionally, the landlord can claim the reasonable cost of cleaning any part of the premises not left reasonably clean.
4. The Tenant argued some of the items claimed by the Landlords were "fair wear and tear".
5. 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.
6. Section 29 of the Act provides a condition report must be completed before or when the residential tenancy agreement is given to the tenant for signing.
7. The evidence established the agent provided a copy of the ingoing condition report to the Tenant on or about 6 July 2021.
8. The ingoing report was signed by the Tenant electronically and returned to the agent with her comments on 9 July 2021.
9. Section 30 (1) of the Act 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.
10. Section 30(2)(b) permits a tenant to make a written dissenting comment on the copy of the report provided by the agent. The Tenant made comments in the report about the condition of the property.
11. The Landlord seeks compensation for damage to the premises which exceeds the rental bond.
12. The Tribunal finds the state of repair and general condition of the premises as at 9 July 2021 is as stated in the ingoing report signed by both parties. For the purposes of assessing the condition of the unit at the commencement of the tenancy, the Tribunal relies on the contents of the ingoing report and attached photos.

Landlord's Claims

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

Internal Cleaning

1. The Landlord claims $275.00 for cleaning. The Landlord tendered an invoice from Absolutely Amazing Cleaning dated 18 January 2021.
2. The Landlord relied on the ingoing report and photos to show the condition of the premises at the beginning of the tenancy. The agent noted the premises were clean and in good condition except for some minor damage such as small paint chips.
3. The second outgoing report shows the premises were left reasonably clean although there were wipe marks and a powdery residue visible on walls, glass areas had smear marks, the balcony timber was stained, and some wardrobe and door tracks were dirty. The Landlord tendered several photos of the affected areas to support his claim.
4. The Tenant disputed the Landlord's claim. She stated she employed a professional cleaner Simply Spotless to carry out an end of lease clean of the premises. The cleaners attended the premises on 19 December 2022 and returned on 6 January 2023 to carry out further cleaning.
5. The Tenant tendered photos of the premises taken on 6 July 2021 at the beginning of the tenancy and on 6 January 2023 after the cleaners attended a second time.
6. The Tenant made numerous comments on the ingoing inspection report about the state of the premises. She noted marks on walls in the lounge, bedroom, bathroom and laundry. She recorded there were rust on the burners of the stove and marks on the floorcoverings.
7. The obligation on the Tenant at the end of the tenancy is to leave the premises reasonably clean having regard to their condition at the commencement of the tenancy. The premises do not have to be left in a pristine condition.
8. The Tribunal has considered the evidence and is satisfied the Tenant left the premises reasonably clean when she vacated. Whilst the Landlord complained the cleaning was "not to an acceptable standard", that is not the test which is to be applied. The test is whether the premises were left reasonably clean having regard to their condition at the commencement of the tenancy.
9. The Tenant arranged for the premises to be professionally cleaned. The cleaner attended twice. On the second occasion the Landlord was present.
10. The ingoing report noted marks on the walls and floorcoverings. The premises exhibited signs of wear and tear. The condition of the premises is noted in the ingoing report which was signed by both parties.
11. The Tribunal finds the Tenant left the premises reasonably clean at the end of the tenancy having regard to their condition at the commencement of the tenancy. The Tenant's photographic evidence supports her assertion the premises were left clean and tidy when she vacated.
12. The Tribunal rejects the Landlord's claim for cleaning.

Claim for Cleaning and Removal of Mould

1. The Landlord claims $690.00 for the cost of cleaning and removal of mould.
2. The ingoing report notes there was no mould present in the premises at the beginning of the tenancy. The Tenant did not make any comment in the ingoing report about the presence of mould in the unit.
3. The Landlord obtained a quotation from MouldMen Pty Ltd on 6 January 2023. In a tax invoice from MouldMen Pty Ltd dated 12 January 2023, the technician noted the presence of mould in "Living Room-Windows & Frames/Door & Frames/ Grooves (Near the blinds)". The quotation makes general references to the causes of mould and preventative measures.
4. The first and second outgoing reports note the presence of mould on the rear side of the blinds and the blind housing recess in the lounge and bedroom.
5. The Landlord submitted there was no building defect which caused the mould in the unit. He tendered by Integrated Building Engineering Consultancy dated 28 September 2020 which confirmed no building defects in respect of the unit.
6. The Landlord asserted the mould was caused by condensation in the unit due to the Tenant's failure to adequately ventilate the premises. The Landlord relied on photos 1415.1 and 1415.2 and clause 57.11 of the tenancy agreement.
7. The Tenant contended the mould was caused by condensation in the unit but rejected the Landlord's claims she did not adequately ventilate the premises. The Tenant asserted she complained about condensation in the unit shortly after taking possession. She tendered an email to the agent dated 14 July 2021 in which she raised her concerns about condensation in the unit.
8. On 22 July 2021 the Tenant sent a further email with photos attached to the agent showing the extent of the condensation in the unit. Relevantly the Tenant stated in her email: "Just wanted to show you the amount of water that's on and coming off the windows. I'm going through a lot of paper towels to get rid of it, and to be honest, it's becoming quite stressful having to wake up and remove this amount of water everyday……. I understand the landlord does not want to install the contact, but I'd really like to discuss potential solutions."
9. On 6 August 2021 the agent replied to the Tenant and stated: "The owner has lived in the apartment and managed the ventilation successfully by opening the windows and balcony doors, and using the mechanical ventilation systems such as air-conditioning, exhaust fan and rangehood when cooking." When giving his evidence, the Landlord confirmed this was an incorrect statement as he had never lived in the unit.
10. Throughout the tenancy, the Tenant continued to complain to the agent about the condensation and mould growth. The Tenant stated in her evidence she opened the windows and balcony doors during the day but closed them at night for security reasons.
11. The Tenant purchased a hand-held vacuum cleaner to remove the water caused by the condensation.
12. During the routine inspection conducted by the agent on 14 June 2022, the agent inspected the blinds and commented the mould was not bad. The agent noted in her report: 'Above Satisfactory, no visible issues noted Annabelle advises that she has found managing the window streaming especially in winter time consuming but she has a system worked out with a window vacuum and appears to be doing a good job, no mould was evident (23 photos, page 9)
13. The Landlord bears the onus of proof and must establish there has been a breach of the tenancy agreement which entitles him to claim compensation. He must demonstrate the Tenant has breached clause 57.11 of the tenancy agreement which provides: The Tenant agrees… to ventilate, in an adequate and timely manner and, if applicable, without any alteration or addition to the common property, all rooms and areas in the residential premises and to prevent the growth of mould.
14. When the evidence is considered objectively, the Tribunal is not satisfied the Tenant has breached her obligations under the tenancy agreement. Shortly after commencement of the tenancy the Tenant complained about condensation on the windows in the unit. She complained about the problem throughout the tenancy.
15. The Landlord must prove the Tenant did not adequately ventilate the unit in breach of clause 57.11 of the Tenancy agreement. There is no evidence before me that the Tenant did not adequately ventilate the unit. I accept the Tenant's evidence about the steps she took to overcome the problem.
16. I accept there was some minor mould present on the blinds and the areas identified in the Mould Men report. This is hardly surprising given the moisture levels in the unit. I find the Tenant acted took reasonable steps to avoid mould in the unit.
17. The Landlord has not proved a breach of the tenancy agreement by the Tenant. The claim for $690.00 for mould cleaning and removal is dismissed.

Cleaning of carpets

1. The Landlord claims $110.00 for cleaning of the carpets. There is no dispute the Tenant had a pet in the unit.
2. The Landlord tendered an invoice from Gen Nex Group Pty Ltd dated 10 January 2023 for carpet cleaning.
3. The Landlord relied on clause 55 of the tenancy agreement which provides the Tenant must have the carpets professionally cleaned or to pay the cost of having the carpets professionally cleaned at the end of the tenancy if cleaning is required because an animal has been kept at the premises during the tenancy.
4. The evidence establishes the Tenant had the carpets cleaned by Simply Spotless as part of their cleaning service. The Tenant admitted she spilled moisturiser on the carpet which left a stain.
5. The Landlord argued the carpet was not professionally cleaned. The Tenant submitted it was not necessary to have the carpets cleaned again.
6. The Tribunal accepts the Landlord's argument. In my view the words "professionally cleaned" connote the carpets must be cleaned by a person who is in the business or profession of carpet cleaning. It is not sufficient to engage a person who operates a business other than carpet cleaning to clean the carpets. The Tenant is required to have the carpets cleaned by a professional carpet cleaner which was not done.
7. The Tribunal allows the Landlord $110.00 for this claim.

Replacement of damaged kitchen mixer

1. The landlord claimed $433.77 for replacement of the kitchen tap mixer. The Landlord submits the mixer was damaged by the Tenant and seeks the cost of replacement.
2. The Landlord submitted quotes from Andrew Vanny Plumbing dated 16 January 2023 for $691.90 and Ash Sutton Plumbing dated 17 January 2023 for $480.00.
3. The ingoing report shows the mixer was undamaged and in good working order.
4. The outgoing report notes the base of the mixer has been damaged. The Landlord tendered photos of the mixer showing its condition at the beginning and end of the tenancy.
5. The quote from Andrew Vanny Plumbing notes the tapware cannot be repaired and "Chrome flaking caused by corrosive cleaning materials on tapware." The Tribunal is not satisfied the plumber is qualified to make the statement about the reasons the chrome is flaking, but nonetheless, this might be an indication that the mixer was exhibiting signs of wear and tear.
6. The Tenant denied she damaged the mixer. She contends her photos clearly show oxidation at the base of the mixer. She argued the damage to the mixer was fair wear and tear.
7. Construction of the unit complex was completed in 2019. The Tribunal accepts the mixer is damaged. The issue is whether the damage was caused deliberately by the Tenant or through neglect.
8. On the evidence, the Tribunal is not satisfied the Landlord has proved the Tenant was responsible for the damage to the mixer. The photos support the Tenant's contention the damage was fair wear and tear. There is evidence of rust marks at the base of the mixer suggesting corrosion and oxidation.
9. The Landlord's claim for the replacement cost of the mixer is dismissed.

Replacement of damaged/stained carpet

1. The Landlord claimed $1049.76 for the replacement of the carpet in the bedroom. The Landlord tendered Quotation 15030 from Carpet Right for $1600.00 to replace the carpet in the bedroom. The Landlord depreciated the quote to allow for the age of the carpet.
2. The Landlord argued the Tenant damaged the carpet. As carpet cleaning could not remove the stain, the carpet requires replacement.
3. The ingoing report notes the condition of the carpet as "light grey, cleaned, no stains" except for a white mark at the front right of the wardrobe. The Tenant made no comment.
4. The evidence established the previous tenant steamed the carpet at the end of the tenancy. The Landlord confirmed the carpet has not been replaced and argued it is not in the same condition as at the beginning of the tenancy.
5. The Tenant conceded she spilt moisturiser on the carpet and had attempted to remove it. The carpet was cleaned by Simply Spotless. The Tenant asserted the carpet did not require replacement and the stain was small.
6. The Tribunal has considered the evidence and submissions of the parties. The photos show a small stain on the carpet. The Tribunal reviewed the photo taken by the Tenant on 6 January 2023 (document 4) and is not satisfied the carpet the carpet requires replacement.
7. The Tribunal accepts the Landlord's submission the carpet was damaged by the Tenant. However, the Tribunal rejects the submission the stain cannot be removed and the carpet requires replacement. There is no evidence that other stain removal methods would be unsuccessful or damage the carpet.
8. The Landlord is entitled to compensation. The Tribunal doing the best it can, assesses the compensation at $300.00 being reasonable cost of restoring the carpet to its condition at the commencement of the tenancy. The Tribunal referred to the quotation from Drymaster in making the assessment.
9. The Tribunal allows the Landlord $300.00 for this item.

Replacement of stained blinds

1. The Landlord claims the replacement cost of the blinds which were damaged by mould. The Landlord argued the Tenant was responsible for the damage to the blinds in the main living room. He tendered several photographs of the blinds taken at the beginning and end of the tenancy,
2. The ingoing report noted the blinds in the loungeroom had no marks and were slightly frayed.
3. The second outgoing report recorded the blinds had mould on the rear of the blinds and in the ceiling recess.
4. The evidence established the blinds were new in 2019. The condensation on the windows was a contributing factor to the mould on the rear of the blinds.
5. During the routine inspection on 14 June 2022, the Tenant mentioned the mould on the blinds. The Tenants stated the agent considered it a minor issue.
6. In her evidence, the Tenant confirmed the blinds were retracted during the day and pulled down at night. The condensation on the windows formed at night.
7. For the reasons referred to earlier, the Tribunal was satisfied the Tenant was not responsible for mould in the premises. The Tribunal is satisfied the mould on the blinds was a consequence of the condensation and accordingly, the Tenant is not liable.
8. The claim is dismissed.

Painting of damaged walls and ceilings

1. The Landlord claimed $1320.00 to repaint the walls and ceilings as per the quote from Ahoora Painting and Decorating dated 3 February 2023. The claim by the Landlord does not allow for depreciation.
2. The ingoing report noted the presence of paint chips, scuff marks on the entrance wall, black marks on the lounge and laundry walls, and red marks on the bedroom walls.
3. The second outgoing report records wipe marks and a powdery residue. The Landlord argued the cleaners used products which damaged the walls. He asserted the walls are not washable and required repainting.
4. The Tenant contended the walls were already damaged. She relied on the photos attached to the ingoing report.
5. The Tribunal is not satisfied the walls and ceilings require repainting because of the wipe marks and powdery residue. The walls and ceilings were marked at the beginning of the tenancy. The premises had been continuously rented since 2019. They were exhibiting signs of wear and tear. The evidence does not support a finding the walls and ceilings required repainting because of the actions of the Tenant.
6. If there was a deterioration in the condition of the walls, the Tribunal considers any damage as minor and is fair wear and tear being from "the reasonable use of the house by the tenant and the ordinary operation of natural forces" (see Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWCA 224,). It can be expected that during the tenancy, there will be some minor damage resulting from the Tenant's normal everyday use of the premises.
7. There is no evidence the condition of the walls and ceilings was because of the reasonable use of the unit by the Tenant. The Tribunal considered the notations in the ingoing inspection report regarding the condition of the walls and ceilings in making this finding.
8. The Landlord has not proved his claim for this item and it is dismissed.

Staining of timber planks on balcony

1. The Landlord claimed $1210.00 to stain the timber on the balcony. The Landlord argued the Tenant had pots on the balcony which when removed, left a stain on the timber which could not be removed. The Landlord tendered several photos showing the extent of the stains.
2. The ingoing report noted: "Timber flooring effect deck is water stained in several areas. White marks on greywall."
3. The Landlord referred to the second outgoing report and photos which showed permanent staining of the deck. The Landlord confirmed the deck had not been resealed and stained since 2019.
4. The Tenant tendered a photo taken on 19 December 2022 after the balcony had been cleaned. The photo does not show any visible stains or watermarks from the pots.
5. The Landlord tendered a quotation from Ahoora dated 3 February 2023 for $1210.00 to stain the deck
6. The Landlord's photos 1435.1, and 1435.2 taken on 21 December 2022 clearly show the watermarks and stains on the timber. Photo 1436.1 confirms the stains were still present after cleaning.
7. What was the condition of the deck at the commencement of the tenancy? The Tribunal considered the notations in the ingoing report as to the condition of the timber on the balcony at the beginning of the tenancy. The report recorded there were pre-existing water stains on the timber. The Tribunal notes the timber has not been stained since 2019 and was probably due to be re-coated.
8. At the end of the tenancy, the Tenant has an obligation to return the premises to the Landlord in the same condition as at the beginning of the tenancy subject to fair wear and tear. Given there were pre-existing water stains and noting the photos showing the overall condition of the balcony timber at the beginning of the tenancy, the Tribunal is not satisfied the Landlord has proved his case.
9. I am satisfied the timber deck was in a slightly worse condition at the end of the tenancy compared to its condition at the commencement but this can be attributed to fair wear and tear.
10. The claim is dismissed.

Claim for reimbursement of expenses

1. The Landlord sought reimbursement for the application fee, photocopying and travel costs. There are no special circumstances which warrant an order for reimbursement of these costs.
2. The claim for reimbursement of expenses is dismissed.

Conclusion

1. The Tenant is to pay the Landlord the following amounts: 1. Cleaning of carpets $110.00 2. Compensation for stained carpet $300.00 Total: $410.00
2. The sum of $410.00 is to be deducted from the rental bond. The balance of the bond is to be paid to the Tenant. **********​​​​​​​ 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 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: 26 September 2023