Cheslett v Cloros - [2023] NSWCATCD 108 - NSWCATCD 2023 case summary — Zoe

Cheslett v Cloros - [2023] NSWCATCD 108 - NSWCATCD 2023 case summary — Zoe

[10]

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 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.
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.
The Tenant 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 Act provides a condition report must be completed before or when the residential tenancy agreement is given to the tenant for signing.
The evidence established the agent provided a copy of the ingoing condition report to the Tenant on or about 6 July 2021.
The ingoing report was signed by the Tenant electronically and returned to the agent with her comments on 9 July 2021.
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.
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.
The Landlord seeks compensation for damage to the premises which exceeds the rental bond.
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.

[12]

Internal Cleaning

The Landlord claims $275.00 for cleaning. The Landlord tendered an invoice from Absolutely Amazing Cleaning dated 18 January 2021.
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.
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.
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.
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.
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.
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.
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.
The Tenant arranged for the premises to be professionally cleaned. The cleaner attended twice. On the second occasion the Landlord was present.
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.
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.
The Tribunal rejects the Landlord's claim for cleaning.

[13]

Claim for Cleaning and Removal of Mould

The Landlord claims $690.00 for the cost of cleaning and removal of mould.
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.
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.
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.
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.
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.
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.
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."
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.
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.
The Tenant purchased a hand-held vacuum cleaner to remove the water caused by the condensation.
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)
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.
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.
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.
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.
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.

[19]

Staining of timber planks on balcony

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.
The ingoing report noted: "Timber flooring effect deck is water stained in several areas. White marks on greywall."
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.
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.
The Landlord tendered a quotation from Ahoora dated 3 February 2023 for $1210.00 to stain the deck
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.
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.
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.
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.
The claim is dismissed.