Dann & Anor v Lancaster & Anor [2025] QCAT 503

Queensland Civil and Administrative Tribunal|2025-11-28

LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION - COMPENSATION - - residential tenancy dispute - compensation claim by lessor - exit condition - whether fair wear and tear - whether photographic evidence altered damage

Davidson v J S Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1

Dimond v Lovell [2002] 1 AC 384

Gagner Pty Ltd t/as Indochine Café v Canturi Corporation Pty Ltd [2009] NSWCA 413; (2009) 262 ALR 691

Stockdale & Leggo v Gordon [2017] QCATA 112

[1] The Lancasters were tenants of Mr Dann and Ms Goldberg's 'Birdlife Cottage' from 1 February 2019 until 31 January 2025. The parties are in dispute over the condition of the property at the end of the tenancy.
[2] By an application filed 24 February 2025, Mr Dann and Ms Goldberg (lessors) sought orders that the Lancasters (tenants) compensate them for:

(a) Damage to sandstone paving $8,660.00

(b) Painting and plastering damaged walls $1,925.00

(c) Replacing kitchen bench tops $1,784.00

(d) Replacing a door lock and blinds $1,083.62

(e) Bond cleaning and cleaning air conditioners $1,148.00

(f) Filing fee $ 379.50.

[3] As the Residential Tenancies Authority (RTA) hold the bond for the tenancy in the sum of $2,000.00, the lessors seek an order that the bond be paid to them in full, and that they receive an additional payment from the tenants of $14,980.12 to meet e claim.
[4] Except for a 'without admission' allowance of $650.00 towards the bedroom wall repair, the tenants dispute the claims and ask that their bond be returned to them.
[5] They submit that the lessors' claim is simply an attempt to have the tenants pay for improving the property for sale. At the time of the hearing, the property was listed for sale but had not been sold or put under contract.
[6] The lessors gave evidence that they had paid for the bond clean, the painting and the wall repairs but that the balance of the work comprising the claims remained as quotes only.
[7] The Tribunal, reconstituted, has considered all evidence filed in the proceeding together with the audio transcript of the hearing that took place on 11 June 2025. With respect to the filed evidence, each party accuses the other of filtering and/or cropping photographs tendered.
[8] The Tribunal accepts the Notice of Unresolved Dispute filed during the hearing on 11 June 2025 as evidence that the parties have completed compulsory RTA dispute resolution procedures.

[9] Section 188(4) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) requires tenants, at the end of the tenancy, to leave the premises as far as possible in the same condition they were in at the start of the tenancy, fair wear and tear excepted.
[10] Where a lessor is claiming compensation due to an act or omission of the tenant, they must take all reasonable steps to mitigate their loss and are not entitled to receive compensation for any loss or expense that could have been avoided by taking the steps.[1]
[11] Compensation is intended to put the complainant back, so far as money can do it, into the same position as if the damage had not occurred.[2]
[12] In the case of damage to property, this is usually:

(a) diminution of value in the property (the cost of repair);[3] and

(b) consequential losses but subject to:

(i) betterment/allowance for depreciation;

(ii) reasonableness and duty to mitigate; and

(iii) remoteness.

[13] The diminution in value is immediate when the damage occurs, so it is not a condition precedent to the claim that a repair has been done incurring expense, as opposed to simply quoted on.[4]
[14] Betterment is when an award would place a lessor in a better position than if the breach had not occurred in the first place. This might arise for example, where a lessor replaced an old heavily soiled and stained carpet and claimed the whole cost of this from the tenant responsible for a stain. It may be true in such a case that the lessor would not have replaced the carpet if it were not for the new stain, and so on the face of it the cost of the new carpet is the lessor's loss. But in such a case, it would be fair that the lessor give credit for the betterment.[5]
[15] However, where, but for the damage the repair might not have been needed, at all, it might not always be appropriate to reduce the award of damages for betterment.

[16] An Entry Condition Report (ECR) was signed by both parties on 1 February 2019. Pursuant to s 506 of the RTRA Act, it is evidence of the condition of the property as at that date, except to the extent to which the tenant has marked their disagreement with entry condition comments made in the report.
[17] The property was described in the ECR as clean and undamaged throughout, save for:

(a) White paint drops on the front door and screen door.

(b) Front screen door was dusty and had wasp nests.

(c) White paint drops in the doors/walls/ceiling of the lounge room.

(d) Dust on fan blades in bedroom 1.

(e) Dust and wasp nests on the external door to the laundry.

(f) Rust at the base of the laundry wash tub.

[18] Consistent with their s 66 obligations, the tenants undertook an Exit Condition Report (ExCR) and submitted it to the lessors on 4 February 2025.
[19] The lessors say that the tenants' photographs in the ExCR are "cropped and staged" to hide the damage to the property, and that the condition of the property on exit is contrary to the notes made in the ExCR itself. The lessors pointed out in the hearing that the damage the subject of the claims is missing from all photographs taken by the tenants on exit and ask the Tribunal to infer from what they say was a deliberate concealment of damage that the tenants admit that the damage exists.
[20] For their part, the tenants say the lessors' photographs were either altered, undated, or lacked context and that key documents were omitted altogether.
[21] The tenants also take issue with the lessors failing to arrange a joint exit inspection of the property and say that the lack of invitation to attend undermines the credibility of the lessors' claims. This submission carries no weight. There is no obligation on lessors to arrange joint exit inspections.
[22] Finally, the tenants say that no repair or maintenance concerns were ever raised during the tenancy during the many informal and formal routine inspections that occurred. This is not relevant in this case where the claim relates to the tenants' obligation to return the property at the end of the property in the condition set out in s 188 of the RTRA Act.

[23] The lessors tendered photographs of discolouration to sandstone paving on a patio at the property and say that the sandstone is too heavily stained to be cleaned with the effect that the stone must be replaced.
[24] The Stone Restorer gave the lessors a quote on 6 February 2025 to remove the existing pavers, to make good the concrete slab and to lay, clean and seal new stone pavers in its place at a cost of $8,660.00. The quote states: "Please note that the oil stains cannot be removed from the sandstone".
[25] It does appear that the lessors' 'entry' and 'exit' photographs have been altered with respect to light/shading given the different shade of the adjacent rendered wall that appears in the photographs. The exit photographs have also been cropped to 'zoom in' on the alleged stains but this is not unusual when a party is seeking to show a stain or mark that would otherwise be difficult to see from a distance.
[26] However, the ECR photographs do not appear to have been altered and show the patio on entry. The sandstone appears in a clean condition although the pavers are of differing shades and colours, some quite dark in places, for example, in "General (Agent) - 8 of 17" in the ECR.
[27] A garden bed abuts the patio and although the patio is covered by a roof, no doubt the area would have been exposed to the elements including inclement weather during the tenancy. However, this would have been the position for the patio prior to entry and yet it was presented in a clean condition in the ECR.
[28] The tenants say the exit damage is discolouration consistent with wear and tear on an unsealed or inadequately sealed sandstone surface. This may be true for some marks but not true for oil stains.
[29] The tenants also point out that the outdoor area is exposed to environmental elements and was not properly cleaned by the lessors who were responsible (by their son) for garden and lawn maintenance (noting that the tenancy was situated within a larger parcel of land featuring two additional dwellings resided in by the lessors and their son, respectively). Nothing in the tenancy agreement provided that the lessor was responsible for cleaning the patio, and there is no evidence to suggest gardening work undertaken by the lessors' son caused or contributed to the staining evident on exit.
[30] The tenants also point out that there is a barbeque in the area in the ECR photographs indicating that the area would already have suffered oil stains and other wear and tear prior to their tenancy. If that was the case, the ECR photographs would evidence this, and they do not.
[31] Finally, the tenants say that cleaning would have treated the issue, but that this was not explored by the lessor. The tenants tendered their own quote from the Gold Coast Tile Cleaners dated 27 February 2025 to clean the sandstone tiles for $550.00.
[32] The Gold Coast Tile Cleaners quote includes several 'question and answer' format notations to the top left of the "Description" column, for example, the following relevant notations:

Photos

Photos help us provide you with a more accurate pricing and allow our technicians to be prepared for the work requested.

Quotes provided without photos & accurate descriptions are only rough estimates based on the information available at the time of inquiry. Actual costs may vary depending on the specifics of the job.

* Minimum booking price: $500

[33] Nothing in the cleaning quote tendered by the tenants suggests the quote was given off photographs or an inspection and the quote is for the minimum booking price only. It is not accepted as reliable for those reasons.
[34] The Tribunal is satisfied from even the tenants' photographs tendered on exit that there is oil staining evident on the sandstone, and perhaps some soil build up evident at the property. Unsealed sandstone pavers that are exposed to the elements will deteriorate from fair wear and tear over a six-year tenancy, particularly when they are used as a path for foot traffic. However, the oil staining is accidental damage for which the tenants are responsible.
[35] There are also new for old principles to apply to the claim.
[36] In the circumstances, the Tribunal allows 25% of the claim of $8,660.00. The sum awarded is reduced to $2,165.00 having regard to fair, wear and tear and applying principles of betterment.

Painting and plastering damaged walls and garage floor

[37] The lessors tendered photographs of ineffective patching to the plastered walls in one of the bedrooms as well as what looks to be a considerable overspray of white paint on the garage floor. They tendered a quote from Moler Painting Service to repair and repaint the bedroom and living room walls at $650.00 plus GST and to repair and repaint the garage floor at $1,100.00 plus GST.
[38] The tenants concede a 'without admission' allowance of $650.00 for the bedroom wall repair, but without admission, saying that the lessors have insufficient proof of damage and repair. The entry and exit condition evidence with respect to the damaged and poorly repaired wall is convincing and there is no reason to reduce the claim for fair wear and tear. Compensation for the wall damage is awarded in the amount claimed of $715.00 including GST.
[39] With respect to the garage floor, they concede minor paint overspray but dispute a full repaint was required and say that cleaning would have rectified.
[40] They also say that the garage floor was concrete aggregate, unpainted and featured discolouration, and oil stains at the start of the tenancy.
[41] Comparing the entry and exit condition photographs and the ECR, the Tribunal finds that:

(a) The garage floor was not damaged by white paint over-spray at the start of the tenancy. It did, however, contain marks typical of a garage floor and the surface does not appear to be well sealed in the entry photograph at "General (Agent) - 17 of 17" in the ECR.

(b) The garage floor was damaged by white paint over-spray at the end of the tenancy.

(c) The over-spray is careless damage and not fair, wear and tear. The ordinary use of a garage is not painting and, if it is, then the use of drop-sheets or similar would be an expected and reasonable step for a tenant to take to prevent damage such as that which has occurred.

[42] It is reasonable that the garage floor is repaired and repainted to address the overspray. However, the lessor will be in a slightly improved position given there were other marks on the garage floor at the commencement of the tenancy. The claim of $1,210.00 (including GST) is awarded in a reduced sum of $880.00 to reflect that.

[43] The lessors' photograph evidence shows missing laminate on the side of the bench at the corner near the sink and a dent or chip on another position at the side of the bench. Entry photographs were tendered that indicate the bench to have been in good condition on entry.
[44] A quote from Kitchen Builders Queensland to replace the benchtops was obtained in the sum of $1,784.00, including disconnecting and reconnecting plumbing and removing and disposing of the existing benchtops.
[45] The tenants concede minor damage to the laminate bench in the kitchen but dispute the need to fully replace two benches. Their own quote to repair the benches for $508.00 did not guarantee that the benches could be repaired to their original condition.
[46] The tenants submit in any event that the benches were old and not fit for purpose because the laminate edging was not sealed and peeled due to water ingress and poor design.
[47] The exit damage to the kitchen benchtops goes beyond fair wear and tear and I find occurred due to accidental damage.
[48] The benches were at least ten years old, and the damage is relatively minor so principles of betterment must be applied. The Tribunal allows 25% of the claim sum of $1,784.00 and awards $446.00.

[49] The entry and exit condition photographs establish that the barrel of a lock on the front door, which was not damaged and appeared to be in good condition on entry, had come loose from the door on exit.
[50] The lessors tendered a quote from Above & Beyond Locksmiths for $675.50 to replace the lock.
[51] The tenants say this was a decorative lock and never working, evidenced by the fact that a door handle has been installed over the lock that prevents a key being inserted into it and the absence of a strike plate behind the lock.
[52] It is difficult to see how the tenants could have accidentally damaged a lock that was not used during the course of the tenancy. The photographs indicate the barrel has come loose and is resting against the door handle that blocks it. I find this damage to be fair wear and tear in the absence of any third-party opinion to the contrary and refuse the claim on that basis.

[53] The lessors tendered a quote from Factory Direct for $408.12 for one vertical blind for the bedroom. Notes on the quote state "replace existing blind, damaged beyond repair".
[54] As the blind was not damaged on entry, the damage cannot be considered fair, wear and tear and the blind cannot be repaired. As such, the replacement cost is awarded in the full amount of $408.12.

[55] A quote for bond cleaning Birdlife Cottage from Renata Sofric dated 5 February 2025 for the sum of $800.00 was tendered in evidence. It is not itemised with respect to the cleaning work to be undertaken, however the lessors gave evidence that the quote was given after an inspection of the property by Ms Sofric. The lessors also gave evidence that they did proceed to have this work undertaken.
[56] The ECR notes the property to be in clean condition save some minor, limited notations. However, there is insufficient evidence of the exit condition of the property with respect to cleanliness to support a finding that the tenants breached s 188 in this regard.
[57] Similarly, there is insufficient entry and exit evidence to support a claim in relation the air-conditioning units. These claims are refused for those reasons.

[58] The starting point in the Tribunal is that each party bears its own costs although the Tribunal can award the filing fee to a party to a minor civil dispute if the interests of justice require.[6] Although the lessors have partially succeeded in their claim, nothing in the circumstances of these proceedings nor the submissions of the parties convinces the Tribunal to depart from the usual costs position that each party bears their own costs. The claim for the filing fee is refused on that basis.

[59] For the reasons given, I order the tenants to compensate the lessors as follows:

(a) Damage to sandstone paving $8,660.00 $2,165.00

(b) Painting and plastering walls and garage $1,925.00 $ 715.00 (wall)

(c) Replacing kitchen bench tops $1,784.00 $ 446.00

(d) Replacing a door lock and blinds $1,083.62 $ 408.12 (blind)

(e) Bond cleaning and air conditioners $1,148.00 nil

(f) Filing fee $ 379.50 nil

[60] The total award to the lessors is $4,614.12. As the award of compensation exceeds the bond, the decision of the Tribunal is that the RTA must release the bond to the lessors in full and that the tenants pay an additional sum of $2,614.12 to the lessors within twenty-one days.

[3] Davidson v J S Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1.

[4] Dimond v Lovell [2002] 1 AC 384; Stockdale & Leggo v Gordon [2017] QCATA 112.

[5] Gagner Pty Ltd t/as Indochine Café v Canturi Corporation Pty Ltd [2009] NSWCA 413; (2009) 262 ALR 691.

[6] Sections 100 and 102, QCAT Act.

Civil and Administrative Tribunal Act 2009

Tenancies and Rooming Accommodation Act 2008

At a glance

Court

Decision date

Source

Judgment (39 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)