TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd [1963] HCA 57; (1963) 180 CLR 130

Ward & Becker v Campbell [2005] NSWCTTT 23

1. The respondents pay the applicant the sum of $233.
2. The Office of Rental Bonds release $233 of the bond to the applicant and release the balance of the bond held in dispute ($155) to the respondents.

1. On 2 May 2015, the applicant Christopher Dean leased his residential premises in Chifley to the respondents Bhavnish Singh and his wife, Sarika Verma. At the conclusion of the tenancy on 14 January 2017, Mr Dean contended that the garden had not been returned to him in the manner required under the lease.
2. On the day of the final inspection, Mr Dean showed Mr Singh the gardening and garden waste removal work he required to be done but Mr Singh refused to do it. Faced with Mr Singh's continued refusal, in late February 2017 Mr Dean engaged a person from Jim's Mowing who did the gardening work on 28 February 2017. Mr Dean paid $388 for the gardening work and seeks to recover that money from the bond paid at the commencement of the lease. That sum remains with the Office of Rental Bonds as a portion of the bond money held in dispute.
3. This application turns on the question whether the tenants are liable to pay Mr Dean for the gardening work, which involved three tasks:
   • (a) mow the lawn;
   • (b) prune trees and bushes that were overhanging from a neighbouring property; and
   • (c) remove garden waste that had been left stacked against the house.

1. Mr Singh contended that he and his wife were not liable to do the gardening work because the day before the lease expired (13 January 2017) a tree fell on his car in the driveway and blocked the entrance to the backyard of the premises so that he could not do the work. He said that the tree was not cleared until 17 January 2017, and that "by then it was too late". He said that Mr Dean could not, after the expiry of the lease and after the day when Mr Dean conducted the final inspection, require him (or his wife) to complete gardening work that he was ready and willing to do at the time they left the premises.
2. I reject the submission.
3. Clause 64 of the Standard Residential Tenancy Terms provides for a tenant's obligation at the conclusion of a tenancy as follows:

(a) in substantially the same state of cleanliness, removing all the tenant's belongings and any other goods brought onto the premises during the duration of the tenancy agreement; and

(b) in substantially the same condition as the premises were in at the commencement of the tenancy agreement, fair wear and tear excepted

1. At the conclusion of a lease, a lessor or its agent will (often) conduct a final inspection for the purpose of determining a tenant's compliance with clause 64. It does not follow, however, that the tenant's and the lessor's obligations to each other crystallise at the time of the final inspection.
2. To consider the reverse of Mr Singh and Ms Verma's circumstances for a moment, a final inspection is for the purpose of determining a tenant's compliance with clause 64. On the date of the inspection, the premises are "handed back" and the obligations under clause 64 arise.
3. However, if a tenant has in some respect not complied with clause 64, the lessor must take all reasonable steps to mitigate the loss caused by the breach. The lessor cannot recover damages for any loss which the lessor could have avoided but failed, through unreasonable action or inaction, to avoid. So, for example, if there are areas which are not in substantially the same state of cleanliness or not substantially in the same condition as at the time of the commencement of the lease, the lessor must mitigate their loss by giving the tenant a reasonable opportunity to correct the breach.
4. What is a "reasonable opportunity" will depend on the facts in each case such as whether a new tenant has been secured and, if so, when the new tenancy is to commence; whether the tenant allegedly in breach of clause 64 is willing and able to rectify the alleged breach; and the timeframe within which the tenant proposes (and is able) to correct the breach. There may be other factors.
5. When a tenant is in breach of clause 64, it is for the tenant to show that the lessor acted unreasonably in failing to mitigate their loss.[1] However, it would in my view be unreasonable for a lessor not to give the tenant a reasonable opportunity to correct the breach and instead to incur the expense of engaging contractors to correct the breach and then seek to recover those expenses from the tenant. A lessor might choose to engage contractors rather than deal with the tenant, but such costs in my view could not be recovered from a tenant if the tenant was not first given a reasonable opportunity to correct the breach in the tenant's own manner or at the tenant's own cost.
6. If a new tenant is secured, "reasonable opportunity" would depend on whether the outgoing tenant can demonstrate an ability to correct the breach before the new tenancy is to commence. It is no part of a lessor's obligation to mitigate loss arising from an outgoing tenant's breach of clause 64 that the lessor must forgo rent or, worse, be placed in breach of its lease with an incoming tenant by giving the outgoing tenant time to correct defects that should have been addressed on or before the final inspection.
7. Mr Singh and Ms Verma's obligations to Mr Dean materially mirrored their rights. Just as Mr Dean needed to give them a reasonable opportunity after the final inspection to correct the breach by carrying out the gardening work, so they did not escape their obligation under clause 64 to do the gardening work simply because, on the day of the final inspection or shortly beforehand, some intervening event prevented them from doing so. They were not "off the hook", to use a phrase Mr Singh adopted. Rather, they remained in breach of clause 64 at the time they left the premises.
8. In the same way that a lessor must mitigate, so a tenant's ongoing obligation to comply with clause 64 after a final inspection will depend upon the facts of the case, such as the seriousness of the non-compliance; the reason for the tenant's inability to comply; the timeframe within which the reason for that inability was addressed, and so on.
9. Referring to the facts in this case, the fallen tree was an act of nature. It might have delayed Mr Singh's ability to perform the gardening work, just as might many intervening events, but it did not excuse performance of the work altogether. Mr Dean removed the tree by 17 January 2017, which I accept for many reasons was as soon as it could practicably be done. I was not persuaded that Mr Singh could not reasonably have done the work after the tree was removed, and I reject the proposition that the delay in accessing the premises for a few days relieved him of his obligations under clause 64.
10. In any event, I am satisfied from viewing photographs of the tree against Mr Singh's car that only large branches from the tree had fallen across the driveway, and none of them prevented Mr Singh from accessing the backyard to carry out the gardening work.
11. Faced with Mr Singh's steadfast refusal to do the work, and Mr Dean giving him a reasonable opportunity to do the work over many weeks, I am satisfied that Mr Dean was left with no practicable alternative but to arrange for the work to be done by someone else. It was, in my view, reasonable for him to engage an independent contractor to do the work.
12. The remaining question is the extent to which the tenants were liable to carry out the gardening work in any event.

Substantive obligations regarding gardening work

1. In the Tribunal's experience, views differ markedly regarding a tenant's obligations under clause 64 to return a garden in "substantially the same condition" as it was at the commencement of the lease, especially where a tenant is not responsible for 'fair wear and tear'.
2. This difference of views arose in this case, as it does in many cases, because the lease agreement did not otherwise provide any detail regarding the respective obligations of the lessor and the tenant for the garden. If such detail is written in a lease, it would clarify or qualify a tenant's general obligations under clause 64.
3. As to the meaning of 'fair wear and tear', in Maroney v Bullard[2] I said:

24. In Taylor v Webb [1937] 2 KB 283, the UK Court of Appeal noted that the phrase 'wear and tear' has been common in leases and tenancy agreements for two to three centuries. It covers two classes of disrepair:

(a) Disrepair caused by the normal or ordinary operations of natural causes, such as sun, wind and weather.

(b) Disrepair caused by a tenant or other persons on the premises with the consent of the tenants ... as a normal and unintentional incident of their occupation of the property.

25. The UK Court of Appeal noted that the word 'fair' contemplates 'reasonable'. It would not include intentional or negligent damage, for example damage caused by pets, or by manifest lack of care or improper or impermissible use of the property.[3]

1. On the question of what is 'reasonable', in Maroney v Bullard[4] I said:

31. In my view, the question must be assessed objectively, meaning neither by reference to the views of a fastidious lessor nor the views of a tenant who is (or was) indifferent to the maintenance and care of the leased property. The need for an objective assessment requires the Tribunal to form a view as to where the balance lies.

1. Three aspects of gardening work arose for consideration in this case: the lawn, pruning and removal of garden waste.

1. Mowing is a routine mechanical exercise in the control of a tenant. If a lawn was mown to a certain height at the commencement of a lease, the tenant has an obligation to leave the premises at the end of the lease with the lawn mown 'substantially' to the same height. Fair wear and tear may limit the tenant's obligations regarding the condition of the lawn at the end of the lease,[5] but that has no bearing on the obligation to mow.
2. In this case Mr Dean accepts that the lawn, or more accurately the grass, in the premises' backyard was not in good condition at the commencement of the lease. It was primarily natural grasses approximately 10cm high. But that was substantially better than its state at the end of the lease. Photographs showed the grass to be approximately a metre high, with long stems bent over in many places and in an entirely unkempt state. It had plainly not been mown for, I expect, months.
3. Mr Dean said that at the end of the lease Mr Singh reported he was not willing to mow the grass for fear of being bitten by something in the grass. Mr Singh denies that statement, but it is indicative of the height and state of the grass.
4. I am satisfied that extensive and time-consuming slashing and then mowing work was required in order to return the height of the grass to, say, 10cm and to clear the grass cuttings. Doing the best I can, I apportion $200 of the Jim's Mowing tax invoice to mowing the grass.

1. Mr Dean relied on photographs of trees or shrubs that had grown over the rear boundary fence from the adjoining property. The growth was extensive and unkempt. The contractor from Jim's Mowing trimmed this foliage back to the boundary and removed it from the premises as part of the gardening work.
2. In my view, the tenants were not responsible for conducting such pruning either during the term of the lease or at its conclusion and so cannot be liable to pay Mr Dean's costs in carrying out this work.
3. Trees and bushes grow as part of the natural changes in the life of a garden, whether on leased premises or adjoining premises. Natural growth, in my view, falls within the ambit of 'substantially' when answering the question whether a tenant has returned a property at the end of the lease in substantially the same condition as it was at the commencement of the lease.
4. To the extent that trees or bushes have grown in a natural but unsafe or undesirable manner, and so can be characterised as being in a state of 'disrepair' requiring trimming or pruning, that disrepair has arisen from natural causes and so can be fairly described as fair wear and tear for which a tenant is not responsible.
5. My observations are confined to trees and bushes in their natural state at the commencement of a lease that have grown naturally over the lease term. It should not be inferred that my observations apply equally to bushes shaped as a hedge at the commencement of the lease: that circumstance did not arise for consideration in this case.
6. I reject the proposition that grass or lawn also grows naturally and so can also fall into disrepair for which a tenant is not responsible, unless the grass was in a natural unkempt state at the commencement of the lease. Mown grass bears no resemblance to grass in its natural state. When mown, it is a natural surface created mechanically to provide amenity for residential use. A tenant is required to return it, mown to substantially the same height, at the end of the lease.

1. Removal of garden waste in my view should be treated as a necessary component of the gardening work giving rise to the waste. If a tenant mows a lawn or prunes or weeds (whether under an obligation to do so or not), the work brings a corresponding obligation to complete the job by removing the waste or utilising it as mulch or compost if and as appropriate. For a tenant, their gardening obligations are in most cases minimal. Waste removal can be readily done using domestic garden waste collection bins when use of the waste as mulch or compost is not appropriate.
2. The same obligations rest with a lessor, who may enter the 'premises'[6] to fulfil their obligation to "maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement."[7] If the lessor enters premises to carry out gardening work, for example to prune as part of the lessor's obligation to maintain the premises in a reasonable state of repair, that pruning work includes removing the garden waste at the conclusion of the work.
3. In this case, Mr Dean relied on a photograph of dead leaves and branch cuttings piled against the wall of the house to show the amount of garden waste left by the tenants at the end of their tenancy. Although the evidence was uncertain, I am satisfied that the tenants caused that waste to be there in circumstances where they had been renting the premises since 2 May 2015. It follows in my view that they were responsible for removing it prior to or at the conclusion of the lease. They did not do so, despite being given the opportunity to do so. The contractor from Jim's Mowing removed the waste on 28 February 2017 more than six weeks after the final inspection on 14 January 2017. I am satisfied that the tenants are responsible for the cost of that removal.
4. It is difficult to quantify that cost, especially where the itemised charge of $66 for green waste removal included removal of the prunings, but I allow $33.

1. For these reasons, I will order the tenants to pay Mr Dean the sum of $233. To give effect to that order, I will direct the Office of Rental Bonds to release $233 of the bond to Mr Dean and to release the balance ($155) to the tenants.

[1] TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd [1963] HCA 57; (1963) 180 CLR 130, 138

[2] [2016] ACAT 33

[3] The approach in the UK has been adopted in Australia: JSM Management Pty Ltd v QBE Insurance (Australia) Limited [2011] VSC 339

[4] [2016] ACAT 33

[5] See for example Moffatt v Gorham [2003] NSWCTTT 564; Cancio v Ware [2004] NSWCTTT 498; and Ward & Becker v Campbell [2005] NSWCTTT 23 which commented on the extent to which damage to lawn arising from drought and water restrictions can be fairly described as fair wear and tear

[6] 'Premises' is defined in the Dictionary to the Act to include part of any premises and any land belonging to the premises

[7] See Standard Residential Tenancy Terms, clauses 55(1) and 75(1)