Dowse v Butler; Butler v Dowse

NCAT Consumer and Commercial|2019-06-21|Before: Sunray Investments P

REASONS FOR DECISIOn

There are two applications before the Tribunal in these proceedings.
The first application in time has been made by Toni Dowse and Bradley Lewis (the tenants). They seek orders pursuant to sections 50, 63, 187(1)(d) and 190 of the RT Act that would require Brendan Butler (the landlord) to pay them a total of $4,000.00 in compensation for the alleged loss of comfort and amenity they suffered in residential premises they rented from him due to his failure to provide them with keys to all locking devices for the premises and to repair a leaking roof which she contends caused damp and mould. Also included in this total is a claim for compensation for consequential loss arising from the alleged failure of the landlord to pass possession of premises to the tenants in reasonably clean condition. This application was made to the Tribunal on 14 March 2019 (the tenants' application).
The second application in time is an application by the landlord for orders pursuant to sections 51, 187(1)(d) and 190 of the RT Act that would require the tenants to pay him a total of $11,719.95 in compensation for damage and loss he contends he incurred as a result of the tenants' failure to fulfil their end of tenancy obligations to return the premises to him in a condition as close as possible to the condition it was in at the start of the tenancy, fair wear and tear accepted and to return the premises reasonably clean having regard to its condition at the start of the tenancy. Specifically, the landlord complains that the tenants left the premises seriously unclean and failed to remove their rubbish, damaged and lost flyscreens, caused a serious dent in the garage door which requires its replacement, damaged carpet and curtains requiring their replacement, and removed all LED light globes from the premises. The landlord also claims a consequential loss of rent due to time lost while necessary cleaning, rubbish removal and repairs were carried out. This application was made to the Tribunal on 28 March 2018 (the landlord's application).

Joinder of tenant party

It was apparent from the copy of the residential tenancy agreement submitted into evidence that the tenant parties to the agreement were Toni Dowse and Bradley Lewis. However, only Toni Dowse has been named as a tenant party in each application. The reasons given for that both by Ms Dowse and Mr Butler were that Ms Dowse had the active role in dealings with Mr Butler during the tenancy, and Mr Lewis was unable to attend the hearing. While there is no difficulty in Ms Dowse representing both tenants at the hearing, any orders made in either application will determine the rights and obligations of both tenants. It is therefore appropriate to order that Mr Lewis be joined as a tenant party to both applications.

Background

The dispute arises from a residential tenancy agreement that was made on 28 February 2018. It was a fixed term agreement of 12 months which was expressed to commence on 23 March 2018 and end on 22 March 2019. The rent payable under the agreement was $380.00 per week. The circumstances in which the tenancy came to an end are the subject of some controversy between the parties, but it is unnecessary to go into this in any detail for the purposes of these proceedings. It appears that the tenants returned possession on or about 15 March 2019 with rent paid up to the end of the agreement pursuant to an end-of-fixed term termination notice they had served on the landlord.
In or about December 2018 the landlord determined to sell the property. He engaged a Real Estate Agent to conduct a marketing campaign for the sale. In preparation for this marketing campaign the landlord requested the tenants to carry out certain work at the premises to make it more presentable, including weeding the garden beds, mow the lawns, remove fuel stains from the driveway and tidy the interior. It appears that the tenants refused or failed to respond to these requests, which is the point where the relationship between them and the landlord deteriorated into acrimony.
The property was not sold with the time period anticipated by the landlords, and potential interest in the property was expressed at a potential sale price that was significantly below the landlord's expectations. The landlord contends that one reason for this was the poor state of presentation of the property due to the tenants' failure to reasonably maintain it. In support of that contention he has submitted into evidence a copy of an email to him from his Real Estate Agent, David Shaw, which is dated 11 March 2019 which states in relation to the property's failure to sell by that time that "[u]ltimately, the property presentation and the asking price has been the sticking points, together with the property being tenanted and access limited."
The landlord withdrew the property from sale with effect from 8 April 2019. However, it appears that his Agent referred an offer of purchase to him after that date and by 6 May 2019 the listing of the property for sale stated that it was "under contract". The landlord confirmed that at the date of the hearing that remained the case.
At the start of the tenancy, the tenants provided the landlord with a rental bond of $1,520.00, which his (then) agent deposited with Rental Bond Services. At the end of the tenancy the tenants applied for the release of their bond, which was paid them by Rental Bond Services on 19 March 2019. In this respect Mr Butler gave evidence that he did not receive notification that the tenants had requested the refund of their bond, and consequently, he did not have the opportunity to object to its release.
The residential premises in a modern free-standing home constructed in approximately 1995 located in Coomba Park. It has four double bedrooms each with a built-in robe, one main bathroom and one en suite bathroom, an additional study, separate kitchen and laundry, an open plan living and dining area, formal entry, outdoor alfresco BBQ and entertainment area, and a double lock up garage.
The landlord has submitted into evidence a Start-of-Tenancy Condition report. It is in the form prescribed by Regulation 6 and Schedule 2 of the RT Regulation. On its face it appears to be signed (initialled) by Mr Butler and his partner Kelly Hilder, and by Ms Dowse, and witnessed by the landlord's cleaning contractor, Margaret Lee, and dated 22 March 2018. The landlord has submitted into evidence a statement made by Ms Lee which is dated 25 March 2019 in which she states: "[d]uring my duties on 22 of March 2018 I agreed to be a witness on behalf of both parties, Brendon, Kelly and Toni, discussing and signing the condition report together as agreed upon".
Ms Dowse denies that she had ever seen or signed this document. She claims that the first time she had seen the document was when the landlord served it on her with his other documentary evidence in the course of this proceeding. She claims to have subsequently reported the forgery of her signature to NSW Police and has submitted a police event number for that report.
The condition report was the subject of much argument at the hearing. In her evidence Ms Hilder stated that she prepared the condition report as "our" (the landlord's) copy and advised Ms Dowse that she should also prepare her own copy for her records. She was critical of Ms Dowse for failing to do so. Although not entirely clear, Ms Hilder also appeared to agree that she had completed the "tenant agrees" section of the report before she provided it to Ms Dowse for her signature.
It is a serious matter to allege fraud, and there must be a satisfactory evidentiary basis for such an allegation. I have carefully scrutinised the form of Ms Dowse's initials on the condition report proffered by the landlord and those on the residential tenancy agreement. There is a palpable difference in form. The curl of the initial "D" is irregular and appears tentative on the condition report in contrast to the firm and uniform curl as it appears on the residential tenancy agreement. Of course, other factors may account for this, including the pen used and the signing surface. Nevertheless, this is sufficient to raise a legitimate doubt in the context of Ms Dowse's vehement denial that she signed the report.
Putting this to one-side momentarily, there is another difficulty for the landlord in relation to the condition report. The procedure for the preparation of a condition report is set out in section 29 of the RT Act. A landlord or landlord's agent is to provide two copies of such a report to a tenant before or when the residential tenancy agreement is signed: section 29(2). The tenant must complete and give one copy of the condition report to the landlord or the landlord's agent not later than 7 days after receiving it and both the landlord and the tenant must retain a copy of the report: section 29(3). On the landlord's own case, this is not the procedure that was followed. The landlord's case is that he prepared 'his own' condition report, apparently including the tenant's section of the report, which he required the tenant to sign, and that he advised the tenant to complete her own condition report.
On this basis I am not satisfied that the condition report proffered by the landlord is a condition report for the premises for the purposes of sections 29 and 30 of the RT Act. It therefore cannot attract the presumption conferred by section 30 of the RT Act that it is a correct statement of the condition of the premises on the date it was signed. The doubt raised by Ms Dowse's allegation that her signature on the report is a forgery reinforces that conclusion.
Of course, that does not mean that the condition report is of no evidentiary value. However, it is to be treated as the landlord's submission as to the condition of the premises at the start of the tenancy which must be proved with other appropriate evidence.
No condition report for the premises was prepared at the end of the tenancy. It appears that the landlord made several attempts to contact the tenant to arrange a joint final inspection to prepare such a report but by that stage their relationship had become seriously acrimonious and no joint inspection was agreed. Neither party prepared an End-of-Tenancy Condition report in the prescribed form.

Procedural history

The tenant's application first came before the Tribunal, differently constituted, in a Group List for Conciliation and Hearing on 5 April 2019. Ms Dowse attended that listing of the application in person. Ms Kellie Hilder attended on behalf of the landlord as his authorised representative. In accordance with the Tribunal's usual practice where both parties are present in person, prior to the case being called the parties were offered the opportunity to discuss the dispute to ascertain if a cooperative resolution might be reached. Those efforts were not successful.
When the parties returned to the hearing room the Tribunal adjourned the application for a Special Fixture Hearing and issued directions to the parties for the filing and exchange of the evidence that they intended to rely upon in relation to that hearing. The Tribunal also amended the tenant's application to state that it was a claim for a rent reduction under section 43 and 45 of the RT Act in the alternative to it being a compensation claim under section 187 and 190 of the RT Act. In this respect I note that it is difficult to see how section 43 and 45 apply in the circumstances of this case. I have therefore dealt with the application as a claim for compensation based upon the landlord alleged breach of the agreement (sections 52 and 63 of the RT Act), as to which see following.
The landlord's application first came before the Tribunal in a Group List for Conciliation and Hearing on 12 April 2019. The landlord attended that listing of the application in person. Ms Dowse did not attend the hearing. The Tribunal adjourned the application to a Special Fixture Hearing and issued directions to the parties for the filing and exchange of the evidence they intended to rely upon in the lead up to that hearing. The Tribunal also directed that the tenant's and landlord's applications be set down for hearing together.

Evidence and hearing

There appears to have been some non-compliance by the tenant with the timetable for the exchange of her evidence with the landlord in the lead up to the hearing which was the subject of correspondence with the Divisional Registrar. However, as at the date of the hearing both parties and the Tribunal had received all of the documentary evidence to be relied upon. The tenant relied upon two bundles of documents, one in support of her own application, the other in response to the landlord's application. These bundles were marked Exhibits T1 and T2 respectively. The landlord relied upon a single bundle of documents in relation to both applications which was marked Exhibit L1.
Ms Dowse attended the hearing in person and gave oral evidence under a solemn promise to tell the truth. Mr Butler also attended the hearing in person and gave evidence under a solemn promise to tell the truth. He called as a witness Ms Kellie Hilder who also gave evidence under a solemn promise to tell the truth. The parties had the opportunity to present their respective cases in relation to both applications, to ask each other and Ms Hilder questions and to make final submissions to the Tribunal.

Jurisdiction

Before it can exercise any of the powers contained in the RT Act the Tribunal must be satisfied that there is a residential tenancy agreement subsisting between the parties as defined by section 13 to which the Act applies pursuant to section 6. In this case I am satisfied on the evidence before me that the agreement that subsisted between the parties is a residential tenancy agreement to which the RT Act applies.
Both applications seek orders for compensation based upon the alleged breach of the residential tenancy agreement by the other party. An application by a party to a residential tenancy agreement for an order for compensation based on the alleged breach of the agreement must be made within three months of the applicant becoming aware of the breach. In this case the landlord's complaints concern the condition in which the residential premises was left when the tenants delivered up vacant possession on 15 March 2019. As noted above, the landlord made his application to the Tribunal on 28 March 2019. It has thus been made within the time period permitted.
However, the situation is different with respect to the tenants' claims. These complaints concern the state of cleanliness in which the premises was passed to them at the commencement of the tenancy on 23 March 2018, the alleged failure of the landlord to provide them with keys to all locking devices at the commencement of the tenancy, the loss of comfort and amenity they allegedly suffered between 23 July 2018 and 28 July 2018 due to failure of the hot water system, and the presence of mould at the premises due to a roof leak which was reported to the landlord on 15 October 2018 resulting in a roof repair and repainting being carried out by the landlord on 16 October 2018.
The tenants' application with respect to the state of cleanliness of the premises at the start of the tenancy, and the hot water system failure, relate to specific events in time. For an application to be made within time in relation to these events it would have to have been filed with the Tribunal on or before 23 June 2018 and 28 October 2018 respectively. As noted above, the tenants' application was filed on 14 March 2019. The delay in making the application is thus 265 and 138 days respectively.
It is necessary to consider if the tenants' complaints in relation to the landlord's alleged failure to provide keys to all locking devices and the presence of mould at the premises constitutes continuing conduct by the landlord up to the end of the tenancy. If it is, the tenants' application will have been made within the time period permitted because the time limitation period had not started to run (the tenants' application having been made before the end of the tenancy).
For conduct in breach of a residential tenancy agreement to be continuing conduct for the purpose of section 190 of the RT Act there must be an ongoing failure to remediate a continuous, rather than instantaneous or episodic breach, which is associated with continuous complaint by the tenant: Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [91] and Hundt v Kong [2018] NSWCATAP 156 at [37].
Those characteristics are not satisfied in this case.
A landlord has an obligation to provide and maintain the locks or other security devices necessary to ensure that the residential premises are reasonably secure: section 70(1) of the RT Act which is made a term of every residential tenancy agreement by operation of section 70(4). There is a dispute between the parties as to whether the landlord provided all necessary keys to the premises at the start of the tenancy. The tenants allege he did not. The landlord contends that he did.
The great difficulty for the tenants in seeking to pursue this claim now is the complete absence of any complaint by the tenants about the alleged failure of the landlord to provide keys over the whole course of the tenancy until their application was filed with the Tribunal on 14 March 2019. There cannot be a continuous failure to remedy a breach of the agreement by the landlord in the absence of any complaint whatsoever by the tenant about the alleged breach over the whole course of the tenancy. The limitation period must therefore run from 23 March 2018 in relation to this element of the tenants' claim and it has therefore been made 265 days late.
The only record of the tenants complaining about mould at the premises is their complaint to the landlord on 15 October 2018. It is not in issue that the landlord attended the premises the following day to repair the roof and to remove the mould that had developed on the ceiling of the hallway below the leak and repaint that ceiling. There is no issue that the tenant made no further complaint about the presence of mould at the premises after that date. Now, in the context of her application, she contends that the repair carried out by the landlord was ineffective and that the mould regrew.
The tenants allegation in relation to mould is that the landlord was in breach of his obligation to maintain the premises in a reasonable state of repair as required by section 63(1) of the RT Act which is made a term of every residential tenancy agreement by operation of section 63(4). A landlord will only be in breach of this obligation if they are on notice as to the need for repair and fail to carry out the repair with reasonable diligence: section 65(3) of the RT Act. The repair carried out on 16 October 2018, one day after the mould being reported, was obviously carried out diligently. No further notice was ever given by the tenants as to the need for further or better repairs to prevent mould, or to deal with the mould growth. The landlord therefore cannot be found to have been in breach of the agreement after 16 October 2018 in relation to his obligation to repair. Time must therefore run from 16 October 2018 in relation to this element of the tenants' claim, and their application in respect of it is therefore 57 days late.
Section 41 of the Civil and Administrative Tribunal Act confers discretion on the Tribunal to extend the time in which an application can be made. That discretion is unfettered but it must be exercised judicially, having regard to established principle. In short summary, time limits are to be strictly enforced unless to do so would work and injustice to an applicant. The relevant considerations are the length of the delay, the applicant's explanation for the delay, any prejudice that the respondent party would suffer if time were to be extended and the merit of the claim. If the delay is relatively short the application must be fairly arguable. If the delay is more significant, the applicant must establish that the claim has substantial merit: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18] to [22].
In this case, the tenants' delay in making their application is very extensive in respect of each of their claims. This consideration alone strongly weighs against the exercise of discretion to extend time. Equally decisive is the absence of any satisfactory explanation for the delay. In this respect Ms Dowse was provided with the opportunity to explain why it had taken so long for her make her application to the Tribunal in respect of each of her claims. She initially struggled to proffer any explanation at all, then argued it was because she feared retaliation by the landlord and was concerned that she might lose her home if she complained. There is no evidence whatsoever before the Tribunal that gives credence to that bare assertion, and in any event, the RT Act provides protection for tenants against retaliatory evictions by landlords in such circumstances: section 115 of the RT Act.
There would be obvious relevant prejudice to the landlord if time were to be extended to permit these claims to be pursued now. Had they been raised within the limitation period, if breach had been established, the landlord would have been ordered to remedy the breach at a time much more proximate to the breach. That would have significantly reduced his financial exposure as compared with that he would face now if time were to be extended and the claims were to succeed.
I am also not satisfied that the tenants' claims are fairly arguable, let alone that they have substantial merit. What is most striking in this respect is the virtual or absolute absence of complaint about these matters in the course of the tenancy. Insofar as the tenants rely upon section 63 of the RT Act to establish breach, their claims are likely to fail because the landlord was not on notice as to the need for repair. Insofar as the tenants rely upon section 70 of the RT Act to establish breach it is difficult to see how the tenant could prove that the premises was unsafe because it could not be locked in the absence of any documentary or other satisfactory evidence that all keys were not provided at the commencement of the tenancy. As it is, this aspect of the tenants' case relies upon Ms Dowse's bare assertion only. In any event, repairs related to home security are urgent repairs which the tenants were entitled to arrange to have carried out without the landlord's prior approval at a cost of up to $1,000.00 and recover the costs from the landlord. They did not attempt to do so, so this aspect of the claim is likely to fail on the basis that there was no attempt at mitigation even if breach were to be established.
There is some documentary evidence that the tenant complained about the state of cleanliness of the premises at the start of the tenancy, limited to the odour being emitted from the recently steam-cleaned carpet. However, even if I were to consider that this evidence of complaint, combined with the more substantial witness evidence the tenant has filed in relation to this element of the claim, results in this element of the claim having substantial merit, this factor alone would not warrant the exercise of discretion to extend time given the length of the delay, the absence of any satisfactory explanation for the delay and the prejudice the landlord would suffer if time were to be extended.
For the foregoing reasons, I decline to extend the time in which the tenant can pursue her applications in relation to the alleged breach of the residential tenancy agreement by the landlord. That being so the tenants' application must be dismissed on the basis that the Tribunal does not have jurisdiction to deal with it, all elements of the claim having been made outside the time period permitted by section 190(1) of the RT Act and Regulation 22(9) of the RT Regulation.
Section 187(4) of the RT Act and Regulation 23 of the RT Regulation impose a prescribed monetary limit of $15,000.00 on the Tribunal's order making power. The monetary value of the landlord's claims does not exceed this limit.

Applicable law

The Tribunal's power to make an order requiring a party to a residential tenancy agreement to pay compensation is found in subsection 187(1)(d) of the RT Act. However, this order making power does not exist in abstract. It is only enlivened when an entitlement to compensation is established under a substantive provision of the RT Act. In this case, as already noted, the relevant provision is section 190 of the RT Act which empowers a landlord or a tenant to apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement. The landlord's claims for compensation rest on the tenant's alleged breach of subsections 51(1)(d) and 51(3)(b) and (c) of the RT Act. Section 51 is made a term of every RTA by operation of subsection 51(5) of the RT Act. For the purpose of these proceedings, the tenant's relevant obligations are in the following terms: 51 Use of premises by tenant (1) A tenant must not do any of the following: (a) … (b) … (c) … (d) intentionally or negligently cause or permit any damage to the residential premises (2) … (a) … (b) … (3) On giving vacant possession of the residential premises, the tenant must do the following: (a) … (b) leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and, if there is a condition report, as set out in the condition report applicable to the premises when the agreement was entered into, (c) leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy, (d) … (e) …

"residential premises" includes everything provided with the residential premises (whether under the residential tenancy agreement or not) for use by the tenant. (5) This section is a term of every residential tenancy agreement.

Several of the landlord's claims rest on the contention that the tenants caused or permitted "intentional" or "negligent" damage to the residential premises in the course of the tenancy. In the context of the RT Act, for conduct to be "intentional" it must be "pre-meditated": Lindsay v NSW Land and Housing Corporation [2016] NSWCATAP 128 at [45]. This requires proof that the tenant had "determine[d] on [a particular] result or such result must be that person's aim or purpose." Intention will not be present if the result was unforeseen": Cure v Bridge Housing Ltd [2014] NSWCATAP 80 at [43]. For conduct to be negligent there must be evidence of a lack of reasonable care and attention, or of a non-performance of a duty, or of neglect-full-ness of, thoughtlessness in relation to, or inattentiveness to, an obligation or duty by the tenant: cf Sunray Investments P/l v Cruwys [1992] NSWRT 95. This is an objective test.
A tenant is not strictly liable for any change in the condition of premises during a tenancy. The onus of proving negligent or intentional damage rests with the landlord: Westpac General Insurance v Cooper [2006] ACTSC 91 [at 14] (an appeal from the Court's decision in that case was upheld in Cooper v Westpac General Insurance Ltd [2007] ACTCA 20 but not on this point). If a landlord seeks to prove that a tenant has caused or permitted intentional or negligent damage, they must establish a credible hypothesis as to how this damage was caused: Fitzpatrick v Wu unreported, NSWRT, 2001, 01/16425.
The meaning of the term "fair wear and tear" was considered in Abela v Walker [1997] NSW RT 15, in which the Residential Tribunal, after having reviewed the superior court authorities, concluded that the word "fair" goes to the cause, or nature of use of the premises by the tenant, that gave rise to the damage. It held that intentionally caused damage could never be excused as fair wear and tear. It concluded that the words "wear and tear" go to the effect of the damage; that is, how substantial or impactful the damage is on the premises.
In Bell & Bell v Boccola, Campbell & Lawrence (Residential Tenancies) [2009] ACAT 26, the ACT Civil and Administrative Tribunal concluded, having reviewed the relevant authorities, that fair wear and tear "generally relates to damage or deterioration that happens through the ordinary day to day use" of premises by a tenant [at 24]. It identified [at 25] six factors to be considered in determining whether particular deterioration is fair wear and tear or negligent damage: (a) the age, quality and condition of any item at the beginning of the tenancy; (b) the average useful lifespan of the item; (c) the reasonable expected use of such an item; (d) any special terms of the tenancy agreement related to that item; (e) the number and type of tenants; and, (f) the length of the tenant's occupancy.
The onus of establishing that damage is fair wear and tear rests on the tenants: Westpac General Insurance v Cooper [2006] ACTSC 91 [at 14]. The standard by which fair wear and tear is assessed in an objective one - it is not the subjective standard of a fastidious or obsessive landlord: Fitzpatrick v Wu (unreported, NSWRT, 2001, 01/16425). Fair wear and tear does not include deterioration in the premises that could be prevented by reasonable conduct on the tenant's part: Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) P/L [2006] NSWCA 224.
A tenant must return residential premises to a landlord reasonably clean, having regard to its condition at the commencement of the tenancy. The test for reasonable cleanliness is an objective one - it is not the subjective standard of a fastidious or obsessive landlord: Fitzpatrick v Wu (unreported, NSWRT, 2001, 01/16425).
Any damage and loss claimed as a result of breach of the RTA must be a reasonably foreseeable consequence of that breach: Hadley v Baxendale [1854] 9 Ex 341. The purpose of an award of damages for breach of an obligation under a residential tenancy agreement is compensatory, just as it is in other types of contracts. It is designed to put the injured party in the position in which they would have been in had the obligation been performed (or if the breach had not occurred), so far as money is capable of doing so. The injured party is not entitled to any amount of compensation that would result in them being put in a better position than they would have been if there had been no breach. The injured party also has a duty to mitigate their loss. They are not entitled to be compensated for any loss which could reasonably have been prevented: Marcourt v Clark [2012] NSWCA 367 at [98-99]; O'Brien v Twynam [2016] NSWCATAP 125 at [80 to 85]; Yang v NSW Land and Housing Corporation [2016] NSWCATAD 37.
The injured party also has a duty to mitigate their loss. They are not entitled to be compensated for any loss that could have been prevented had they acted reasonably: Sherson & Associates Pty Ltd v Bailey [2000] NSWCA 275 at [77]. The onus of proving a failure to mitigate lies with the landlord in the circumstances of this case: TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd (1963) 180 CLR 130 at 138. With the exception of proving fair wear and tear, and failure to mitigate loss, in relation to which the tenants bear the onus, the landlord bears the onus of proving his case on the civil standard of proof, which is the balance of probabilities: Briginshaw v Briginshaw (1938) 60 CLR 336. This standard of proof was described by Lord Denning in Miller v Minister for Pensions [1947] 2 All ER 372 [at 374] as requiring the Tribunal to be satisfied that an alleged fact was "more probable than not". However, the Tribunal must "feel an actual persuasion of [the alleged fact's] occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality " … [the occurrence or existence of the fact must be established]… to the reasonable satisfaction of the Tribunal": Briginshaw [at 361-2].

Consideration

The landlords' claim for compensation in the amount of $11,719.95 is constituted by the following items: 1. Compensation for the cost of replacing the carpets of the premises: $6,950.00; 2. Compensation for the cost of replacing dining room curtains: $289.95 3. Compensation for the costs of replacing 20 LED light globes: $220.00 4. Compensation for the costs of cleaning of the premises: $250.00 5. Compensation for the cost of replacing flyscreen frames and screens: $300.00 6. Compensation for the cost or replacing the garage door: $1,210.00 7. Compensation for lost rent: $2,500.00

Carpets

The landlord claims $6,950.00 in compensation for the cost of replacing the carpets of the premises which he contends were fatally damaged by the tenants in the course of the tenancy. In order to succeed in relation to this element of his claim the landlord must prove that the tenants caused or permitted negligent or intentional damage to the carpets in the course of the tenancy, with the result that they failed to return the carpets at the end of the tenancy in a condition as close as possible to the condition they were in at the start of the tenancy, fair wear and tear excepted. If the landlord does establish that the carpets require replacement due to tenant damage the measure of the loss for which he is entitled to be compensated is the value of the loss of expected future use of the carpets he suffered.
The landlord contends that the carpets were in clean and in undamaged condition at the start of the tenancy. That is the condition stated in the start-of-tenancy condition report prepared by Ms Hilder. The landlord submits that this is the condition that is also depicted in the photographs that are associated with that report. The photographs depict the carpets apparently clean and in good condition, but perhaps subject to some discolouration (although this may be an illusion created by the poor quality of the photographs). The landlord also contends that the carpets were freshly steam-cleaned at the start of the tenancy. In support of that contention he has submitted into evidence a statement made by a carpet cleaning contractor who cleaned the carpets just prior to the tenancy commencing (as to which see following).
In relation to this element of the claim the landlord also relies upon a statement made by his Managing Agent for the sale of the property, Ms Ashley Boyd-Skinner, which is dated 20 March 2019. The relevant section of the statement reads: 2. During the time Toni lived in the property and we had it listed for sale … no odour was ever coming from the carpet.
The landlord contends that the carpets throughout the premises were fatally damaged by animal urine at the end of the tenancy, could not be cleaned, and had to be replaced. In support of this contention the landlord has submitted into evidence a statement made by Hando Handono, a 'carpet technician' who trades as Turbo Clean The Carpet Cleaning Company. That statement is set out following: On 22nd March 2018 I cleaned the carpets at [the address of the premises]. The carpet was clean and in good condition with no odour. I then cleaned the carpet on the 14 March [2019] for Toni Dowse. After cleaning the carpet, it still had an odour which I believe was animal urine which has soaked through the underlay. I have tried deodorising the carpet, but the odour still remains. It is my opinion the carpet and underlay are beyond repair and will need replacing.
As proof of his loss, the landlord has submitted into evidence a quotation provided by a floor coverings supplier which itemises the 'replacement of damaged carpet' by 'supplying and installing' 'solution dyed nylon carpet similar to existing damaged carpet in bedrooms 1, 2,, 3, 4, the robes, master bedroom and w.i.r [walk in robe] on new underlay' at a cost of $6,950.00 including GST.
In their response to this element of the claim the tenants contend that the carpet was not clean and had a foul odour at the start of the tenancy. In support of this contention they have submitted into evidence a copy of an invoice dated 22 March 2018 addressed to T. Dowse at the address of the residential premises from Rugrats Carpet Cleaning which itemises the following: 'carpet steam cleaning throughout all rooms, pre vacuumed, deodoriser applied to affected areas' at a cost of $300.00. This invoice is associated with a text message to Ms Dowse from "Trent" of Rugrats Carpet Cleaning which is dated 5 June 2019, which states as follows: I'll write you up a letter in regards to what I've done and seen! I don't like people getting ripped off and that is exactly what's happening to you. Turbo clean must have cleaned the carpet before me and somehow not noticed the urine contamination throughout the property! …
The tenants have also submitted into evidence a copy of a text message exchange between Ms Dowse and Ms Hilder dated 29 March 2018, which refers in part to the condition of the carpets at the start of the tenancy. The relevant sections are set out following: Ms Hilder … Hows things going Ms Dowse … Tbh [to be honest] its not been great. I can't get the smell out of the house. I have paid for a professional cleaner, put plug in air fresheners in every room, used carpet deodoriser but to no avail. I have been sleeping on the lounge and have not put any furniture in because the smell in the main bedroom is so bad. I have sprayed the carpets with deodoriser again today [sad face emoji] but I don't think it will help. Ms Hilder I recon with this warm weather the carpet should dry better …. Try not to keep wetting them … No one could smell it the other day when they got done ….
Additionally, the tenants have submitted into evidence a quotation provided by Ms Melissa Perry purporting to be trading as Smitty's Cleaning Services which is dated 23 March 2019. That quotation refers to the carpets as having "a very distinctive smell of animal dander/faeces". I note that there is a doubt as to the authenticity of this quotation (as to which see following). Accordingly, I give little weight to it.
This element of the landlord's claim must be dismissed. The landlord bears the onus of proving on the balance of probabilities that the tenants caused or permitted the carpets to acquire a pet urine odour. That onus cannot be discharged in circumstances where the tenants have submitted credible evidence that a strong urine odour was present in the carpets at the start of the tenancy. Leaving aside Ms Perry's quotation, the opposing evidence of the parties is evenly matched and there is no objective evidence (such as a Condition Report prepared and signed by both parties in accordance with the procedure set down in section 29 of the RT Act) that would provide a basis for the Tribunal to prefer the landlord's evidence over that of the tenants.
For completeness I note that Ms Boyd-Skinner's evidence is that the carpets did not emit any odour during the period her agency had the property listed for sale which was from December 2018 up to 8 April 2019; that is, before and after the end of the tenancy. This evidence, which is the landlord's own evidence, would appear to entirely contradict this element of the landlord's claim. However, what it probably means is that when the carpets were dry there was no odour. The urine odour appears to have only been active when the carpets were wet following steam cleaning.

Curtains

The landlord claims $289.00 in compensation for the cost or replacing the curtains of the dining room which he contends were fatally damaged by the tenants in the course of the tenancy. In order to succeed in relation to this element of his claim the landlord must prove that the tenants caused or permitted negligent or intentional damage to the curtains in the course of the tenancy, with the result that they failed to return the curtains at the end of the tenancy in a condition as close as possible to the condition they were in at the start of the tenancy, fair wear and tear excepted. If the landlord does establish that the curtains require replacement due to tenant damage the measure of the loss for which he is entitled to be compensated is the value of the loss of expected future use of the curtains he suffered.
The curtains in issue are two 'rubber backed' floor-to-ceiling drapes that hang either side of sliding doors opening from the dining room onto a back yard patio area. The landlord submits that the curtains were in clean and undamaged condition at the start of the tenancy. In support of this contention he relies upon the condition of the curtains stated in the start-of-tenancy condition report prepared by Ms Hilder and its associated photographs. The photographs appear to depict the curtains in good condition.
The landlord contends that the curtains were fatally damaged at the end of the tenancy by being tied in a knot in the mid-section and either being exposed to heat causing the rubber to melt and adhere or by being glued causing the rubber to adhere. The landlord has submitted into evidence several photographs of the curtains at the end of the tenancy which depict them stuck together. He has also submitted two statements, one from a curtain supplier and the other from the operator of a laundry both of which state that the curtains are fatally damaged and can't be cleaned or repaired. As evidence of his loss, the landlord relies upon a further statement of the curtain supplier who states that the cost of replacing these curtains with curtains of equivalent type would be $289.95.
Ms Dowse did not deny the condition of the curtains at the end of the tenancy as described by the landlord or as depicted in the landlord's photographs. Although not entirely clear, her contention in response appeared to be that the condition of the curtains at the end of the tenancy was the result of fair wear and tear and that the curtains were 'old'.
I reject the tenants' contention that the damage to the curtains was the result of fair wear and tear. The damage is the result of abnormal use. I accept the landlord's evidence that the curtains have been tied in a knot and the rubber backing either exposed to heat such that it melted into itself or was glued. At the least, this constitutes negligent damage.
There is limited evidence before me that would enable me to determine the loss the landlord has suffered as a result of the tenants' breach. The landlord contends for the new replacement cost of the curtains. But to compensate him on this basis would result in his betterment. He is only entitled to the value of the loss of expected future use he suffered. Curtains have a depreciable life of six years for Australian Taxation purposes: Australian Taxation Office, Rental Properties 2019 NAT 1729-06-2019 at [41].
There is no independent evidence before me of the age of the curtains. The tenants contend they were 'old'. The landlord contends they were relatively new. The appearance of the curtains in the landlord's start of tenancy photographs depicts them as being in 'fresh' good condition. These photographs have a tendency to support the landlord's position over that of the tenant. I therefore find on the limited evidence before me that the curtains were not more than 3 years old. The landlord has thus lost half the period of his expected future use of the curtains. The starting point for assessing the landlord's loss is the original cost of the curtains not their new replacement cost. There is no evidence before me as to what that was. To arrive at an estimate of the original cost I will discount the new replacement cost by 2.5% to account for inflation. I thus arrive at $282.70. The landlord is entitled to half this sum being the value of the three years of expected future use he lost. I will thus order the tenants to pay the landlord $141.35 in compensation in relation to this element of the claim.

Light globes

The landlord claims $220.00 in compensation for the cost or replacing 20 LED light globes which he contends were missing from light sockets of the premises at the end of the tenancy. In order to succeed in relation to this element of his claim the landlord must prove that the premises had working globes throughout at the start of the tenancy and that the tenants failed ensure that all light sockets had working globes at the end of the tenancy. If the landlord does establish that the tenants breached their obligation with respect to this item, the measure of his loss will be the cost he has incurred in replacing the missing light globes.
The landlord was required to pass possession of premises to the tenants at the start of a tenancy with all light globes in working order: clause 18.2 of the Residential Tenancy Agreement. After that point, it was the tenants' responsibility to maintain light globes in working order and to return possession of the premises to the landlord at the end of the tenancy with all light globes in working order: clauses 16.4 and 17.5 of the Residential Tenancy Agreement.
The landlord contends that all light globes were in working order at the start of the tenancy. In support of this contention he relies upon the start of tenancy condition report prepared by Ms Hilder and its associated photographs which depict various room views which show intact light bulbs, some of which are turned on.
In this case there is no dispute that the tenants removed 20 LED light globes from the premises just prior to moving out, Ms Dowse frankly admitting that she did so. In her evidence to the Tribunal Ms Dowse asserted that she was entitled to do so because she had installed them and they were 'expensive'. She also went on to contend that there were blown and missing light globes at the start of the tenancy.
As evidence of his loss the landlord has submitted into evidence a tax invoice from "Teslec Services" which itemises the supply and installation of 20 LED light globes at the residential premises at a cost of $220.00 including GST. The tenants complain about the Teslec Services invoice because it states a non-active ABN. In response, Mr Butler admitted that Teslec Services is a non-active trading name that he once used to conduct a business and that the ABN was inactive for some time.
There is no evidence of any complaint by the tenants whatsoever that there were 20, or any other number, of light globes missing or not working at the premises when they took possession. If there had been such a large number of light globes missing and not working, one would reasonably expect the tenants to complain about it. I therefore prefer the landlord's evidence that the light globes were all working at the start of the tenancy. The tenants therefore had an obligation to return the premises to the landlord with the light globes all in working order. As I have already noted, there is no issue that they deliberately did not do so, having removed 20 LED light globes prior to moving out.
The landlord is thus entitled to be compensated for the cost he incurred in replacing the light globes. The invoice he relies upon in this respect is not satisfactory. It appears to be a clumsy attempt to create the appearance of an 'arms-length' transaction. The tenants are entitled to complain about it and I disregard it. Having said that, the amount of compensation the landlord claims is not excessive for the supply and installation of 20 LED light globes. As it is clear Mr Butler carried out this work himself there is no entitlement to claim GST, however I will otherwise accept $200.00 as being a reasonable measure of the costs he incurred. I will order the tenants to compensate the landlord this amount in relation to this element of the claim.

Cleaning

The landlord claims $250.00 in compensation for the cost of cleaning the premises at the end of the tenancy. In order to succeed in relation to this element of his claim the landlord must prove that the tenants failed to leave the premises reasonably clean having regard to its condition at the start of the tenancy. If the landlord does prove that the tenants breached their obligations with respect to this item, the measure of his loss is the cost he incurred in making the premises reasonably clean.
The landlord contends that the premises were provided to the tenants at the start of the tenancy in reasonably clean condition. In support of this contention he relies upon the start-of-tenancy condition report prepared by Ms Hilder and its associated photographs which appear to depict the premises reasonably clean. He also contends that the premises was professionally cleaned prior to the tenants moving in. In support of that contention he has submitted into evidence a copy of an invoice dated 22 March 2018 provided by "Smitty's Cleaning Services" and signed by "M Lee" which itemises a "full vacate clean" at an invoiced cost of $400.00. This invoice is associated with a document also dated 22 March 2018, which itemises in checklist form all the cleaning issues that were attended to.
The landlord has also submitted into evidence two statements which have a bearing on this element of the claim. One is given by Ms Kelly Wilcock and is dated 3 April 2019. It states: To whom it may concern I Kelly Wilcock of Coomber Park declare that I cleaned Kelly and Brendon's house … I also detailed the outside of the house in order for Kelly and Brendon to rent the property. The house was … spotless including screens and windows. I also cleaned the property prior to them renting it out and never had drama with mould growing. I was at the property on the date of 22 March 2018 cleaning when the tenant came to inspect the property everything was cleaned …
The second is given by Ms Margaret Lee and is dated 25 March 2019. It states, relevantly: I Margaret Lee was previously employed by Brendon and Kelly for the past 4 years [at the residential premises] My duties included domestic cleaning … I thoroughly cleaned and inspected entire home as preparing for vacant clean …
The landlord contends that the premises was left in a serious state of uncleanliness at the end of the tenancy. In support of this contention he relies upon a number of photographs which depict cat litter and cat faeces thickly scattered in the laundry under sink cabinet, fans with dust and fly dirt, household items left in cabinets and drawers, windows, window tracks and sills with cobwebs and dirt, and oil stains on the driveway and on the garage floor. As evidence of his loss the landlord has submitted into evidence an invoice dated 5 April 2019 from Smitty's Cleaning Services which itemises the following work at a cost of $250.00: "cobwebs, oil removal on concrete, shed, garbage and rubbish removal, to window cils (sic), fans, laundry undersink clean cat litter, weed removal."
In her oral evidence Ms Dowse denied that the tenants left the premises in an unclean condition. Additionally, she contended that the premises was not clean at the start of the tenancy in any event. In support of these contentions the tenants have submitted into evidence a quotation dated 23 March 2018 provided by Smitty's Cleaning Services which itemises the following work at a cost of $600.00: - Quote to clean house for pre tenancy - All interior walls need cleaning - Mould removal from doorways and bathrooms - All cupboards and built in wardrobes need a big clean - All carpets are spot stained and have a very distinctive smell of animal dander/faeces - Cobwebs interior/exterior - Toilets are stained black - Windows and window seals are dirty or full of bugs - Laundry walls, floors, sink all mould filled and smelling of animal - Skirting boards need dusting - All floors vacuum and mop - Oven needs thorough clean
The tenants also rely upon the a statement made by Ms Boyd-Skinner, the landlord's agent, dated 20 March 2019, which is in the landlord's evidence. It states in part: 2. During the time Toni lived in the property and we had it listed for sale the property always appeared reasonably tidy apart from every day mess…
They also rely upon a "Rental Reference" provided to them by the landlord's agent which is dated 12 February 2019. Among other things it states that the tenants maintained the property to a high standard, passed all routine inspections and that the agent would rent a property to them again.
The tenants have submitted into evidence a serious of photographs of the premises which they contend depict the state of cleanliness of the premises at the start of the tenancy. These photographs depict the driveway and garage floor with extensive oil stains, windows, window tracks and sills with dust, dirt and cobwebs, grout in the wet areas of the home with dirt or mould and walls and floors with some marks.
In reply to the tenants evidence the landlord contends that the Smitty's Cleaning Service quotation the tenants have submitted is a concoction. He contends that the person who issued that invoice, Ms Melissa Perry, is not the owner of Smitty's Cleaning Service and is not entitled to trade under that name, it being a business that belongs to Ms Margaret Lee, who was at the time their cleaner (as to which see above). The landlord also replies that the photographs of the premises the tenants have submitted were not taken on or about 22/23 March 2018 but were either taken prior to the premises being cleaned before they took possession or sometime towards the end of the tenancy.
Section 29 of the RT Act prescribes a procedure a landlord must follow to establish the condition of premises at the start of a tenancy, which is the preparation and provision to a tenant of a Start-of-Tenancy Condition Report in the form prescribed by the regulation 6 and Schedule 2 of the RT Regulation. The policy underlying that obligation seeks to avoid the factual dispute with which the Tribunal is now presented. On the evidence before me there are two un-reconcilable accounts of the state of cleanliness of the premises at the start of the tenancy. Both accounts are attended by a degree of unreality. In the landlord's case it is not clear why the landlord would have had the premises cleaned twice by two different cleaners in preparation for the lease of the premises. In the tenants case the quotation for the cleaning of the premises is not given by the person who owned the business name at the relevant time. The quotation also itemises such extensive cleaning as being required that one would have expected the tenants to have complained to the landlord about the condition in which the premises was received, if indeed that was its condition at the time. However, there is no record of any such complaint. Both the landlord and tenants rely upon photographs to prove their cases, but these photographs are not time and date stamped so, ultimately, it is not possible to prefer one party's evidence over the other on the basis of these photographs.
In these circumstances, in general, the landlord has failed to discharge his onus of proving that the premises was passed to the tenants reasonably clean and returned to him not reasonably clean. This element of the claim must therefore be dismissed.
However, there is one exception to this, which is the cat litter and faeces left in the laundry cabinet. In her oral evidence Ms Dowse did not appear to dispute that she had a cat and that this was the state of cleanliness in which the laundry cabinet was left. There is no suggestion that this was the condition in which the laundry cabinet was passed to the tenants by the landlord at the start of the tenancy. I am satisfied that the laundry cabinet was left in a revolting state of uncleanliness contrary to the tenants' obligation to return it reasonably clean. I will allow the landlord compensation for one hour of cleaning at $55.00 per hour including GST for the cost he incurred.

Flyscreen frames and screens

The landlord claims $300.00 in compensation for the cost of replacing flyscreen frames and screens of the premises which he contends were fatally damaged by the tenants in the course of the tenancy. In order to succeed in relation to this element of his claim the landlord must prove that the tenants caused or permitted negligent or intentional damage to the flyscreens in the course of the tenancy, with the result that they failed to return the flyscreens at the end of the tenancy in a condition as close as possible to the condition they were in at the start of the tenancy, fair wear and tear excepted. If the landlord does establish that the flyscreens require replacement due to tenant damage the measure of the loss for which he is entitled to be compensated is the value of the loss of expected future use of the flyscreens he suffered.
The landlord contends that all windows and doors had flyscreens at the start of the tenancy which were intact and in good condition. In support of this contention the landlord relies upon the condition of the flyscreens stated in the start of tenancy condition report prepared by Ms Hilder and its associated photographs. He also relies upon the statements given by Ms Wilcock and Ms Lee both of whom state that the flyscreens of the premises were intact and in good condition immediately prior to the tenants being provided with possession, and the statement of Ms Boyd-Skinner who states that the flyscreens were all intact and in undamaged condition while her agency was acting in relation to its sale.
The landlord contends that most flyscreens were either missing or in seriously damaged condition at the end of the tenancy. In support of this contention he has submitted into evidence a series of photographs which show flyscreen frames broken and bent and flyscreens torn. As evidence of his loss the landlord has submitted into evidence a quotation from a business trading as "Lane's Glass" dated 5 May 2019 which itemises the replacement of six 'missing and damaged fly screens' and the re meshing of seven flyscreens at a total cost of $300.00 including GST.
In her oral evidence, Ms Dowse appeared to state in the alternative either that the premises did not have flyscreens at the start of the tenancy, or that they were returned at the end of the tenancy in the same condition as they were provided at the start of the tenancy. However, paradoxically, the tenants also submit that the Tribunal should note Ms Boyd-Skinner's statement dated 20 March 2019 which states that during the period her agency offered the property for sale "all screens were on windows and undamaged."
I frankly do not understand the tenants' response to this element of the landlord's claim. I am satisfied to the civil standard on the landlord's evidence that the premises had flyscreens throughout at the start of the tenancy and that these flyscreens were in undamaged condition and working order. I am also satisfied to the civil standard that they were seriously damaged at the end of the tenancy. This damage could only have occurred through malicious or seriously negligent misuse. It could not be the result of ordinary use.
I am thus satisfied that the landlord is entitled to be compensated for the loss he incurred (or would incur) in replacing and repairing the flyscreens. Insect screens are capital assets for Australian Taxation purposes that have a depreciable life of 40 years: Rental Properties 2019 (op.cit.) at [41]. It does not appear to be in dispute that the flyscreens were installed at the time of the construction of the house, which was in 1995. The landlord has thus already had the benefit of 24 years of expected use of the flyscreens and has lost the value of 16 years of expected future use. Using the landlord's quotation for the replacement of the flyscreens as a starting point, allowing for inflation at 15%, I estimate the original supply and installation cost at $255.00. The landlord is entitled to 16/40 of this amount which is $102.00. I will order the tenants to compensate the landlord this amount in relation to this element of the claim.

Garage door

The landlord claims $1,210.00 in compensation for the cost or replacing the garage door of the premises which he contends was fatally damaged by the tenants in the course of the tenancy. In order to succeed in relation to this element of his claim the landlord must prove that the tenants caused or permitted negligent or intentional damage to the garage door in the course of the tenancy, with the result that they failed to return the garage door at the end of the tenancy in a condition as close as possible to the condition it was in at the start of the tenancy, fair wear and tear excepted. If the landlord does establish that the garage door requires replacement due to tenant damage the measure of the loss for which he is entitled to be compensated is the value of the loss of expected future use of the garage door.
The landlord contends that the garage door was in undamaged condition and working order at the start of the tenancy. In support of that contention he relies upon the condition of the garage stated in the start of tenancy condition report prepared by Ms Hilder and its associated photographs which describe and depict the garage without damage.
The landlord contends that the garage door was dented at the end of the tenancy because Ms Dowse accidentally hit it when driving her car in the course of the tenancy. In support of this contention, the landlord has submitted into evidence several photographs which depict the garage door with a dent in it. Ms Hilder also gave oral evidence that Ms Dowse told her on or about December 2018 in the presence of Ms Boyd-Skinner that she had hit the garage door with her car denting it and that she would have the dent repaired. In corroboration of Ms Hilder's evidence the landlord relies upon the statement made by Ms Boyd-Skinner dated 20 March 2019 which states in part: 1…. On our initial inspection I was present for a conversation between Kellie Hilder & Toni Dowse where Toni advised Kellie that she had reversed her vehicle into the Right-hand garage door and said she would be repairing the damage. Kellie made Toni aware she was upset by this and agreed that Toni would need to make repairs as soon as possible.
As evidence of his loss the landlord has submitted into evidence a quotation provided by a business trading as Fox Doors and Shutters for the supply and installation of a new roller door at a cost of $1,210.00. In his oral evidence Mr Butler stated that he had been advised by this trader that the dent could not be repaired and that the door required replacement.
In her oral evidence Ms Dowse denied that she caused any dent in the garage door. She contended that the garage door was returned to the landlord in the condition it was in at the start of the tenancy, fair wear and tear excepted.
On the evidence before me I am satisfied on the civil standard of proof that Ms Dowse did negligently damage the garage door by backing her car into it in the course of the tenancy and that the tenants therefore failed to return the garage door to the landlord at the end of the tenancy in a condition as close as possible to the condition it was in at the start of the tenancy, fair wear and tear excepted. In this respect I do not believe Ms Dowse's denial. It is inconsistent with Ms Hilder's evidence and Ms Hilder's evidence is corroborated by Ms Boyd-Skinner's statement. Ms Dowse has relied upon Ms Boyd-Skinner's statement as truthful for elements of her own case and it is inconsistent with this position that Ms Boyd-Skinner is not to be believed in relation to this element of the landlord's claim.
A garage door is a capital asset for Australian Taxation purposes which has a depreciable life of 40 years: Rental Properties 2019 (op.cit) at [43]. In this case it does not appear to be in dispute that the damaged garage door is original which means it is 24 years old. The landlord has thus lost the value of 16 years of expected future use. Using the new replacement cost claimed by the landlord and discounting that by 15% to allow for inflation I estimate that the original supply and installation cost of the garage door was $1,028.50. The landlord's loss is thus 16/40 of that amount which is $411.40. I will thus order the tenants to compensate the landlord this amount in relation to this element of the claim.

Lost rent

The landlord claims $2,500.00 in compensation for rent that he claims to have lost due to the poor condition of the premises when the tenants returned possession, which he contends prevented him from re-letting the premises until the various issues outlined above were attended to. In order to succeed in relation to this element of his claim the landlord must prove that his loss of income from rent was a reasonably foreseeable consequence of the any breaches by the tenants of their obligations under the residential tenancy agreement.
This element of the landlord's claim must fail for two reasons. First, and primarily, it is clear on the evidence before me that the premises was for sale when the tenants returned possession to the landlord. The landlord did not intend to relet the property at that time. He intended to sell it. On or about 11 March 2019 the landlord instructed his agent that the property would be withdrawn from sale effective from 8 April 2019. As noted above, one of the reasons given by his agent for the failure of the property to sell was the "overall presentation" of the property. Thus, if the landlord suffered any loss as a result of the presentation of the property due to the tenants' failure to comply with their obligations it would sound in sale delay costs incurred or the reduction in the sale price beneath reasonable expectation, not in loss of rent.
In an effort to counter this conclusion Mr Butler contended that because the property did not sell, he intended to rent it again, but could not do so because of the condition in which the tenants left it. However, this account is inconsistent with the objective facts and surrounding circumstances. First, there is no evidence of any inquiry or instruction to any Real Estate agent to offer the premises for lease and there is no objective evidence that Mr Butler himself took any steps towards this outcome. Second, such a course of action would have been inconsistent with a second reason given by the sale agent for the failure of the property to sell which was that it was "tenanted". Given that Mr Butler wanted to sell the property, it would be unlikely that he would reinstate one of the reasons why the sale of the property had proved difficult. Third, property was sold in fact sometime before 6 May 2019.
Even if I am wrong in this conclusion, I am satisfied that the breaches of the tenants' end of tenancy obligations the landlord has proved, being the damage to the dining room curtains, the failure to ensure all light globes were operating, the failure to clean kitty litter and cat faeces from under the laundry sink, and the damage to the flyscreens and roller door would have not taken almost seven weeks to rectify, which is the amount of lost rent the landlord contends for. I am satisfied that this work could reasonably have been completed within two weeks. The landlord has put no evidence before me as to the strength of the rental market in Coomba Park. However, on a normative basis I am satisfied that it is reasonable to allow that the premises was likely to have been vacant for a period of two weeks before a new tenant moved in and started paying rent. Had the landlord acted diligently to rectify the tenants' breaches, he would thus have suffered no loss of rental income separate from that which is likely to have occurred in any event. The fact that he did not act diligently to rectify these breaches disrupts the causal connection between the breach established and the loss incurred; that is, the cause of any loss is the result of the landlord's delay, not the tenant's breach.

Conclusion

For the foregoing reasons the tenants' application must be dismissed as all elements of the claim have been made outside the time period permitted by section 190 of the RT Act and Regulation 22(9) of the RT Regulation. In relation to his application, the landlord is entitled to an order that will require the tenants to pay him a total of $909.75 in compensation for damage and loss he has incurred as a result of the tenants' failure to perform their end of tenancy obligations. The remainder of the landlord's claim must be dismissed on the basis that he has not established the grounds upon which any additional compensation is payable to him by the tenants.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 22 July 2021

At a glance

Court

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Judgment (18 paragraphs)

Cases Cited (15)