Residential Tenancies Act 1987

Landlord and Tenant (Rental Bonds) Act 1977

Consumer, Trader and Tenancy Tribunal Act 2001

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1. The tenant, Carol Spencer, is to pay the landlord, Peter Dunne, the sum of $3,271.50 by instalments of not less than $275.00 per month, first payment 1 November 2008.

1. Default in the payment of any instalment will cause the whole of the balance then outstanding to become immediately due and payable.

2. Rental Bond Services is directed to pay the landlord, Peter Dunne, the whole bond plus interest of rental bond No. O465457-5

1. Carol Spencer leased Peter Dunne's apartment for 12 months commencing on 7 May 2008. She vacated the premises only 2 months later when she "freaked out" on learning that the landlord lived with his brother in an adjoining apartment. The landlord seeks compensation for the breaking of the lease and for the damage caused to the premises by the tenant failing to adhere to 2 specific prohibitions: "No pets" and "No smoking".
2. Mr Dunne has filed with the Registry, and served on the tenant, a comprehensive brief of evidence. It has been meticulously prepared consisting of written submission, witness statements, relevant documents, photographs, invoices and quotations.
3. Peter Dunne presented his case with military precision. He commenced by reading onto the record the nine page Statement of Facts setting out his version of the history of the tenancy. Throughout his evidence he referred to several of the "attachments" contained in a large lever-arch folder. These are the photographs and other documents he relies on to demonstrate his case. They are numbered 1 to 89.
4. Mr Dunne was an impressive witness. He gave his evidence in a clear manner, quietly referring to documents which supported any contention he put to the Tribunal. The Tribunal is satisfied that he has established his case, not only beyond the required balance of probability, but also past the standard of "beyond a reasonable doubt".
5. This left Ms Spencer floundering in an attempt to rebut the allegations made about the breaking of her tenancy agreement and especially about the damage caused to the premises as a result of her breaching that agreement. As will be seen, her answers, at times, bordered on the implausible and would leave an impartial observer with the impression that she would say anything to deflect liability being sheeted home to her.
6. Attached to the residential tenancy agreement were special terms and conditions. One of these stipulated that "No pets are allowed to be kept at the property", while a second stated, "The tenant agrees that at no time is the tenant or any visitors permitted to smoke inside the unit". The Tribunal is satisfied that the tenant breached the terms of the lease by not complying with these two conditions. Those breaches, and the resultant damage, are now dealt with.

1. A photograph was tendered. It is a view of the balcony of the leased premises. It shows a cat behind the glass door leading to the balcony. The cat is peering out the glass door at several coloured parrots walking on the balcony floor while other parrots are perched on the railing of the balcony. A second photograph shows the same scene, but this time a laptop computer is visible in the foreground with the front page of the on-line version of the Sydney Morning Herald displayed. A third photograph has the laptop screen in larger view, but with the balcony still visible. The front page of the newspaper clearly shows the date, 17 June 2008.
2. Photographs of the carpet in the second bedroom were produced. These show that the carpet has been extensively drenched by a liquid. The property was visited on 5 July by Allen Munro, a representative of ChemDry South City, shortly after the tenant vacated.
3. Mr Munro gave evidence. He has been a fibre and fabric technician with Chemdry for over 13 years. When he opened the door of the second bedroom, he was overcome by obnoxious fumes. So intense were they, he briefly considered returning to his vehicle to fetch breathing apparatus. Instead, he took a deep breath, held it, raced across the bedroom to the windows and flung them open, retreated to the lounge room to only then resume breathing.
4. When the fumes had dissipated sufficiently to allow entry, he inspected the carpet, and, lifting the carpet, the underlay. He then lifted both carpet and underlay to expose the parquetry flooring underneath.
5. More photographs tendered show the extensive staining to the carpet, from underneath, and the underlay, as well as the damage caused to the parquetry.
6. It was Mr Munro's view that the soiling of the carpet was caused by a pet. He testified that no attempt was made to clean the carpet because the soiling was so extensive, no cleaning method could be used to restore it to an acceptable, pre-soiled condition.
7. Mr Munro recommended that the carpet and underlay be replaced and that a pet urine removal treatment (PURT) would be required for odour control of the parquetry flooring on which the carpet had been laid.
8. Mr Dunne produced quotations for the replacement of the carpet and for the repairs to be done to the parquetry.
9. According to High Prestige Floor Sanding, the staining resulting from cat urine will require the flooring to be sanded until the stained layers have been removed. Then the parquetry can be re-stained and re-sealed.
10. Further photographs were tendered showing the frayed pile of the carpet, especially at the entrance to the bedrooms and in the hallway. It is indicative of a cat attempting to claw under the door which was shut to keep the pet contained in that particular room. There is no doubt that the cat was also allowed to roam the premises and either flex its claws at will, or when detained, at the door restraining the animal to one particular room.
11. Photographs of the curtain of the main bedroom show it has been ripped along the entire width at the bottom of the curtain. There is no doubt this has been caused by a cat clawing the curtain, perhaps due to the curtain flapping in the breeze, and the cat playing with this "animated" object. The quotation to replace the curtain was produced.
12. Ms Spencer's response to all this was that the landlord could possibly have "photo shopped" the evidence by inserting the image of a cat in the photograph of the balcony. She did not take the opportunity to state that she did not own a cat, nor did she deny having a cat on the premises.
13. The Tribunal is satisfied that Ms Spencer breached the lease agreement by keeping a pet on the premises. By breaching that term of the agreement, the tenant is liable to make good the damage created by the cat. Therefore, the costs of rectifying the damage caused to the carpet, parquetry and curtain, which were supported by either invoices or quotations, were allowed.

1. Mr Dunne tendered written statements which had been made by various neighbours and friends. These are only statements, not Statutory Declarations nor sworn affidavits, and so have been given only the probative value they deserve. However, taken together, they all confirm that smoking took place within the unit as the cigarette smoke odour has permeated the unit extensively, requiring the other curtains to be dry cleaned to remove the odour.
2. Photographs were tendered demonstrating burns to the kitchen linoleum. Such burns are a further indication that smoking took place within the unit, contrary to the special term of the agreement prohibiting smoking inside the premises.
3. Ms Spencer claimed that her boyfriend, a musician who spent a lot of time "on the road" and who "occasionally" stayed at the unit smoked. She was adamant that he only smoked on the balcony, never inside the unit. She did not take the opportunity to explain how the burns on the vinyl linoleum floor covering occurred. Despite her denial, the Tribunal is satisfied that smoking also took place within the confines of the apartment.
4. Quotations were tendered showing the cost of dry cleaning the other curtains in the premises and replacing the vinyl. These costs have been allowed.

1. There was an agreed amount of $180.00 to be paid for rental arrears.
2. Another special term to the lease agreement specifies that should a tenant wish to amend the lease, a fee of $100 will be incurred, payable by the tenant. As the tenant has vacated prior to the conclusion of the lease, thus requiring an amendment to the lease, then Ms Spencer should be required to pay this fee.

1. Although Ms Spencer attended the hearing and was aware of the case against her which unfolded at the Tribunal, a letter has been received from Southern Sydney Tenants' Advice & Advocacy Service indicating that Service is assisting Ms Spencer to prepare a re-hearing application. In order to advise her, the Service has requested written reasons for the decision reached by the Tribunal. These reasons have been compiled to comply with that request.
2. Only Orders 1 and 2 set out above were made on 9 October 2008. The landlord has been given the benefit of $1,680.00. That sum has been deducted from the total amount payable by the tenant on the basis that the landlord would receive the bond. During the compilation of these reasons, I have realised that the orders of 9 October failed to direct that the bond be paid to the landlord. That omission will now be corrected.
3. Pursuant to section 50 of the Consumer, Trader and Tenancy Tribunal Act 2001, the orders made 9 October 2008 are amended by adding a third order in the terms set out above.