Elhassan v Ayoub

Tribunal's decision

1. The landlords provided photographs of the apartment after the tenant had left and an "outgoing condition report". There is no dispute that there were marks on the walls which were not there originally. A tenant must leave premises he has leased "as nearly as possible in the same condition, fair wear and tear excepted, … [as] when the agreement was entered into": Residential Tenancies Act 2010 (NSW), s 51(3)(b). The Tribunal relied on cases interpreting this phrase to conclude that the issue is whether "the deterioration in the condition of the premises has occurred naturally as a consequence of normal use, or as a result of something which goes beyond that": Burgin v Primrose (Tenancy) [2010] NSWCTTT 383. The Tribunal also noted that fair wear and tear is not a subjective standard of each individual landlord but rather the standard "commonly prevailing among tenants of comparative premises": Fitzpatrick v Wu (2001) (unreported NSWRT 01/16425).
2. In a quote to the landlords, a handyman expressed the opinion that "scuff/mark are marks left on wall from furniture or kids writing on walls. In my opinion furniture, especially painted or stained furniture, can easily leave marks on the wall. If the marks are caused from the colour of the furniture transferring to the wall. If the scratches have penetrated the paint, the removal will not be as simple. Paint wear and tear is where paint is (sic) generally fades out after a period of time, most likely 5 year period."
3. The Tribunal found that "none of the marks visible on the photographs could be described as other than minor, and as accepted by the agent, some of the photographs show what appears to be dirt". The implication of this finding is that the dirt could be washed off the walls. The Tribunal went on to find that the tenants were not careless or negligent and that the marks came about in the course of the normal use of the premises.

Grounds of appeal

1. The landlords are entitled to appeal "on a question of law": Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b). The landlords' ground of appeal was that "wear and tear" can only be caused naturally, not by human intervention. We understand them to be saying that the Tribunal was wrong when it interpreted fair wear and tear to include the actions of the tenant.
2. The cases interpreting the phrase "fair wear and tear" do not support the landlords' contention. In Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWCA 224, the Court of Appeal relied on the interpretation of this phrase in Haskell v Marlow [1928] 2 KB 45 where the court stated that "[R]easonable wear and tear means the reasonable use of the house by the tenant and the ordinary operation of natural forces". It follows that both natural forces and the actions of tenants can constitute wear and tear. In our view, the Tribunal did not misunderstand the meaning of the phrase "fair wear and tear".
3. The landlords also asked for permission to appeal against the Tribunal's findings of fact: NCAT Act, s 80(2)(b). Before giving permission, we must be satisfied that the landlords "may have suffered a substantial miscarriage of justice" because the decision of the Tribunal under appeal was "not fair and equitable", was "against the weight of evidence" or "significant new evidence has arisen which was not reasonably available at the time of the Tribunal hearing": NCAT Act, Sch 4, cl 12(1).
4. If a tenant acts carelessly or negligently, she or he may be in breach of s 51(3)(b) of the Residential Tenancies Act 2010. The Tribunal's key finding was that the tenants were not careless or negligent and that the marks on the walls came about in the course of the normal use of the premises. The landlords submitted that we should look at the electronic version of the photographs on the USB he provided, rather than the printed photocopies. But the landlords were not able to remember whether they had given the USB containing the photographs to the Tribunal. The Tribunal Member had the printed copies of the photographs but did not say in the decision whether she had been given the electronic version. If the Tribunal did not have the USB, it must be regarded as "new evidence".
5. The Appeal Panel will only give an appellant permission to rely on new evidence where that evidence is significant and was not reasonably available at the time of the Tribunal hearing. The landlords conceded that the USB was available at that time. Consequently, we refuse permission for the landlords to appeal on the basis that the USB is significant new evidence.
6. We also refuse to allow the landlords to rely on a document produced by Eastern Area Tenants Service about the lifespan of paint. The landlords conceded that they did not rely on that evidence at the Tribunal hearing and that it was available at the time of the hearing if they had requested it. In any event, while these documents make general statements about what constitutes fair wear and tear, they do not provide relevant evidence about the condition in which the apartment was left.
7. The second basis on which the landlords requested permission to appeal was that the Tribunal's decision was against the weight of the evidence. The evidence included the photographs showing the marks on the walls, the outgoing condition report detailing the general location and extent of those marks and the routine inspection reports conducted on 8 February 2016 and 22 October 2016. Those routine inspection reports concluded that "the tenant and his family are looking after the property very well" and "overall tenants are clean and maintaining the property." The evidence also included the handyman's opinion that furniture can easily leave marks on the wall. The Tribunal's finding that the marks on the walls came about in the course of the normal use of the premises was open to it on the basis of this evidence. There was no direct evidence, nor evidence from which an inference could be drawn, that the tenants had acted carelessly or negligently. It follows that this finding was not against the weight of the evidence.
8. Thirdly, the landlords requested permission to appeal because the Tribunal's decision was not fair and equitable. The basis for that application was that the apartment was only three years old and paint does not deteriorate in that time. The life span of the paint is not relevant because the landlords' case was that the apartment needed re-painting because of the marks on the walls, not because the paint work had deteriorated.
9. The landlords said that the tenant had agreed to re-paint the apartment himself. Even if he did, the opinion of the tenant (or the landlords) as to whether the damage is fair wear and tear is not binding on the Tribunal. The Tribunal must assess the evidence and come to its own view: Fitzpatrick v Wu (2001) (unreported NSWRT 01/16425). In doing so, it identified and applied the correct law and made findings of fact supported by the evidence. The landlords have not suffered a substantial miscarriage of justice and we refuse permission for them to appeal from the Tribunal's factual findings.

Orders

1. Leave is refused for the landlords to appeal on grounds other than questions of law.
2. The appeal is dismissed.

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: 01 February 2018