Glashoff v Wylie

Preliminary matters

1. A rental bond for the rent of residential premises is, of course, the tenants' money. If, as in this instance, the return of the rental bond to the Tenants is disputed, then the onus lies with the Landlord in establishing why it is that the Tenants should not receive a full refund of their bond. Similarly, in any claim for compensation pursuant to s.175 of the Act, the Landlord carries the onus of proving that he is entitled to compensation from the tenant.
2. The Tribunal had the benefit of a large folder of evidence from each of the parties. The Landlord's evidence comprised a folder of documentary material and photographs in support of his claim. This material included ingoing and outgoing condition reports executed or edited by one or both parties. There was an exchange of notes by the Landlord to the Tenants about issues arising on inspection when they vacated. The Landlord's material also includes quotes and invoices for repair work undertaken or required. The Landlord's folder comprised approximately 154 pages.
3. The Tenants submitted a folder of the ingoing condition report with their comments, photographs and emails between the parties, as well as some online pricing of replacement items. The Tenants' folder was approximately 83 pages.
4. The Tribunal was obliged to both of the parties for the detailed evidence prepared and for their succinct oral submissions made in the course of the half day hearing in the Tribunal on 10 January 2020.
5. The RTA between the parties was the standard form REINSW RTA, October 2016 edition, of 14 pages.
6. Relevantly, in a one-page annexure, there were several Special Conditions incorporated in the RTA. They are: "3. Attachments to walls: No nails, hooks, Blu‑Tack, or adhesive of any type, shall be used on the walls of the premises without the prior written consent of the Landlord. 4. Carpets/floor coverings: The Tenant agrees that, on moving into the premises, the carpets/floor coverings are clean, and that they will be left in the same condition at the end of the tenancy, as per the Residential Premises Condition Report. … 13. Lawns and gardens in houses and townhouses: The Tenants are responsible for the regular maintenance of the lawns and gardens."
7. Helpfully, at the outset of the hearing, the parties had agreed a list of nine items which were in dispute in respect of the Landlord's claim. These items comprise the sum of $3,395.11 which is the Landlord's claim. They can be summarised as follows:
8. Some of these items gave rise to a claim by the Tenants that any resulting damage resulted from 'fair wear and tear'. The Tribunal has had regard to the authority of Westpac General Insurance Limited v Cooper [2006] ACTSC 91, which states the onus of establishing that any damage resulting from fair wear and tear rests on the tenant.
9. That authority is also useful in stating that 'fair wear and tear' means by natural causes or unintentionally or as a normal incident of a tenant's occupation in the course of their use of the premises for any purpose for which they were let. 'Fair' refers to the nature of the use and 'wear and tear' refers to the effect and how substantial is the damage concerned.
10. The Tribunal in Harris v Hill [2015] NSWCATCD 84 at [21] states that based on the comments of the Fifth Edition of Anforth on Residential Tenancies, Law and Practice, New South Wales, the Tribunal should have regard to the following factors in determining the issue of fair wear and tear of an item namely: 1. the age, quality and condition of the item at the beginning of the RTA; 2. the average useful lifespan of the item; 3. the reasonable expected use; and 4. the number and types of tenants in the property.
11. Before the Tribunal reviews the items individually, there are two further relevant matters. First, there was a previous application in the Tribunal by the Tenants as a result of a water leak outside Bedroom 4 (B4) (The Tribunal will refer to bedrooms in the Property with the numbering provided in the Floor Plan at p.21 of the Landlord's bundle of documents - LL21). This was apparently resolved by the Landlord with a concession of $500 in rent reduction to the Tenants. Secondly, in May 2019, the floorboards in the kitchen began to buckle and rise as a result of some water leaking from the refrigerator. When this was finally diagnosed, considerable damage had occurred to the timber floor in the kitchen over a period. This ultimately resulted in the floorboards in the kitchen area being replaced as well as the skirting boards and kitchen splashback as a result of mould. This work was undertaken at least in part during the latter stages of the tenancy, between May and October 2019, with the Tenants living in the Property during this period.
12. Neither of these issues are before the Tribunal today but they indicate the contentious relationship and history which has existed between the Landlord and Tenants during the term of the RTA.
13. Chronologically, the following documents are relevant to the Tribunal's assessment of the pre‑existing condition of the Property: 1. Landlord's ingoing Condition Report of 77 pages which is LL25‑103 of the Landlord's bundle (LL25‑103) (Landlord's Ingoing Condition Report); 2. Ingoing condition report of Landlord executed by Tenants on or about 14 May 2018, with pp 1‑14 of the report only (T19‑32 inclusive) without photographs (Tenants' Ingoing Condition Report); 3. Outgoing condition report of Landlord dated 17 October 2019 (pages 1‑14 of 77 being LL104‑117 inclusive) with photographs, quotes and tax invoices (LL120-154) (Landlord's Outgoing Condition Report); and 4. Landlord's 2-page inspection notes dated 17 October 2019 (LL118‑119) (Landlord's Inspection Notes).
14. Finally, the Property at 45 Moreton Ave, Lewisham is described as a 'classic, freestanding terrace' of 4 bedrooms which was redesigned and refurbished in about 2008. It has an open plan downstairs kitchen and living area and a grass backyard.
15. The Tribunal will now consider each of the nine disputed items in sequence.

Locksmith #1

1. The Landlord claims that at the outgoing inspection on 17 October 2019 the right-hand side French door to the balcony on the upstairs front bedroom (B2) did not open. The Inspection Note (LL118) states 'door stuck'. The Landlord had a locksmith attend to repair the lock. According to the Landlord's representative at the hearing, she was told by the locksmith that a part in the lock had been bent by force and needed to be repaired.
2. LL146 is the tax invoice of K9 Locksmiths dated 25 October 2019 in the sum of $120.00. The recital in that invoice states: "Open and repair faulty Euro mortice lock on upstairs French doors - straighten bent internal component (20 minutes labour)."
3. The Landlord submits that this was not fair wear and tear but an intentional or negligent act of the Tenants which resulted in damage to the lock which, in turn, resulted in the French door not working. A serviceman was required to straighten the bent piece in the lock so that the lock would work once more. The Landlord seeks compensation from the Tenants in the sum of the tax invoice.
4. By contrast, the Tenants informed the Tribunal that they did not use the French doors onto the top balcony of B2 during their tenancy and did not note or recall that it was not working until the final day inspection. Mr James Cameron, the tenant who apparently inhabited B2 during the tenancy, informed the Tribunal that it was open at times during the tenancy but ceased to operate at some stage, probably several months before the tenancy ended.
5. The Landlord advised the Tribunal that the Property had been renovated in about 2008. However, the doors and mortice locks which were installed from the main, upstairs bedroom onto the front balcony had been there since at least 2007. The Tenants produced online photographs from a listing of the Property in July 2007 from realestate.com which suggested that the same mortice lock which had failed in 2019 was installed at or before that time, a period of more than 12 years.
6. In the circumstances and having regard to the age of the lock and the relatively simple nature of the repair, the Tribunal is not willing to find that this is an item for which the Landlord should be compensated by the Tenants. The failure of the lock may well be attributable to fair wear and tear over a period of 12 years rather than an act of the Tenants. The bent part in the lock could have arrived at that state not through a single incident during the tenancy but over a decade of constant use. The Tribunal is simply unable to determine this on the evidence before it and expresses some caution in relying upon the evidence of a tradesman conveyed to the Landlord's representative and then to the Tribunal in a hearsay form. The Tribunal declines to make any award to the Landlord for this item.

Shutters #2

1. The Landlord gave evidence that shutters had been installed in most of the bedrooms in 2011 and that there had been no damage to the shutters in the period from 2011 until 2019. The Landlord advised the Tribunal that the shutters were made from solid timber with an expected lifespan of approximately 40 years.
2. An issue had arisen in respect of the shutters in Bedroom 2 (B2) and Bedroom 4 (B4) as outlined in the Landlord's Outgoing Condition Report - see LL113 and LL115. Only the shutters in these two bedrooms were the subject of a claim by the Landlord.
3. In respect of B2, slats in the shutters had been broken, presumably by force, and then were taped up from the back. Photographs of the shutters for B2 are in LL82‑83 (before) and LL120-121 (after) which appear to be in good order beforehand although the bottom right hand slat on LL83 appears to let in too much light suggesting some misalignment.
4. Photographs in respect of the shutters in B4 are at LL128‑129 (photograph J) which suggests scratches on the slats rather than broken slats. The Landlord relies on a quote from Bexley Floors and Blinds dated 2 November 2019 at LL150 which estimates $590.00 to remove and replace six shutter blades in the shutters. The Landlord advised the Tribunal that this was a quote and no tax invoice has yet been received as the work had not yet been carried out.
5. The Tenants advised the Tribunal that if the quote of Bexley Floor and Blinds is for six shutter blades, it is difficult to ascertain which of the blades in either B2 or B4 required removal and replacement. The Tenants advised the Tribunal that the shutters had never been subject to harsh use and that they were already damaged when the Tenants moved in. The Tenants also considered from the photographic evidence that at most three slats were required to be replaced in B2 and that B4 required no replacement, just repairs or painting to the scratches on the shutters in B4.
6. Further inconsistency was raised with the photographs in the Tenants' bundle. T67 shows clearly that damage had occurred to shutters in B2 beforehand. Photographs on T67 are part of a sequence which commences at T51 headed "Original condition report photos". That is, these are either photos taken at the time of the Ingoing Condition Report by the Landlord or by the Tenants to safeguard their position. There was a lengthy discourse during the hearing on this item as to whether T67 was in fact taken at the time the Tenants entered the Property in March 2018. The Landlord disputed this but did not have any contrary evidence before the Tribunal.
7. If T51‑67 are photos taken by the Tenants for the "Original condition report" at the time of entry, then the shutters in B2 appear to have pre‑existing damage, as the Tenants submitted to the Tribunal. In particular, the close up photograph in T67 of damage to the shutters in B2 suggests the damage was pre‑existing and old at the time the photograph was taken.
8. Further, the Landlord's Ingoing Condition Report for B2 (LL34, T28) states: "One (1) plantation shutter. Open/close correctly. Damage noted at base of slats. In reasonable overall condition."
9. In addition to this, there was a red "N" instead of a green "Y" next to "Undamaged" for this item. That is, both the Landlord's and the Tenants' Ingoing Condition Reports suggest the plantation shutter was "not undamaged" (or by inference that it was damaged) at the commencement of the tenancy. The Tenants agreed with this proposition.
10. In respect of the scratches on the shutter in B4, these are best displayed at photographs J and K on pp LL128‑130. These photographs however are unclear, and the marks appear relatively minor. The Tenants submitted that any scratches resulted from ordinary use and were the subject of fair wear and tear. In all the circumstances, and having regard to the onus on the Landlord in respect of proving that the shutters were damaged by deliberate or negligent actions of the Tenants - which the Tenants deny - and the suggestion that there was at least some pre-existing damage to the B2 shutters, the Tribunal is unwilling to make any award in favour of the Landlord in respect of this item.

Painting #3

1. The Landlord informed the Tribunal that there had been a long-term tenant in the Property prior to the Tenants but that the walls had been freshly painted immediately prior to the tenancy. Relevantly, the Landlord referred the Tribunal to Special Condition 3 of the RTA, quoted above, which stated that no nails, hooks, Blu‑Tack or an adhesive of any type should be used on the walls without prior written consent of the Landlord. This consent apparently was not sought by the Tenants. The Landlord referred to photographs at LL142‑143, 144 and 145 to confirm that pictures had been hung by the Tenants on the walls by affixing hooks or nails resulting in damage to the walls.
2. The Landlord relied on LL134‑137 inclusive of the Landlord's Outgoing Condition Report to show poor quality repair work undertaken by the Tenants to repair or mask these holes. The Landlord attached a tax invoice dated 17 February 2018 from Hire A Hubby in the sum of $695.00 (LL147) to confirm the walls had been painted prior to the Tenants entering the Property in March 2018 as well as referring to a statutory declaration of David Taffa of Hire A Hubby (LL148) confirming that the Property had been freshly painted and all holes and chips had been repaired prior to the Tenants entering the Property; and that there were no picture hooks, attachments to the walls, nails or Blu‑Tack on the walls prior to the Tenants entering the Property.
3. The Tenants claimed that some of the chips to the painting such as LL138 were the result of work being undertaken by the kitchen contractors in the downstairs kitchen in the latter stages of the tenancy. They also claimed that the paint was not fresh when they entered the Property and in the Tenants' Ingoing Condition Report noted cracks and scuffs on the stairway walls (T26), the main bedroom walls (T27), B2 walls (T27), and B3 walls (T29). In support of this they also referred to photographs of the original condition at T51‑T55 and T57‑T64. They also pointed out that water leakage had got under paint in the stairway arch outside B2 and B3 resulting in some new painting being required in any event at the conclusion of the tenancy.
4. The Landlord conceded that work had gone on in the kitchen during the tenancy - kitchen items and appliances had been stored there while the floorboards were replaced - and that prior to the tenancy there had been an 'open house' event at the Property by the Landlord which could have given rise to some of the issues about which the Landlord now complained.
5. Although it is not clear, it appears to the Tribunal that some of the matters complained of by the Landlord in respect of painting exceeds fair wear and tear by the Tenants, or that the items complained of by the Landlord were not all pre‑existing. This is especially so in respect of the repair work required to be undertaken by the Landlord as a result of the Tenants' breaches of Special Condition 3 of the RTA.
6. Doing the best it can with the evidence before it, the Tribunal awards the sum of $350 to the Landlord to compensate it for the patching and painting work required as a result of the Tenants' hanging their artwork on the walls of the Property with hooks or with nails. In the Tribunal's consideration, the balance of the amount sought for painting by the Landlord from the Tenants arises from fair wear and tear or is not the liability of the Tenants.

Scratch on the floor #4

1. The Landlord relies upon a photograph at LL141 of the Landlord's Outgoing Condition Report which shows a scratch behind the door in B1. The Landlord describes it as a 'big scratch' which resulted from the Tenants storing an old lounge behind the door in B1. The Landlord submitted that apparently the wheels or legs of the lounge scratched the floor when it was moved or when the Tenants vacated the Property.
2. The Landlord has obtained a quote for repair from Bexley Floors and Blinds dated 2 December 2019 in the sum of $350.00 (LL150). The Landlord advised the Tribunal that the floors were approximately 10 years old and that there had been email correspondence between the parties advising the Tenants of the need to have felt or rubber protectors under all furniture to protect the floor (T46). The Tenants apparently did this, but they become detached when furniture moved.
3. There is no mention of this item in the Ingoing Condition Reports nor in the Landlord's Outgoing Condition Report nor in the Landlord's Inspection Notes. There is a reference 'Scratch on timber floor - Image W' on the Landlord's Outgoing Condition Report (LL112) but the narrative of the parties before the Tribunal suggested that this may have been added after it was discovered on or about 25 October 2019. The Tenants claim this photograph was not tahen during the outgoing inspection on 17 October 2019 (T33, para 2.6). The Landlord's agent also gave evidence that she first became aware of the scratch on 25 October 2019 when she came back with the locksmith to fix the upstairs balcony door. She opened the curtains to B1 and saw the scratch on the floor of B1 for the first time.
4. The Tenants noted that this was not originally in the Outgoing Condition Report nor the Landlord's inspection notes (LL119). They had no access to the Property since 17 October 2019 and were concerned at the way in which this issue arose and its timing.
5. Anforth's Residential Tenancies, Law and Practice, New South Wales, Sixth Edition at p.134 [2.51.11] states: "There have been a number of cases concerning marks on polished wooden floors and whether this is fair wear and tear. In Acevska v Foss 2010 NSWCTTT 541 and Alexander and Persi v Rogan (2005) NSWCTTT 377 the Tribunal held that marks on a polished floor caused by high heels was fair wear and tear. But there are many cases in which the presence of scratches on such floors has been treated as damage beyond fair wear and tear: see Long v Paetzold [2010] NSWCTTT 509; Goralski v Ward [2010] NSWCTTT 384; Morgan v Kihara [2010] NSWCTTT 490; Boulton v Harris [2010] NSWCTTT 474. It depends upon what caused the scratches."
6. From a review of image W at LL141, the Tribunal considers the single scratch to be relatively minor, in an unobtrusive position in B1 (behind the door) and as a result of day‑to‑day activities such as the moving of furniture. This is consistent with it not being brought to the Tenants' notice in the Inspection Notes. The Tribunal is not satisfied that this item accounts for other than fair wear or tear in respect of floorboards which were over a decade old, and it makes no allowance for this item.

Bath #5

1. The Landlord alleges that the Tenants damaged the bath in the bathroom both by chipping its enamel finish and by the edge of the bath absorbing some red dye with which it had come in contact during the tenancy. The Landlord relies on photographs G and H at LL127 and LL128. These are both referred to on the Inspection Notes of Bathroom 2 at LL118. The Landlord relied upon a quote of $550.00 from Geneville Constructions to repaint the bath to remove the chips and the colour stain.
2. In fairness, the Tenants accepted that some damage to the bath had occurred during their tenancy. They said however that the damage was small and that it represented fair wear and tear. It came about as a result of impact, cleaning or general use. At T82 they illustrated a product from the Bunnings catalogue of White Knight 500 ml white tub and basin paint for $95.90 and questioned the quote obtained by the Landlord. Also, they questioned whether the work would be done as it had not yet been undertaken by the Landlord.
3. The Tribunal acknowledges that a painted bath surface may be undesirable in rented premises in that the paint can chip readily easily unlike a porcelain finish which is more durable. Also, the bath appears to have been in place probably since the time of renovation in 2008 and there should be some amortisation or reduction in the amount sought by the Landlord for this item.
4. Doing the best with the evidence the Tribunal has, the Tribunal is willing to make an award of $250.00 for this item in favour of the Landlord.

Clothesline #6

1. The Landlord referred the Tribunal to the photograph of the clothesline affixed to a brick wall at LL42. During the tenancy the vines shown in that picture continued to grow along the wall covering the clothesline mechanism - although the four individual clothes lines were still useable. The Landlord referred to Special Condition 13, LL17, which required the Tenants to regularly maintain the lawns and gardens.
2. The Tenants said that they used the clothesline regularly but never retracted it and that it operated and continued to operate after they handed the Property back to the Landlord. They said several times that the clothesline was not tested at the inspection and that it still worked. All that was required was to trim the vines back from the clothesline. Even if that was not done, it would continue to operate as it had for them.
3. The Landlord referred to LL151 of Geneville Constructions which estimated a cost of $189.00 plus GST for a new clothesline and $160.00 plus GST for the labour to install it.
4. The Tenants submitted that this was a new-for-old proposition and that there was no evidence that the clothesline required replacement as a result of a breach of the RTA. The Tenants also referred to T80 where they had obtained a quote for a similar clothesline for $179.00. They also submitted that Photograph U in the Landlord's Outgoing Condition Report (LL139 and LL106) simply suggested that the vines had overgrown the clothesline and that there was no evidence before the Tribunal that the clothesline did not function.
5. In all the circumstances, and based upon Photograph U, the Tribunal is willing to permit the Landlord the sum of $200.00 for this item on the basis that either the Tenants breached Special Condition 13 of the RTA in failing to cut the vines back from encroaching upon the clothesline and for the amortised cost of the replacement clothesline.

Garden #7

1. The Landlord informed the Tribunal that the real estate sales brochure behind LL154 showed the garden and exterior areas of the Property immediately prior to the tenancy. It disclosed a well maintained garden with pot plants. In particular, the Landlord complained of patches in the buffalo lawn created by pot plants being removed from the side of the Property and placed on the lawn. The Landlord sought compensation for three strips of turf and labour to cover this area. The cost of this was $100.00 plus GST.
2. In the Tribunal's limited gardening experience, any grass such as Sir Walter or fine leaf buffalo can be rejuvenated by aerating the soil and watering the distressed area frequently during the warmer months. If LL140 is the total of damage to the lawn, or even if there are other similar gaps or patches in the lawn, this should be an adequate remedy. As a result, the Tribunal is not willing to allow any sum for this item. In addition, the Landlord's Outgoing Condition Report dated 17 October 2019 refers to the back lawn being 'well maintained. In good overall condition'. This should be read against of course the reference to grass in the Landlord's inspection notes at LL119 which states: 'Lack of care on grass - pot plants left on grass - patchy in places - photo V.'

Potted plants #8

1. The Landlord claims that there were approximately $200.00 in potted plants placed along the side of the back garden. This can be viewed in the colour brochure on p.2, bottom right hand photograph behind LL154. The Landlord says they were not maintained by the Tenants and they have all died as a result. There were seven potted plants for decoration that are no longer at the Property.
2. The Tenants informed the Tribunal that there were no pot plants there when the tenancy commenced but they are not in the Landlord's Ingoing Condition Report and that the pot plants may have been used for the purposes of promotion of the Property in the sales brochure but did not form part of the demised Property.
3. The Tenants rely upon the Landlord's Ingoing Condition Report which makes no reference to pot plants in the inventory (LL27). The Tenants also say these were not mentioned at the final inspection or in the Landlord's Inspection Notes at LL118‑119.
4. In all the circumstances, the Tribunal is not satisfied that if these pot plants existed, that they form part of the demised Property or that, in the ordinary course of drought conditions in Sydney in 2019, that they would have survived the tenancy. The Tribunal is unwilling to make any award to the Landlord for these items.

Dishwasher Repairs #9

1. The Landlord stated that in about December 2018 the Tenants first complained of the dishwasher not operating efficiently. In March 2019 Master Appliance Services attended the Property and in connection with an issue around the fridge seal (which is not part of the Landlord's claim) the dishwasher was required to be serviced to work efficiently. The serviceman apparently cleaned the spray arms. Initially the Landlord paid for this but when advised by the serviceman that it may have been caused by the failure to clean food scraps off plates before putting them in the dishwasher, the Landlord has now sought reimbursement from the Tenants.
2. This item does not form any part of the Ingoing or Outgoing Condition Report and the tax invoice claimed by the Landlord is at LL153. The Landlord complains that this expense is a result of the Tenants' negligent use of the dishwasher.
3. The Tenants say this was first discussed with them at their exit inspection. They were told that the Landlord would seek reimbursement from them, and they had not seen the invoice and it was not in the bundle of documents originally circulated by the Landlord pursuant to the Tribunal's directions. The Tenants claimed however that this was simply maintenance and repairs issue by a Landlord of a commonly used kitchen appliance and that it amounted to no more than fair wear and tear.
4. Having regard to the circumstances in which this issue arose, the fact the landlord at least initially paid for it and now seeks reimbursement, and that the problem may have accumulated over a period which included prior to the tenancy, the Tribunal is not persuaded that it is, on the balance of probabilities, an item for which the Tenants have a liability or should be charged. The Tribunal declines to make any award for this item.

Conclusion

1. Adapting the table above, the Tribunal finds the following sums are payable to the Landlord in respect of each of the nine disputed items as a result of the Tribunal's findings above: Item No. Nature Sum Reference 1 Locksmith Nil LL146 2 Shutters Nil LL150 3 Painting $350.00 LL149 4 Scratch on floor Nil LL150 5 Bath $250.00 LL151 6 Clothesline $200.00 LL151 7 Garden Nil LL152 8 Potted plants Nil 9 Dishwasher repairs Nil LL153 Total $800.00

1. In all the circumstances, the Tribunal considers that the total amount payable for the Landlord's compensation as a result of the matters claimed in this application is the sum of $800.00. The Tribunal therefore orders that in respect of rental bond no. K990907‑3, that the sum of $800.00 be paid to the Landlord and that the balance of the rental bond, including any interest, be paid to the Tenants.

Order

1. The Tribunal orders that in respect of Rental Bond No. K990907-3: 1. Rental Bond Services is directed to pay the landlord, Sean Glashoff, the sum of $800.00; and 2. Rental Bond Services is directed to pay the tenants, Annabel Wylie, Lucy Cameron, James Cameron and Jack Patrick the balance of the bond together with any interest thereon.

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: 17 March 2022