Beddoes v Macintosh & Prasser

[2023] NSWCATCD 30

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Beddoes v Macintosh & Prasser [2023] NSWCATCD 30

Hearing dates:

1 March 2023

Date of orders:

29 March 2023

Decision date:

29 March 2023

Jurisdiction:

Consumer and Commercial Division

Before:

K Ross, Senior Member

Decision:

(1) The tenants Jason Macintosh and Jayminia Prasser are to pay the landlord the sum of $1179.65:

• Rent arrears       $607.65

• Carpet cleaning    $132.00

• Repairs       $440.00.

(2) The Rental Bond Board is to pay the landlord Jamie Beddoes the sum of $1179.65 from rental bond S862158-6 in satisfaction of the money order. The balance of the bond is to be paid to the tenants Jason Macintosh and Jayminia Prasser.

(3) The tenants’ application is dismissed.

Catchwords:

LANDLORD & TENANT: Residential tenancy – compensation - bond

Legislation Cited:

Residential Tenancies Act 2010

Residential Tenancies Regulation 2019

Civil and Administrative Tribunal Rules 2014

Civil and Administrative Tribunal Act

Cases Cited:

Jackson v NSW Land and Housing Corporation [2014] NSW CATAP 22

Category:

Principal judgment

Parties:

Jamie Beddoes (Applicant)
Jason Macintosh & Jayminia Prassen (Respondents)

Representation:

Applicant - Winkler & Russell, agents
Respondents - self-represented

File Number(s):

RT 22/55919, RT 23/03922

Publication restriction:

Unrestricted

REASONS FOR DECISION

Application

1. In these matters, the landlord seeks compensation from the tenants for the following at the end of the tenancy: rent from 24/11/2022 to 08/12/2022 $607.65, cleaning $1400.00, carpet cleaning $132.00 and repairs $440.00. The tenants oppose the orders sought and seek $13,400 compensation from the landlord for cleaning following two flood events, and for the effect of the flood on their use of the premises.

2. Both parties seek an order in respect of the bond.

Jurisdiction

3. The Tribunal is satisfied that there was a residential tenancy agreement between the parties, which commenced on 6 November 2020 and ended on 8 December 2022.

4. The Tribunal has jurisdiction to hear and determine this dispute pursuant to the Residential Tenancies Act 2010 (the RTA), subject to the following.

5. Section 190 of the RTA provides:

190 APPLICATIONS RELATING TO BREACHES OF RESIDENTIAL TENANCY AGREEMENTS

(1) A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement within the period prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations.

6. Regulation 39 of the Residential Tenancies Regulation 2019 provides:

(9) For the purposes of section 190(1) of the Act, the prescribed period is within 3 months after the applicant becomes aware of the breach.

7. The landlord’s claims are brought within time, but the tenants’ application was not lodged until 27 January 2023. I will need to consider whether time should be extended in respect of the tenant’s claim.

Background

8. The following facts are not disputed:

1. The tenancy commenced on 6 November 2020.

2. At the end of February 2022 there was a severe flood (“the first flood”) which affected the ground floor of the premises, rising to about an inch below the first-floor floorboards.

3. The first flood severely damaged the ground floor, causing the ceilings to collapse, and causing damage to the walls.

4. The first flood damaged and destroyed some of the tenants’ belongings including classic cars, whitegoods and paperwork.

5. The tenant did a lot of cleaning and had just returned to work when there was a second flood.

6. The premises were without electricity and water. The landlord provided a rent abatement of three weeks’ rent.

7. On or about 18 March 2022 an electrician and plumber attended and carried out some repairs.

8. On 26 May 2022 the tenant sent an email to the landlord’s agent seeking advice as to when the repairs would be completed. The tenant highlighted reconnection of power, lack of hot water, and a missing door affecting the ability to heat the premises.

9. On 30 May 2022 the tenants were served with a termination notice on the basis that the premises were said to be uninhabitable. The landlord claimed that the repairs would take a long time as he was still awaiting review by the insurance company and there was no guarantee that the builder could complete the repairs before winter.

10. The tenants asked to be able to stay as they had nowhere to go.

11. The landlord sought that the tenants sign a three-month tenancy agreement, at the same rent but excluding the ground floor, and restricting the use of the shed. The proposed lease agreement included an attachment headed ‘Additional Terms agreed by Landlord and Tenants”.

12. The tenants did not agree to the additional terms.

13. On 30 June 2022 the landlord served a termination notice pursuant to s 85 of the RTA, requiring possession on 3 October 2022.

The landlord’s claim

9. The RTA provides by s 51 as follows:

Use of premises by tenant

51 Use of premises by tenant

(1) A tenant must not do any of the following:

(a) use the residential premises, or cause or permit the premises to be used, for any illegal purpose,

(b) cause or permit a nuisance,

(c) interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of any neighbour of the tenant,

(d) intentionally or negligently cause or permit any damage to the residential premises,

(e) cause or permit a number of persons to reside in the residential premises that exceeds any number specified in the residential tenancy agreement.

(2) A tenant must do the following:

(a) keep the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy,

(b) notify the landlord of any damage to the residential premises as soon as practicable after becoming aware of the damage.

(3) On giving vacant possession of the residential premises, the tenant must do the following:

(a) remove all the tenant's goods from the residential premises,

(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) remove or arrange for the removal from the residential premises of all rubbish, having regard to the condition of the premises at the commencement of the tenancy,

(e) return to the landlord all keys, and other opening devices or similar devices, provided by the landlord to the tenant.

(4) In this section:

"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.

10. I have considered the documents provided by both parties including the ingoing and outgoing condition report, photographs and invoices. I have also considered the submissions made by both parties.

11. I must make a finding as to the condition of the premises at the commencement of the tenancy. The ingoing condition report provides rebuttable evidence of that condition. I must also make a finding as to the condition of the premises at the end of the tenancy.

12. Whilst tenants do not have a right to return to address any outstanding issues, if the landlord gives them that opportunity, it provides evidence of mitigation of loss. Indeed, the tenants were given that opportunity and returned to address the issues raised by the agent. They dispute that the photos relied upon by the landlord were taken after the cleaning was addressed. The agent provided what were said to be date stamped photos to support the claim. However, I am not satisfied that the date stamped photos are the same photos as the photos said to have been taken on the date shown. I have taken into account the fact that the photos are thumbnail size, but they do not depict the same images. For example, the photo at page 174 of the landlord’s bundle is said to be that same photo as that in the fifth row on page 198. However, the photo on page 174 is of a cupboard at ground level, where the floor can clearly be seen, whilst the cupboards on page 198 are above the splashback. Mr Russell’s insistence that the photos on page 198 are the date stamped photos shown on page 174, when that is clearly not the case, affects the credibility of his evidence.

13. In respect of each claim:

Rent from 24/11/2022 to 08/12/2022 $607.65

14. The landlord’s agent provided a copy of the rent ledger covering the entirety of the tenancy, part of it by email during the hearing at the Tribunal’s request. The tenants alleged that because they had paid 3 weeks rent in advance at the commencement of the tenancy, their rent ought still to have been in advance. However, there were periods during the tenancy when rent fell behind. There is no evidence to suggest that the rent ledger is inaccurate. I am satisfied that the tenants did not pay the rent owing for the period claimed and allow the amount sought.

Cleaning $1400.00

15. The ingoing condition report states that the premises were clean on entry. The tenants do not provide any evidence to rebut the presumption that the ingoing report accurately describes the condition of the premises. I am satisfied that the premises were clean at the commencement of the tenancy.

16. I am satisfied that when the outgoing condition report was completed, the premises were not reasonably clean. The email to the tenants relevantly stated that the following cleaning needed to be carried out, to the top storey only:

“floors need to be swept and mopped, oven needs to be cleaned, kitchen cupboards need to be cleaned, ceiling needs to be cleaned, walls need to be wiped over, windows need to be cleaned on the inside, shower and bath need to be cleaned, toilet needs to be cleaned”

17. The difficulty for the landlord is that the tenants say that they returned to the premises and undertook further cleaning. The landlord’s agents say that no cleaning was undertaken, and that the only work attended to by the tenants was the replacement of lightbulbs and the placing of a power point over a hole in the wall.

18. For the reasons set out above I can place little weight on Mr Russell’s evidence. His insistence that the date stamped photos were identical to the photos without a date stamp affects his credibility. The tenant was adamant that he had cleaned the kitchen cupboards and I accept his evidence.

19. To the extent that the ceilings are marked by either insect excrement or mould, I am not satisfied that that is as a result of anything the tenants did, either intentionally or negligently. I am satisfied that the fact that the downstairs area of the house had been severely affected by flooding contributed to the circumstances leading to the issues with the ceilings. The damp downstairs was conducive to mould upstairs, and the fact that there was no door downstairs and inadequate insect screens contributed to the insect marks on the ceilings.

20. To prove the quantum of the cleaning claim the landlord’s agent has provided a quotation. The quotation is for “final bond clean” and has a notation “Remove insect excrement from ceilings + all aspects pertaining to final clean”. There is no indication as to how many hours have been quoted, nor at what rate. The quotation does not say that the quoted cleaning is to the first floor only, nor that it is only for the work required. There is no evidence that the cleaner inspected the property before providing the quote. There is no evidence that the quotation was accepted or that the cleaning has been carried out.

21. The landlord has the onus of proof in respect of the claim for cleaning. I am not satisfied that he has discharged the onus. I am unable to make a reliable finding as to the condition of the premises after the tenant returned, and I am not satisfied that the quotation accurately reflects the cost of any cleaning required.

22. The claim for cleaning is dismissed.

Carpet cleaning $132.00

23. The ingoing report showed that the carpets were clean at the commencement of the tenancy, although they were worn and marked. The tenants conceded that there were more marks at the end of the tenancy. I am satisfied that the carpets required cleaning and I allow the amount claimed.

Repairs $440.00

24. The tenant conceded that the toilet door was damaged when his son became trapped in the toilet. There was also a hole in the wall in one bedroom. I am satisfied that the damage was caused (whilst not intentionally) by the tenant and I allow the amount claimed.

Conclusion – landlord’s claim

25. In conclusion the tenant is to pay the landlord the sum of $1179.65,

• Rent arrears       $607.65

• Carpet cleaning    $132.00

• Repairs       $440.00.

26. The Rental Bond Board is to pay the landlord Jamie Beddoes the sum of $1179.65 from rental bond S862158-6 in satisfaction of the money order. The balance of the bond is to be paid to the tenants Jason Macintosh and Jayminia Prasser.

Tenants’ claim

27. The tenants claim an amount of $13,400, made up as follows: labour and chemicals for cleaning after the flood $6,600, rent abatement $6800. The claim is expressed to be a claim for compensation.

28. It is not disputed that the property was affected by two floods during the tenancy. Part of the property was rendered uninhabitable. The tenants were provided with a three-week rent abatement. What they now seek is a further rent abatement, and compensation for cleaning costs.

29. There is no time limit under the RTA to bring a claim for abatement of rent. In these circumstances, Regulation 23 of the Civil and Administrative Tribunal Rules 2014 prescribes that the application must be made within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application, unless the Tribunal extends that time under s 41 of the Civil and Administrative Tribunal Act. The floods occurred in early 2022. Thus any claim for rent abatement ought to have been filed by the end of February 2022. The tenants need an extension of time to bring the claim.

30. I am not satisfied that I should extend time for them to do so. The Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSW CATAP 22 at [22] said the following in relation to an extension of time in which to bring an appeal:

(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant — Gallo v Dawson [1990] HCA 30 at 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];

(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a “vested right“ to retain the benefit of that decision — Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success — Jackamarra at [7];

(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:

(a) The length of the delay;

(b) The reason for the delay;

(c) The appellant’s prospects of success, that is usually whether the applicant has a fairly arguable case; and

(d) The extent of any prejudice suffered by the respondent (to the appeal),

— Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and

(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable — Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58]–[59].

31. The tenants’ claim was lodged on 27 January 2023, 12 months after they first became entitled to bring the claim, and 11 months late. No request for an abatement of rent was made until these proceedings were filed. The tenants said that they filed the application in response to the landlords’ claim on the bond. This is not a valid reason for delaying the claim.

32. In these circumstances I am not satisfied that insistence on compliance with the rules will work an injustice on the tenants. I decline to extend time for the tenants to bring the abatement of rent claim.

33. The claim for cleaning is made in response to the flood. If the tenants allege that the landlords breached the agreement by failing to clean up after the flood, they had 3 months to bring the claim. The claim in relation to the cleaning costs is also out of time.

34. I am not satisfied that I should extend time. The reason for the delay (“the claim is made because the landlords made a claim for cleaning at the end of the tenancy”) is insufficient. In addition, the tenants did not seek to have the landlords carry out the cleaning, but did so on their own accord.

35. I decline to extend time for the tenants to bring their claim and the claim is dismissed.

Orders

1. The tenants Jason Macintosh and Jayminia Prasser are to pay the landlord the sum of $1179.65:

• Rent arrears       $607.65

• Carpet cleaning    $132.00

• Repairs       $440.00.

2. The Rental Bond Board is to pay the landlord Jamie Beddoes the sum of $1179.65 from rental bond S862158-6 in satisfaction of the money order. The balance of the bond is to be paid to the tenants Jason Macintosh and Jayminia Prasser.

3. The tenants’ application is dismissed.

**********

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

Amendments

17 August 2023 - Formatting amendments.

Decision last updated: 17 August 2023