Bewley v Steble

[2022] NSWCATCD 209

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Bewley v Steble [2022] NSWCATCD 209

Hearing dates:

07 December 2022

Date of orders:

16 December 2022

Decision date:

16 December 2022

Jurisdiction:

Consumer and Commercial Division

Before:

C Campbell, General Member

Decision:

1. Pursuant to s 187(1)(d) of the Residential Tenancies Act 2010 the respondent Mark Steble is to pay the applicant Roslyn Bewley compensation in the sum of $3,050 immediately.

2. Rental Bond Services is directed to pay the landlord Roslyn Bewley the sum of $3,050 from the rental bond number O919856-5 the balance of the bond is to be paid to the tenant Mark Steble. Any amount received by the landlord is to be credited against the money order.

Catchwords:

Rental Bond – Compensation - Fair wear and tear - Depreciation

Legislation Cited:

Residential Tenancies Act 2010

Category:

Principal judgment

Parties:

Roslyn Bewley (Applicant)
Mark Steble (Respondent)

Representation:

Counsel: N/A

Solicitors: N/A

File Number(s):

RT 22/39012

Publication restriction:

Nil

REASONS FOR DECISION

1. This is an application by the landlord seeking orders compensation and the bond pursuant to s 187 (1)(d) and 175 of the Residential Tenancies Act 2010 (“the Act”).

2. Both parties appeared at the hearing. The landlord appeared in person. The tenant appeared in the virtual hearing room as was overseas.

3. The landlord is seeking compensation in the sum of $28,685.84. In the directions made on the 29 September 2022 the Member noted the jurisdiction of the Tribunal for compensation claims was $15,000. The landlord consented to the jurisdiction of the tribunal

4. The parties entered into a residential tenancy agreement on 22 March 2013 and the tenant vacated on the 23 August 2022. The rent was $1,310 and a rental bond of $4,400 is currently held with Rental Bond Services

5. Both parties served their documentary evidence in accordance with the directions made by the tribunal.

6. The landlord claims the following:

• Lawns: Maintenance Service P/L (21.09.22)      $3650

• Leadlight window: Spectrum Art Glass (16.09.22)   $2995

• Gable: No Quote provided               $0

• Front security door: Kings Security Doors (20.09.22)   $2,434

• Flooring: Sydney Floor Sanders (28.09.22)      $5,376.80

• Patching and painting: Cannon Painting (25.09.22)   $2,500

• Restoration of woodwork: Cannon Painting (25.09.22)   $9,000

• Lawn mower: Pittwater Mowers (31.08.22)      $124.35

LANDLORD’S Documentary evidence

7. The landlord has put before the tribunal a copy of the ingoing condition report. The quality of the photocopy is very poor and it is barely legible in parts. The landlord did not complete an outgoing condition report. The tenant completed the day before he vacated and this document is included with the landlord’s evidence. The landlord did attend at the property on the 24 August 2022 and took a number of photographs and it is those photographs that she relies on in relation to the state of the premises at the end of the tenancy. She has also included quotations for the various claims she makes.

8. The landlord put before the tribunal a chronology of significant events for the duration of the tenancy including maintenance and repairs she undertook. The chronology records the following maintenance and repairs as follows:

1. March 2013    “Additions to bathroom as request by tenants”

2. January 2019   “Windows, security door & stump removal”

9. The landlord said the house was built in about 1920. In the 1980’s a rear extension was put onto the house

TENANT’S DOCUMENTARY EVIDENCE

10. The tenant filed evidence in accordance with the directions, including photographs and a quotation from Rays Painting dated 26.09.22 for $1,000 in relation to the landlord’s claim for the painting of the doors and trims. The tenant also relies on the following:

1. Witness statements from neighbours;

2. Submissions and text messages in relation to maintenance requests between the parties;

3. Schedule of maintenance and costs incurred by the tenant throughout the tenancy and

4. Submissions and photographs in relation to each of the items claimed by the landlord.

Landlord’s evidence

LAWNS

11. The landlord relies on a series of aerial shots taken of the subject premises from 2013 onwards by a company called Nearmap Aerial Imagery. The applicant said her son worked for the company and he provided her with the pictures.

12. She relied on these images of the property in relation to the backyard and the presence of what she said was a pool and trampoline in the backyard. She also relied on a photograph of the backyard taken in February 2012, which she said showed the grass was green. She said the backyard was sunny, with little shading.

13. The only other photograph she put before the tribunal in relation to the claim for the replacement of the lawn was an undated photograph, which showed a completely bare patch and some thinning grass in what appears to be one small area.

14. There was no dated photograph of the entire back lawn taken at the end of the tenancy put before the tribunal by the landlord.

15. The landlord said the tenant erected an above ground pool in the backyard and the grass had died underneath the pool. A BBQ was set up in the backyard and the grass underneath it had died off. The soil had become compacted.

16. She denied the backyard was particularly shady and it improved after a tree was removed. She did not say when the tree had been removed. But I assume that was in January 2019 when the stump was removed, as recorded in her chronology of significant events.

17. The landlord was asked what rubbish was to be removed from the backyard, as set out in the quotation from Maintenance Service Pty Ltd. The quote is not itemised, nor have the works have not been undertaken. She was unable to identify any rubbish having been left behind by the tenants.

Leadlight Window

18. The landlord claims the tenants are liable for repair to two leadlight windows at the front of the property adjacent to the front door. She said she did not know when they were damaged.

19. She relies on two undated photographs. She said one of the windows the lead is deformed, this can only be seen by standing next to it. She said it could have been caused by a ball impacting it. The glass in the other window has a visible hairline fracture.

20. She had not done any routine inspection since 2019, so was unable to say how long damage had been present. Both windows remain unrepaired and in situ.

Gable

21. The landlord has provided a photograph of the front of the property which shows damage to a gable. She has not provided any evidence in relation to the cost of repair of this item. Absent any evidence as to the cost of repair the tribunal dismisses the landlord’s claim for the repair of the gable.

Security Door

22. The landlord claims the cost of a total replacement of a steel security front door and frame in the sum of $2,434.30. The door was installed in 2004.

23. She conceded the door had rust around the lower frame which was removed in 2020. To undertake the rust removal the door was removed from the frame and then re-hung.

24. She said the lock on the door was also broken.

25. She said the tenant removed the door during the tenancy and left it down the side of the house and this was how the door came to be rusty. She relies on a photograph of the door which shows rust around the lower frame which was taken the day after the tenant vacated. She also relies on a photograph of the front door without the security door.

26. Based on the photographic evidence she says the tenant is liable for the costs associated with the replacement of a new door and lock in accordance with the quotation from Kings Security Doors

Timber Floors

27. The landlord claims the sum of $5,376.80 for the costs associated with the sanding and sealing the timber floors throughout the entire four bedroom house, including the kitchen.

28. The timbers at the front of the premises were original timbers and are over 100 years old. The front of the house was carpeted in the 1970’s and then that was pulled up again in the 1990’s. The timbers at the rear of the house were laid in the 1980’s when the extension was built.

29. There are no new timbers in the house. She conceded the ingoing report reported there were scratches on the timber floors in all rooms. At one time the tenant was on holidays and she went over to the property. It is not clear why she attended at the property when the tenant was away, or if she notified him of her proposed access. She said she heard a dog inside, and it transpired the tenant had a friend minding the house whilst he was away and that friend had a dog. The landlord had not authorised the keeping of dogs at the premises.

30. The landlord claims the dog scratched the floor, particularly near the doorway. She relies on a photograph in support of that submission. The photograph of the scratches on the floor at the door is taken at an extremely close up range.

31. Similarly photographs of the timber floors in other unidentified rooms are taken at a closeup range. Three of the four photographs relied on by the landlord show scratches and dents. She submitted that the scratches and dents on the timber floors were more than one would consider fair wear and tear, particularly the those on the floor in bedroom 2.

Patching and Painting

32. The landlord claims the sum of $2,500 for patching and painting in the bedroom, the pantry door and the laundry.

33. The tenants had not obtained her permission to undertake any painting. They painted the pantry door bright red. The painter had failed to remove the dryer from the wall in laundry. He had simply painted around it. When the tenant’s vacated the incomplete paintwork in the laundry was apparent as there was a large unpainted area on the wall behind where the dryer had been installed.

34. There were also marks left on the walls where the tenant had put pictures on the walls, particularly in the bedrooms. She said these marks were not present on the walls at the commencement of the tenancy.

Restoration of Woodwork

35. The landlord claims the sum of $9,000 for the costs associated with the stripping of the white paint applied to the timber doors and skirting boards, which was undertaken without her consent. The landlord said she did not like the look of the doors painted white. She preferred the look of them in the natural timber.

36. She had recently managed to track down a supplier of the doors and trims that were the same finish as those which the tenant had painted and she was pleased that they were still available to purchase, as this might be a better option rather than having the painter having to strip and re-varnish the existing doors. She gave no evidence as to the cost of replacing the doors and trims with the new ones.

Lawnmower

37. The landlord provided the tenant with a lawnmower. She has put before the tribunal a receipt for a new mower she purchased in April 2019. At the end of the tenancy, the starter motor switch was malfunctioning. The landlord had it repaired at a cost of $124.30.

38. She claims the tenant failed to properly maintain and store the mower correctly and this led to the need for the repair.

tenant’s evidence

Lawns

39. The tenant has put before the Tribunal photographs of the backyard lawns taken within weeks of the commencement of the tenancy, which he says show extensive dirt patches.

40. He said he and his partner spent many hours and money on the garden. They purchased turf, mulch and plants. He regularly mowed the lawn. He had a BBQ in the backyard. They never owned a trampoline. The previous tenants had a trampoline in the backyard at the time he did the initial inspection prior to entering into the tenancy.

41. He did have a pool in the backyard for his children, which was removed prior to the end of the tenancy. He said what could be seen on the aerial photographs was a foldable ping pong table which they moved away when not in use.

42. The tenant has also provided photographs of the yard at the end of the tenancy. These photographs are taken with a wide view of the yard from the rear of the house to the back and side fences . He submitted the grass was in better condition than that which it was in at the commencement of the tenancy.

43. In relation to the backyard, the tenant has put documentary evidence of him making numerous requests of the landlord to repair the fence, as he had concerns for his children around the dilapidated paling fence. She failed to undertake and repair or replacement of the fence.

Leadlight Windows

44. The tenant denied liability for the repair to the windows. He said there were no cracks or damage to the windows when he vacated. He relied on photographs taken in 2013 at the commencement of the tenancy which showed other windows in the premises which cracked. The landlord never repaired to those cracked windows.

45. The windows are fixtures on a very old house and the frames may well have deteriorated which would cause the windows to move. This sort of movement would cause the lead to move in the glass panes.

46. He denied any liability for the repair of the leadlight windows.

Security Door

47. The tenant denies liability for the costs associated with the replacement of the new door.

48. He admitted taking the door of the frame several times, but only for the purpose of providing access for the delivery of large items of furniture into the house. He said he removed the door to prevent damage to the doorway when large items, like a sofa and coffee table and beds were delivered. He put did put it down by the side of the house and then re-hung the door after the furniture was delivered.

49. He relied on the ingoing condition report which stated “some rust along the bottom of the door.” He submitted that the photograph relied on by the landlord taken the day after he vacated showed some rust along the bottom of the door. He pointed out that the property is close to the ocean and the exposure to salty air causes metal to rust faster than it would in a location further away from the coast.

Timber Floor

50. The tenant denied liability for the timber floors. He said the floors were scratched at the commencement of the tenancy and they were scratched at the end of the tenancy.

51. He said the previous tenants also had children and they had left stickers on the floor in the bedrooms.

52. The tenant conceded that the circular scratches in bedroom two were caused by an office chair but in his opinion fair wear and tear over the 9.5 years of the tenancy.

Patching and Painting

53. The tenant denies liability for the patching and painting of walls in the bedroom. He admitted there were marks on the walls where photographs had been put up in the home. The marks on the bedroom walls were left there after they removed the adhesive strips which had been used for family photographs.

54. He submitted that any marks on the walls at the end of a 9.5 year tenancy were fair wear and tear.

55. He conceded he arranged for the premises to be painted without first obtaining the permission of the landlord. He said they painted the walls in the same colour white as the existing white wall paint, except for pantry door which they painted in a bright red. They used a professional painter to undertake the work and it was all done at no cost to the landlord.

56. The tenant also conceded that when the dryer was removed from the wall in the laundry, it was very apparent that the painting in that room was incomplete.

Restoration of woodwork

57. He acknowledged painting over the timber doors and trims in the white paint.

58. He said the painting was undertaken by the same professional painter he had used previously during the tenancy. The tenant has provided tax invoice from Ray’s Painting which are in the sum of $5,8500, which related to painting undertaken over the entire course of the tenancy. The tenant said this was done as part of his own routine maintenance to the property to keep it in good order. The landlord undertook annual inspections and never raised any objection or commented on the upkeep he undertook at his own expense.

59. His position in relation to the doors and trims is that he is not liable for any costs associated with the removal or replacement of the doors, as like the rest of the property they were painted by a professional painter and have not detracted from the amenity of the property. However, if the tribunal does not accept that submission then in the alternative he relies on a on a quotation from Ray’s Painting in the sum of $1,100 for the restoration of the timber doors and trims back to the natural timber finish.

DECISION

60. In terms of the landlord’s claims for compensation I am comfortably satisfied that the landlord did very little maintenance or repairs on the property at any time during the 9.5 year tenancy. On her own evidence, namely the chronology of significant events, she records undertaking some maintenance to the bathroom at the commencement of the tenancy in 2013. Thereafter she records stump removal and work on window and the security door in 2019.

61. This is an old home which was far from pristine at the commencement of the tenancy. The landlord refused to repair the fence for the tenant, notwithstanding he made requests for repairs dating back to 2018. The next door neighbour has provided a statement which records that the landlord refused to reach any agreement with the neighbour for the replacement of the dilapidated fence. Eventually, the fence was removed by the neighbour due to its dangerous condition.

62. The landlord replaced the dishwasher and the lawn mower.

63. She did not repair the leadlight windows which were cracked from the commencement of the tenancy.

64. The tenant has provided text messages sent to the landlord concerning requests for repairs for leaks in the bedroom and the kitchen. Her response to the water ingress was an offer to bring towels over to the tenants.

65. The landlord failed to undertake repairs requested by the tenant for mould or the serious water leaks or the windows which were not functioning properly in the children’s bedrooms.

66. The landlord failed to inform the tenant of the time and date of the outgoing inspection, in breach of s 29(4) of the Act.

67. In relation to any claim for the rental bond, prima facie the bond is the tenant’s money and the landlord bears the persuasive burden to satisfy the tribunal that he or she has an entitlement to some or all of the rental bond.

68. Notwithstanding this was a long term tenancy the landlord was not prepared to concede any reduction for fair wear and tear over 9.5 years in relation to any of the items claimed. She had provided with her evidence a depreciation of asset schedule, but this did not include items such as timber floors which are included with Tax Depreciation Scale published by the ATO.

69. The other matter to which I have regard is that under the Act landlords and tenants have rights and obligations that are regulated by the Act. In this case I am satisfied on the evidence that the landlord repeatedly failed to fulfill her obligation to keep the premises in a reasonable state of repair: s 63.

70. Set out below are my reason for each of the items claimed

Lawns

71. The landlord has not provided any photographic evidence of the entire grassed area of the yard as it appeared at the end of the tenancy. The only photograph of an extensive area of the backyard relied on by the landlord was taken 13 months prior to the commencement of the tenancy. On my observation that photograph shows there are areas of dirt patches in the backyard at that time. The tenant’s photographs taken in March 2013 confirm that the presence of dirt patches in the yard at the commencement of the tenancy. There is no evidence the landlord replaced the lawn around the area where the stump was removed in 2019. There is no evidence the landlord raised with the tenant any complaints in relation to the lawns at any time in the 9.5 year tenancy.

71. I do not accept the landlord’s evidence that the yard was not shady. I find the aerial photographs show extensive shading in the rear yard for the years between 2013 and 2022. There are large trees all around the yard. This is also confirmed in the tenant’s photographs.

72. The tenant has put before the Tribunal photographs taken just prior to vacating which is a wide-angle view of the yard up to the fence line. I accept the tenant’s evidence that he purchased turf, mulch, wood chips and compost and plants for the back yard at his own cost during the tenancy. From the photograph of the backyard taken by the tenant at the end of the tenancy I am satisfied that the lawns were in a healthier state at the end of the tenancy to that which they were at the commencement of the tenancy.

73. There are numerous text messages from the tenant over the years requesting the landlord repair the fence, but she declined to do so. It is very apparent from looking at the tenant’s photograph taken at the end of the tenancy that it is the dilapidated fence which make the backyard look very untidy.

74. I accept that when the tenant inspected the premises prior to entering into the agreement with the landlord the previous tenants had a trampoline in the backyard and that he never purchased a trampoline for his children. The blue item which is apparent on the landlord’s aerial photographs is in fact a ping pong table, which was transportable and foldable. I am satisfied this was not a permanent fixture in the yard

75. The quotation from Maintenance Services Pty Ltd is not itemised. It does not specify the quantity of soil or turf. It refers to rubbish removal, but when asked the landlord was unable to identify what rubbish was left behind by the tenants that had to be removed. The quote also includes “repair to front of house”. The repair is not specified, but I infer is has nothing to do with the lawn at the rear of the premises.

76. I find that any dirt patches present at the end of the tenancy are no more extensive than that which were there at the commencement of the tenancy. Accordingly, I find the tenant is not liable for the work set out in the quote from Maintenance Service Pty Ltd for $3,650, and that claim is dismissed.

Leadlight Windows

78. The landlord was unable to identify when the damage was caused to the windows. She thought is may have been caused by impact, but this was only a guess.

79. This was a very old house. The leadlight windows had been moved in 1980. There may well have been some movement in the timbers that caused the lead to move. The landlord failed to undertake any inspections since 2019, so was unable to say when the cracks appeared.

80. The photographs of the windows were undated. The tenant denied the windows were damaged when they vacated. The quote for the repair of the windows was not obtained until the 16.09.22, which is some three weeks after the tenants vacated.

81. The landlord had failed to undertake repairs to the other cracked leadlight windows which had been present from some time prior to the commencement of this tenancy. I am not satisfied on the evidence that the tenant is liable for the repair of the leadlight windows, as there is no evidence as to when or why the cracks appeared.

82. For these reasons I find the landlord’s claim for the costs associated with the repairs of the leadlight windows is dismissed.

Security Door

83. I am satisfied the security door exhibited signs of rust along the bottom of the door at the commencement of the tenancy, and t exhibited signs of rust along the bottom of the door at the end of the tenancy. The door is 19 years old and it is exposed to salty air which I find is well known to have a corrosive effect on metals.

84. I am satisfied on the evidence before the Tribunal that the tenants left this 19 year old door in the same condition it was in at the end of the tenancy to that which it was in at the commencement of the tenancy, subject to fair wear and tear and its exposure to salty air for many years.

85. I find the tenant is not liable for the costs of replacement of the door in accordance with the quote from Kings Security Doors, and that claim is dismissed

Timber Flooring

86. In accordance with the ATO Depreciation Schedule, timber flooring is depreciated to $nil after 15 years.

87. However I accept that the scratches from the office chair in the bedroom were caused by the tenant. He failed to take any precaution to avoid marking the floor. This could easily have been avoided by positioning a rug underneath the chair. The tenant conceded the scratches represent something more than fair wear and tear.

88. I find the tenant is liable for the sanding and sealing in bedroom 2. Doing the best I can and on the evidence available and taking into account the fact that landlord’s quote is for the entire house, and the age of the timber flooring I find the tenant is to pay the landlord the sum of $400 for the cost associated with the repair of the scratches from the office chair in that bedroom.

89. Apart from the damage caused by the office chairs, I find the other marks on the timber floors are consistent with marks and dents one would expect on timber flooring that in the front half of the home is over 100 years old and the rear of the home over 40 years old. For these reasons the balance of the claim for the timber floors is dismissed.

Patching and Painting

90. It is not disputed that the tenants failed to obtain the landlord’s permission prior to undertaking the painting of the premises.

91. I am not satisfied the tenant is liable for the painting costs associated with any marks on the walls in the other rooms. There is no evidence the landlord ever undertook the painting in any of the rooms at any time during the tenancy. I find that after a tenancy of this duration any marks on the walls arise out of the normal expected use of the premises and are fair wear and tear.

92. I do not accept that the painting of the pantry door in a bright red shade, is fair wear and tear. The tenant’s had an obligation to restore the pantry door to its original colour. I find the tenant is liable for the repainting of the pantry door back to its original colour.

93. I find the tenant is liable for the painting of the laundry. It was poor workmanship to leave the dryer in situ and simply paint around it. When the dryer was removed it became apparent the paintwork in the laundry was incomplete. I find the tenant is liable for the costs associated with repainting the laundry.

94. The landlord’s quotation for the painting and patching is not itemised. In assessing the tenant’s liability in respect of the painting I have regard to the fact that landlord had not painted the property for more than 9.5 years. Taking that into account and doing the best I can and on the evidence before me I find the tenant is liable to pay the landlord the sum of $250 for the painting of the laundry and the pantry door.

Restoration of Doors and Trims

95. The same reasoning applies as to the tenant’s liability in relation to this item. The doors were not new at the start of the tenancy. The landlord undertook no maintenance to these items during the tenancy. The landlord cannot be placed in a better position at the end of the tenancy than that which she was in at the commencement of the tenancy. The claim for compensation does not entitle a landlord to “new for old”. It is not an insurance policy.

96. The quotations from the two painters for this item are vastly different. As stated above, the landlord was pleased to have found a supplier for replacement of new doors and trims in the same timber finish. However, she failed to provide any quotation for that option.

97. The landlord made no complaint about the quality of the paintwork undertaken by Ray’s Painting. Apart from the fact that the doors were painted, there is no evidence of any damage the doors. The landlord said, and I accept that aesthetically she preferred the timber finish, rather than the painted finish. I also accept that this is her property and the tenants have undertaken work which changed the aesthetics of the doors and trims.

98. Taking into account all of the above and the vastly different quotations before the Tribunal and doing the best I can on all the evidence I find the tenants are liable for the re-painting of the doors and trims in the sum of $2,500.

Lawnmower

99. I am not satisfied the tenant is liable for the costs of repairing a starter switch on a three year old lawn mower. I find any problem with a starter switch is fair wear and tear on the three old lawnmower

orders

100. For the above reasons I make the following orders:

1. The tenant is to pay the landlord compensation in the sum of $3,050 immediately.

2. Rental Bond Services is directed to pay the landlord the sum of $3,050 from the rental bond and the balance of the bond is to be paid to the tenant.

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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

03 October 2023 - Formatting amendments.

Decision last updated: 03 October 2023