Chacko v Sursok

[2023] NSWCATCD 147

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Chacko v Sursok [2023] NSWCATCD 147

Hearing dates:

23 June 2023

Date of orders:

06 September 2023

Decision date:

06 September 2023

Jurisdiction:

Consumer and Commercial Division

Before:

C Campbell, General Member

Decision:

(1) In accordance with s 175 of the Residential Tenancies Act 2010 the applicant Lorraine Chacko is to pay the respondent Shaun Sursok the sum of $1,953 within fourteen days from the date of these orders.

(2) The application is otherwise dismissed.

Catchwords:

Rental bond -- fair wear and tear -- evidence

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Category:

Principal judgment

Parties:

Applicant: Lorraine Chacko

Respondent: Shaun Sursok

Representation:

Counsel: N/A

Solicitors: N/A

File Number(s):

RT 23/04894

Publication restriction:

Nil

REASONS FOR DECISION

1. This is an application by the tenant seeking an order for the rental bond in the sum of $3,520, pursuant to s 175 of the Residential Tenancies Act 2010 (“the Act”). The bond has been paid out in full to the tenant.

2. The landlord claims the tenant is liable for the costs associated with repairs and damage at the end of the tenancy, which is be deducted from the rental bond.

3. Both parties appeared in person. The rental bond was paid out in full to the tenant by Rental Bond Services. This may have happened when the applicant’s former co-tenant withdrew an earlier application she had filed seeking an order for the rental bond. This was a separate dispute between the two former co-tenants which resolved.

4. By way of background the tenant and her former co-tenant first entered into a residential tenancy agreement with the landlord in August 2019. In August 2021 the landlord granted permission for the tenants to keep a pet dog. In or around November 2022 the former co-tenant vacated the premises and on the 26 November 2022 the landlord and Ms Chacko entered into a 12 month agreement.

5. On the 22 December 2022 a Provisional DVO was made with the tenant nominated as the person in need of protection. This was following an incident with the former co-tenant. The tenant was advised to vacate the premises and she served a Notice of Termination on the landlord in accordance with Part 3A of the Act and vacated on the 29 December 2022

6. The landlord made a number of claims for compensation, some of which he withdrew in the course of the hearing. The remaining items for which he claims compensation are as follows:

1. Steam cleaning of the carpet: $350

2. Replacement of blinds in the three bedrooms and the kitchen: $2080

3. Patching and repairs to damaged walls: $1,717.50

4. Painting of the damaged walls: $572.50

7. The landlord relies on the ingoing and outgoing condition reports. He also relies on quotations for each of the items claimed and additional photographic evidence.

8. The tenant does not concede liability for any of the claimed items. The tenant relies on written submissions, photographs, witness statements and evidence of cleaning and carpet cleaning.

THE CLAIMS

Steam cleaning of the carpet

9. The landlord relies on a tax invoice from ChemDry dated 06 January 2023 in the sum of $350. The landlord claims the carpet was soiled by the pet and was stained throughout. The ingoing report states the carpet had some runs in it, but it was otherwise unmarked.

10. The tenant denies liability for the carpet cleaning. There had been a leak in the bathroom during a period of very heavy rainfall in Sydney and the property was subject to mould. As a result of the mould in the apartment the carpet was in poor condition by the end of the tenancy. The carpet was cleaned by an independent contractor for $160. She relies on a posting she placed on a task seeker web platform. A copy of the page is before the tribunal and it states “3 bedroom carpets cleaned” and “Task Price $160”.

Decision

11. I accept the condition of the carpet which was reported as fraying may well have deteriorated by the end of the tenancy. However, this is a claim for steam cleaning only. I am satisfied from the content of the ingoing condition report and the landlord’s photographs that the carpet was not stained at the commencement of the tenancy. And I am satisfied on the basis of the outgoing condition report that it was marked and stained at the end of the tenancy, beyond what could be considered fair wear and tear.

12. I am not persuaded on the tenant’s documentary evidence that the carpet was steam cleaned at the end of the tenancy. The advertisement of the web page does not make any reference to “steam” cleaning. The tenant’s evidence fails to identify the name of the contractor, any proof of payment by either a receipt or a tax invoice or any document which states the contractor steam cleaned the carpets.

13. For these reasons I find the tenant is liable to pay the landlord the sum of $350 for steam cleaning of the carpets.

Replacement of the blinds.

14. The landlord relies on a quotation from Stuart Blinds in the sum of $2,080 to replace the blinds in the three bedrooms and the kitchen. The landlord said the blinds were seven years old at the end of the tenancy and he accepted there would be a deduction for depreciation.

15. The landlord relies on the ingoing report and photographs and the outgoing report.

16. The tenant says the blinds were not up to standard at the commencement of the tenancy. They were in poor condition. The tenant raised the blinds with the landlord at least seven times during the currency of the tenancy. The applicant relies on a text message sent to the landlord which is undated, but she thought it was sent in 2021 prior to signing the third lease. It states inter alia:

“I have received the lease. Regarding the issues we want resolved prior to signing could you please advise us of the following:

1. We are happy to source the blinds ourselves from Spotlight and invoice you

….

4. We are maintaining dehumidifiers in the back bedroom to combat the damp and mould. Please advise what action will also be taken on this.”

17. The blinds were stained and mouldy throughout the tenancy, and despite the requests the landlord failed to attempt to have them professionally cleaned or replaced as requested.

Decision

18. Although the ingoing condition report makes no reference to any damage to the blinds, the ingoing photographs do not show the blinds, they all tightly rolled up. The outgoing report states:

Kitchen & dining room      weight bar ripped off

Bedroom 1         damaged requires replacement

Bedroom 2          damaged requires replacement

19. There are no meaningful or useful photographs of the blinds at the commencement of the tenancy. The blinds were made of fabric material. I accept that there was mould in the premises, and this would have contributed to marks on the fabric blinds. The blinds were at least seven years old at the end of the tenancy and there is no evidence they had ever been cleaned or serviced by the landlord.

20. The quotation relied on by the landlord is for the replacement of the blinds in the kitchen and the three bedrooms. I am satisfied there was no reported damage to the blind in bedroom three at the end of the tenancy. There is no evidence as to why the weight bar could not be replaced on the blinds in the kitchen and the dining room.

21. I accept the tenant’s evidence that requests for the landlord to replace the damage blinds were made during the currency of the tenancy. I accept the landlord failed to replace or repair the damaged blinds during the tenancy when requested by the tenant.

22. For all these reasons I find the tenant is not liable to pay the landlord for the costs to replace the blinds throughout the premises.

Repair, patching and painting walls

23. The landlord relies on a tax invoice from H & R Painting Pty Ltd dated 05 January 2023. The itemised tax invoice includes the costs to repaint the entire premises. The landlord only seeks an order for the tenant to pay for the repair and painting of damaged walls, in the sum of $2,290

24. The premises were freshly painted throughout at the commencement of the tenancy. The landlord relies on the outgoing condition report and a series of photographs. The photographs show nail holes in the walls and chunks of paint pull off the wall and dents in doors.

25. The tenant denies liability for the painting. She said the walls were mould affected. The paint was peeling due to the mould at the property. This was reported to the landlord who suggested she remove it with exit mould. The tenant does not dispute the premises were freshly painted at the commencement of the tenancy.

Decision

26. I am satisfied the property was subject to some mould during the tenancy. The landlord is not claiming for the painting of the entire property. The claim relates to the damaged walls. The outgoing condition reports refers to hooks and holes in the walls, and damage to the paintwork in the entrance hall, the lounge room, dining room and bedrooms one and two. I am satisfied the reported damage to the walls referred to in the outgoing report is supported by the landlord’s photographic evidence.

27. I am satisfied the tenant did cause damage to the walls in those rooms and that damage is beyond what could be considered fair wear and tear.

28. I find the tenant is liable for the costs of the repair and repainting of the damage walls. I take into account this was a three year tenancy and there should therefore be some deduction for depreciation.

29. For these reasons I find the tenant is to pay the landlord the sum of $1,603 for the costs associated with the repair, patching and painting of the damaged walls.

orders

30. For all of the above reasons I make the following orders:

1. The applicant Lorraine Chacko is to pay the respondent Shaun Sursok the sum of $1,953 within fourteen days from the date of these orders.

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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

Decision last updated: 02 January 2024