Corkery v Bell

[2013] QCAT 344

CITATION: Corkery v Bell [2013] QCAT 344

PARTIES:	Samantha Lee Corkery (Applicant)
v
Glenda Bell (Respondent)

APPLICATION NUMBER: MCDT0004-13

MATTER TYPE: Residential tenancy matters

HEARING DATE: 1 March 2013

HEARD AT: Pine Rivers Courthouse

DECISION OF: Louise McDonald, Member

DELIVERED ON: 1 March 2013, amended order 4 July 2013.

DELIVERED AT: Pine Rivers

ORDERS MADE:

1.    That the Order of 1 March 2013

“That  the Residential Tenancy Authority Pay  out the rental bond of $1280 as follows:
Lessor:  $715
Tenant:  $565”

be amended  to show that a further $60.43 is owing by the Applicant to the Respondent due to a material miscalculation.

2.    The Tribunal further orders that the Applicant pay the Respondent $60.43 within 7 days of this order.

CATCHWORDS:

RESIDENTIAL TENANCY MATTERS - rental bond dispute

Residential Tenancies and Rooming Accommodation Act 2008 ss 137, 188.
Queensland Civil and Administrative Act 2009 s 135.

Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330.

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Samantha Corkery

RESPONDENT: Glenda Bell

REASONS FOR DECISION

1. The Applicant in this proceeding seeks restoration of the full bond held by the Residential Tenancy Authority relating to the residential tenancy at the premises of 20 Kent Street, Kallangur from 15 September 2009 to 28 October 2012. The amount of bond held by the Residential Tenancies authority is $1280.

2. The Respondent seeks to claim upon the bond, and states that her costs are $5556.21. Despite this statement, she had made no counter claim for compensation over and above the bond. Consequently, only the amount of the bond can be claimed by the Respondent. Ms Bell, identifies the following out of pocket costs for :

   ·Four (4) days unpaid rent, $185;

   ·$30 for water charged against the rental for 6 weeks that it was unpaid under the new agreement;

   ·Cleaning (3 people by 4 days at $20 per hour, being a total claim of $2160);

   ·She describes the following as damage to the premises identified at the end of the tenancy and identified quotes:

   (a)  Curtains $2,356,

   (b)  Flymesh to front and rear door screens, painting of ceiling in bedroom 1, front and rear door frames and latticework on patio, $80

   ·     Costs Incurred to purchase “cleaning products, $57.72, Weed spray, $23.98, sugar soap and 5 door handles $21, curtains 2 pairs $73.35, light bulbs $8.78, electricity $73.35, door stop $1.65”.

3. The dispute between the parties is an application under s 137 of the Residential Tenancies and Rooming Accommodation Act 2008 for the payment of rental bond.

4. A tenant has the obligation under s 188(4) of this Act to leave the premises at the end of the tenancy in the condition they were in at entry, subject to fair wear and tear.

5. The Entry Condition Report has been tendered as evidence of the condition of the premises at entry.

6. The Entry Condition Report signed by both parties indicates that the property was in a clean condition at entry.

7. The Respondent has provided photographic evidence which suggests the property was not left in the condition it was at entry and would have required cleaning to restore it to that condition. However, in order to be awarded compensation, the case of Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330, the claimant must establish both liability for compensation and the quantum thereof. The Respondent has provided no invoice as evidence of the quantum of her claim for cleaning costs. She provides an estimate of the costs of the labour of herself and three people over four 9 hour days. The Tribunal cannot award a cost in the absence of evidence. The oral evidence of the Respondent alone that this work was undertaken is insufficient to establish quantum. The claim on cleaning compensation is refused.

8. The Respondent submitted that the curtains were not left in the condition they were when the tenants entered the premises. In particular she asserted that mould had developed over a portion of this likely to have been from windows being left open in the rain. This conclusion was relayed to the Respondent by an employee of Curtain wonderland with 26 years experience.  Photographic evidence and entry condition report were drawn upon to support this claim. The Applicant submitted that the curtains were damaged as a result of wear and tear, particularly that the moisture in the air as a result of consistent rain had created mouldy conditions. She denied that she had left curtains open during the rain, because she did not seek to have her property damaged.  Having regard to the duration of the three year duration of the tenancy, and moist weather conditions during the period of occupation, the Tribunal accepts the tenant’s submission and concludes that damage to the curtains is a result of fair wear and tear, and therefore not the tenant’s responsibility.

9. The Respondent has provided no evidence to support her claim for electricity costs. Accordingly this is not allowed.

10. The Respondent claims that the main bedroom ceiling has to be repainted because of glue and sticky tape which could not be removed. Further a door frame and threshold of the front and back door shows paint chips. Lattice work on the patio was described as having a splotch.  The Applicant argues some of this damage is as a result of wear and tear. Given the occupation of three years, it is reasonable that high traffic zones such as the front and back doors and threshold would see a high rate of wear and tear on the surface. However, the Tribunal finds that the damage caused to the ceiling buy glue and tape and the latticework has been caused by the tenant. 

11. A quote for $700 for painting has been submitted by way of evidence of quantum of costs of painting. However, this is not broken down to identify the costs of the specific items. The Tribunal is not minded to award the full amount where four items are as a result of wear and tear and not the tenant’s responsibility.  Therefore an award of $500 for painting costs is issued as a proportion to reflect the costs of painting the patio and the ceiling.

12. The light bulbs and door stops are agreed by the parties, in the amount of $8.78 and $1.65 respectively.

13. Photographic evidence shows a slash in the mesh of the front and rear screens. The mesh was identified as undamaged in the entry condition report as undamaged at entry, and costs of $80 have been awarded to the Respondent.

14. The reconciliation maintained by the Respondent identifies that rent remained for the final four days.  The tenancy ended on 28 October 2012 and rent was owing in the amount of $185.70. A further claim for $30 for water for 6 weeks has been claimed. However, no evidence of this has been provided to the Tribunal, and this is not awarded. The Tribunal has made a material error in the calculation of the rental, awarding $111.25 for rental under the order of 1 March 2013. The amount awarded should be $185.

15. In summary, the Lessor should be paid  $500 for painting costs for damage on the ceiling, and lattice; Mesh $80, Rental of $185, and agreed costs of light bulb and door stop being $10.63, a total of $775.43. The tenant is entitled to the balance of the being, $504.57. The order of 1 March required that the Residential Tenancy Authority release and amount of $715 to the Lessor, and $565 to the Tenant, and the authority has duly released the bond in accordance with the order. This however, was based on a miscalculation.

16. Accordingly  pursuant to s 135(1)(c) of the Queensland Civil and Administrative Act 2009, The Tribunal of its own initiative amends the order and requires the Applicant, Ms Corkery, to make payment to the Respondent, Ms Bell, of the balance of $60.43 owing as a result of this material miscalculation in the previous order.