Culmone v Churchill; Churchill v Culmone

[2023] NSWCATCD 90

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Culmone v Churchill & Ors; Churchill & Ors v Culmone [2023] NSWCATCD 90
Hearing dates:	09 June 2023
Date of orders:	23 August 2023
Decision date:	23 August 2023
Jurisdiction:	Consumer and Commercial Division
Before:	C Campbell, General Member
Decision:	(1) The Tribunal orders the landlord Tony Culmone, to pay the tenants Lachlan Churchill and Nicholas Brodie and Regan Grgurovic and Paul Churchill the sum of $400 within 14 days from the date of these orders.
Catchwords:	Compensation at end of tenancy – fair wear and tear- liability for pets – compensation for failure to repair-uninhabitable premises
Category:	Principal judgment
Parties:	Applicant: Tony Culmone Respondents: Lachlan Churchill and Nicholas Brodie and Regan Grgurovic and Paul Churchill
Representation:	Counsel: N/A Solicitors: N/A
File Number(s):	RT 23/09473 RT 23/15774
Publication restriction:	Nil

REASONS FOR DECISION

1. Matter number RT 23/09473 is an application by the landlord seeking an order for the tenants to pay compensation in the sum of $1,287 pursuant to s 187(1)(c) for of the Residential Tenancies Act 2010 (“RTA”).

2. A related application RT 23/15774 was filed by the tenant seeking compensation pursuant to ss 187(1)(c) and 187(1)(d) from the landlord on the grounds of a breach by the landlord for failing to repair

3. Mr Davies appeared on behalf of the landlord and Mr Churchill presented the evidence on behalf of the tenants.

MATTER RT 23/09473    Culmone v Churchill & Ors

4. Both parties filed evidence. The ingoing and outgoing condition reports are before the Tribunal, together with quotations, invoices and receipts. The landlord seeks the following:

• Lawn mowing               $250

• Re-string the washing line            $150

• Patch and paint one wall            $242

• Raven strip on the front door         $100

• Fumigation                  $270

• General cleaning including the venetian blinds   $495

5. The tenants deny liability for all the claims. The parties entered into a residential tenancy agreement on the 09 September 2021. The tenants vacated on the 08 February 2023. The outgoing inspection was undertaken on the 09 February 2023. The tenants claim they were not notified of the time or date of the outgoing inspection. The rental bond of $3,400 was paid to the tenants by Rental Bond Services on the 28 February 2023.

6. The landlord relies on a quotation from PMG Property Maintenance Group for the lawnmowing, restringing of the clothesline, patch and painting and the replacement of the raven strip. There are also quotes and invoices for the balance of the claims

Lawn Mowing

7. The landlord claims the lawns needed mowing at the end of the tenancy. The landlord relies on photographs in the outgoing report.

8. The tenant said they paid someone to mow the lawns about two weeks prior to vacating. They did not have any receipt or evidence as to the date the mowing was done or by whom

9. The only comment made by the tenants on the ingoing report was that there were some weeds in the lawns and they provided a copy of the photograph of the weeds. The tenants acknowledged that apart from the weeds the lawns were freshy mown and edged at the commencement of the tenancy.

10. I am satisfied on the evidence before the tribunal that the lawns were not freshly mown at the end of the tenancy. I accept the tenants may have had someone undertake the mowing at some time prior to the end of the tenancy. But there is no contemporaneous documentary evidence as to when this was undertaken or by whom.

11. I am satisfied the tenants did not leave the lawns freshly mown, as they were at the commencement of the tenancy and accordingly, I find the tenants are to pay the landlord the sum of $250 for lawnmowing.

Re-string the Washing Line

12. The landlord claims the tenants are liable for the costs of replacing the loose plastic strings on the washing line located in the backyard. The line was two years old at the commencement of the tenancy. The landlord noted on the ingoing condition report that there was “one loose string.”

13. I am not satisfied the tenants are liable for the costs associated with re-stringing a washing line which was exhibiting signs of wear at the commencement of the tenancy and was open to the elements for a further 18 months after the commencement of the tenancy. I am satisfied any deterioration at the end of the tenancy was fair wear and tear.

14. For these reasons the landlord’s claim for the costs associated with the re-stringing of the washing line is dismissed.

Patch and Paint One Wall

15. The landlord’s evidence is the property was freshly painted at the commencement of the tenancy. The landlord claims the cost of patching and painting a chip on the wall in the lounge room/hallway.

16. A photograph of the mark on the wall is before the Tribunal.

17. The tenants deny liability for the repair of this one mark. On the ingoing report they noted that notwithstanding the property was said to be freshly painted, there were chips and marks on the doorways. The property had been poorly painted. By the end of the tenancy the paint was peeling off the door frames and the doors. The tenants noted on the ingoing report “slight marks” on the loungeroom wall. This is the same wall which at the end of the tenancy was referred to as “one paint chip” on the wall.

18. The tenants submit that this chip was just one among many reported paint chips and peeling paint referred to by the landlord in the outgoing report.

19. I accept there is a mark on the lounge room wall. I also accept the tenants’ submission that the paint work was not perfect at the commencement of the tenancy. I also accept that the actual wall in the loungeroom was reported to have had “slight marks” at the commencement of the tenancy.

20. I am not persuaded that the mark on the lounge room wall was anything more than fair wear and tear on a what had been slights marks at the commencement of the tenancy.

21. For these reasons the landlord’s claim for the tenants to pay for the costs of painting and patching the mark on the loungeroom wall is dismissed.

Raven Strip

22. The Landlord claims the cost of replacing a raven strip from the bottom of the front door.

23. The tenants deny liability for this item. On the ingoing condition report the tenants reported “the bottom part of the door was loose and fell off.” The landlord never replaced it during the tenancy. Nor is there any reference to it in the landlord’s outgoing condition report.

24. I accept the tenants reported the strip was loose and fell off at the commencement of the tenancy. I also accept the landlord never replaced it during the tenancy. The landlord has an obligation under the Act to maintain and repair the premises. He breached that obligation. He cannot then seek an order for the tenant to replace an item after the tenancy has ended.

25. For these reasons the landlord’s claim for the tenants to pay for the costs of replacing the raven strip is dismissed.

Fumigation

26. The landlord relies on a tax invoice from Rex Pest Control dated 18.03.23 in the sum of $270. The tenants were permitted to keep pets at the premises. As part of that consent there was an additional term of the residential tenancy agreement that the tenants agreed to having the carpets professionally cleaned and the property fumigated at the end of the expiration of the agreement.

27. The tenants submitted that it was not constitutional to have a pet clause in the agreement.

28. I do not accept the pet clause was unconstitutional or even contrary to the RTA. I am satisfied the landlord can rely on the additional term in the agreement.

29. Accordingly, I find the tenants are liable to pay the landlord the fumigation costs in the sum of $270.

General Cleaning Including the Venetian Blinds

30. The landlord relies on a tax invoice from Jason Master Cleaning Services dated 14 February 2023 in the sum of $495. The invoice is for the following:

a. Steam Clean a runner

b. Clean 5 sets of venetian blinds, range hood, tiles back of stove and wipe skirting boards throughout

c. Clean shower screen

31. The cost for each category is not itemised. Mr Davies said the landlord had got rid of the runner before the cleaner attended at the property. The landlord relies on the ingoing and outgoing condition report and the photographs.

32. It is the landlord’s submission the blinds were dirty. The landlord relies on photographs which show the venetian blinds have black marks on them. The shower screen had not been cleaned and the tiles behind the stove and the range hood were not clean.

33. The tenants deny liability for any the cleaning. It is their submission that the premises were left in the same state as they were in at the commencement of the tenancy, subject to some fair wear and tear.

34. They rely on the larger photographs of the kitchen tiles and the stove which they submit show the area to be clear of any evidence of any dirt or grease or grime. They deny liability for the cleaning of the venetians on the grounds they were mouldy. The tenants conceded they had not reported any mould at the premises to the landlord.

35. I am not satisfied the tenants are liable for the cleaning of the shower screen as this was removed by the landlord in the course of him replacing the bathtub after the tenancy ended.

36. I accept the tenants’ submission that the kitchen tiles and stove was clean at the end of the tenancy.

37. I am satisfied the skirting boards in the three bedrooms were reported as free of dust on the ingoing report and were reported as being dirty on the outgoing report. I accept the landlord’s evidence that the venetian blinds required cleaning at the end of the tenancy. The tenants never reported mould during the currency of their tenancy. Nor is there any evidence that the marks on the blinds were mould, rather than dust or dirt.

38. There were venetian blinds in all three bedrooms, the kitchen, the loungeroom and the laundry and I am satisfied the cleaning of the blinds would occupy a reasonable portion of the cleaner’s time. As referred to above the tax invoice is not itemised, but doing the best I can and on the evidence before the Tribunal I find the tenants are liable to pay a portion of the tax invoice issued by Jason Master Cleaning Services in the sum of $330.

Orders

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

1. In accordance with s 187(1)(c) of the Residential Tenancies Act 2010 the tenants Lachlan Churchill and Nicholas Brodie and Regan Grgurovic and Paul Churchill are to pay the landlord Tony Culmone, the sum of $850.

matter 23/15774    churchill & ors v culmone

40. The tenants claim compensation for the landlord’s failure to undertake repairs to the bathtub and remove mould from the premises. This application was filed on the 03 April 2023.

41. The landlord made another application seeking orders for the tenants to pay him compensation for the costs to repair damage to the bathtub. Those proceeding RT 23/11316 were dismissed by the Tribunal as application was not filed within the prescribed time period.

42. There are statements from Mr Lachlan Churchill and Mr Grgurovic before the Tribunal.

Tenant’s evidence

Loss of Use of the Bathtub

43. The hole in the bathtub was reported by the tenants to the landlord on the 02 December 2022. It is the tenant’s evidence that the shower was rendered unusable due to the hole in the bathtub. The tenants vacated on the 08 February 2023. The application was filed on the 03 April 2023.

44. The shower is located over the bathtub. I am satisfied on the tenants’ evidence that the hole to the bath was caused when one of the tenants reached over to remove a towel from the towel rail, and in doing so his foot slipped. I am satisfied the damage was caused in the ordinary use of the shower and was not the result of any breach by the tenant.

45. It is not contested that the landlord failed to repair the hole at any time prior to the end of the tenancy.

46. The tenants put gaffer tape over the hole as a temporary measure partially to prevent vermin and pests entering through the hole and also to prevent water damage. They ceased using the shower.

47. The tenants were all males and initially they used the laundry to wash. They also would also stay at their respective girlfriends houses or go home to their parents’ places to wash.

48. The tenants claim the loss of use of the shower rendered the premises uninhabitable.

49. Mr Grgurovic states that in early December he decided to vacate the premises due the loss of the use of the shower. He does not say what date he vacated.

50. Mr Churchill said that he temporarily vacated the premises as a result of the inability to wash, but he does not specify the dates.

Mould Claim

51. The tenants seek compensation for mould at the premises and consequential damage to goods.

52. The tenants conceded they never reported the mould to the landlord during the currency of the tenancy.

Landlord’s Evidence

53. The landlord made no submissions in relation to the claim for compensation, other than to say there was a hole in the bath.

decision

54. The tribunal accepts the tenants’ evidence that loss of use of the shower through the landlord’s failure to repair caused inconvenience and disruption to their ability to use the premises for personal washing.

55. The tribunal does not accept the tenant’s submission that the premises became uninhabitable. Following the report of the hole in December 2022 they made no further complaint to the landlord. They did not file an application in the Tribunal seeking an order for termination on the grounds the premises were uninhabitable. The date Mr Grgurovic vacated was not disclosed in his statement. Mr Churchill said he vacated temporarily, but no dates were disclosed. I note Mr Paul Churchill is the father of Mr Lachlan Churchill, and he never resided at the premises.

56. I accept the landlord was in breach of his obligation under the Act to maintain and repair the premises. I find the landlord is to pay the tenant’s compensation arising out of that breach.

57. I have regard to the fact that neither Mr Churchill or Mr Grgurovic informed the landlord they intended to vacate or vacate temporarily. No rent arrears were claimed by the landlord, and I infer the tenants continued to pay the rent up until the date they vacated. There is no evidence the property was left vacant by the tenants until the date the keys were returned to the landlord on the 08 February 2023, and from that I infer the tenants continued to use the premises up to that date.

58. I accept the loss of use of the shower was more than a mere inconvenience. I find the breach by the landlord was an ongoing between the 02 December 2022 and the 08 February 2023. The tenants filed the application on the 03 April 2023. Under Part 5, cl 39(9) of the Regulations to the Act, an application for breach must be filed within three months of becoming are of the breach.

59. And as I have found this was an ongoing breach the compensation is payable for three months prior to the 03 April 2023, being 03 January 2023 to 08 February 2023.

60. I have considered all of the evidence and for the above reasons I find the landlord the landlord is to pay the tenants compensation in the sum of $1,250.

61. The Tribunal dismisses the tenants claim for any compensation due to mould. The tenants never reported the mould to the landlord during the currency of the tenancy. The first claim for mould was raised in this application which was filed some two months after the end of the tenancy.

62. There is no evidence the landlord was in breach of any failure under the Act in relation to a matter which was never raised by the tenants during the tenancy.

Orders

63. The tribunal makes the following orders in this application:

1. The landlord is to pay the tenants the sum of $1,250 for compensation pursuant to ss 187(1)(c) and (d) of the Act.

final order in relation to both applications

64. The Tribunal makes the following orders in matters RT 23/09473 and RT 23/15774:

1. The landlord, Tony Culmone, is to pay the tenants Lachlan Churchill and Nicholas Brodie and Regan Grgurovic and Paul Churchill the sum of $400 within 14 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: 22 September 2023