Cummings v Ray White Coorparoo - [2012] QCAT 393

CITATION:

Cummings and Anor v Ray White Coorparoo [2012] QCAT 393

PARTIES:	Sarah Louise Cummings Michael Walter Jeremiah O’Brien
v
Ray White Coorparoo

APPLICATION NUMBER:

MCDT941-12 (Brisbane)

MATTER TYPE:

Residential tenancy matters

HEARING DATE:

12 July 2012

HEARD AT:

Brisbane

DECISION OF:

Paul Favell, Member

DELIVERED ON:

31 July 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

The Residential Tenancies Authority (RTA) pay to the applicant $2,275.70 and the respondent $324.30 from the bond held by the RTA for 14 Strangman Terrace, Coorparoo.

CATCHWORDS:

Minor civil dispute – return of bond – claim for loss of facilities and compensation – claim for damage

Residential Tenancies and Rooming Accommodation Act 2008, ss 137, 429

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Sarah Cummings and Michael O’Brien

RESPONDENT:

Jurita Tarr for Ray White Coorparoo

REASONS FOR DECISION

The Applicants are former tenants of premises at 14 Strangman Terrace Coorparoo. They are seeking a full bond refund and compensation for what they say are pool repairs not remedied by the lessor, electricity costs for full time usage of the pool filter and the application fee. The amount claimed for rent refund for loss of facilities because the lessor failed to maintain the property is $11,950.00. The amount for additional electricity incurred because of maintenance issues is $1,091.77. The bond is $2,600.00.
Exhibit 1 is the general tenancy agreement between the lessor and the Applicants. It was a fixed term agreement which started on 28 September 2010 and was to end on 27 March 2011. The rent was $650.00 a week. Item 12 of the agreement required the tenant to pay for electricity, pursuant to clause 16.
Clause 25 of the tenancy agreement set out the lessor’s obligations which required the lessor to ensure that the premises are fit for the tenant to live in and are in good repair. It obliged the lessor to maintain the premises in a way that the premises remain fit for the tenant to live in and maintain the premises in good repair.
The premises had a pool, the condition of which makes up much of the matter of the dispute between the parties and fair proportion of the claim made by the Applicants.
The Applicants say that when they began the tenancy they filled in a thorough entry condition report which highlighted the worn and damaged nature of the property. Specifically, they highlighted floor chips and scuff marks along the walls and the floors. That condition report was provided with the application and it does note chipped and marked skirting boards, marks on walls, scuff marks on wooden floors, a cracked ninth board and scratches and scuff marks on doors.
In Bedroom 1, severe scratches to floor boards were noted and in Bedroom 3 there were scuff marks on wooden floors with the cracked ninth board.
In the bathroom scratches and scuff marks were noted on doors. In the lounge room, scratches and white marks, with polish coming off the floor was noted in the middle of the room as well as next to a cabinet. In the dining room, “severe scratches, scouring and polish chipping off floor at entry to kitchen, scratched scuff marks” were noted.
The Applicants say that throughout the tenancy they made several maintenance and repair requests for fittings inside the property and the pool. They were told by the then agent, James Pulford, by email on 14 January 2011 that the lessor would like to deal with the concerns directly.
The matters were not dealt with to the satisfaction of the Applicants and in July of 2011 they were able to secure a $25 per week rent reduction. They say that their complaints about the pool were not properly attended to and that they were told by Swimart, the pool repairer, to leave the filter on a 24 hour cycle until the filter could be fixed. They said that it was not fixed and for approximately 8 months the electricity bill increased.
The Applicants issued a notice to remedy breach on 24 January 2012 requiring the breach of the agreement to be remedied by 31 January 2012. The reason for the notice was included on the notice as,
“a written maintenance request was given in writing to the agent on the 7/12/11. Despite a follow-up email sent on the 08/12/11 and after a conversation on the 23/12/11 where it was agreed that the request would be attended to. These faults are still waiting to be fixed. The lessor/lessor’s agent has also failed to maintain the pool as set out in the tenancy agreement. We request all maintenance issues raised by fixed by the due date of this notice to remedy breach.”
On 27 January 2012 the Applicants gave a notice of intention to leave advising that they intended to give up vacant possession of the premises on 27 March 2012.
A notice of unresolved dispute has been issued by the RTA. When the Applicants vacated the property an exit condition report was completed. The Applicants say they were given 24 hours to remedy items on that exit report.
The real estate agent acting on behalf of the Respondent lessors claims $1,550.00 said to be for the repair of damage to floorboards due to numerous high heel indents, $320.00 for repair of a glass main bedroom French door panel, $66.00 for a missing smoke alarm and $64.30 for outstanding rent. The total they claim as against the bond is $2,000.30.
The Applicants dispute that they caused damage to the floorboards as claimed. They say that the smoke alarms were attached when they exited the property.
On an initial complaint that there were two smoke alarms missing they found one of them put into a cupboard when they went back to the property.
The rent owing of $64.30 is not disputed now that the matter has been heard by the Tribunal.
As to the claim for the glass in the main bedroom French door panel, they say that the entry condition report clearly highlights in Bedroom 1 the wear and tear of the door. They say that while they did not notice a crack during their tenancy, they believe any further damage would be further deterioration of the pre-existing nature of the door and therefore be classed as fair wear and tear. Photographs of the chip in the glass main bedroom French door panel are provided in Exhibit 3. The photographs seem to indicate to me that there has been some pressure applied to the glass resulting in the damage. That damage is not noted in the entry condition report as such and in my view it is likely caused during the tenancy. The tenants should be responsible for the fixing of that glass.
Part of Exhibit 3 contains a quotation from “True Blue Glass” dated 23 May 2012. That quotation is for $320.00 to reglaze cracked main bedroom French door panel.
So far as the claim for a missing smoke alarm is concerned, I am not satisfied that its absence was caused by the tenants. They say that the smoke alarms were there when they left. It seems that if that was so, there was some intervention which caused them to be removed and one put into a cupboard after they had left and before the exit report was done. In my view the finding of one of the ones that was missing in a cupboard when they returned adds to my doubt that they caused the missing smoke alarm.
So far as the claim for high heel marks in the flooring is concerned, I am not satisfied that that was caused by the tenants. The notings on the entry report in my view do show the floors in poor condition and there are notes made of damage to the floors in the affected areas. Although the floor was repolished in 2009, this tenancy did not commence until September 2010. I am not satisfied that these tenants caused the damage to the floor and in my view the cost of fixing the floors should not be taken from their bond.
The applicants claim a rent refund for what they say is loss of facilities. The major part of that claim is their claim in respect of the swimming pool. I have noted all of their complaints and I have noted the record kept by the real estate agency including all of the statements for work done by Swimart to the property. I am not satisfied that the claims made by the Applicants are made out. I am satisfied however there were some maintenance issues but I do not regard them as major issues. I note that the Applicants did get a rent reduction at some stage. The photographs of the pool shown to me by the Applicants and by the Respondents do not convince me that the pool was so badly maintained as was claimed. The records provided to me seem to indicate that the pool was maintained and the colour of the pool water does not convince me otherwise.
The Applicants have sought to make out their claim for a rent reduction by doing a form of an analysis of similar properties available for rent. The analysis is done on the basis of those properties not having a pool. Accordingly the Applicants seek to draw a rent comparison of similar properties without a pool and the cost they were paying for a property with a pool.
During the course of the hearing I was shown photographs of the pool on an iPhone owned by one of the Applicants. My observation of that photograph is that the pool to me did not look green. I was told that at times the pool did change colour but that was because of excessive rain had during that period.
I am not convinced that the maintenance issues were such as claimed by the Applicants to warrant a rent reduction.
The applicants also seek to make a claim for what they say is additional electricity costs because they were directed by Swimart to manually override the filter and leave the cycle on continuously until the filter could be fixed. They say that was confirmed with Juanita Tarr from the real estate agency. They have sought to do a comparison of electricity bills for various quarters and say that their initial electricity costs increased from around $450.00 to around $850.59. They seek a refund of $1,091.77. Exhibit 2 is the electricity bills provided to me.
The Applicants claim that it was around July 2011 when they were told to manually override the filter. The electricity invoice for the period between 6 March 2011 to 23 June 2011 was for $783.73. It indicated that there had been an electricity consumption between March and June of that year. I have examined each of the electricity invoices provided to me and I note that the increase that the Applicants say occurred has not really been borne out. Prior to the manual overriding of the filter as claimed the electricity bill for the period 24 January 2011 to 25 March 2011 was $405.80. Also prior to the manual overriding is the bill for the period 26 March 2011 to the 3 June 2011 for $783.75. For the period between 24 June 2011 and 22 September 2011 the bill was $833.77. In the material filed with the application the Applicants seemed to accept that their bill for the last 10 months of their tenancy was without any increased electricity because of the manual overriding. The bill for the period 16 December 2011 to 13 March 2012 was $732.62 and for the period 14 March 2012 to 28 March 2012 was $149.28. The bill for the period 24 June 2011 to 22 September 2011 was $833.77 and the bill for the period between 23 September 2011 and 15 December 2011 was $850.49.
I have noted the servicing periods on the pool as contained in Exhibit 3 and the notes of what was done on each service call. I note that on one occasion it was for a green pool but on other occasions it was mostly maintenance or attending to salt and acid issues.
I am not able to be satisfied the period of time for which an increase in electricity was required but I accept that there was a period where the motors had to be overridden and run manually. In doing an analysis of the bills for the period just before the Applicants left the property, the daily cost of electricity was $10.66. In the period before the last two weeks their daily cost was $8.84. In the period between 23 September 2011 and 15 December 2011 their daily cost for electricity was $10.24. In the period between 24 June 2011 and 22 September 2011 their daily cost was $9.26. For the period between 26 March 2011 and 23 June 2011 their daily consumption was $8.80. The two periods for which there seemed to be an increased electricity usage were the periods between 24 June 2011 and 22 September 2011 and 23 September 2011 and 15 December 2011.
Doing the best I can and allowing for seasonal variation in the use of electricity and for a time of continued used of the manual override as opposed to the motors coming on as programmed I allow $60.00 for increased electricity usage.
For the reasons I have given earlier, the Applicants are responsible for paying $320.00 to fix the glass in the main bedroom French door, $64.30 for rent and the Respondents are responsible for paying an increase in electricity usage of $60.00.
That will mean that the order will be the RTA pay out to the Applicants $2,275.70 and pay out to the Respondents $324.30 from the bond held by the RTA for 14 Strangman Place Coorparoo.
In the circumstances which prevail here, I do not intend to allow the claim for the filing fee. The majority of the claims made by the Applicants have failed and the majority of the claims made by the Respondents have failed, although the Respondents were successful in obtaining more of their claim than were the Applicants.