Dib v Holstein

[2025] NSWCATCD 19

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Dib v Holstein & Anor [2025] NSWCATCD 19

Hearing dates:

11 February 2025

Date of orders:

6 March 2025

Decision date:

06 March 2025

Jurisdiction:

Consumer and Commercial Division

Before:

B K Koch, General Member

Decision:

(1)   The Rental Bond Board is directed to pay the respondents the sum of $738.00 from the Rental Bond number T201287-5.

(2)   Any balance of the bond is to be paid to the applicant.

(3)   The application is otherwise dismissed.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rental bonds — Payment and release

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Cases Cited:

Dibb v Ferenc-Stojic; Ferenc-Stojic v Dibb [2022] NSWCATCD 212

Elhassen v Ayoub [2018] NSWCATAP 34

Fordham v Davies [2014] NSWCATAP 60

Kjoller v Tailford [2016] NSWCATAP 4

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

Pasmore v Oswaldtwistle Urban Council [1898] AC 387

Saliba v Aziz (2013) 281 FLR 278; [2013] ACTCA 41

Toberty v Lacey [2017] NSWCATAP 28

Welch v Luke; Luke v Welch [2019] NSWCATCD 72

Westpac General Insurance Limited v Cooper [2006] ACTSC 91

Texts Cited:

Anforth, Christensen and Adkins, Residential Tenancies Law and Practice, New South Wales (8th ed., 2022)

Herzfeld and Prince, Interpretation (2nd ed., 2020)

Category:

Principal judgment

Parties:

Jessica Dib (Applicant)
Paul Holstein & Anne Nugent (Respondents)

Representation:

Mr Litfin (solicitor) for the Applicant

Ms Atkinson (agent) for the Respondents

File Number(s):

2024/00357147

Publication restriction:

Nil

REASONS FOR DECISION

1. By application lodged on 26 September 2024, the applicant (Tenant) sought payment to her of a rental bond she paid at the start of a residential tenancy she entered with the respondents (Landlords).

2. The Landlords claim that they are entitled to most of the bond on account of end of tenancy charges for cleaning and repairs.

3. The application thus raises the issue which frequently confronts the Tribunal as to whether a tenant has complied with their obligations as set out in the Residential Tenancies Act 2010 (NSW) (Act) or whether they are responsible for compensating the landlords for the state of the relevant residential premises at the end of the tenancy.

4. However, a preliminary issue is raised by the tenant. That issue is whether the Landlords’ claim to the rental bond cannot succeed in circumstances where the Landlords did not comply with the obligations imposed on them by s 165 of the Act (Preliminary Issue). The determination of that Preliminary Issue requires some consideration of the provisions of the Act. Prior to turning to that question, the Tribunal will set out its general findings as to the facts of the application and the Tribunal’s jurisdiction.

5. At the hearing on 11 February 2025, the Tenant was represented by Mr Litfin, a solicitor. The Landlords were represented by their agent, Ms Atkinson. Each party relied on documents lodged with the Tribunal and served on the other party. Further, the parties exchanged Points of Claim and Points of Defence regarding the Preliminary Issue.

General Background and Jurisdiction

6. The Landlords and the Tenant were parties to a residential tenancy agreement made on 9 August 2022 in respect of residential premises in Moruya, NSW (Premises). The tenancy commenced on 10 August 2022.

7. At the start of the tenancy, the Tenant paid a rental bond in the sum of $1,800.00, which remains held by Rental Bond Online (RBO).

8. The Tenant vacated the Premises on 11 September 2024.

9. On 13 September 2024, the Landlords made a claim to the whole of the rental bond using RBO. There is no dispute that the Landlords did not provide to the Tenant copies of any estimates, quotes, invoices or receipts for work for which the rental bond was claimed within 7 days of the claim being made. Indeed, even as at 26 September 2024, when the Tenant lodged her application with the Tribunal, those documents had not been provided to the Tenant. The Tenant does not allege in her Points of Claim that the Landlords failed to a copy of a completed condition report about the Premises at the end of the residential tenancy agreement within 7 days of the claim being made. Having regard to the absence of complaint in that respect and the email correspondence between the Tenant and Ms Atkinson that is in evidence, the Tribunal is satisfied on the balance of probabilities that the Landlords did do this.

10. It was not until 27 September 2024 that the Landlords provided to the Tenant the first breakdown of the compensation that the Landlords proposed to claim for end of tenancy charges.

Preliminary Issue

11. The crux of the Preliminary Issue is s 165 of the Act. That provision, together with other relevant provisions are set out below:

163   Claims for rental bonds

(1)  A claim may be made to the Secretary for the payment of a rental bond by—

(a)  the tenant or an agent of the tenant, or

(b)  the landlord or an agent of the landlord, or

(c)  jointly by the landlord and the tenant or agents for them.

(2)  A claim is to be made in the approved form.

(3)  A claim must not be made before the termination of a residential tenancy agreement unless—

(a)  it is made jointly by or on behalf of the landlord and all the tenants, or

(b)  it is made by or on behalf of the landlord and directs that the rental bond be paid to all the tenants, or

(c)  it is made by or on behalf of all the tenants and directs that the rental bond be paid to the landlord.

164   Claim notice to be given to other party

(1)  This section applies if a claim for the whole or part of a rental bond is made by a landlord or a tenant without the consent of all the other parties to a residential tenancy agreement.

(2)  The Secretary must give written notice of the claim to all of the other parties to the residential tenancy agreement as known to the Secretary.

…

(5)  The notice must state that the Secretary will pay the claim unless notified in writing by a party within 14 days that the claim is the subject of proceedings before the Tribunal or a court.

165   Notice to tenants of claims against tenants

(1)  A landlord, landlord’s agent or a person on behalf of a landlord who makes a claim for payment of a rental bond without the consent of the tenant must give the tenant—

(a)  a copy of a completed condition report about the residential premises at the end of the residential tenancy agreement, and

(b)  copies of any estimates, quotes, invoices or receipts for work for which the rental bond is claimed.

(2)  The documents must be provided within 7 days of the claim being made.

(3)  The documents must also be provided to the Secretary of the Department of Communities and Justice if the whole or part of the rental bond was paid by or on behalf of that Department.

(4)  A person who, without reasonable excuse, contravenes this section is guilty of an offence.

Maximum penalty—20 penalty units.

166   Matters that may be subject of rental bond claim

(1)  A landlord is entitled to claim from the rental bond for the residential tenancy agreement any of the following—

(a)  the reasonable cost of repairs to, or the restoration of, the residential premises or goods leased with the premises, as a result of damage (other than fair wear and tear) caused by the tenant, an occupant or an invitee of the tenant,

(b)  any rent or other charges owing and payable under the residential tenancy agreement or this Act,

(c)  the reasonable cost of cleaning any part of the premises not left reasonably clean by the tenant, having regard to the condition of the premises at the commencement of the tenancy,

(d)  the reasonable cost of replacing locks or other security devices altered, removed or added by the tenant without the consent of the landlord,

(e)  any other amounts prescribed by the regulations.

(2)  This section does not limit the matters for which the landlord may claim from the rental bond for a residential tenancy agreement.

168   Disputed rental bond claims

(1)  This section applies if the Secretary is notified in writing within the claim notice period or before payment of a claim for a rental bond that a claim for the payment of an amount of rental bond is the subject of proceedings before the Tribunal or a court.

(2)  The Secretary may pay the claim only in the following circumstances—

(a)  if the party who disputes the claim gives the Secretary written notice of the party’s consent to payment of the claim,

(b)  in accordance with an order of the Tribunal or court,

(c)  if any applicable order of the Tribunal or court has been satisfied,

(d)  if the proceedings are withdrawn.

(3)  If any applicable order of the Tribunal or a court has been wholly or partly satisfied before a claim for an amount of rental bond is paid, any amount of rental bond no longer required to satisfy the order must be paid to the party who would, but for the claim, be entitled to the amount.

(4)  The Secretary must not pay an amount of a claim until proceedings affecting the claim are finally determined if, before any amount is paid, the Secretary is given written notice of an appeal against a relevant decision of the Tribunal or a court.

(5)  A payment by the Secretary of an amount under this section in accordance with an order of the Tribunal or a court is for all purposes taken to be a payment by the person subject to the order.

…

175   Powers of Tribunal

(1)  The Tribunal may, on application by a landlord or tenant or any other person (including a former co-tenant) who has an interest in the payment of a rental bond, make an order as to the payment of the amount of the rental bond.

(2)  The Tribunal may make an order whether or not the amount of a rental bond has been paid by the Secretary.

(3)  An application for an order must be made within the period prescribed by the regulations.

…

202   Nature of proceedings for offences

(1)  Proceedings for an offence under this Act or the regulations may be dealt with summarily before the Local Court.

…

(3)  The maximum monetary penalty that may be imposed by the Local Court in proceedings for an offence against this Act is 50 penalty units or such other amount as may be prescribed by the regulations.

(4)  Proceedings for an offence against this Act may be brought—

(a)  in the case of an offence in relation to a rental bond for a residential tenancy agreement or a proposed residential tenancy agreement—within the period of 3 years that next succeeds—

(i)  the commission of the offence, or

(ii)  the termination of the residential tenancy agreement,

whichever is the later, or

(b)  in any other case—within the period of 3 years that next succeeds the commission of the offence, or

(c)  with the consent of the Attorney General—at any time.

12. As regards s 175(3) above, cl 39(8) of the Residential Tenancies Regulation 2019 (NSW) provides “the prescribed period is within 6 months after the rental bond is paid out”.

13. There is no dispute between the parties that a “claim for payment of a rental bond without the consent of the tenant” was made by the Landlords on 13 September 2024. As set out above, there is also no dispute between the parties that the Landlords failed to comply with the provisions of ss 165(1)(b) and (2). That much was fairly conceded by Ms Atkinson at the hearing.

14. In substance, the Tenant argues that, absent compliance with s 165 of the Act, a Landlord is not entitled to succeed on a claim to part or whole of a rental bond before the Tribunal.

15. Mr Litfin submitted that there was no direct authority on the point that the Tenant seeks to raise. The Tribunal’s own research corroborates Mr Litfin’s submission.

16. Mr Litfin referred the Tribunal to the decision of the Appeal Panel in Toberty v Lacey [2017] NSWCATAP 28 and specifically to [93] which Mr Litfin submitted set out the relevant framework of the ACT:

In relation to the tenant’s claim for return of the whole of the rental bond, as noted above, a rental bond is the tenant’s money unless the landlord can establish a claim for part or all of that money. Section 165 of the RT Act sets out procedural requirements for a landlord claiming payment of the bond without the tenant’s consent, including under s 165(1) a requirement that within 7 days of a claim being made the landlord give the tenant a copy of a completed condition report about the premises at the end of the tenancy and copies of estimates, quotes, invoices or receipts for work for which the bond is claimed. Section 166 of the RT Act states that the matters for which the landlord is entitled to claim include the reasonable cost of repairs to or restoration of the premises as a result of damage (other than fair wear and tear), any rent or charges owing, the reasonable cost of cleaning of premises not left reasonably clean by the tenant, or the reasonable cost of replacing locks etc altered by the tenant without the landlord’s consent.

17. There is nothing in Toberty v Lacey which suggests that the failure on the part of a landlord to comply with s 165 of the Act prevents the landlord advancing a claim to a rental bond before the Tribunal (and, in fairness, Mr Litfin did not suggest that there was).

18. At least slightly more relevant is the decision of the Appeal Panel in Fordham v Davies [2014] NSWCATAP 60, particularly at [19]-[20]:

Breach of the RT Act, s 165

Section 165 of the RT Act provides that the documents referred to in s 165(1), by s 165(3), ‘must be provided within 7 days of the claim being made’. Failure to comply with this provision, absent a reasonable excuse, amounts to an offence: s 165(5). The Tenants say they submitted that the Landlords did not provide the relevant material until 14 February 2014. The Landlords say they filed the material in accordance with Tribunal directions. It is unnecessary to resolve this issue.

The tenants say they ‘submitted to the Member [below] that the landlord is guilty of an offence under s 165,ss4 [sic] of the Act but the member has not dealt with this in his reasons’. Again, assuming such a submission was made, there is no substance in it. The Tribunal has no jurisdiction to find a landlord guilty of an offence against s 165 of the RT Act. It is therefore not an error of law to have failed to deal with the point. Alternatively, as the point is unarguable, leave should not be granted.

19. Subsequently, the Appeal Panel referred to the obligation imposed by s 165 of the Act in Kjoller v Tailford [2016] NSWCATAP 4. Again, there is nothing in the reasons of the Appeal Panel which suggests that the failure on the part of a landlord to comply with s 165 of the Act prevents the landlord advancing a claim to a rental bond before the Tribunal.

20. More recently, in Dibb v Ferenc-Stojic; Ferenc-Stojic v Dibb [2022] NSWCATCD 212, the Tribunal held that the landlord was entitled to a sum out of the rental bond despite making a finding in the following terms at [8]:

The evidence showed that the tenant was provided no section 165 certificate at the end of the tenant’s occupation. Section 165 of the Act obligates a landlord to give a tenant notice of any bond claim without the tenant’s consent. Within 7 days of making the claim the landlord or agent must give the tenant a copy of the exit condition report and any copies of any estimates, quotes, invoices or receipts for work for which the rental bond is claimed. That was not done.

21. Having regard to the above, there is no authority which is binding on the Tribunal in respect of the direct question raised by the Preliminary Issue and, more generally, limited assistance to be obtained from the authorities. However, such authorities as there are tend against the conclusion contended for by the Tenant.

22. The task of the Tribunal is therefore to construe s 165 in the context of the Act as a whole.

23. The “claim” to which s 165 refers is the same as that referred to in ss 163 and 164. That is, a claim to the Secretary (or more particularly, the online rental bond service established by the Secretary pursuant to s 157A of the Act) for the payment of a rental bond. Taking ss 163 – 165 together, the regime there established (insofar as relevant to the facts of the present case) is that:

1. A landlord or a landlord’s agent may make a claim to the Secretary for payment of a rental bond to the landlord after the end of the tenancy (see s 163).

2. If the claim by the landlord is made without the consent of the tenant, the Secretary must give written notice of the claim to the tenant (see s 164(1) – (2)).

3. Within seven days of making the claim, the landlord must provide the tenant with the documents set out in s 165(1)(a) – (b).

4. Within 14 days of the landlord making the claim to the Secretary, the tenant must commence proceedings before the Tribunal or a court, failing which the rental bond will be paid out to the landlord in accordance with the claim (see s 164(5)).

24. The mischief which s 165 seeks to address is ensuring that tenants are not required to commence a proceeding in the Tribunal or a court to prevent payment out of the rental bond upon a claim made by the landlord without understanding the nature and quantum of the claims being made on that bond. The following statement in the commentary on s 165 of the Act given in Anforth, Christensen and Adkins, Residential Tenancies Law and Practice, New South Wales (8^th ed., 2022) is apposite:

A tenant is entitled to know what is being claimed from the bond so that they can appropriately respond.

25. Non-compliance with s 165 of the Act (without reasonable excuse) is an offence pursuant to s 165(4) and may be dealt with in accordance with s 202 of the Act. As is apparent from the terms of s 202 (and as stated in Fordham v Davies) that is not a matter within the jurisdiction of the Tribunal.

26. There is nothing in the express terms of s 175 of the Act that mandates that the power of the Tribunal to make an order as to the payment of the amount of the rental bond in favour of the landlord is dependent upon the landlord having complied with s 165. One would expect that any such limitation on the jurisdiction of the Tribunal would need to be expressly set out or the subject of clear and unmistakable implication: see Herzfeld and Prince, Interpretation (2^nd ed., 2020) at [9.670]. There is no such express words or clear and unmistakable implication. Considering the Act as a whole, the Tribunal considers that the construction contended for by the tenant cannot succeed.

27. The Tribunal’s conclusion in this regard is bolstered by reference to the rule stated by the Earl of Halsbury LC in Pasmore v Oswaldtwistle Urban Council [1898] AC 387 at 394:

The principle that where a specific remedy is given by a Statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the Statute, is one which is very familiar and which runs through the law. I think Lord Tenterden accurately states that principle in the case of Doe v Bridges. He says: “where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner.”

28. See also Saliba v Aziz (2013) 281 FLR 278 at [29] and the authorities there cited.

29. Absent some contrary indication in the Act, the remedy for the failure to comply with s 165 of the Act is that set out in s 165(4). There is no such contrary indication.

30. For the above reasons, the Tribunal finds that the Landlords’ application that part of the rental bond be paid to them can succeed despite the Landlords’ admitted failure to comply with the obligation imposed by s 165 of the Act.

Landlords’ claim on the rental bond

31. The Tribunal now turns to the Landlords’ substantive claim on the rental bond.

32. The Landlords raise four matters which they contend entitles them to the sum of $1,528 out of the rental bond, being:

1. $88 to rewire a back sliding screen door at the premises.

2. $450 to repair damaged carpet at the Premises.

3. $440.00 to patch and paint a wall under the lounge room window.

1. $550.00 for carpet cleaning, urine treatment and thermal fogging.

33. Subject to determination of the Preliminary Issue, the Tenant conceded liability to pay the sum of $88 for the screen door. Each of the other three matters are disputed.

34. The Tribunal will briefly set out the principles relevant to the determination of the Landlords’ claim and then address each of the three items in turn.

Legal Principles

35. At the end of a tenancy the tenant must comply with the requirements of section 51(3) of the Act. Briefly, the tenant is to remove their goods, return the keys to the landlord and leave the premises as nearly as possible in the same condition, fair wear and tear excepted and in a reasonable state of cleanliness. Section 51(3) refers to the ingoing condition report as a point of reference. Sections 29 and 30 of the Act deal with the preparation of ingoing and outgoing condition reports.

36. The terms of ss 165 and 166 of the Act are set out above and it is relevant to note that a tenant’s liability for damage does not include “fair wear and tear”.

37. In Elhassen v Ayoub [2018] NSWCATAP 34 at [6], the Appeal Panel stated the following with respect to the meaning of “fair wear and tear”:

In Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWCA 224, the Court of Appeal relied on the interpretation of this phrase in Haskell v Marlow [1928] 2 KB 45 where the court stated that “[R]easonable wear and tear means the reasonable use of the house by the tenant and the ordinary operation of natural forces”. It follows that both natural forces and the actions of tenants can constitute wear and tear.

38. Fair wear and tear does not include deterioration in the premises that could be prevented by reasonable conduct on the tenant’s part. What is ’fair’ wear and tear is assessed objectively according to contemporary standards and it is not assessed according to the standard of a fastidious and obsessive landlord: Welch v Luke; Luke v Welch [2019] NSWCATCD 72. The onus of establishing fair wear and tear rests on the tenant: Westpac General Insurance Limited v Cooper [2006] ACTSC 91 at [14].

39. The Landlord has the onus of establishing a claim to part or whole of the rental bond. Any such claim will generally be supported by invoices which show the actual damage sustained by the landlord. Further, any such claim must take depreciation into account. A landlord may be compensated for the actual loss suffered but will not receive an additional benefit, that is they are not entitled to a “new for old” assessment of damage: Welch at [35].

40. If the Tribunal finds that the tenant is responsible for damage then the Tribunal must determine the quantum of damage. In doing so the Tribunal will consider whether the landlord has mitigated his damages, whether the damages claimed are proportionate and what depreciation is to be taken into account.

Damaged carpet

41. In the Entry Condition Report, the carpet in Bedroom 1 is described as clean and undamaged. The report indicates that the Tenant agrees with that assessment.

42. The Outgoing Condition Report notes “carpet damaged left hand corner”. The submission put at the hearing was that the underlay had been chewed by the tenant’s dog. Mr Litfin for the Tenant conceded that the dog did chew that corner but submitted that the carpet was already damaged and that, because of its age, the carpet had no value at that point and any compensation would be unjust enrichment. No argument was put that the damage constituted fair wear and tear and, for the avoidance of doubt, the Tribunal is well satisfied that damage caused in the manner conceded does not constitute fair wear and tear.

43. As to the first matter raised, the Tribunal prefers the evidence of the Entry Condition Report to the bare statement that the carpet was damaged at the start of the tenancy.

44. As to the second matter, the Landlords accepted that the carpet was laid in or about 2013. The Tribunal does not accept that the age of the carpet disqualifies the landlords from receiving compensation for damage. The evidence discloses that the carpet was clean and undamaged at the start of the tenancy. At the end of the tenancy the carpet was damaged as a consequence of a breach of s 51(3) of the Act. The Landlords have chosen to repair the carpet and there is no basis to find that such a course is unreasonable. The Landlords are not seeking to impose upon the tenant the cost of replacing the carpet, that is, they are not seeking a “new for old” assessment of damage. Had they done so such a claim would have been heavily discounted on account of depreciation and proportionality. What the Landlords seek to undertake is a targeted repair designed to return the carpet in that room as nearly as possible to the same condition as at the start of the tenancy.

45. The tax invoice from DPF Installations establishes the cost to the landlords to “repair/patch” the damaged carpet is $450. The Tribunal will order the Tenant pay the Landlords compensation in that respect.

Patch and paint wall

46. The Entry Condition Report with respect to the lounge room states “South wall heavily chipped, many triangular indentations”. The Outgoing Condition Report states “wall under window to be repaired, damaged by dog”.

47. Ms Atkinson gave evidence that the wall referred to in the Entry Condition Report is different to that referred to in the Outgoing Condition Report. The Tribunal accepts that evidence. However, the Tribunal is unable to be satisfied that there has been damage, the extent of that damage and that such damage can be attributed to a breach of s 51(3) of the Act by the Tenant. The photographs adduced in evidence (whether viewed in hard copy or electronically) are not of sufficient quality to allow the Tribunal to make any determination.

48. An applicant for relief is obliged to establish their claim on the civil standard, that is on the balance of probabilities. The relevant principles in relation to discharging the burden of proof in civil cases were summarised by McDougall J (with whom McColl and Bell JJA agreed) in the Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [55] as follows:

(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;

(2) where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s

existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;

(3) where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and

(4) a rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.

49. On the evidence available, the Tribunal is unable to be satisfied of the matters set out above on the balance of probabilities and the Landlords’ claim in this respect fails.

Carpet cleaning, urine treatment and thermal fogging

50. By clause 53 of the residential tenancy agreement, the Tenant was entitled to keep one dog on the premises. Clause 55 of the residential tenancy agreement provided that the Tenant agreed to “have the carpet professionally cleaned or to pay the cost of having the carpet professionally cleaned at the end of the tenancy if cleaning is required because an animal has been kept on the residential premises during the tenancy”.

51. The evidence discloses that, on 10 September 2024, the Tenant engaged Wizard Carpet Cleaning to steam clean the three bedrooms and apply enzyme treatment at a cost to the tenant of $298.00. Text messages between the Tenant and Wizard disclose that the enzyme treatment was for “pet stains”. The Tenant vacated the Premises the following day.

52. The Outgoing Condition Report (prepared on 11 September 2024) notes “strong smell of dog” and “strong smell of dog urine” in the bedrooms.

53. On or about 25 September 2024, the Premises were let to new tenants. On the following morning, the Landlords’ agents received an email from the new tenants stating:

House is really smelling like dog. Couldn’t manage. Pleas (sic) do some action. We could not sleep here last night.

54. On 30 September 2024, the Landlords, by their agents, engaged Wizard Carpet Cleaning to apply enzyme treatment to urine spots, steam clean the three bedrooms and thermal fogging of the house with odorcide for a total cost of $550.00.

55. The Landlords seek to recover that expense from the Tenant.

56. At the hearing, it was submitted on behalf of the Tenant that the issue of odour only arose several weeks after the end of the tenancy. That does not accord with the evidence of the Outgoing Condition Report. There is no evidential basis to find (contrary to the evidence set out above) that the odour was the result of the pooling of pesticides on linoleum.

57. On the balance of probabilities, the Tribunal is satisfied that there was a breach by the Tenant of s 51(3) of the Act in relation to the odour left at the end of the tenancy as claimed by the Landlords.

58. However, the Tribunal is not satisfied that it is proportionate to require the Tenant to pay the full amount of $550.00 claimed by the Landlords. On the uncontradicted evidence of the Tenant, she engaged Wizard Carpet Cleaning on the recommendation of the Landlords’ agents to perform work in compliance with her obligations under the residential tenancy agreement. Wizard Carpet Cleaning performed steam cleaning and enzyme treatment on 10 September 2024. It is difficult to see why the Tenant should bear the cost of the Landlords engaging Wizard Carpet Cleaning to do that same work a few weeks later. The only further work conducted on 30 September not apparently completed on 10 September was the thermal fogging of the house with odorcide. The Tenant should pay for that work, which the Tribunal is satisfied was necessary to remedy the Tenant’s breach. Doing the best that it can on the evidence that is available to it, the Tribunal will award $200.00.

Conclusion

59. Having regard to the findings made above, the Landlords are entitled to compensation totalling $738.00. The Tribunal will order that the sum of $738.00 be paid to the Landlords from the rental bond and the balance 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

Decision last updated: 27 May 2025