Elizabeth Williams v Ranjith Wijewickrema
[2006] ACTRTT 12
•27 April, 2006
Elizabeth Williams -v- Ranjith Wijewickrema
ACTRTT 12 [2006]
CATCHWORDS
Fair wear and tear – condition of premises
LEGISLATION
Residential Tenancies Act 1997 (ACT)
CASE LAW
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Case Reference Number: RT 1761 of 2005
RE: Premises at 9 Ord Street, Forrest ACT 2603
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Decision
Member: J. Lennard
Date: 27 April, 2006
That the Office of Rental Bonds is directed to release $490.05 of the bond monies held to the lessor forthwith. The remaining amount of $3309.05 is to be released to the tenant forthwith.
STATEMENT OF REASONS
This is the second hearing of a dispute between these parties. At the first hearing on 14 November 2005, the Tribunal ordered the lessor to pay an amount of $350.00 compensation to the tenant.
At the hearing of 9 January 2006, the Tribunal found that the lessor had failed without reasonable excuse to comply with the Orders of 14 November 2005 and imposed a penalty of $200.00.
The tenants have vacated the premises, a final inspection was conducted and the parties are now in dispute as to the distribution of the Bond of $3800.00.
The tenant now makes application to the Tribunal for the release of the full bond to her. Prior to the hearing the tenant had made a written submission. At the hearing this evidence was developed by both parties presented oral submissions to the Tribunal: the tenant by phone hook-up and the lessor through his agent Frances Pires of Manuka Prestige Property.
Without quantifying the claim made, the lessor claims compensation for the following items;
·cost of replacing curtains removed by the tenant; and
·cost of repairing damage done when the tenant removed a cupboard from the kitchen; and
·cost of mowing the lawns; and
·payment of excess water rates.
The curtains:
a)In the original application the tenant asked for compensation for the cost of supplying new curtains. No order for compensation was made.
b)The tenant alleges that she had express permission from the lessor, through his agent Kaye Ryan, at the beginning of the tenancy to remove the old curtains. The tenant gave uncontested evidence at both hearings as to the dilapidated state of the curtains at the commencement of the tenancy. The Tribunal had evidence in the form of an email sent by the tenant to the lessor’s agent on 5 August 2005 which stated her intention to take down the old curtains and not to replace them at the end of the tenancy. At the hearing of 14 November 2005, the lessor’s agent undertook to convey an offer from the tenant to sell the curtains to the lessor.
c)It appears from the little evidence available that the lessor made no objection to the removal of the curtains during the tenancy, either in response to the email of 5 August or in subsequent inspections of the property.
d)Since the hearing of 9 January the lessor’s agents [Margaret Cannon, Nives Gudelj and Frances Pires] have supplied a statutory declaration in which it is declared We hereby confirm that no-one from our office gave Liz Williams the permission to do structural changes or throw away the curtains. We have also been in contact with a former staff member, Kaye Ryan, who confirms that permission was never given to Liz Williams to remove the overhead cupboards or throw away curtains. The Tribunal can give no weight to this self serving declaration: apart from being generated post the hearing and containing hearsay evidence, the declaration is expressed to be made by Frances Pires, but appears to have been made before him in his capacity as a Justice of the Peace. The Tribunal would prefer direct evidence.
e)On balance of probabilities the tenant had permission from the lessor to remove the curtains. The Tribunal finds that the tenant is not liable to compensate the lessor for the cost of replacing the curtains.
- Repairs of damage done when the tenant removed a cupboard from the kitchen
a)The tenant alleges that she had express permission from the lessor, through his agent Kaye Ryan, at the beginning of the tenancy to remove the kitchen cupboard.
b)The tenant gave evidence that the cupboard was old and rickety, and in her opinion dangerous.
c)It appears from the little evidence available that the lessor made no objection to the removal of the cupboard during the tenancy, either in response to the email of 5 August or in subsequent inspections of the property.
d)The lessor’s agent asserted that the tenant ought to have either requested the lessor to repair the cupboard, or to have it removed. It is noted that the tenant had knocked the cupboard down but not made good the holes and paint on the wall from which the cupboard was removed. The tenant asserts that she understood that the lessor would be renovating the premises at the end of the tenancy and that therefore there was no need to “make good’.
e)On balance of probabilities the tenant had permission from the lessor to remove the cupboard. The lessor has not provided any evidence to the Tribunal as to either the intention of the lessor with regards to the renovations, nor as to any expenditure in relation to replacement/repair of the cupboard. The Tribunal finds that the tenant is not liable to compensate the lessor for the cost of replacing the cupboard.
- The cost of mowing the lawns and payment of excess water rates:
a)The tenant conceded that the payment of the excess water is an obligation imposed by the residential tenancy agreement. The tenant has agreed to pay an amount of $490.95. The Tribunal has received little useful evidence as to the state of the garden at the end of the tenancy. Given that the Tribunal has already awarded compensation to the tenant in relation to garden maintenance costs, it is not appropriate to make any further order in relation to the garden.
- The Tribunal notes that the lessor has failed to pay the amounts ordered on 9 January 2006 by the required dates, and draws the attention of the lessor to the provisions of the Residential Tenancy Act 1997 at section 108.
The Tribunal therefore orders:
1. That the bond of $3800.00 is to be distributed as follows:
a) $490.95 to the lessor
b) $3309.05 to the tenant
Jann Lennard
Member
27 April, 2006
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