Fanti v Hargraves

[2024] NSWCATCD 15

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Fanti v Hargraves [2024] NSWCATCD 15

Hearing dates:

06 December 2023

Date of orders:

15 January 2024

Decision date:

15 January 2024

Jurisdiction:

Consumer and Commercial Division

Before:

P Gardner, General Member

Decision:

1.   Within 28 days of these orders, the respondent is to pay the applicant $5002 for end of tenancy charges as set out at [151] – [152].

2.    The application is otherwise dismissed.

Catchwords:

LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – obligations of tenant and landlord – obligation to pay rent – obligation to pay utilities – proceedings in relation to rental bond and other claims by landlord after end of tenancy

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Residential Tenancies Act 2010 (NSW)

Residential Tenancies Regulation 2019 (NSW)

Cases Cited:

Alexander v Cambridge Credit Pty Ltd (1987) 9 NSWLR 310

BM & JA Holdings Pty Limited v Clarence Street Developments Pty Limited [2012] NSWSC 1236

Fitzgerald v Penn (1954) 91 CLR 268

Fitzpatrick v Wu unreported, NSWRT, 2001, 01/16425

Hadley v Baxendale [1854] 9 Ex 341

Hall v Hawkins [2015] NSWCATAP 197

Ho v Powell (2000) 51 NSWLR 572

Oran Park Motor Sport P/L v Fleissig [2002] NSWCA 371

Panico v Crompton & Jennings [2015] NSWCATAP 110

Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10

Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9

Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd (1976) 1 NSWLR 5

Westpac General Insurance v Cooper [2006] ACTSC 91

Texts Cited:

Anforth, Christensen, Adkins Residential Tenancies Law and Practice (2022) 8th edition

Category:

Principal judgment

Parties:

Renata Cataldo de Oliveira Fanti (Applicant)
Therese Hargraves (Respondent)

Representation:

Ms Fanti, in person (Applicant)
Ms Hargraves, in person (Respondent)

File Number(s):

2023/00375196 (Previously RT 23/42899)

Publication restriction:

None

REASONS FOR DECISION

Background and Procedural History

1. Commencing on 25-Apr-2022, the applicant (landlord) and the respondent (tenant) entered into a residential tenancy agreement for a premises in Katoomba (RTA) under which the tenant was to pay rent of $650 per week and a bond of $1300. It is not in dispute that:

1. the tenant has paid the bond, which is currently held with the landlord.

2. the tenant remained in the premises until giving vacant possession on 17-Sep-2023.

2. The fact that the bond has not been lodged with the rental bonds service does not affect the Tribunal’s capacity to make orders about the bond.

3. By application lodged on 20-Sep-2023, the landlord seeks orders for compensation under s 187(1)(d) of the Residential Tenancies Act 2010 (NSW) (RT Act) in connection with allegations that the tenant owes arrears and utilities charges payable under the RTA, and that the tenant has breached s 51(3) of the RT Act by causing or negligently allowing damage to the premises, and by failing to leave the premises clean.

4. At a conciliation on 25-Oct-2023, the landlord was put on notice that the maximum amount the Tribunal may award in compensation is $15000 plus the bond. As recorded in the directions made after the conciliation, the landlord elected to continue with the proceedings.

Landlord’s Claim

5. During the hearing the landlord confirmed that her claim was as set out in Tab 6 of her documentary evidence. Noting the landlord has consented to the Tribunal’s jurisdictional limit, the amount sought is $32,813.27, comprised of $1300 of rental arrears, $2111.75 for utility charges and $29401.52 for breaches of s 51(3) of the RT Act. It is convenient to summarise the table that appears on those pages in order to be able to refer to each point of claim by number in these reasons:

Rental Arrears Claims

1. Rental arrears for week of 22/05/2023 - $650

2. Rental arrears for week of 27/08/2023 - $650

Utility Charges Claims

3. Water bill for Jun/23 - $228.45

4. Water bill for Mar/23 - $221.70

5. Water bill for Dec/22 - $227.68

6. Internet usage charges throughout tenancy - $350

7. Final water bill - $275.55

8. Final electricity bill - $490.03

9. Final gas bill - $248.34

10. Final internet bill - $70

Repair and Cleaning Claims

11. Replacement/installation of 3x bedroom curtains - $330

12. Repair dent on wall of main bedroom - $275

13. Repair dent on floor of main bedroom - $1815

14. Front yard gardening - $2442

15. Repair damage to kitchen floor - $220

16. General end of lease cleaning - $1300

17. Replace dog door flap in laundry - $110

18. Replace tap on washing machine - $77

19. Repair to laundry room door - $165

20. Mould removal - $880

21. Repair interior painting damage - $165

22. Replacement of 3x curtains due to mould - $330

23. New washing machine - $853

24. Replacement of timber floorboards - $7128

25. Rehanging of door in guest bedroom - $165

26. Repair/replacement of kitchen drawers - $264

27. Pest treatment - $825

28. Rubbish removal and gardening - $385

29. Removal of grip tape on deck - $253

30. Replacement light bulb - $5.83

31. Replacement heat lamp bulbs x3 - $31.19

32. Stain and repair of timber decking - $1320

33. Cleaning of 2x reverse cycle air conditioners - $385

34. Repair damage to cupboard in bedroom - $270

35. Repair damage to 3x sections of skirting board - $440

36. Repair laundry door frame - $880

37. Front door replacement - $82.50

38. Repair wall dent in main bedroom - $275

39. Replacement of 10 chairs - $4425

40. Repair structural damage to outdoor deck - $3300

Evidence and Hearing

6. This application was heard by the Tribunal on 06-Dec-2023. During the hearing both the landlord and the tenant appeared in person. Both gave sworn evidence. The Tribunal also heard sworn evidence from the landlord’s husband, Mr Vilimaa, and the tenant’s friend, Ms Ward.

7. The landlord’s documentary evidence includes:

1. A copy of the RTA;

2. Ingoing and outgoing condition reports, including photographs;

3. A table setting out the amounts claimed and describing each point of claim;

4. Rental ledger;

5. Utilities ledger;

6. Bank statements;

7. Email correspondence between the parties;

8. A chronology;

9. Tax invoice issued by GSA Maintenance & Renovation dated 22-Sep-2023 (GSA Maintenance Invoice) relating to many of the Repair and Cleaning Claims for $17,081.52;

10. An estimate from Fresh Perspective Landscapes dated 19-Sep-2023 (Fresh Perspectives Estimate) for groundskeeping work for $2,442.00;

11. Tax invoice and quotation issued by BSP Maintenance for an end of lease clean (BSP Maintenance Invoice) dated 06-Oct-2023 for $1300;

12. Screenshot from a website for 10 chairs at a cost of $4425;

13. Tax invoice dated 18-Oct-2023 issued by Appliances Online for a replacement washing machine (Appliances Online Invoice) for $853; and

14. A document which is either a quotation or an invoice dated 20-Oct-2023 issued by Kingsman Constructions (Kingsman Constructions Document) for work to repair a deck for $3300.

8. The tenant’s documentary evidence includes some material which also appears in the landlord’s documents but the additional material includes:

1. Correspondence between the parties;

2. Receipts, including in relation to cleaning and garden maintenance;

3. Bank statements;

4. Material alleging that certain invoices relied on by the landlord are fraudulent;

5. Witness statements; and

6. Documents relating to consent to keep pets in the premises.

Late Filed Evidence

9. At commencement of the hearing, the landlord sought to rely on additional late filed evidence. With consent of the tenant, I have allowed the landlord to rely on additional written statements from herself and Mr Vilimaa however I have not allowed the landlord an extension of time to submit the remaining material. The reason for this is:

1. The landlord and Mr Vilimaa’s statements were capable of being read in the proceedings and retaining written copies would assist the Tribunal;

2. The balance of the material, being statements from third parties, was filed late without an adequate explanation.

10. I consider that allowing the balance of the late filed evidence would likely result in a delay in finalising the proceedings in order to allow the tenant adequate time to properly consider the material. Having regard to the nature of this information (which goes to third party’s impressions of the property, in circumstances where they were not present and unable to be challenged through cross-examination) and the Tribunal’s guiding principle as set out in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), I consider that the delay is not warranted in the absence of any explanation as to why this information was not sought prior to lodging the application or preparing the other documents submitted by the landlord.

Jurisdiction and Relevant Law

11. On the basis of the supplied RTA, the Tribunal has jurisdiction to hear and determine this application.

12. I note that the RTA entered into between the parties is a template that appears to be a truncated form of the standard agreement used for residential tenancies in Victoria and is unsigned. Nothing turns on this. The law of NSW does not require use of the standard form set out in the regulation, and oral agreements are possible. I am satisfied that the parties reached an agreement, the key terms of which are documented in the RTA and that the agreement to those terms is recorded through an exchange of emails between the parties.

13. To the extent that any provision in the RTA is inconsistent with the RT Act, this is addressed in s 21(1) which provides:

(1) A term of a residential tenancy agreement is void to the extent to which it--
(a) is inconsistent with any term included in the agreement by this Act or the regulations, or
(b) is prohibited by this Act or the regulations.

14. The Tribunal’s power to make orders for compensation is set out in section 187(1)(d) of the RT Act. This power is enlivened where the landlord establishes, on the balance of probabilities, that the tenant has breached the RTA. The landlord must show that the breach is a cause of the loss claimed (Fitzgerald v Penn (1954) 91 CLR 268 at 273; Alexander v Cambridge Credit Pty Ltd (1987) 9 NSWLR 310 at 361), that the loss is a reasonably foreseeable consequence of the respondent’s breach (Hadley v Baxendale [1854] 9 Ex 341) and must provide evidence to support the total amount being claimed with as much precision as the subject matter reasonably permits (Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 77 ALJR 768, Hayne J at [37]).

15. The landlord must take steps to mitigate their losses (BM & JA Holdings Pty Limited v Clarence Street Developments Pty Limited [2012] NSWSC 1236), but the tenant bears the burden of proof in establishing the applicant’s failure to mitigate loss (Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd (1976) 1 NSWLR 5 at 9).

16. Compensation orders are not punitive, they are to put a party in the position they would be in but for the other party’s breach of the RTA. In determining a claim for compensation, the Tribunal is to have regard to the principle against double compensation (Roberts v NSW Aboriginal Housing Office [2017] NSWCATAP 9 at [86]).

17. The onus of proving negligent or intentional damage rests with the landlord: Westpac General Insurance v Cooper [2006] ACTSC 91 at [14]. If a landlord seeks to prove that a tenant has caused or permitted intentional or negligent damage, they must establish a credible hypothesis as to how this damage was caused (Fitzpatrick v Wu unreported, NSWRT, 2001, 01/16425).

18. At the end of the tenancy the tenant must comply with the requirements of s 51(3) of the RT 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.

19. “Fair wear and tear” means damage or deterioration that arises from the reasonable use of the house for its intended purpose and the ordinary operation of natural forces. The test is objective and should not be approached from the perspective of a “fastidious and obsessive landlord” (Panico v Crompton & Jennings [2015] NSWCATAP 110 at [24]).

20. The Tribunal must consider whether the tenant has acted in an intention or negligent manner or whether damages has come about through normal use of the property and should be classified as fair wear and tear. If the Tribunal finds that the tenants are responsible for damage then the Tribunal must determine the quantum of damage. In doing so the Tribunal will consider whether the landlord has mitigated their damage, whether damages claimed are proportionate and what depreciation is to be taken into account (ATO Guidelines).

21. The Tribunal must determine whether the tenant has acted in a careless or negligent manner or has the damage come through normal use of the property and should be classified as fair wear and tear.

22. In Hall v Hawkins [2015] NSWCATAP 197, the Appeal Panel found that s 30(1) of the RT Act does not deprive evidence other than a condition report signed by both parties, of cogency or reliability. S 30(1) does not provide a basis for rejecting or ignoring other evidence as to the state of the premises at the relevant time, where the evidence happens not to be contained in a condition report signed by both the landlord and the tenant.

23. I note that in her written submissions, the landlord raises a number of other provisions in the RT Act, including s 51(1), 51(2), 66, 67, 71 and 72. Some alleged breaches are not material because no compensation has been sought (for example the allegation that the tenant has removed a smoke alarm). Otherwise, I have considered these provisions but most of the allegations are capable of being characterised as a breach of s 51(3).

Rental Arrears Claims – Points of Claim 1 - 2

24. Adopting the numbering at paragraph [5], in relation to points of claim 1 and 2, the landlord relies on a spreadsheet set out in Tab 6 and a ledger at Tab 8 of her documents to establish that the tenant has failed to pay rent totalling $1300.

25. The tenant denies any liability to pay the rental arrears and submits that the ledger does not record payments made by her. To support this allegation she has supplied bank statements for the relevant period of time.

26. The tenants remained in the premises for the period from 25-Apr-2022 to 17-Sep-2023 (511 days). At a rate of $650 per week, the rent payable for this time is $47,450.

27. While expressed differently, both the landlord’s ledger and the tenant’s ledger show rental payments of $46150 excluding the bond. I note that the tenant’s ledger appears to miss a week which should be labelled #44.

28. The tenant has raised that an initial payment does not appear in the landlord’s ledger. This is not the case, it appears as the first entry in the material supplied by the landlord.

29. Having considered the ledgers and payment records, I am satisfied that the tenant owes rental arrears in the amount of $1300 and allow compensation in favour of the landlord in this amount.

Utility Charge Claims – Points of Claim 3 - 10

30. Adopting the numbering at paragraph [5], in relation to points of claim 3 to 10, the landlord relies on a spreadsheet set out in Tab 10 of her documents to establish that the tenant has failed to pay utilities charges totalling $2,111.75.

31. The landlord has also supplied screenshots of the following utilities invoices shared with the tenants by email:

1. Electricity usage for the period from 21-Apr-2022 to 19-Jul-2022 - $584.69;

2. Gas usage for the period from 16-Jun-2022 to 15-Sep-2022 - $209.72; and

3. Electricity usage for the period from 20-Jul-2022 to 17-Oct-2022 - $467.76.

32. In addition, one email on 28-Sep-2023 from the landlord to the tenant attaches numerous utilities bills however no copies of these bills have been supplied to the Tribunal.

33. The supplied invoices referred to at 31 and the corresponding payments recorded in the landlord’s ledger suggest that the tenant has been asked to pay both usage and supply charges. This was certainly the tenant’s position during the hearing. This is inconsistent with s 40(1)(c) of the RT Act. To the extent that any provision of the RTA purports to make the tenants liable in a different manner, such provision is void by operation of s 21 of the RT Act. The parties cannot contract out of the obligation for the landlord to pay supply charges.

34. In the absence of the invoices for the utilities charges that the landlord seeks, I cannot make an order in the landlord’s favour. The invoices establish the amounts to be paid and, in the case of all utilities other than internet, are necessary to distinguish between usage and supply charges. The supplied ledger is not sufficient to establish the tenant’s liability when better evidence is available.

35. In addition, any utility charge for which an invoice was or ought to have been issued to the tenant prior to 20-Jun-2023 is out of time by operation of Cl 39(9) of the Residential Tenancies Regulation 2019 (NSW) (RT Regs). This clause of the regulation limits the time for a claim of breach of the RTA to 3 months. This time limit was raised by the tenant during the proceedings and is noted by the landlord in email correspondence with the tenant.

36. The landlord has not sought, nor been granted, an extension to this time limit. There is nothing before me that suggests that the landlord could not have sought to recover these amounts earlier and, in the absence of sufficient evidence to verify the amounts being claimed (and to distinguish between usage and supply charges) I do not consider that it is appropriate to extend time of my own motion.

37. Accordingly, points of claim 3 – 5 and part of 6 are dismissed as out of time. The balance of 6 as well as 7 – 10 are dismissed on the basis that there is inadequate evidence to establish the landlord’s entitlement to the amounts claimed.

Repair and Cleaning Claims

38. It is convenient to divide the Repair and Cleaning Claims into two groups.

39. For each of points 11 – 21, the landlord asks the Tribunal to refer to the photographic evidence, and the (retrospectively completed) ingoing and outgoing condition reports.

40. For each of points 22 – 40, the landlord indicates that they identified these issues at a later stage and they are not, at least in some instances, identified in the condition reports.

41. In addition to their written evidence, each party was given an opportunity during the hearing to make further submissions in relation to each point of claim.

42. In addition to those submissions, the tenant also raised several more general issues including that:

1. The ingoing and outgoing condition reports were not completed as required;

2. The amounts sought by the landlord are excessive;

3. In relation to a number of points of claim, the landlord has not supplied evidence as to the condition of the premises at commencement of the tenancy;

4. The landlord attended the premises on a number of occasion throughout the tenancy and the issues identified after the tenancy were not raised;

5. The landlord has not provided evidence to support a number of claims including in relation to structural damage and mould;

6. There are significant variations between the amounts the landlord has sought in the proceedings, prior to the proceedings (including in email correspondence) and amounts quoted or invoiced from tradespeople;

7. She arranged a professional cleaner both throughout and at the end of the tenancy; and

8. She offered to have her cleaner and gardener re-attend the premises.

43. Before making findings in relation to each of the Repair and Cleaning Claims, it is convenient to address a few general issues.

44. In relation to the condition reports, there is no dispute that these were completed retrospectively. For this reason, they cannot be relied on for the purpose of s 30 of the RT Act. As in Hall, this does not mean the landlord cannot establish a claim on the basis of other evidence.

45. However, there are significant difficulties with the landlord’s photographic and other evidence. It’s clear that the landlord has had to review other records she has in an effort to establish the condition of the premises at commencement of the tenancy however, for quite understandable reasons, this material often shows only parts of the premises and appears to have been taken over some space of time. I do not regard the text message exchanges between the parties as either:

1. Acceptance by the tenant that the premises was impeccably clean or undamaged at commencement of the tenancy; or

2. Evidence on their own as to the condition of the premises.

46. As is set out later in these reasons, this presents challenges in making findings in favour of the landlord. The Tribunal is required to determine the application on the basis of the evidence before it, not on the basis of evidence which may be available if the parties had prepared or ran their case differently.

47. Additionally, there are some challenges in accepting the quantum of compensation sought by the landlord. On 18-Sep-2023, the landlord wrote to the tenant with an extensive list of concerns including quoted costs to rectify some of those issues.

48. That correspondence refers to cleaning and other works which in some cases are at a significantly reduced cost relative to the amounts sought by the landlord during the hearing. This is a challenge for the landlord because she has a common law obligation to take reasonable steps to mitigate her losses. In circumstances where she has represented to the tenant that she has obtained a quote for works, it is reasonable for the landlord to provide some explanation as to why she has now sought to resile from those lower quotes in favour of significantly higher costs.

49. During the hearing, the landlord indicated that she had previously worked with GSA Maintenance and the reason for engaging them for the bulk of the work was, essentially, convenience. While understandable, in my view this is not consistent with the landlord’s obligation to take reasonable steps to mitigate her losses, particularly in circumstances where GSA Maintenance:

1. appears to have been based in Tasmania when the cleaning work was performed (having previously traded as Tasmania Renovations, as evidenced in the cleaning invoice issued in that name to the landlord on 22-Sep-2023);

2. has charged but is not registered for GST;

3. has given very limited particulars about the scope of some work performed, including no indication of hours or days worked; and

4. does not appear to have qualifications, skills or experience in relation to some specialist work including mould remediation.

Point of Claim 11

50. This point of claim is dismissed because I am not satisfied that the landlord has provided sufficient evidence to establish that the tenants have breached s 51(3) (or any other provision) of the RT Act.

51. I accept that the landlord’s evidence establishes the presence of some superficial mould however the landlord has not shown that the mould:

1. is incapable of being removed through ordinary cleaning (a claim for which is addressed later in these reasons);

2. has arisen as a result of the tenant’s intentional or negligent conduct while occupying the premises.

52. Nothing before me establishes a credible theory for how the tenant has caused or contributed to the mould. The most likely cause of the mould may well be the unfortunate affects of weather, which are outside of the control of both parties.

53. I accept the tenant’s uncontested evidence that the curtains were in the process of being cleaned at or around the end of the tenancy when the landlord attended to perform an inspection.

54. I note that the landlord has not engaged a specialist tradesperson to perform this or other mould remediation work which form part of the claim. The tradesperson appears to be a builder. It’s not clear that the builder has any particular skills or experience that would let them go beyond replacing or ordinary cleaning work in relation to mould.

Point of Claim 12

55. On balance I am satisfied that the tenant has caused a dent in the wall of one bedroom, damage which amounts to a breach by the tenant of s 51(3) of the RT Act. I accept the photographic evidence supplied by the landlord, in particular the photographs of someone’s hand by the mark on the wall for a point of reference. Given the email/text message correspondence between the parties at or around commencement of the tenancy, I consider it unlikely the mark would have been present at commencement of the tenancy. The tenant did not suggest that the mark was present at commencement of the tenancy and did not strongly resist this point of claim during the hearing.

56. Given the size of the mark and its position in the room, I do not accept that this is fair wear and tear. I allow compensation of $250, being the amount claimed by the landlord for the corresponding item in the GSA Maintenance Invoice less the GST component. The reason for not allowing GST is that, at the time of the hearing, the Australian Business Register records that the tradesperson who supplied the invoice is not registered for GST.

Point of Claim 13

57. I am satisfied that the landlord has established a breach of s 51(3) of the RT Act in relation to this point of claim.

58. I accept the text message correspondence between the landlord and a tradesperson as adequate evidence that the floors were renovated shortly prior to the tenancy. I also accept that the supplied photographic evidence shows damage to the main bedroom floor.

59. As with point of claim 12, I consider that the extent of the marks on the floor mean that the damage goes beyond fair wear and tear.

60. I allow compensation of $1650, being the amount for the repairs set out in the GSA Maintenance Invoice less the GST component for the same reasons set out in relation to point of claim 12.

Point of Claim 14

61. I am satisfied that the landlord has established a breach of s 51(3) of the RT Act in relation to this point of claim, because the tenant has failed to leave the yard in a state that is consistent with the state it was in at commencement of the tenancy, in particular because the yard is:

1. Is substantially more overgrown than it was at the start of the tenancy; and

2. Requires weeding.

62. In reaching this finding, I have considered the tenant’s offer to have her gardener return. I consider that this offer was made in recognition that the state of the garden was not satisfactory. I have also accepted the landlord’s photographic evidence, which I consider shows that the yard was in a worse condition at the end of the tenancy.

63. During the hearing, the landlord indicated that this work had not yet been performed. In an email to the tenant dated 16-Sep-2023, the landlord also advised that the lowest figure for the groundskeeping work obtained by the landlord was $700. This is significantly lower than the $2442 sought. The landlord has a duty to mitigate her loses. In my view, this extends to either engaging the more cost effective tradesperson, or explaining why the lower cost tradesperson was not engaged. This has not occurred and the landlord has not supplied the Tribunal with the quote that corresponds with the $700 figure. Given the time that has elapsed since the end of the tenancy and the hearing, I am also not satisfied that the supplied quotation is an accurate representation of the costs that the landlord will incur to perform further yard work.

64. In the absence of adequate evidence to establish the costs to remedy the breach of s 51(3) in relation to yard work, I will allow nominal compensation of $100

65. There is a general obligation on the Tribunal to attempt to assess damages rather than ordering nominal compensation even if the evidence available to do so is limited or incomplete however, as described in Anforth’s Residential Tenancies Law and Practice 8^th edition at [2.187.2(c)], this is not the case where the difficulty arises because the applicant has produced evidence of loss which has, as in this case, been rejected by the Tribunal (Ho v Powell (2000) 51 NSWLR 572; Oran Park Motor Sport P/L v Fleissig [2002] NSWCA 371 at [66]).

Point of Claim 15

66. This point of claim is dismissed because I am not satisfied that the landlord’s evidence establishes that the tiles in the kitchen have been damaged through the tenant’s breach of s 51(3) of the RT Act.

67. I accept, on the basis of the supplied photographic evidence, that there is a deformity in the tiles but nothing in the landlord’s evidence explains why this must have arisen through the tenant’s breach of s 51(3) of the RT Act, as opposed to other causes such as the ordinary use of the kitchen or defective workmanship in the building works. In the absence of such evidence and in circumstances where ordinary use of the kitchen would result in some water on the floor (either through cooking spills or through cleaning) I do not consider that the fact of the damage alone is sufficient to find that the tenant has breached s 51(3).

Point of Claim 16

68. I am satisfied that the tenant has failed to leave the premises reasonably clean, in breach of s 51(3) of the RT Act, however I am not satisfied that the landlord has provided adequate evidence to support the quantum of compensation sought.

69. I have reached conclusion that the tenant has breached s 51(3) of the RT Act on the basis of the email/text message correspondence between the parties, the supplied photographic evidence and the tenant’s concession that she is liable for some cleaning costs. Specifically, I am satisfied that work required would include cleaning of:

1. the kitchen, including benchtops and cooking surfaces;

2. the outdoor deck;

3. the laundry; and

4. downstairs bedroom.

70. The landlord relies on the BSP Maintenance Invoice to support the quantum claimed for this point of claim. This invoice appears to be the first one issued by the business, does not include an ABN and, on a review of the Australian Business Register, there is no company or business name registration for “BSP Maintenance”. The Register does appear to contain a registration for a Mr Brock Patterson, who is named on the invoice, but this is as a sole trader without any registration for GST.

71. The tenant has also supplied the Tribunal with an invoice she appears to have received from the landlord for end of lease cleaning work performed by Tasmania Renovations, being an unregistered business name that appears to be operated by a Leonardo Lima. Mr Lima is the sole trader who also appears to trade (again without registration) as GSA Maintenance.

72. Both the BSP Maintenance Invoice and the Tasmania Renovations invoice include work for cleaning the deck at the premises. It’s not credible that either of Mr Lima or Mr Patterson performed this cleaning work in circumstances where the landlord’s husband has, on 27-Sep-2023, sent text messages with accompanying photographs showing himself cleaning the deck and indicated that he has expended significant effort performing this cleaning.

73. No explanation has been given by the landlord as to why:

1. two invoices have been issued for the same work from different traders;

2. both invoices seek to recover GST for which neither trader is registered;

3. at least some of the work described in those invoices would need to be performed by both the trader and by Mr Vilimaa; or

4. both the BSP Maintenance Invoice and the Tasmanian Renovations invoice significantly exceed the cleaning costs that the landlord referred to in her email to the tenant dated 16-Sep-2023 ($600); or

5. the landlord has not supplied the Tribunal with a copy of the quote for cleaning services referred to in her email of 16-Sep-2023.

74. On the material before me, I am satisfied that the landlord, her husband or their family members have performed some of the cleaning work they now seek to recover costs for at the end of the tenancy. This being the case, I am not satisfied that the BSP Maintenance Invoice reflects the costs actually incurred by the landlord to remedy the tenant’s breach of s 51(3) of the RT Act, nor am I satisfied that, if the landlord had a cleaning quote for $600 as she represented to the tenant on 16-Sep-2023, the landlord has taken reasonable steps to mitigate her losses.

75. In the absence of adequate evidence to establish the cleaning costs the landlord has incurred to remedy the tenant’s breach of s 51(3) of the RT Act, I will allow nominal compensation of $100. The principles relevant to this determination are set out in relation to point of claim 14.

76. I do not accept the tenant’s argument that the landlord should be required to have their cleaner re-attend, even if the cleaner was available to do so. There is no legal obligation for the landlord to do this and in circumstances where the landlord was plainly dissatisfied with the tenant’s cleaner at first instance it is reasonable that the landlord may wish to engage another tradesperson.

77. The tenant argues that the cleaning of the kitchen is unnecessary because the landlord intended to proceed with renovations. I do not accept this as there is inadequate evidence to support this allegation. While I accept that she has statutory declarations from other people repeating this representation, the contents of those declarations are not based on communications between the landlord and those third parties. Accordingly, the declarations do not add anything to the tenant’s own evidence on this point.

Point of Claim 17

78. This point of claim is dismissed because I consider that it is out of time by operation of Cl 39(9) of the RT Regs.

79. I have made this finding on the basis of the text message correspondence between the tenant and Mr Vilimaa on 20-Jan-2023, in which the tenant identifies that the dog door flap had broken but has been reattached.

Point of Claim 18

80. I am satisfied that the tenant has replaced a tap in the laundry without consent of the landlord, in breach of s 66(1) of the RT Act.

81. I have reached this finding on the basis of the supplied photographic evidence, and the sworn evidence of the parties (in particular because it does not appear to be contested that the tenant changed the tap in question).

82. I allow compensation of $70, being the amount for supply and installation of the replacement tap set out in the GSA Maintenance Invoice less the GST component for the same reasons set out in relation to point of claim 12.

Point of Claim 19

83. This point of claim is dismissed because I am not satisfied that the landlord has established that the damage to the door in the laundry has arisen as a result of the tenant’s breach of s 51(3), as opposed to damage which may have been caused or contributed to by the landlord’s dog.

84. I accept that the photographic evidence supplied by the landlord shows some damage to the door however the damage appears to be quite minor, and I am not satisfied that the landlord has been able to establish that this was not caused or contributed to by their dog which remained at the property throughout the tenancy.

Point of Claim 20

85. This point of claim is dismissed for the same reasons as point of claim 11 and because I am not satisfied that the landlord has established any breach of s 51(3) beyond what has already been found in relation to point of claim 16, which would include general cleaning work to remediate any superficial mould.

Point of Claim 21

86. This point of claim is dismissed because I am not satisfied that the landlord’s photographic or other evidence is sufficient to establish that the tenant has caused damage to the walls which is both inadequately addressed by the cleaning addressed in point of claim 16 and beyond fair wear and tear. I accept that there are some marks by the fireplace, but these do not appear to be marks which are damage to the paintwork, they look like flecks of dirt or similar.

Point of Claim 22

87. This point of claim is dismissed for essentially the same reasons as for point of claim 11.

Point of Claim 23

88. This point of claim, which appears to include a tip for a delivery driver, is dismissed because I am not satisfied that the landlord has established that the damage to the washing machine has arisen as a result of the tenant’s breach of s 51(3) of the RT Act, as opposed to:

1. ordinary use of the machine over time; or

2. a manufacturing defect.

89. The landlord gave sworn evidence that the washing machine was around 1 year old at the start of the tenancy, and that tenant has damaged the washing machine at the premises. The specific damage identified is leaking and that the drum is out of alignment. In support of the quantum claimed, the landlord relies on the Appliances Online Invoice. The landlord has not advanced any theory as to have the tenant is to have caused or negligently allowed this damage.

90. The tenant’s submissions in reply included that the washing machine was in use at the end of the tenancy, to clean curtains.

91. In relation to this point of claim, I am satisfied that the washing machine was leaking at the end of the tenancy however, I consider that the landlord has not established why this damage must have arisen through the tenant’s breach of s 51(3) and not ordinary use of the machine or a manufacturing defect.

92. The statement that the machine has a drum which is out of alignment suggests some inspection or consideration has been given to the nature of the fault that the machine had, however the nature of this consideration has not been disclosed to the Tribunal.

Point of Claim 24

93. The landlord’s sworn evidence is that the floorboards are scratched and dented in a number of areas, and that they have been damaged by pet urine and faeces. The landlord notes that the cost to replace the floorboards is expensive, but submits that this is because they are Tasmanian Oak.

94. The landlord has also supplied text message correspondence with a tradesperson, to show that the floors were freshly sanded and stained a relatively short time prior to the tenancy.

95. In support of the quantum claimed, the landlord relies on the GSA Maintenance Invoice.

96. In reply, in addition to the general submissions that some marks and stains would amount to fair wear and tear, the tenant has supplied a text message exchange with the tradesperson who I understand to have originally installed the floors, pricing the work for supply and installation at $2200.

97. In relation to this point of claim, and noting that I have found in the landlord’s favour in relation to point of claim 13, which covers a more limited are of the main bedroom floor and for which I consider there is better evidence to establish the alleged damage, I am not satisfied that the landlord has provided sufficient evidence to:

1. show the damage to the floorboards that is described in the relevant line item in the GSA Maintenance Invoice; and

2. establish that the floorboards were damaged by pet urine/faeces, as alleged.

98. I accept that there are some marks on the floor throughout the premises, however I do not consider that these go beyond fair wear and tear in a home that was used by a family with three young children as well as pets (including the landlord’s dog). Wear and tear for floorboards in those circumstances can be significant.

99. The landlord’s present characterisation of the damage is also inconsistent with the communications between the parties shortly after the end of the tenancy. On 18-Sep-2023, the landlord advised the tenant of a range of issues she hoped to have rectified at the end of the tenancy. This issue, which carries a very substantial cost, was not raised at all but other issues to do with the flooring (particular the issue raised at point of claim 13) were.

100. The floors were also supplied and installed by a trader other than GSA Maintenance originally and, on the basis of the text message exchanges provided by the tenant, appear to have been either supplied and installed or capable of being repaired by the alternative trader at a lower cost.

101. I raise this because, had I found that the landlord had established a breach by the tenant of s 51(3) on this point of claim, I would not be satisfied that the landlord has provided sufficient evidence to justify the cost claimed. There is no detail about how GSA Maintenance has arrived at the cost, for example the amount of timber used or the spaces that needed to be replaced, the hours worked, refinishing or cleaning required. The landlord has to provide evidence to support the total amount being claimed with as much precision as the subject matter reasonably permits and that has not occurred in relation to this point of claim.

Point of Claim 25

102. The landlord argues that the tenant has rehung a door in the premises the wrong way around, resulting in works required to rectify a breach of s 51(3) in relation to the state of that door. In support of the quantum claimed, the landlord relies on the GSA Maintenance Invoice.

103. The tenant denies rehanging the door.

104. This point of claim is dismissed because I am not satisfied that the landlord’s evidence establishes the condition of the door at commencement of the tenancy. In the absence of such evidence, I cannot find that the tenant has breached s 51(3) of the RT Act.

Point of Claim 26

105. This point of claim is dismissed because I am not satisfied that the landlord has provided sufficient evidence to establish the condition of the kitchen drawers at commencement of the tenancy. In circumstances where the tenant submits that the damage was pre-existing (and has provided statutory declarations from persons present when she moved in to support this view), I cannot find that the tenant has breached s 51(3) in the manner that the landlord has claimed.

Point of Claim 27

106. This point of claim is dismissed because I am not satisfied that the landlord has established the presence of a pest problem at the property which required the work claimed by the landlord. There is no breach by the tenant of s 51(3) in relation to this point of claim.

107. I accept that the photographic evidence shows several cockroaches, and a small number of nests which are alleged to belong to wasps on one door. It’s not clear from the photographs that there is a cockroach, wasp or other pest problem beyond what might be ordinarily expected at a bush block.

108. I also note that, from the tenant’s evidence, the tenants raised an issue with intrusions into the property by mice. While the tenants did not appear to request any action to remedy this, it’s not clear that the landlord has taken any action to address the problem.

109. In addition, the GSA Maintenance Invoice offers no detail to show the work that was performed to address this issue, nor does Mr Lima appear to have any particular experience or qualifications associated with pest control work.

Point of Claim 28

110. On balance, I am satisfied that the tenant has left rubbish at the premises which needed to be removed, however I am not satisfied that the landlord has otherwise established a breach of s 51(3) which goes beyond the matters already addressed in relation to point of claim 14.

111. The photographs of the property clearly show rubbish which does not appear to be present at commencement of the tenancy. I also consider that, in circumstances where the landlord has shown the tenant has not been frank about council clean-ups, the tenant’s evidence on this point is not entirely credible.

112. In relation to the balance of this point of claim, the landlord’s evidence about the area below the deck is insufficient to establish its condition at commencement of the tenancy.

113. I will allow compensation of $175 on this point of claim, being half the amount sought for the corresponding work in the GSA Maintenance Invoice less GST.

Point of Claim 29

114. On balance, I am satisfied that the tenant installed the grip tape complained of by the landlord without consent during the tenancy. This amounts to a breach of s 66(1) of the RT Act.

115. I accept the landlord’s documentary evidence, including the written statements, on this point. I am satisfied that the tape was not present at commencement of the tenancy. While the reasons for this may be understandable, I am not satisfied that the tenant had the landlord’s consent to install this tape and, accordingly, she has breached her obligations under s 66(1) of the RT Act.

116. I allow compensation of $230 on this point of claim. This is the amount set out for the relevant work in the GSA Maintenance Invoice less GST for the reasons set out in relation to point of claim 12.

Point of Claim 30

117. During the hearing, this point was conceded by the tenant. I allow compensation in favour of the landlord in the amount sought ($5.83).

Point of Claim 31

118. During the hearing, this point was conceded by the tenant. I allow compensation in favour of the landlord in the amount sought ($31.19).

Point of Claim 32

119. The landlord submits that the tenant has caused damage to the decking, which will require work to re-stain or oil. The landlord is particularly concerned about a spa bath which was placed on the deck for the duration of the tenancy. The landlord submits that this is likely to have had a capacity of between 600 and 1000 litres, resulting in damage to the deck.

120. The landlord has also supplied text messages, which state that Mr Vilimaa oiled the deck shortly prior to commencement of the tenancy.

121. In support of the quantum claimed, the landlord relies on the GSA Maintenance Invoice.

122. In reply, the tenant submits that the landlord’s photographs show that the marks on the deck were not permanent and were resolved by mopping the deck, referring to the photographs in Tab 15 of the landlord’s documentary evidence.

123. Having considered the photographic evidence, I am not satisfied that the marks on the deck, to the extent they cannot be resolved through cleaning, go beyond fair wear and tear and weathering that is to be expected from an outdoor area, particularly in circumstances where the recent work to oil the deck was not recently performed by a professional.

124. This point of claim is dismissed.

Point of Claim 33

125. The landlord argues that the tenant has failed to clean 2x reverse cycle air-conditioners and seeks additional costs for cleaning of the same.

126. I am not satisfied that the landlord has:

1. provided adequate evidence to establish that the air-conditioners were cleaned at commencement of the tenancy;

2. established why this issue was not capable of identification as part of the outgoing condition report; and

3. Shown why this would not be performed as part of the exit clean referred to in Point of Claim 16.

127. The landlord has not established a breach by the tenant of s 51(3) of the RT Act and accordingly this point of claim is dismissed.

Point of Claim 34

128. This point of claim is dismissed because I am not satisfied that the landlord’s evidence establishes the condition of the cupboard at commencement of the tenancy and, in the absence of such evidence, I cannot find that the tenant has breached s 51(3) of the RT Act.

Point of Claim 35

129. The landlord relies on photographs of the premises to support her allegation that the tenant has breached s 51(3) by damaging 3x sections of skirting board. In support of the quantum claimed, the landlord relies on the GSA Maintenance Invoice.

130. The tenants submit and the landlord denies that the damage was contributed to by the landlord’s dog, which remained at the premises in the care of the tenants for the duration of the tenancy.

131. Having considered the evidence provided by both parties, I am satisfied that one section of the skirting board, near the deck, has damage which was caused or negligently allowed by the tenant during the tenancy. I do not consider that the marks are consistent with damage by a pet, and allow compensation of 1/3^rd of the amount sought by the landlord less GST ($133.33).

132. In relation to the other two sections of skirting board, the photographic evidence does not establish marks or damage which are incapable of being cleaned.

Point of Claim 36

133. This point of claim is dismissed because I am not satisfied that the landlord’s evidence is sufficient to establish that the tenant has replaced a lock in the laundry or caused or negligently allowed other damage which has necessitated replacing a door frame in the laundry.

Point of Claim 37

134. This point of claim is dismissed because I am not satisfied that the landlord has established a breach by the tenant of her obligations under s 71(1) of the RT Act.

135. The landlord allege that a door needed to be replaced because a lock had been changed by the tenant, and that this work was not done professionally. The tenant denies this allegation.

136. The tenant’s chronology details various attendances by the landlord throughout the tenancy, including on 23-Aug-2023 when the tenant was not present but left keys for the landlord. In that context, I am not satisfied that the landlord has provided sufficient evidence to establish this claim on the balance of probabilities.

Point of Claim 38

137. This point of claim is dismissed because, from the material provided, it appears to be a duplicate of point of claim 12, which is addressed earlier in these reasons. The condition report prepared by the landlord does not note a second dent, nor is a second mark apparent in the photographs that have been supplied.

Point of Claim 39

138. The landlord has established that the tenant has caused or negligently allowed damage to 6 of the 10 chairs at the premises, in beach of s 51(3) of the RT Act.

139. In reaching this finding, I have accepted the landlord’s sworn evidence that the chairs were a wedding gift, received a few months before the tenancy. I also accept that the photographic evidence shows that the chairs were in very good condition at commencement of the tenancy and were, for some of the chairs, scratched and damaged at the end of the tenancy. It’s not necessary to decide how this damage has occurred but it does appear consistent with damage by a pet cat.

140. I have considered the tenant’s submissions that:

1. The landlord advised that they intended to repair the chairs, rather than replace them; and

2. The landlord did not indicate the value of the chairs, and that if this was made known to the tenant she would have left them in storage.

141. This does not relieve the tenant of her obligations under the RT Act.

142. I’ve decided that there’s only sufficient evidence to establish the damage to 6 of the chairs because:

1. The ingoing photos supplied by the landlord appear to only show 7 of the chairs and from some distance;

2. The outgoing photos only show 9 of the chairs in any detail (though one photo does show 10 chairs); and

3. The marks on 3 of the chairs are sufficiently minor that I consider they amount to fair wear and tear, having regard to the current ATO guidelines which provide that freestanding furniture will depreciate over 13 1/3 years.

143. The tenant did not argue that the she did not damage the chairs. Her reply to this point of claim was in the nature of an argument in mitigation, or that the chairs were to be sold by the landlord through a garage sale. I am not satisfied that there is evidence to show that the landlord intended to sell or otherwise dispose of the chairs.

144. On balance, I am satisfied that:

1. There were 10 chairs in the premises;

2. The chairs were approximately 2 years old at the end of the tenancy;

3. The tenant has, on the basis of the supplied photographs, caused or negligently allowed damage to 6 of the chairs; and

4. The replacement chairs the landlord wishes to purchase appear to be of a similar style and quality to the original chairs.

145. I do not consider that the landlord’s evidence is sufficient to establish the damage to the remaining chairs.

146. I will allow compensation of $2256.65, being 60% of the amount claimed by the landlord less 2 years of depreciation.

Point of Claim 40

147. This point of claim is dismissed because I consider that the claim is out of time by operation of cl 39(9) of the RT Regs. Had I not dismissed the claim as out of time, I am not satisfied that the landlord has provided sufficient evidence to establish that the tenant has caused structural damage to the deck.

148. The claim is out of time because I accept the tenant’s evidence, which was not contested by the landlord, that the landlord repeatedly attended the property throughout the tenancy including on Apr-2023 the landlord asked the tenant to move the spa. I consider that, to the extent the landlord had a concern about damage to the deck, this ought to have been apparent to the landlord in Apr-2023. This point of claim is accordingly out of time.

149. In the alternative, this is a claim for a significant amount of money and neither the supplied photographs nor the Kingsman Construction Document show how the apparent bowing in some timber on the deck must have arisen through the tenant’s breach of s 51(3) as opposed to ordinary use or existing building defects.

150. I’ve considered the landlord’s argument that the deck was constructed in Jan-2021 and has likely been damaged due to the tenant’s use of a spa bath on the deck, however I accept the tenant’s evidence that the spa was only used on a small number of occasions as hydrotherapy for her son before being drained. I am not satisfied that the empty spa would have caused structural damage to a timber deck.

Conclusion

151. For the above reasons, I have allowed the landlord compensation as follows:

1. Rental arrears to the date for vacant possession - $1300;

2. Damage to a wall in the master bedroom - $250;

3. Damage to floorboards in main bedroom - $1650;

4. Yard/Lawn work - $100;

5. Cleaning - $100;

6. Replacement laundry tap - $70;

7. Rubbish removal - $175;

8. Removal of grip tape on deck - $230;

9. Replacement lightbulb - $5.83;

10. 3x replacement heat lamp bulbs - $31.19;

11. Repair of damage to 1x section of skirting board - $133.33; and

12. Replacement of 6 chairs - $2256.65.

152. After deduction of the bond of $1300 already held by the landlord, the total amount payable by the tenant is $5002.

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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: 13 August 2024