Fitzmaurice v Conners - [2012] QCAT 537

CITATION:

Fitzmaurice v Conners [2012] QCAT 537

PARTIES:	Seamus Fitzmaurice
v
Natasha Conners

APPLICATION NUMBER:

MCDT953-12 (Brisbane)

MATTER TYPE:

Residential tenancy matters

HEARING DATE:

12 July 2012

HEARD AT:

Brisbane

DECISION OF:

Paul Favell, Member

DELIVERED ON:

31 July 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Residential Tenancies Authority pay out from the bond in respect of the premises at 26 Cowper Street Bulimba the sum of $3,110.00 to the Applicant and $490.00 to the Respondent.

CATCHWORDS:

MINOR CIVIL DISPUTE – Residential tenancy agreement – claim against bond

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Seamus Fitzmaurice

RESPONDENT:

Natasha Conners and Suzi Slattery for Belle Property Bulimba

REASONS FOR DECISION

The Applicant seeks a return of bond in the sum of $3,015.00 together with the filing costs of $95.00. The Applicant claims that the Respondent is invalidly claiming the entire bond to cover claimed rectification work. Those for rectified work are rejected by the Applicant and he asks that the Tribunal order the amounts claimed by the Respondent for the replacement of carpets, light bulbs, rectification of damage to walls and payment of outstanding water charges and rectification of bench tops be withdrawn.
The Applicant, Seamus Fitzmaurice, and Thomas Lohan entered into a general tenancy agreement with the lessor to rent, on a fixed term basis, premises at 26 Cowper Street Bulimba until 9 March 2012. The rental bond provided for in that agreement was $3,600.00. That bond was held by the Residential Tenancies Authority (RTA).
The claims made against the bond are six in total. They are: a claim to replace carpet to all areas, a claim for cleaning, a claim for the replacement of lights, a claim for paint and patchwork, a claim for a bench top and a claim for water charges.
The claim for the bench top compensation in the sum of $100 is agreed on as is the claim for cleaning in the sum of $100.
The claim for a replacement of the carpet is disputed. The cost of the replacement was $2,330.00. Exhibit 7 is a tax invoice from Andersens for the supply and installation of floor coverings to the total sum of $2,330.00.
The Applicants do not accept that the carpets needed to be replaced. They said that the carpets had been professionally cleaned by a carpet cleaner who was recommended by the owner’s agent prior to moving out. They say that the carpets were not new when they moved in and they left them in a fair and reasonable state upon their exit from the property. They say that fair wear and tear is the owner’s responsibility.
The agents for the owners had claimed that the carpets had been left severely stained past the point where cleaning would restore them. In that regard they rely on Exhibit 2 which is an exhibit from SafeClean Services in which the following description appears, “After 2 cleans notes permanent discolouration due to major soiling and no maintenance whilst tenanted.”
The Applicants point to an Entry Condition Report which is Appendix C to Exhibit 1 and which notes that the carpet was worn in Bedroom 1 and there were red stains in Bedroom 4. Appendix D to exhibit 1 is a series of photographs showing floor covering in various rooms of the house. I have also been provided with A4-size copies of photographs of various bedrooms. The bedrooms are noted on those photographs. Some of them show stains. Looking at the photographs in Exhibit 1, it is difficult to make out the stains which are shown in the close up photographs. The worst of the stains shown on the A4 are noted in the entry condition report, particularly in Bedroom 1 and Bedroom 4.
I am not satisfied that the carpet was damaged by the Applicants so as to require complete replacement. Nor do I accept that the house was maintained in a poor condition. In my view there should be no deduction made from the bond for the carpet replacement. I accept the evidence given on behalf of the Applicants concerning the state of the carpet and the wear and tear of it during their tenancy.
The second disputed claim is in respect of the replacement of light bulbs. The respondents claimed that there were 13 light bulbs that had to be replaced and the amount claimed for them is $70.96. The Applicant points out that on the completion of the exit inspection on 12 March there was no indication that any light bulbs required replacing. They say that fact is confirmed in an email of 14 March 2012. The Respondents say that they have since returned to the property after electricity had been reconnected and found that there were 13 light bulbs not working. The Applicant points out that when the exit inspection was done there was electricity to the property. They specifically say that at the time of the joint exit inspection all bulbs were operational. I accept their claim in that regard and it may be that there is another explanation for the bulbs blowing when the electricity was reconnected. I find that there is some merit in the fact that the bulbs were not noted in the exit report.
The third disputed claim is in respect of a claim of $1,003.75 for paint and patchwork. That claim is made out by tax invoice from “Garwin Home Handyman Services”, Exhibit 8. That claim is backed up by photographs which also form part of that Exhibit. Those photographs do show some marks and indentations.
The Respondents have claimed that there were over 220 dints/marks on the walls. That number of dints/marks is not made out in the photographs. The entry condition report outlines the number of marks that were pre-existing on the walls. That is show in Appendix C to Exhibit 1.
The Applicants accept that there were a few areas that required touch ups and they included a slight dint on the garage wall and four areas in the entrance hallway, staircase and landing. They are willing to allow five hours labour and material to rectify those areas. They say that is a generous allowance and they make that submission based on their qualifications as practising quantity surveyors. I accept their evidence in that regard and consider that the sum of $385.00 should be deducted from the bond.
The last area of dispute is in respect of the water charges. The claimed amount is $447.62. The tenants have an obligation pursuant to clause 17 of the general tenancy agreement to pay an amount for the water consumption charges for the premises if the tenant is enjoying or sharing the benefit of a water service to the premises and the premises are individually metered for the supply of water or water is supplied to the premises by delivery by means of a vehicle and the agreement states for item 12.2 that the tenant must pay for water supplied to the premises. Clause 12.2 of the agreement provides “Yes – excess water will be charged at $0.92 per kilolitre thereafter.”
The Applicant claims that the agreement is that they are only to pay excess charges. Exhibit 9 is the invoices and meter readings from Queensland Urban Utilities for water usage charges. Some of the invoices provided are for dates which are not for the period during which the premises were occupied by the Applicants. The ones that do include the period occupied by the Applicants do not make a distinction such that excess water is identified. I am of the view that the general tenancy agreement did not oblige the tenants to pay for the water charges unless excess water was used. I am not satisfied that there has been any excess use of water and I am not satisfied that the claim for payment of the water charges is appropriate and made out.
In my view the appropriate order should be that the RTA pay out from the bond in respect of the premises at 26 Cowper Street Bulimba the sum of $3,015.00 plus the filing fee of $95.00 to the Applicant and $585.00 to the Respondent.