Goodair, Radaza & Westworth v Wong
[2010] QCAT 224
•27 May 2010
CITATION: | Goodair, Radaza & Westworth v Wong [2010] QCAT 224 |
PARTIES: | Goodair, Radaza & Westworth v Wong |
APPLICATION NUMBER: 979/10
MATTER TYPE: Residential tenancy matters
HEARING DATE: 16 April 2010
| HEARD AT: DECISION OF: DELIVERED ON: | Brisbane Tammy Williams, Sessional Member 27 May 2010 |
| DELIVERED AT: CATCH WORDS: ORDERS MADE: | Brisbane Dispute over rental bond, sections 11 and 12 of the Queensland Civil and Administrative Tribunal Act 2009, Residential Tenancies and Rooming Accommodation Act 2009, where both parties had a legitimate claim over a portion of the rental bond. |
The Tribunal makes the following orders:
The Residential Tenancy Authority is ordered to:
a.Pay $1,383.10 to the applicants; and
b.Pay $1, 056 to the respondent in partial satisfaction of this order.
The applicants are further ordered to pay $200 to the respondents by 14 June 2010.
REASONS FOR DECISION
Introduction
The issue in dispute is whether the applicants are entitled to a rental bond refund of $2144.52.
Mr Mark Goodair, Mr Anthony Radaza and Ms Cara Westworth filed an application on 24 March 2010 with the Queensland Civil and Administrative Tribunal (QCAT), naming Ms Alice Wong as the respondent.
Hearing
The Tribunal held a hearing on 16 April 2010 at the Queensland Civil and Administrative Tribunal’s hearing rooms in Brisbane. Both parties were present, however the second applicant, Mr Radaza did not attend. The matter proceeded in his absence with the first and third applicants making submissions and giving evidence to the Tribunal in support of the joint claim.
The three applicants entered into a written tenancy agreement for a period of six months from 24 July 2009 to 23 January 2010 and agreed to pay $1,220 a fortnight for the property.
The property was a unit within an inner city apartment complex. As part of the agreement the tenants were designated one car parking space in the basement of the building. The use of this car park was governed by the Body Corporate By-laws. .
The applicants gave notice of their intention to leave. Although a copy of this notice was not provided to the Tribunal, other evidence shows the intended handover date was 31 January 2010. On the morning of 1 February the respondent, Ms Alice Wong, emailed Ms Cara Westworth (the third applicant) noting that the handover date had passed and asked the applicants to advise of their intentions to leave the property.
Ms Westworth replied on behalf of the applicants and sought extra time to vacate.
“We believe we will be able to have moved out of the unit by this coming weekend; as such we wish to pay for each additional day that we require to spend in unit 5 from Thursday 4th Feb (sic). If we hear otherwise or if any of these details change, I will inform you immediately.”
After vacating the property, the applicants argue that of the $2440 bond held in trust by the Residential Tenancies Authority they are entitled to a refund of $2144.52.
At the end of the hearing, the Tribunal reserved its decision.
Relevant Legislation
[10] The Tribunal has jurisdiction to hear and decide this matter pursuant to sections 11 and 12 of the Queensland Civil and Administrative Tribunal Act 2009 (the ‘QCAT Act’). This was a claim by the applicants against the respondent for relief under the Residential Tenancies and Rooming Accommodation Act 2009 (the Act’) for a residential agreement over the property located at the address identified in the claim.
[11] In matters involving a minor civil dispute, the Tribunal must make orders it considers fair and equitable to the parties in order to resolve the dispute. But if it is considered appropriate, the Tribunal may make an order dismissing the application pursuant to section 13(1) of the QCAT Act. Because this is a tenancy matter, the Tribunal has the power pursuant to section 13(2)(b) to make a decision pursuant to the Residential Tenancies and Rooming Accommodation Act.
[12] Section 429(1) of this Act provides if there is a dispute between the lessor and tenant about an agreement, either party may apply to the Tribunal for an order; and the Tribunal may make any order it considers appropriate to resolve the dispute.
Applicants’ Submissions
[13] The applicants sought an order from the Tribunal for a rental bond refund of $2144.52 and to be reimbursed $90 for the filing fee to lodge the application.
[14] From the outset (and to their credit) the applicants accepted responsibility and agreed to reimburse the respondent for the replacement of an air conditioning remote (being $121.20) and two days rent - for the 5 February and 6 February 2010 (being $174.28). Therefore the applicants argued the respondent’s legitimate claim on the bond was only $295.48.
Date of Handover
[15] In their written submissions to the Tribunal, the applicants assert the actual handover date of the property was Saturday, 6 February 2010. Although Ms Wong was not available to do the handover on that date, she apparently directed the applicants to “place all keys and materials inside the premises and lock it up so that she could come by to collect them when possible.”
[16] After the cleaners attended to the property, it was the applicants’ evidence they “called Alice to notify her that we were just waiting on pest control to finish before we did as instructed and left all keys etc (sic) locked up in the apartment. Vacant possession of the apartment was given on 06/02/2010.”
Cleaning
[17] Part of the respondent’s counter-claim is that further cleaning was required after the tenants had vacated. Whereas the applicants argue they should not have to reimburse the respondent for the cost of any additional cleaning because:
“We had a guarantee with our cleaning contractors that any additional cleaning required would be taken care of, free of charge. We were never given opportunity (sic) to allow the cleaners access to the property again to meet any of the lessor’s claims that items were not sufficiently clean.”
Damage to property
[18] The applicants admitted to minor damage to the property. However they argued such damage “should fall under fair use (sic) and for which we should not be held liable.”
[19] However the applicants did not specify the items damaged; nor did they provide any evidence to support their claim that the damage was caused by fair wear and tear - other than oral evidence, in the form of answers to the Tribunal’s questions.
Parking Fine
[20] The respondent fined the applicants $200 for not complying with the Body Corporate By-laws - namely parking their vehicle in a car parking space not allocated to the tenants. At the time of the hearing the fine remained unpaid and so the respondent sought to recover it from the rental bond.
[21] The applicants’ explained the fine was incurred on “the day we were vacating the premises as a vehicle was temporarily parked in an unoccupied parking space on the property in order to load items” and strongly argued Ms Wong should not be allowed to make this claim over the bond monies.
The Respondent’s Submissions
[22] The respondent sought a compensation order from the Tribunal for $2,509. Her submissions and evidence can be summarised as follows.
Date of Handover
[23] Ms Wong’s evidence was that she offered to accept the keys from the applicants on the evening of Saturday 6 February 2010. However, at 9 o’clock that night, she noticed the applicants were still moving their possessions out of the apartment. The respondent says she had a conversation with Anthony [the second applicant] and “he said he would phone me when the keys are returned to the premises after the pest control company had finished their job.” The respondent did not receive a call from the tenants.
[24] On Monday, 8 February 2010 the respondent emailed the applicants: “if you have completed cleaning and pest control please immediately return all the keys and car park remote control inside Unit 5 and PHONE ME so that I can pick them up ASAP.” She also reminded the applicants of their responsibility to pay rent until the handover was completed.
[25] Ms Westwoth replied via email on 9 February 2010 and informed the respondent that the keys and receipts were left in the apartment on Saturday evening. After receiving the email, Ms Wong obtained the keys and conducted a final inspection of the property. The respondent argued this was when the handover was completed and she received vacant possession of the property.
[26] Because the applicants failed to vacate the property at the end of the lease and requested additional time to move, the respondent argued the lease had changed to a periodic tenancy. As such the tenants were required to give fourteen days notice of their intention to leave. Instead, Ms Westworth emailed the respondent on 1 February 2010 and advised “will be able to have moved out of the unit by this coming weekend.” Therefore the respondent was of the view, the applicants should pay two weeks rent in lieu of notice.
Cleaning & repairs
[27] Ms Wong provided the Tribunal with a copy of the ‘Cleaning Checklist’ given to the applicants before vacating the premises. The purpose of the list was to remind the tenants of the items to be cleaned prior to the exit inspection. A copy of the Entry Condition Report was relied on as evidence that the property was in a good condition at the commencement of the tenancy.
[28] However the property was not left in the same condition when the respondent received vacant possession. As evidence of the apartment’s condition the Tribunal was provided with approximately 20 photographs and a claim of $1.089 for the cost of materials and labour to repair the property - based on a quote obtained from D & S Renovations & Home Maintenance.
Parking Fine
[29] The respondent believes the applicants should be required to pay a $200 parking fine for infringing the Body Corporate By-law. All three applicant tenants signed the By-law and agreed to “park a motor vehicle in his [sic] allocated exclusive use car parking space...” Additionally the respondent sent reminder notices to the tenants, explaining that because the building does not have a visitor’s parking area “the Body Corporate will take strict action to have unauthorised cars towed away immediate, and a fine of $100 will be imposed. Repeated offenders will be fined $200 and be prosecuted.”
[30] Evidence provided by Ms Wong shows the applicants were “repeat offenders” and previously fined for parking in another apartment’s bay.
The Tribunal’s View
[31] The Tribunal carefully considered the evidence and submissions of both parties in light of the legislative obligations imposed on both the lessor and tenant.
[32] Although the oral evidence of both parties was presented in a direct and clear manner, the respondent provided substantial written evidence to the Tribunal as to:
· The condition of the property (before and after they took possession); and
· The notices given to the applicants about their tenancy obligations.
[33] This documentary evidence was consistent with Ms Wong’s oral submissions; and bolstered her creditability.
Handover and rent payable
[34] The applicants were provided with an ‘End of Lease Reminder’, dated 23 December 2010 and advised of their obligation to pay “additional rent up to and including the day of hand over if there is any delay in cleaning and hand over.” This obligation was consistent with the special terms attached to the Applicants’ tenancy agreement. Therefore the Tribunal finds the applicants responsible for paying rent up to and including 9 February 2010 – the handover date.
General cleaning
[35] The Tribunal notes paragraph two of the special terms, of the signed Residential Tenancy Agreement:
“If [the handover] inspection reveals that the premises is not properly cleaned, damages not repaired... the Tenant(s) authorize the Lessor to have the premises professionally cleaned, repaired, missing items replaces, keys cut or locks replaced at the Tenant(s)’ costs (sic).”
[36] The Tribunal accepts the respondent’s evidence that extra cleaning of the kitchen cupboards, oven tray, windows, washing machine and exhaust fan was needed after the applicants vacated the property. The respondent should therefore be reimbursed for the cost of cleaning these items.
Repairs and Damage
[37] Ms Wong’s oral evidence about the general condition of the property was consistent with the photographs and independent quote to repair the damage to the premises. The Tribunal is satisfied the applicants are responsible to pay for the cost to replace or repair the toilet roll holder and damage to the walls.
[38] However the applicants should not be required to compensate the respondent for the cracked tile, damaged diffuser and the removal of the “3M” hook in the wall. Although the applicants were unable to remove the hook, it was of the type which the tenants were instructed to use. The Tribunal also accepts the applicants’ oral evidence that the damaged diffuser was most likely caused by the electrician who had changed the light bulb.
[39] Section 188(4) requires tenants to leave the property and inclusions, as far as possible, in the same condition it was in at the start of the tenancy – with fair wear and tear excepted. The Act does not define ‘fair wear and tear’; however it would be unreasonable for a lessor to expect a property to be left in a perfect condition as it was at the commencement of the tenancy, without taking into consideration something which happens during normal use or changes that happen with aging.
[40] Nevertheless, the respondent is entitled to be compensated for the badly stained shower hose caused by Ms Westworth’s red hair dye. The Tribunal is not satisfied such damage is within the scope of ‘fair wear and tear.’
Oil stain
[41] The applicants should not be responsible for removing the oil stain on their designated car park space. This was not a specific requirement in their Residential Tenancy Agreement; nor was it included in the ‘Cleaning Checklist’ as an item to clean upon vacating the property.
Parking
[42] The applicants’ admit to infringing the Body Corporate’s parking regulations. However section 111(1) clearly states rental bond is intended to be available for the financial protection of the lessor against the tenant breaching the agreement. As such the recovery of the $200 unpaid fine should not be from the rental bond monies.
Conclusion
[43] In consideration of all of the matters mentioned above, the Queensland Civil and Administrative Tribunal is satisfied both parties have a legitimate claim over a portion of the rental bond.
0
0
0