Heshmati v Smith

[2022] NSWCATCD 32

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Heshmati v Smith [2022] NSWCATCD 32

Hearing dates:

11 March 2022

Date of orders:

21 March 2022

Decision date:

21 March 2022

Jurisdiction:

Consumer and Commercial Division

Before:

K Timbs, General Member

Decision:

The Rental Bond Services is directed to pay the landlord, Jason Smith, $800 from rental bond number S460120-7 with the balance of the bond, plus interest, to be paid to the tenant, Bijan Heshmati.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rental Bond claim

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Cases Cited:

Elhassen v Ayoub [2018] NSWCATAP 34

Patricia Panico v Crompton and Jennings [2015] NSWCATAP 110

Alamado Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWCA 224

Haskell v Marlow [1928] 2 KB 45

Adoncello v Sazdanoff [2006] NSWCTTT 577

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Bijan Heshmati (Applicant)
Jason Smith (Respondent)

Representation:

Applicant (Self-represented)
Respondent (Self-represented)

File Number(s):

RT 22/03288

Publication restriction:

NIL

REASONS FOR DECISION

Background

1. By application filed with the Tribunal on 25 January 2022 the tenant, Mr Bijan Heshmati, sought payment of a rental bond.

2. The tenant and the landlord, Mr Jason Smith, last entered into a residential tenancy agreement on 27 March 2021. Vacant possession of the property was given to the landlord on 19 January 2022.

3. A rental bond of 2,280 was lodged with the rental bond service in April 2019 when the parties first entered into an agreement. The bond is frozen until orders are made by the Tribunal.

4. The tenant seeks payment of the full bond and the landlord seeks end of tenancy charges of $1,200 to replace three plastic light fittings; a bathroom door and four doors for two bathroom vanity units.

Law

5. At the end of a tenancy the tenant must comply with the requirements of section 51(3) of the Residential Tenancies Act 2010. 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.

6. The landlord and the tenant must comply with sections 29 and 30 of the RTA in relation to the preparation of ingoing and outgoing condition reports. The purpose of the condition reports is to record the condition of the property at the commencement and the end of the tenancy in a similar manner and degree of detail.

7. Matters that may be the subject of a rental bond claim are set out in section 166 RTA and include:

• the reasonable cost of repairs to the residential premises as a result of damage (other than fair wear and tear) caused by the tenant; and

• the reasonable cost of repair, having regard to the condition of the premises at the commencement of the tenancy.

8. In determining damages and the reasonable cost of repairs the Tribunal will apply the Australian Taxation Guidelines as to the depreciation of fixtures and fittings in rental properties.

9. The concept of fair wear and tear was considered by the Appeal Panel in the matters of Elhassen v Ayoub [2018] NSWCATAP 34 and Patricia Panico v Crompton and Jennings [2015] NSWCATAP 110. In both cases the Appeal Panel cited Alamado Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWCA 224 in which the Court of Appeal referred to Haskell v Marlow [1928] 2 KB 45 “reasonable wear and tear means the reasonable use of the house by the tenant and the ordinary operation of natural forces”. The Appeal Panel noted that it follows that both natural forces and the actions of tenants can constitute wear and tear.

10. In Panico, the Appeal Panel also noted that the Tribunal must consider whether at the time vacant possession is given by the tenants the condition of the residential premises and the need for repair arises from the tenant’s use of the premises and/or any breach of the tenant’s obligations under section 51(1) and (2) of the RTA. If the tenant has intentionally or negligently caused damage or the wear and tear is not “fair” the tenant is liable to compensate the landlord for the cost of the repair.

11. Fair wear and tear is to be assessed objectively (Adoncello v Sazdanoff [2006] NSWCTTT577) and means damage or deterioration that arises from the reasonable use of the premises by the tenant for its intended purpose and or the ordinary operation of natural forces with “fair” being an objective standard based on prevailing community standards.

12. The landlord has the onus of establishing the claim.

13. The Tribunal must consider whether the tenant has acted in an intentional or negligent manner or whether damage has come about through normal use of the property and should be classified as fair wear and tear. 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 their damage, whether the damages claimed are proportionate and what depreciation is to be taken into account (ATO Guidelines).

14. The Tribunal must determine whether the tenant has acted in an intentional or negligent manner or has the damage came through normal use of the property and should be classified as fair wear and tear.

Hearing

15. The Tribunal heard the matter on 11 March 2022 by telephone. The tenant attended the hearing and Ms Kapoor, managing agent, represented the landlord.

Evidence considered

16. The Tribunal considered evidence in documents provided by the landlord and heard evidence from the tenant and Ms Kapoor at hearing.

Consideration

17. The landlord provided a quote from a home maintenance contractor of $1,200 for all items. She left the hearing briefly to speak to the contractor who itemised the quote as being:

• $100 for the light fittings;

• $600 for the vanity units’ doors; and

• $500 for the bathroom door.

Light fittings

18. The light fittings were conical at the beginning of the tenancy and at the end of the tenancy they had lost their shape. Mr Heshmati said that he had not done anything to the light fittings and the change in shape suggested that they melted. Ms Kapoor said the landlord had the same fittings in other buildings and this had not happened. She said that she believed the tenants must have bent them. However, she confirmed that they are made from hard plastic and the Tribunal finds that, in that case, they would not bend. There is no evidence of any intentional or negligent action by the tenant that caused the damage and the Tribunal finds it was caused by reasonable wear and tear over the tenancy of nearly three years.

Bathroom door

19. The tenant did not dispute that the upstairs bathroom door was damaged during the tenancy. However, he claimed this was fair wear and tear. The outgoing inspection report shows water damage along the bottom of the door. The tenant suggested that the damage was caused when the toilet was leaking several years ago. However, Ms Kapoor advised that her records show the leak happened in the downstairs bathroom. The tenant did not dispute that evidence.

20. The Tribunal is satisfied the damage was caused by minor flooding caused by the negligence of the tenant. It is not fair wear and tear and the tenant is responsible for the reasonable cost of the repair. The cost claimed by the landlord is for a new door. The property is approximately seven years but a door is not an item that depreciates quickly. An owner is not expected to replace it during the life of the property and the Tribunal finds that the reasonable cost of the repair is the cost in the quote of $500.

Doors for vanity units

21. The outgoing inspection report shows water damage to the doors of the vanity units in both bathrooms that Ms Kapoor claims must have been caused by the tenant allowing water to spill over the basin. The tenant claimed it is the nature of the item that it will get wet and that this is also fair wear and tear.

22. The Tribunal accepts that vanity units of the kind in the property damage easily when in contact with water. However, it notes from the ingoing inspection report that they were undamaged at the beginning of the tenancy. On balance, it accepts the assertion that the tenant caused the damage through negligence and that it was not fair wear and tear.

23. In the Tribunal’s view, the owner would expect to replace an item of this kind more frequently than a door and does not accept that the reasonable cost of repair is the cost of new doors for the vanity units. Ms Kapoor made no submissions about the appropriate rate of depreciation and, in that case, the Tribunal finds the reasonable cost of the repair is 50% of the cost in the quote of $600. That is $300.

CONCLUSION

24. The Tribunal has concluded that the tenant is responsible for a total of $800 of repairs. In that case it will order the Rental Bond Board to release that amount to the landlord and for the balance to 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: 26 April 2022