Hicks v O'Driscoll - [2012] QCAT 662

CITATION:

Hicks and Anor v O’Driscoll [2012] QCAT 662

PARTIES:	Kathleen Hicks Susan Hicks
v
Talbot O’Driscoll

APPLICATION NUMBER:

MCDT113-12

MATTER TYPE:

Residential tenancy matters

HEARING DATE:

7 December 2012

HEARD AT:

Sandgate

DECISION OF:

Paul Favell, Member

DELIVERED ON:

24 December 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

The claims made by the applicant are not made out and the application is dismissed.

CATCHWORDS:

Minor civil dispute – Claim

Residential Tenancies and Rooming Accommodation Act 2008, ss 191, 221, 227

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Susan Hicks for the applicant

RESPONDENT:

Tracy Kelly for the respondent

REASONS FOR DECISION

The applicant seeks orders pursuant to sections 221, 191 or 227 of the Residential Tenancies and Rooming Accommodation Act 2008. A claim is also made for $5,600.00 which is a claim of $200.00 per weekly from 4 May 2012 as full rental compensation because of an unliveable granny flat. The applicant also seeks a filing fee of $98.00 making the total claim $5,698.00.
The reason for seeking the orders set out in the application as,
“Please help me, am on disability, always pay rent however the lessor and agent are aware the granny flat is not and never bee liveable. First day in hospital with a concussion after slipping on the bathroom floor in granny flat where the toilet leaks, my furniture could not be moved in and there is mould on curtains and in aircon unit. Filthy vermin faeces and stinging insects, dust, mould, mildew, holes in doors where vermin get in, no keys or smoke alarm – all reported on entry report as well and nothing has been done. I have spent the last 6 months trying to save up for the fee so I can take this to court. Have been sleeping on a mattress on the floor making my pain a lot worse. All my stuff is the main house.”
A rental bond of $2,400.00 is held by the RTA.
The tenancy agreement shows the tenants as Gary Hicks and Kathleen Hicks. The premises are at 4 Badet Street, Brighton, Queensland. The general tenancy agreement started on 04/05/2012 and ends on 02/05/2013. The rent is $600.00/week.
I am told that the premises are occupied by a family. Kathleen Hicks was to occupy the downstairs granny flat. Gary, Kathleen, Brian, Donna, Susan and Andrew Hicks entered the premises on the afternoon of 5 May 2012. That day, Kathleen Hicks was taken to hospital because she fell on the wet floor of the granny flat. On 06/05/2012 a complaint was made that
“the premises inside the house and granny flat are nearly all filthy – nearly every floor, wall and surface is dirty, dusty or sticky and has stains on them. There is peeling paint and/or putty in holes that have been patched up haphazardly. Some bulbs weren’t working. There were no fire alarms and there was mould in the air-conditioners.”
A full typed page Notice to Remedy Breach was attached to the notice. In general they complained that the house was not up to the cleanliness as standard as it was advertised.
An entry condition report dated 11 May 2012 was completed.
Exhibit 1 is a series of photographs tendered by the applicants. They clearly show in some of the photographs vermin and uncleanliness.
Exhibit 2 is a pest management certification of treatment for treatment done by Sandgate Pest Control on 22 November 2012. On that date, evidence was found of spiderwebs, dead cockroaches, and silverfish. No evidence of mites was found. A full external treatment was completed for ants and spiders and involved treating all external areas including the external walls of the home and granny flat and all garden yard areas.
The respondent contests the allegations made by the applicants and tenders photographs which are Exhibit 3 which they say show the condition of the premises at the time of the condition report. It is contended that those photographs show the property as being clean and tidy.
Exhibit 4 is a set of photographs taken in April.
Exhibit 5 is a statement from Ben O’Driscoll, a plumber, who inspected the house on 21/11/12. He fixed the following
a)    A leaky kitchen sink spout.
b)    Leaking downstairs toilet.
c)    Leaking washing machine taps.
d)    Minor dripping of granny flat toilet.
e)    Leaking upstairs en suite toilet.
f)     A dirty aerator on the upstairs en suite basin spout.
Although he was informed of the smell coming from the granny flat shower waste, he could not notice the smell. He was also informed about an upstairs en suite shower drain being blocked but when he examined it it worked as it should.
Exhibit 6 is a property management inspection report from Coronis. It was dated October 2012. So far as the granny flat was concerned, it contained comments as follows:
“Looks to be not used as granny flat.”
It had attached to it some photographs which are unremarkable.
Exhibit 7 is a tax invoice from Maid to Sparkle dated 21/04/2012. Part of it was for a bond exit clean to the granny flat. The extent of the bond clean is set out in Exhibit 8.
Exhibit 9 contains the contents of an email sent by the property manager of Coronis Realty on 17 May 2012. That email indicates that the entry condition report that had been provided by the applicants was not accepted by the agents.
Exhibit 10 is a document which the respondent says records an acceptance by the applicants to accept the property in its present condition as at 03/05/2012.
Exhibit 11 is a note from one of the owners. It was the subject of evidence given by that owner to the effect that they were first time investment owners who spent several weeks at the property before the tenants moved in getting the property into the best condition that they could. They said that after they had a professional clean done, one of the owners climbed into side cupboards to ensure it was done properly. They said that they were only recently made aware that there were any issues and since then have made every attempt to rectify the situation.
Kathleen Hicks has been sleeping on a mattress on the floor in the granny flat. Her mother provided an affidavit in which she said,
“Due to the granny flat being infested with mites, lice and spiders, my daughter Susan has not been able to live in the granny flat but has still been paying rent.”
She complained that it was dirty and had no fire alarm but recently the issues that they raised concerning the smoke alarm and maintenance have been started to be addressed.
Gary Hicks supplied an affidavit to similar effect as did Donna Hicks and Brian Hicks.
After the hearing of this matter was completed and the matter was being considered for decision the applicant submitted further material about which the respondent was advised and given the chance to respond.
In response, the statement of Jessica O’Driscoll dated 17 December 2012 has been submitted. It is to the effect that a full bond clean was carried out two weeks before the tenants moved into the house and that once the clean had been carried out she attended the property to inspect it. She climbed into cupboards and ran her hands over every surface and blind in the house and granny flat to ensure that the property was spotless and ready for the tenants to move in. She makes the point that the photos produced by the tenants are mostly of recent times and she says that the photos that show dead bugs lying around are the fault of the tenants in that it was their responsibility to clean up regularly so that they would not have dead pests. She says that it was a matter for the tenants to draw to the attention of the lessors any defects and not wait. She says that once defects were known of, they were attended to.
The respondent also supplied an email dated 14 December 2012 which deals with all of the issues which have been raised.
Having considered all of the evidence in the further material and response I cannot be satisfied that the claims advanced by the applicants are made out.
I am not satisfied that the premises were in the condition now described by the applicants when they took the tenancy. The photos showing the pests and the condition of the granny flat seemed to have been taken at a later stage and that may well be because the property has not been properly maintained by the tenants, but in any event, I am satisfied that when the property was rented it had been the subject of a professional clean and a clean by one of the lessors.
The claims made by the applicant are not made out and the application is dismissed.