Hosseini v Charmoun

[2021] NSWCATCD 3

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hosseini v Charmoun [2021] NSWCATCD 3

Hearing dates:

15 April 2021

Date of orders:

24 May 2021

Decision date:

20 May 2021

Jurisdiction:

Consumer and Commercial Division

Before:

J Rose, General Member

Decision:

The respondent landlord must pay to the applicant tenant the sum of $1,285.00 immediately.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rental bond — Repairs and cleaning

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Residential Tenancy Regulation 2010 (NSW)

Cases Cited:

Abela v Walker [1997] NSWRT 15

Briginshaw v Briginshaw (1938) 60 CLR 336

Byrnes v Jokona Pty Ltd [2002] FCA 41

Commonwealth v Amann Aviation Pty Ltd
(1991) 174 CLR 64

Cooper v Westpac General Insurance Ltd
[2007] ACTCA 20

Fitzpatrick v Wu (unreported, NSWRTT, 2001, 01/16425).

Graham, Caste, Pilonchery v French
[2013] NSWCTTT 15

Kjoller v Tailford [2016] NSWCATAP 4

Lakatoi Universal Pty Ltd v L.A. Walker; Ensile Pty Ltd v Walker Consolidated Investments
[2000] NSWSC 113

Taylor v Webb [1937] 2 KB 283

Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123

Westpac General Insurance Ltd v Cooper
[2006] ACTSC 91

Westpoint Management Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253

Texts Cited:

Residential Tenancies Law and Practice New South Wales, 7th edition (2017)

Category:

Principal judgment

Parties:

Soghrs Hosseini (Applicant)
Charbel Charmoun (Respondent)

Representation:

Soghrs Hosseini (in person) (Applicant)
Christopher Ng (agent) (Respondent)

File Number(s):

RT 21/02205

Publication restriction:

Nil

REASONS FOR DECISION

INTRODUCTION

1. These proceedings arise out of a residential tenancy agreement (the “tenancy agreement”) between the Applicant (the “tenant”) and the Respondent (the “landlord”) in respect of a residential apartment at The Esplanade, Guildford, a suburb of Sydney (the “premises”). The tenant vacated the premises on 21 November 2020, bringing the tenancy agreement to an end on that date.

2. The tenant filed his application in these proceedings on 18 January 2021, claiming an order that the tenants’ bond of $1,680 (the “bond”) be refunded to him under s 175 of the Residential Tenancies Act 2010 (NSW) (the “RT Act”).

3. The bond was deposited with NSW Rental Bond Services, but it was paid out on 16 December 2020, as follows:

1. $1,605 was paid to the landlord; and

2. $75 was paid to the tenant.

Accordingly, the tenant essentially seeks an order that the part of the bond that was paid to the landlord be repaid to her.

4. The landlord opposes the application and says that he was entitled to receive $1,605 from the bond, which is said to cover:

1. $340 for the cost of cleaning the premises, on the basis that the landlord says that they were not left reasonably clean by the tenant at the end of the of the tenancy agreement; and

2. $1,265 for the cost of repairing, painting and restoring the premises to return them to the state required by the tenancy agreement.

5. Conciliation was attempted on 18 February 2021, but it was not successful. The Tribunal then listed the proceedings for this hearing and made orders for the parties to give to each other copies of the documents they intended to rely on at this hearing. The landlord was required to do this by 4 March 2021 and the tenant by 18 March 2021.

THIS HEARING

6. In accordance with the Tribunal’s response to the current COVID-19 pandemic emergency, this hearing was conducted by telephone and lasted about 90 minutes.

7. The tenant appeared on her own behalf, assisted by an interpreter arranged by the Tribunal and by her daughter, Hooriah Hosseini. The landlord was represented by his managing agent, Chris Ng of Open Real Estate at North Parramatta (the “managing agents”).

THE EVIDENCE

8. The tenant relied on 2 bundles of documents that she provided to the landlord and lodged with the Tribunal on about 1 February and 16 March 2021, which were marked as exhibits T1 and T2. The tenant’s documents included:

1. 26 pages of photographs said to have been taken at the premises at the end of the tenancy agreement, marked with the tenant’s annotations;

2. an email from Samia Hussaini (another daughter of the tenant) to Better Buildings Realty (the then managing agent for the premises), dated 7 June 2016;

3. a letter from Better Buildings Realty to the tenant and her daughters, dated 28 August 2017 concerning an increase in the tenant’s rent;

4. an email from Samia Hussaini to Better Buildings Realty, dated 2 January 2018;

5. 2 copies of the agent’s “Vacating Form” signed by the tenant and dated 21 November 2020, completed differently to each other;

6. an email from Mr Ng to Hoorieh Hosseini, dated 1 December 2020, concerning the condition of the premises after the tenant vacated them;

7. an email from the tenant to the landlord’s agent, dated 1 February 2021;

8. copies of the 2 invoices relied on by the landlord (see below), which she says were sent to her by the managing agent;

9. a statement by Hooriah Hosseini, dated 16 March 2021, written on her mother’s behalf; and

10. a bundle of copies of photographs from the landlord’s bundle as received by the tenant, which were of very poor quality.

The landlord did not object to any of those documents.

9. The tenant did not adduce any oral testimony in support of their application. The landlord did not question the tenant on any of the issues arising in the proceedings.

10. The landlord relied on the bundle of documents provided to the tenant and lodged with the Tribunal on about 5 March 2021, which was marked as exhibit L1. The landlord’s documents included:

1. an ingoing condition report (the “ICR”) signed by the tenant and dated 13 May 2016, comprising 5 pages of comments and 21 pages of photographs;

2. an email from Mr Ng to the tenant and her daughters, dated 25 November 2020, setting out various “discrepancies” in the condition of the premises;

3. 97 pages of photographs said to have been taken at the premises at the end of the tenancy agreement;

4. invoices covering the cleaning and repair costs claimed by the landlord, dated 30 November and 8 December 2020; and

5. a short statement by Mr Ng.

11. The landlord also did not adduce any oral testimony in support of his application. The tenant did not question the landlord on any of the issues arising in the proceedings.

12. The tenant raised a concern that some of the photographs received by the tenant from the managing agent were very high in contrast and difficult to review. This was noted and left for the tenant to raise as the photographs were examined during the hearing. Ultimately it was not raised again.

13. The tenant also said that she had received pages 61-130 of Exhibit L1 by email from the agent, but she had not received the first 60 pages of that exhibit. Mr Ng sent a copy of pages 1-60 to the tenant by email during the hearing. While I gave the tenant an opportunity to adjourn or delay the hearing while she examined those pages, the tenant elected to proceed with the hearing.

THE COMMON GROUND BETWEEN THE PARTIES

14. It was common ground between the parties (and I find accordingly) that:

1. The parties entered into the tenancy agreement in respect of the premises on about 13 May 2016, for a term starting on that date.

2. The tenant paid the bond at about that time and it was lodged with NSW Rental Bond Services.

3. At about that time the landlord’s managing agent provided to the tenants the ICR, for an inspection said to have been completed on 12 May 2016.

4. The tenant signed that ICR on 20 May 2016 and returned it to the managing agent at about that time.

5. The copy of the ICR signed by the tenant contained no dissenting remarks about the state or condition of the premises at that time.

6. The tenant vacated the premises in late November 2020.

7. A light cover in the bathroom was damaged when the tenant vacated the premises.

THE ISSUES IN DISPUTE

15. The parties are in dispute on the following issues:

1. whether the tenant left the premises as nearly as possible in the same condition as they were in at the commencement of the tenancy, fair wear and tear excepted; and

2. whether the tenant left the premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy; and

3. if not in either case, what amount should be the landlord be entitled to retain from the bond?

16. The landlord argues that the damage to the premises at the end of the tenancy agreement included:

1. damage to walls in the entry, lounge room, kitchen and hallway that required patching, sanding and painting;

2. damage to a door frame in bedroom 2 that required repainting; and

3. damage to an oyster light in the bathroom that required replacement.

17. The tenant concedes landlord’s claim that an oyster light in the bathroom was damaged and required replacement, as stated above. The tenant argues that the other cleaning items claimed by the landlord are all wear and tear items or reflected the condition of the premises at the beginning of the tenancy agreement. The landlord disagrees, and argues that he has taken wear and tear into account in limiting his claim to these items.

18. The landlord has the burden of proving his claim on the bond to the civil standard, being the balance of probabilities. The tenants have the burden of proving any affirmative defence that they raise to the same standard – such as a defence that the damage to the above items was fair wear and tear.

19. When proof of a fact is required, the Tribunal must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 at [48], per Emmett J, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2.

JURISDICTION

20. Section 175 of the RT Act gives the Tribunal jurisdiction to make orders concerning payment of the rental bond on application pay a landlord, a tenant or any other person who has an interest in the payment of the bond.

21. Section 187(1) of the RT Act also gives the Tribunal power to make an order for the payment of money and compensation in respect of a residential tenancy agreement that is regulated by the RT Act.

22. I am satisfied on the evidence that there was a residential tenancy agreement between the parties that was regulated by the RT Act and that the Tribunal has jurisdiction to hear and determine this dispute. I am also satisfied that the amounts claimed by the parties are within the monetary jurisdiction of the Tribunal and that the proceedings have been brought within the time limited by the RT Act.

THE APPLICABLE LAW

23. Section 157 of the RT Act defines a rental bond to be:

“an amount of money paid or payable by the tenant or another person as security against any failure by a tenant to comply with the terms of a residential tenancy agreement.”

Accordingly a rental bond is money that belongs to the tenant. It is only paid into Rental Bond Services as a security for any obligation that may arise on the tenants’ part. Absent any breach of the tenancy agreement or another obligation by the tenants the bond is to be repaid to the tenants at the end of the tenancy.

24. Section 51(3) of the RT Act provides that on giving vacant possession of the residential premises, the tenant must (amongst other things)―

“(b)    leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and, if there is a condition report, as set out in the condition report applicable to the premises when the agreement was entered into, [and]

(c)    leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy, …”

25. Section 51(3)(c) does not require the tenant to leave the premises in a perfectly clean state; the test is whether the state of cleanliness that the tenant left the premises in was “reasonable”: Graham, Caste, Pilonchery v French [2013] NSWCTTT 15 at [7]. This is a question of fact to be determined on the available evidence.

26. For a landlord to succeed on a claim for cleaning costs or repair costs, the evidence needs to be sufficient to persuade the Tribunal, on the balance of probabilities, that —

1. the tenant has not left the residential premises as nearly as possible in the same condition, fair wear and tear excepted, as when the original tenancy agreement was entered into: Kjoller v Tailford [2016] NSWCATAP 4 at [34];

2. the tenant has not left the premises in a reasonable state of cleanliness, having regard to the state they were in at the commencement of the tenancy; and

3. the amount claimed as the cost of returning the premises to the required condition or level of cleanliness required by the tenancy agreement is reasonable.

27. Separately, the tenant bears the onus of establishing beyond mere assertion that any damage to the premises claimed to be “fair wear and tear” is fair wear and tear: Westpac General Insurance Ltd v Cooper [2006] ACTSC 91, affirmed on appeal in Cooper v Westpac General Insurance Ltd [2007] ACTCA 20.

28. “Fair wear and tear” is a very old English phrase that has been common in leases and tenancy agreements for a very long time. It covers two classes of disrepair:

1. disrepair brought about by the normal or ordinary operation of natural causes, such as wind and weather, in contrast to abnormal or extraordinary events; and

2. disrepair brought about by the tenant or another person present on the premises, either unintentionally or as a normal incident of a tenants occupation in the course of the “fair” use of the premises for the purposes for which they were let: Taylor v Webb [1937] 2 KB 283.

29. The word “fair” goes to the cause of the damage, such as the nature of the use by the tenant gave rise to the damage and whether the damage was caused intentionally, while the words “where and there” go to the effect i.e. how substantial is the damage concerned: Abela v Walker [1997] NSWRT 15. Fair wear and tear is distinguishable from intentional or accidental damage, for which the tenant remains responsible. The standard by which fair wear and tear is asserted is an objective one: Fitzpatrick v Wu (unreported, NSWRTT, 2001, 01/16425).

30. Section 166 of the RT Act entitles a landlord to claim from the rental bond for, amongst other things:

(a)    the reasonable cost of repairs to, or the restoration of, the residential premises or goods leased with the premises, as a result of damage (other than fair wear and tear) caused by the tenant, an occupant or an invitee of the tenant,

(b)    any rent or other charges owing and payable under the residential tenancy agreement or this Act,

(c)    the reasonable cost of cleaning any part of the premises not left reasonably clean by the tenant, having regard to the condition of the premises at the commencement of the tenancy,

(d)    the reasonable cost of replacing locks or other security devices altered, removed or added by the tenant without the consent of the landlord,

(e)    any other amounts prescribed by the regulations.

The section does not limit the matters for which the landlord may claim from the rental bond for a residential tenancy agreement: s 166(2).

31. If the tenants does not return the premises to the landlord in the required state, and the issue does not relate to wear and tear, then the landlord is entitled to claim on the bond under s 166 for to compensation for reasonable repair or reinstatement costs. These may not necessarily be the total amount that the landlord has incurred. Again, the reasonableness of the amount claimed, and payable under the section is a question of fact to be determined on the available evidence.

32. Sections 29 and 30 of the RT Act provide a regime for the preparation of ingoing and outgoing condition reports in a specific form as evidence of the condition of the premises at the start and end of a tenancy agreement. Regulation 21 of the Residential Tenancies Regulation 2019 (NSW) permitted the parties to a tenancy agreement to agree that a previous condition report for the premises is to apply for the purposes of the tenancy created by a new residential tenancy agreement.

33. There is a presumption in s 30 that a completed condition report signed by both parties accurately states the condition of the premises on the date concerned.

34. Where the presumption does not apply the Tribunal adopts the approach suggested by the Appeal Panel in Kjoller v Tailford [2016] NSWCATAP 4 at [30]-[34] -- namely that it will give weight to an inspection report not signed by either party as evidence amongst any other statements, photographs, quotations and the invoices that were in evidence in determining the condition of the premises on each relevant date. See also Hall v Hawkins [2015] NSWCATAP 197, at [61]-[64].

35. I have considered the parties’ claims and defences claims in accordance with these principles.

FINDINGS OF FACT

36. Having weighed and considered the competing evidence before it, I am satisfied on the balance probabilities that the facts of the matter are as follows:

37. The premises is a 2-bedroom residential apartment. It included (amongst other things) an entrance hallway, a lounge room, a kitchen, a bathroom, a laundry, a car space and a balcony. The floor in the bedrooms was covered in a carpet of an unspecified make or quality. The floor in the lounge room, the kitchen, the hallway, the bathroom and the laundry were covered with floor tiles. The walls throughout the premises were generally painted white, or in a light colour.

38. The tenancy agreement was generally in the form prescribed under the Residential Tenancy Regulation 2010 (as it then was). Relevantly, the tenancy agreement provided that:

1. the tenants agreed not to intentionally or negligently cause or permit any damage to the premises (clause 15.4);

2. the tenants agreed to keep the premises reasonably clean (clause 16.1);

3. the tenants further agreed that when the agreement ended, and before giving vacant possession to the landlord the tenants would (amongst other things):

1. leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy (clause 17.2); and

2. leave the residential premises reasonably clean, having regard to their condition at the commencement of the tenancy (clause 17.3);

39. As stated above, the tenant signed the ICR and returned a copy of it to the agent on or about 20 May 2016. The handwritten changes on the condition report are made in the sections completed by the landlord’s agent, and I conclude from this that there were no dissenting comments made on the copy of the ICR provided by the tenant to the managing agent.

40. On 7 June 2016, only 3 weeks into the tenancy agreement, the tenant’s daughter wrote to the managing agent to complain that the intercom was not working “most of the time” and that when it rained water seeped through the balcony screen and onto the floor in the lounge room. These matters could not have been seen on a reasonable inspection of the premises – in the case of the second matter, if the inspection was conducted on a dry weather day.

41. Further, on 2 January 2018 the tenant’s daughter wrote to the managing agent, complaining that there were many bees behind the windows of the 2 bedrooms and that “many worms” came from the bedroom walls into the premises. She requested a pest controller be arranged. There is no evidence of any resolution to those complaints, which are borne out by the photographs that were attached to the email. These are matters that also could not have been identified on a reasonable inspection of the premises, if they occurred then.

39. Neither party has otherwise asserted that there was a relevant matter that could not have reasonably been discovered on a reasonable inspection of the premises. Further, neither party has asserted that the evidence establishes a contrary condition to that stated in the ICR. Accordingly, I accept that the premises were in the condition stated in the signed ICR, including those handwritten variations, subject to the tenant’s assertions that:

1. the intercom was not working most of the time;

2. when it rained water seeped through the balcony screen and onto the floor in the lounge room; and

3. there were bees behind the windows of the 2 bedrooms and worms behind the bedroom walls.

43. I am therefore satisfied that at the commencement of the tenancy agreement:

1. the premises were generally clean and tidy throughout;

2. there was a damaged patch on one wall in the entrance hall, near the door closer but the walls in the entrance and the hallway were otherwise undamaged;

3. there were damaged patches, including paint patches, a scratch and a few minor marks on the walls in the lounge room;

4. the walls in the kitchen were generally undamaged, although the wall in the fridge space had not been completely painted;

5. the light in the bathroom was undamaged; and

6. the door frames in bedrooms 1 and 2 were undamaged, although the door in bedroom 2 had damaged patches on the front and back of it.

44. Throughout the course of her occupation, the tenant laid Persian carpet rugs down on the floor in the kitchen, the lounge room, the bedrooms and the hallway.

45. During the course of the tenancy the owners corporation for the building replaced the intercom phone, which was on a wall in the lounge room, leaving marks or holes in the wall where the old intercom had been. I am satisfied that the landlord’s claim does not include that damage.

46. On or about 3 November 2017 the rent payable by the tenant for the premises increased from $420 per week to $430 per week.

47. The tenant vacated the premises and returned the keys on 21 November 2020, bringing the tenancy to an end. At the time of returning the keys, the tenant signed the managing agent’s “vacating form”, which contained images of the keys that were returned.

48. There are 2 versions of that form in the evidence. Both are signed by the tenant however only 1 copy of the form is signed by the managing agent. There are other differences between the 2 forms. The copy signed by the managing agent has circled answers to 4 questions, which were:

Complete set of keys returned? (YES)

Has all belongings and rubbish been removed? (YES)

Is the property clean and in the same condition as the ingoing inspection report? (YES)

Would you like to attend the vacate inspection? (NO)

49. The tenant argues that she did not provide those answers and that they were inserted onto the form after she signed it. She says she left those questions unanswered when she filled in and signed the form. The other copy of the form that is in evidence, on which those answers were not completed when the form was signed, demonstrates that the answers to those questions were added after tenant signed the form.

50. The tenant’s evidence on this point is not contradicted in the landlord’s evidence. As there is no statement in evidence from any person at the managing agents who was present when the form was signed, I accept the tenant’s evidence and find on the balance of probabilities that the circled answers were added after the tenant signed the form.

51. Mr Ng conducted an outgoing inspection of the premises on 25 November 2020, following which he sent the tenant the email of 3:14PM that day, which is in the landlord’s evidence. Mr Ng took a substantial number of photographs at the time he conducted that inspection, copies of which were included with that email, however those copies were in black and white and many of them were out of focus, blurred or otherwise difficult to interpret. The copies of the photographs in the landlord’s evidence are similarly difficult to read.

52. No formal outgoing condition report has been produced in evidence in the form required by s 29 of the RT Act. The landlord asserts that the email of 25 November constitutes the outgoing condition report for the premises. That email listed a number of items that were described as “discrepancies” between the condition of the property at that inspection and the condition described or shown in the ICR.

53. Save for the copy of the “Vacating Form” signed by Mr Ng that contains the answers to the 4 questions described above (which I do not accept) there is no other evidence to establish that the managing agent gave the tenant a reasonable opportunity to be present when Mr Ng inspected the premises.

54. I accept Mr Ng’s email of 25 November 2020 to be an unsworn statement of his observations when he inspected the premises on that date. I accept the statement to the extent that it is corroborated by other evidence, such as the photographs. However I otherwise give the email little weight due to its unsworn nature, the fact that Mr Ng is the landlord’s agent and that the inspection was completed in the tenant’s absence.

55. Ms Hooriah Hosseini’s statement of 16 March is also unsworn. I accept it on a similar basis insofar as it addresses the condition of the premises at the end of the tenancy agreement.

56. On 30 November 2020 the managing agent instructed a cleaning service to clean the premises. The cleaning service charged $340 for conducting that work.

57. On 1 December 2020 Mr Ng wrote to Ms Hooriah Hosseini (in an apparent reply to an earlier email from her), stating:

“We will speak to the landlord and get back to you regarding the wall damage and painting.

There was some existing damage and paint patches in the ingoing condition report but it seems like there are additional ones that wasn’t on the report.

Are you saying that you did not cause any damage to the wall and paint patches?

In terms of the cleaning, in general it was in a good condition. There are some areas that need cleaning – mainly the kitchen range hood, light fittings throughout the unit and carpet steam cleaning.”

58. The managing agent also instructed a tradesman to provide a quote for conducting the repairs I have described above. The tradesmen quoted $1,265 to conduct those repairs. The tradesman subsequently also invoiced the landlord $1,265 for the same works on 8 December 2020.

59. I will consider the change in the state of cleanliness and condition of the premises at the end of the tenancy agreement next, based on these facts.

THE CHANGE IN CLEANLINESS AND CONDITION OF THE PREMISES

60. The photographs enclosed with Mr Ng’s email to the tenant on 25 November 2020, which are in the landlord’s evidence, were not annotated in the email or in the landlord’s evidence to identify the room in which each photograph was taken or the issue that was the subject of the photograph. It was therefore necessary for Mr Ng to take me through each photograph in his submissions. I base the following conclusions on that explanation.

The cleaning items

61. The cleaning items raised in Mr Ng’s email of 25 November 2020 included:

1. in the 2 bedrooms: steam cleaning of carpets, bugs in the light fittings and marks on walls;

2. in the lounge room: bugs on 2 light fittings and finger marks on a wall;

3. in the kitchen: the range hood was dirty; and

4. in the hallway: bugs in the light fitting.

62. As for the carpet, the issue to be determined is whether the carpet was left “in a reasonable state of cleanliness, having regard to the state they were in at the commencement of the tenancy”. The RT Act and the tenancy agreement do not require a tenant to steam clean carpets. Further, s 19 of the RT Act prohibits a tenancy agreement from requiring a tenant to have the carpet professionally cleaned, or to pay the cost of such cleaning, at the end of the tenancy unless the landlord permitted the tenant to keep an animal on the premises (which is not the case here).

63. Further, to the extent that the landlord asserts that steam cleaning is required to lift the pile where furniture has squashed it down, or where scuff or track marks have appeared in the carpet I disagree. Those sorts of marks arise from the normal day-to-day use of a floor carpet and are to be expected. They are a wear and tear item.

64. On examining Mr Ng’s photographs, I am satisfied that the carpet in the bedrooms was left sufficiently clean to comply with the requirements of s 51(3)(c) and clause 17.3 of the tenancy agreement.

65. The light fittings in the hallway, the 2 bedrooms and the lounge room were all clean and undamaged at the time of the ICR. I accept from Mr Ng’s photographs and his 25 November email that those light fittings had dead bugs and other small debris items in them at the end of the tenancy agreement. Accordingly, I am satisfied that the tenant did not return those parts of the premises to the landlord in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy.

66. The kitchen range hood was listed in the ICR as being clean and undamaged. Image 30 in the ICR does not detract from that conclusion. The image of the range hood taken by Mr Ng on 25 November shows a thin film of residue from a fluid – such as a cleaning fluid – wiped across the front surface of the range hood. No other images are produced to show that the filters or other parts of the range hood were left dirty or greasy. Despite Mr Ng’s statement that the range hood needed to be recleaned, I am satisfied that the range hood was left “reasonably clean” within the meaning of s 51(3)(c) and clause 17.3 of the tenancy agreement. The thin film of fluid on the front face of the range hood is not enough to convince me otherwise.

67. For these reasons, I am satisfied that the matters where the tenant has failed to return the premises to the landlord in a reasonable state of cleanliness are limited to the following:

1. The dead bugs and other small debris items in the light fittings.

The repair items

68. The repair items raised in Mr Ng’s email of 25 November, 2020 included:

1. chips and a paint patch on the walls around the entrance, including a dent from the door closer;

2. chips, paint patches, a scratch and finger marks on walls in the lounge room;

3. paint patches on walls in the hallway;

4. the damaged light fitting in the bathroom; and

5. marks on some walls and a paint chip on a door frame in the bedrooms.

69. The light fitting in the bathroom has already been conceded by the tenant.

70. As set out below, I accept the tenant’s submission that some of these items are excluded from the obligation to return the premises in the same condition on the ground that they are wear and tear damage.

71. I am satisfied that the dent in the wall from the door closer is a wear and tear item arising from the opening and closing of the front door. It is not the tenant’s fault that the door closer touches the wall and that the wall is not protected from it by a properly mounted doorstop. I am similarly satisfied that the small chips in the walls around the entrance and in the narrow hallway arise from day-to-day traffic in high-volume parts of the premises and that they too are wear and tear items.

72. From the photographic evidence, the paint patches on the walls around the entrance, in the lounge room, and the bedrooms and in the hallway all appear to have been from a deliberate painting of the walls. The walls in the lounge room and the 2 bedrooms were all listed in the ICR as being clean, although the report identified that the walls in the lounge room and bedroom 1 had already had paint patches on them, and there was a scratch and a few minor marks on the walls in the lounge room. The images in the ICR do not detract from that conclusion but due to their small size and poor reproduction quality they also do not help to identify the location, size or severity of those blemishes at the start of the tenancy agreement so that the patches and marks visible at the end of the tenancy agreement can be properly assessed.

73. In the circumstances the landlord has not demonstrated to my reasonable satisfaction that the marks and paint patches on the walls in those rooms are fresh damage that was caused during the term of the tenancy agreement. On that basis I must determine that these parts of the landlord’s claim have not been proved to be the tenant’s responsibility.

74. The paint scrapes on the top of the doorway to one of the bedrooms is quite large. It does not appear to have been caused by the normal opening and closing of the bedroom door. I am satisfied on the balance of probabilities that this damage was caused something that was hung over the top of the bedroom door when the doors opened and closed, such as a portable hook that has since been taken off the door. I do not consider this to be a wear and tear item. In my view, this item is accidental damage for which the tenant is responsible.

75. For these reasons, I am satisfied that the matters where the tenant has failed to return the premises to the landlord in the state that it was in at the start of the tenancy agreement, as set out in the ICR, excluding wear and tear items, are limited to the following:

1. The light fitting in the bathroom.

2. The damage to the paint on the bedroom door frame, above the door.

APPLICATION OF THE LAW TO THE FACTS AS FOUND

The claim for cleaning costs

76. As noted above, the contractual requirement in the tenancy agreement and under the RT Act was that the tenant must leave the premises “reasonably clean”, having regard to their condition at the commencement of the tenancy.

77. On the facts that I have found I am satisfied that some of the light fittings in the premises were not left reasonably clean at the end of the tenancy agreement having regard to their state of cleanliness at the commencement of the tenancy agreement. On this basis I am satisfied that the tenant was in breach of the obligation set out in s 51(3)(c) of the RT Act and clause 17.3 of the tenancy agreement in respect of those light fittings only.

78. I am satisfied that the landlord is entitled to recover reasonable cleaning costs from the tenant for cleaning those light fittings. I will return to that below.

The claim for repairing and repainting the premises

79. Similarly, the contractual requirement in the tenancy agreement and under the RT Act was that the tenant must leave the premises in the same condition that they were in at the start of the tenancy, as set out in the ICR, reasonable wear and tear excepted.

80. On the facts that I have found I am satisfied that the damage to the light fitting in the bathroom and the damage to the door frame to one of the bedrooms was new damage arising during the term of the tenancy agreement and was not fair wear and tear. The landlord has otherwise failed to satisfy me on the balance of probabilities that many of the marks and paint patches on the walls in the premises were caused during the term of the tenancy agreement. I have accepted the tenant’s arguments that the small dents in the paint in the entrance and hallway areas and the large dent from the door closer behind the main entrance door have arisen from fair wear and tear due to the normal incident of using and occupying a residential apartment of this nature.

81. On this basis I am satisfied that the landlord did breach the obligation set out in 51(3)(b) of the RT Act and clause 17.2 of the tenancy agreement in respect of that light fitting and that door frame only.

82. I am further satisfied that the landlord is entitled to recover from the tenant reasonable costs of replacing or repairing the light fitting in the bathroom and repairing the damage to the bedroom door frame. I will return to this below.

QUANTIFYING COMPENSATION ON THE LANDLORD’S SUCCESSFUL CLAIMS

83. As noted above, the landlord is entitled under s 166 to deduct out of the bond reasonable cleaning costs and reasonable repair and reinstatement costs for returning the premises to the condition required by the tenancy agreement.

84. The main goal in determining the amount to be deducted from the bond is to return the party receiving the compensation to the position that they would reasonably have been in had the relevant breach not occurred, so far as money is able to do that: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64.

85. The Tribunal must do the best it can where there are difficulties in assessing compensation on the available evidence: see Lakatoi Universal Pty Ltd v L.A. Walker; Ensile Pty Ltd v Walker Consolidated Investments [2000] NSWSC 113 at [1398] and Byrnes v Jokona Pty Ltd [2002] FCA 41 at [108]-[110]. This may require the Tribunal to make a nominal award where the appropriate amount of damages cannot be expressly determined from the evidence.

The claim for cleaning costs

86. As noted above, the landlord instructed a professional cleaner to clean the interior of the premises following the end of the tenancy. The cleaner cleaned the interior of the premises at a cost of $340, as set out in the tax invoice provided in the landlord’s evidence. Unfortunately that tax invoice is a “lump-sum” invoice that does not set out the costs of the various cleaning items. This makes the assessment of reasonable cleaning costs for the items that I have found were the tenants responsibility much more difficult.

87. The tenant has not provided any evidence to contradict the landlord’s assertion that the fees charged by the managing agent’s cleaner was a reasonable one for the work undertaken. Nevertheless I am satisfied on the uncontradicted evidence in the tax invoice that the amount charged was reasonable for the broad scope of cleaning works originally claimed by the landlord.

88. As I have found some of that cleaning work is not the tenants’ responsibility it would not be proper for the tenant to be required to reimburse the landlord for the whole of that invoiced amount. Accordingly the costs claimed on the basis of that invoice need to be apportioned for the purposes of these proceedings to exclude the additional work undertaken by the cleaner beyond the scope of the tenant’s responsibility.

89. Doing the best that I can on the available evidence I think it would be appropriate to allow the landlord a nominal sum of $100 towards the costs of cleaning the light fittings to remove the bugs and debris referred to above.

The claim for repairing/reinstating the premises

90. The landlord also instructed a tradesman to repair and reinstate the premises following the end of the tenancy. The work undertaken by the tradesmen was as set out in the tax invoice dated 8 December, 2020, at a cost of $1,265.

91. The tenant has again not provided any evidence to contradict the landlord’s assertion that the fees charged by that tradesman was reasonable for the whole of the scope of works set out in that invoice. I am satisfied on the uncontradicted evidence in the tax invoice that the amount charged was reasonable for the broad scope of the works originally claimed by the landlord, as described in that invoice.

92. As I have found some of that work is not the tenants’ responsibility it would also not be proper for the tenant to be required to reimburse the landlord for the whole of that invoiced amount. Accordingly the costs claimed on this invoice also need to be apportioned for the purposes of these proceedings to exclude the additional work undertaken by the tradesman that was beyond the scope of the tenant’s responsibility, as I have found it to be.

93. Doing the best that I can on the available evidence I think it would be appropriate to allow the landlord a nominal sum of $250 towards the costs of supplying and installing a new oyster light in the bathroom and for repainting the door frame for bedroom 2 to match the existing frame as close as possible, including preparation work.

CONCLUSION AND ORDERS

94. For the reasons described above, the landlord have been successful in the following claims:

1. cleaning charges of $100; and

2. repair and/or reinstatement costs of $250,

making a total of $350.

95. I am satisfied that the landlord is entitled to retain that sum of $350 claimed against5 the tenant's rental bond pursuant to ss 166 and 175 of the RT Act. The remaining $1,255 received by the landlord from the bond held by NSW Rental Bond Services should be repaid to the tenant.

96. I make the following order for these reasons:

1. The respondent landlord, Charbel Charmoun of c/- Open Real Estate Sydney, Villa 68A Sorrell Street, North Parramatta NSW 2151 Australia, must pay to the applicant tenant, Soghrs Hosseini of Unit 12/33-35 Saint Ann Street, Merrylands NSW 2160 Australia the sum of $1,255.00 immediately.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

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: 28 July 2021