Hussain v Guardian Property and Asset Management Pty Ltd
[2011] QCAT 383
•27 June 2011
| CITATION: | Hussain v Guardian Property and Asset Management Pty Ltd [2011] QCAT 383 |
| PARTIES: | Mr Assif Hussain |
| Guardian Property and Asset Management Pty Ltd |
| APPLICATION NUMBER: | MCDT562-11 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Julie Ford, Member |
| DELIVERED ON: | 27 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Residential Tenancies Authority pay the parties the sum of $747.00 rental bond as follows: tenant $747.00 and lessor $0.00. |
| CATCHWORDS: | RESIDENTIAL TENANCIES – COMPENSATION FOR DAMAGES TO PROPERTY – where the owners allege the tenants damaged the oven requiring it to be replaced Residential Tenancies and Rooming Accommodation Act 2008, s 429 |
APPEARANCES and REPRESENTATION (if any):
Heard and determined on the papers.
REASONS FOR DECISION
Background
The tribunal received an application for a residential tenancy dispute from Mr Asif Hussain on 14 March 2011. He and his family had commenced a residential tenancy agreement with the real estate agent, Guardian Property and Asset Management Pty Ltd on 15 June 2010. The fixed term tenancy expired on 15 January 2011.
Mr Hussain’s application related to a general dispute under s 429 of the Residential Tenancies and Rooming Accommodation Act 2008. Mr Hussain stated in his application that the house that they rented had an old faulty cook top and after several requests the cook top was replaced. After leaving the house once the lease expired, the lessor was claiming the cost of a new cook top from the bond monies. The cost for the new cook top was $747.00.
Mr Hussain was also concerned that he and his family had experienced racial discrimination due to the claims that the real estate agent was making.
The Residential Tenancies Authority was unable to help the parties resolve the dispute about the bond monies for the rental property.
A hearing by the tribunal was conducted on 31 March 2011. Ms Kylie Simpson was present as agent for the real estate company. As Mr Hussain was not present in person, the tribunal contacted him via telephone. He stated that he had not received the notice of hearing. He did however remain on the telephone to speak to the tribunal with his concerns.
Upon a negotiated agreement, the tribunal adjourned the matter to allow for further written information to be provided. Most particularly one issue in dispute related to the conversation that Mrs Hussain had had with the electrician, Mr Stan Doust of AAA Stan Doust on 6 January 2011. Neither Mrs Hussain nor Mr Doust was present at the hearing and the evidence of the parties present was significantly different. It was agreed that the tribunal’s decision would be made on the papers.
Relevant Evidence
The real estate agent submitted that the electrician informed her that all four elements of the old cook top were used with one large pot sitting over the four elements. It is the alleged that this is what caused the old cook top to burn out. The home was built in 2008 and the original cook top had to be replaced on 6 January 2011. The agent stated that Mrs Hussain had told the electrician she had used the large pot for cooking.
Mr Hussain gave evidence at the hearing that the large pot in contention was never used for cooking. He stated that he was an electrical engineer and found it challenging to be told he does not know how to use a cook top correctly. He stated that upon moving into the rental property he complained of the faulty cook top and that the washing machine needed replacing. He refuted the allegation that all four elements were used to cook with one large pot. Mr Hussain also raised the issue that appliances have a shelf life.
Mrs Shabana Hussain submitted a letter to the tribunal which was received on the 4 April 2011. She submitted that during the 6 months of staying at the property they rarely used the cook top because she and Mr Hussain are both working and buy lunch and bring dinner home. She refuted that she ever used the large pot on the cook top, stating that as they are a small family they did not cook a lot at home. The pot in contention was a gift from her mother on their marriage. It was used to cool mangoes in ice to eat during summer. She washed the pot and put it on the counter top to dry.
[10] Mrs Hussain submitted that when the technician came the cook top was already out of order for more than two weeks. A spark had kept tripping the whole electricity of the house and they had not received a response from the real estate agent. The family called during the Christmas holidays and again upon their return in the first week of January 2011.
[11] Mrs Hussain submitted that upon leaving the rental property there were no claims for damage or cleaning by the agent. She saw this as a credit to her and the family.
[12] The respondent provided written evidence from Mr Stan Doust of AAA Stan Doust Electrical, dated 8 April 2011. Mr Doust submitted that on inspection on the 6 January 2011 he found “the cook top switches and wiring and power cord etc to be burnt out”. He submitted “this was due to excessive heat whether it be by switches being left on or the type of pots and pans being used on the elements by tenant (sic)”. He had pointed out to the tenant “regardless of the damage that her pots and pans were not suitable as they did not have a flat bottom or were too large for the elements”. The end result was “that the cook top was destroyed”.
Decision
[13] The tribunal must consider the differing positions presented by the parties. Essentially the tenants sought remedy regarding a faulty cook top in the home they were renting. This cook top was eventually replaced. However upon the tenants moving out of the property at the end of the lease period the real estate agent on behalf of the owners were seeking for the cost of the new cook top to come out of the bond held by the RTA.
[14] Mrs Hussain disputes the use of the large pot for cooking. The electrician determined on viewing the large pot sitting on the stove top that this was a contributing factor in the old cook top being destroyed.
[15] Other than the issue of whether or not the old cook top was rendered unworkable by the Hussains cooking techniques and use of unsuitable pots, the evidence is that the agent did not seek further monies from the tenants for cleaning or repairs upon the lease expiring and the tenants moving out of the rental property. Essentially they were model tenants. It is assumed that regular inspections were undertaken by the real estate agent of the property. There is no evidence that concerns were raised by the agent at these inspections about the condition of the cook top.
[16] There is no evidence that the tenants were provided with relevant information regarding what cook ware was suitable for cooking on the faulty cook top, other than the view expressed by the electrician when replacing the faulty cook top. Mrs Hussain’s evidence that she used the pot which was a wedding gift to cool mangoes is plausible and culturally relevant.
[17] The tribunal is not satisfied that Mr and Mrs Hussain are at fault for the need to replace a cook top that was originally placed in the home in 2008. It is reasonable to assume that other people availed themselves of the cook top since 2008. The required rental inspections, if they occurred, did not render any concern about the condition of the cook top before the original was replaced. No information was provided to Mr and Mrs Hussain that guided them on what cook ware was suitable for the cook top in contention. In any event, there is credible evidence that Mr Hussain would be reasonably knowledgeable on how to operate the cook top given he is an electrical engineer.
[18] The tribunal finds that the Residential Tenancies Authority bond should be returned to Mr and Mrs Hussain in total and that $747 should not be taken from the bond monies as sought by the real estate agent, Guardian Property and Asset management Pty Ltd.
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