Jiang v Chanwimaluang
[2010] QCAT 218
•28 April 2010
| CITATION: | Jiang v Chanwimaluang [2010] QCAT 218 |
| PARTIES: | Jirong JIANG |
| v | |
| T. CHANWIMALUANG |
| APPLICATION NUMBER: | 319/10 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 28 April 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | K. Kirmos |
| DELIVERED ON: | 28 April 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Application and Counter Application dismissed. |
| CATCHWORDS : | Return of Bond- Whether Damage to Premises |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Jirong Jiang |
| RESPONDENT: | Ron Kear T. Chanwimaluang |
REASONS FOR DECISION
The tenant, Mr Jiang has applied for the return of his bond of $420, representing four weeks rent, which he says he paid to the lessor Ms Chanwimaluang, but which was never lodged with the Residential Tenancies Authority (RTA). He also asks for his filing fee of $20.
Ms Chanwimaluang has applied, by way of counterclaim, for damage to a kitchen cabinet and toilet, totalling $277.50. She has also applied to be compensated for cleaning, but did not specify an amount. Mr Kear was granted leave to represent Ms Chanwimaluang, who later attended the hearing by telephone.
Mr Jiang in summary gave the following evidence. He moved into the shared premises on 6 October 2009 and he initially paid two weeks rent ($105 weekly) and a bond equivalent to four weeks rent. He had his own room. He has a receipt for these amounts, but his bond was never lodged with the RTA. Mr Jiang tendered a receipt purporting to acknowledge payment by Ms Chanwimaluang of the rent and bond on 6 October 2009. He said he paid it the day after he moved in by cash that he had in his bag. He might have written his own name on the receipt but it otherwise came from Ms Chanwimaluang.
He had many problems with the lessor and other tenants during the tenancy, including Mr Kear. Some of Mr Jiang’s personal belongings were taken. The part of the premises Mr Jiang shared with other tenants was generally messy and dirty.
Ms Chanwimaluang asked Mr Jiang to leave the premises and he was given a notice to leave dated 2 November 2009, pursuant to which he left on 14 November 2009. He was asked to leave because it was stated that he was violent, which he denies. After he received the notice to leave, Ms Chanwimaluang slipped a letter under Mr Jiang’s door purporting to be from a solicitor telling him to leave. He had the letter investigated by the Law Society and was told there was no such lawyer, and it was a fake. Mr Jiang had never sent threatening SMS messages to Ms Chanwimaluang, and he had returned the key to the premises.
Mr Jiang went to use the toilet one morning and saw unflushed sewerage in the pan, and the cistern did not work. It was not new and he did not damage it. He was told to pay Ms Chanwimaluang $85 to fix the toilet. Other tenants were told to pay $30. He denied having broken the cistern and refused to pay, and the toilet remained in disrepair for another week. It was repaired after he vacated the premises.
Mr Jiang said that on 3 November 2009 he went to the kitchen cupboard to access a shelf and he noticed that the door was loose. Only one hinge bracket was holding it on. Believing that it was a hazard to others, he removed the door and put it on the table. It .later disappeared from the table. Mr Jiang was going to repair it that weekend. Mr Kear rang the police alleging that Mr Jiang had damaged the premises. The police attended and spoke to Mr Jiang. They told him that Mr Kear was a strange man and to leave.
Mr Jiang’s witness, Ms Guo stated that the toilet broke because it was old. She paid Ms Chanwimaluang $30 for the repair but was never shown a receipt. Mr Jiang told her that he had taken off the cupboard door because it was loose and might injure someone. She saw it on the table.
Mr Jiang cleaned his room before he left. He never urinated in it.
10. Ms Chanwimaluang and Mr Kear on her behalf gave the following evidence, in summary. Mr Jiang never paid any bond. Mr Jiang had told Ms Chanwimaluang that he could not afford to pay a bond so only two weeks’ rent was paid. Mr Jiang’s bond receipt was a forgery and did not match Ms Chanwimaluang’s receipt book that was tendered as evidence. None of the receipts showed a bond having been paid. Ms Chanwimaluang knew nothing about the purported solicitor’s letter.
11. Neither Mr Kear nor Ms Chanwimaluang saw Mr Jiang damage the toilet, but part of the cistern went missing. The other tenants agreed to pay $30 each and Ms Chanwimaluang received $150 in total from them to fix the toilet. It was possibly 15 years old. She relied on an invoice for $154 from Marc Fisher Home Improvement, as evidence of her loss and the cost of repairing the toilet.
12. Mr Jiang had told the police he removed the kitchen cupboard door. He pulled it off and it could not be repaired. It could not be screwed back as the screws were pulled out. Ms Chanwimaluang wanted Mr Jiang to pay half the repair cost. She relied on an invoice for $495 from Marc Fisher Home Improvement, as evidence of her loss and the cost of repairing the cupboard door. Asked why the invoice stated that it was for the manufacture and installation of new kitchen cupboards, rather than a door, she stated that she was unsure. It was suggested that the kitchen was new and it needed to be manufactured.
13. No entry condition report was done as it was just casual accommodation, and Ms Chanwimaluang and the tenants agreed that only two weeks’ notice was required when the tenancy was to end.
14. Mr Jiang had sent Ms Chanwimaluang threatening SMS messages and may have re-entered the premises after he vacated.
15. Mr Jiang left his room in a dirty condition at the end of the tenancy. It smelled of human urine. Ms Chanwimaluang cleaned it herself.
FINDINGS
16. The Tribunal finds that the parties were parties to a tenancy agreement to which the Residential Tenancies and Rooming Accommodation Act 2008 (the Act) applies. Section 419 of the Act provides for applications to be made to the Tribunal in respect of breaches of agreement. The Tribunal is satisfied that the parties have previously sought conciliation of the matters in dispute.
17. It is for the applicant in any proceeding to prove his or her case. In this proceeding, Mr Jiang must prove the payment of the bond, and his entitlement to it. It is for Ms Chanwimaluang to prove that Mr Jiang damaged the premises, that such damage was not due to fair wear and tear, that Ms Chanwimaluang suffered a loss and that Mr Jiang was liable to pay for the loss. She must also prove the amount that was paid to effect the repair and that any amount paid was reasonable.
18. It is clear that the parties are antagonistic towards each other. They have given completely contradictory evidence, which calls into question the credibility of one or both of the parties. The Tribunal is troubled by the production of a letter, apparently prepared by Ms Chanwimaluang or on her behalf, purporting to be a letter from a solicitor. It is immediately evident from the use of language and the content that the author is not a person with any formal legal education or training, however, it was apparently intended to imitate a solicitor’s letter and thereby to deceive. Such deception could have serious repercussions.
19. Mr Jiang produced a document he claims to be a bond receipt and an email he claims supports his evidence that he paid a bond. The Tribunal finds that the email is evidence of discussion between the parties as to the requirement to pay a bond, but does not acknowledge payment of a bond. The bond receipt does not appear consistent with those tendered by Ms Chanwimaluang, and is not signed by Ms Chanwimaluang in her usual style, but rather contains a squiggle. Mr Jiang acknowledged that he inserted his name at the top and it appears that two different inks have been used. The Tribunal accordingly places no weight on the receipt. On the evidence, the Tribunal finds that Mr Jiang has not proven that he has paid a bond to Ms Chanwimaluang.
20. The Tribunal is not satisfied on the evidence that the damage to the toilet was caused by Mr Jiang, or that was in fact it was caused by anything other than fair wear and tear. As such, it is a maintenance item the cost of which should have correctly remained with the lessor.
21. Mr Jiang ought to have informed the lessor as soon as he was aware that the cupboard door hinges were loose, rather than having removed the door himself. Mr Jiang states that the cupboard was easily repairable, but the door was taken away, and Ms Chanwimaluang now says that it needed replacement. The Tribunal has not been given the opportunity to sight the door or to receive objective evidence as to the feasibility and cost, if any, of a repair short of replacement. The Tribunal does not regard the invoice tendered as good evidence of the reasonable cost of repair or of Ms Chanwimaluang’s loss, given that it appears to be for the construction and installation of cupboards. She has not completed an entry condition report. The Tribunal is accordingly not satisfied that Ms Chanwimaluang has proven that any damage was anything more than fair wear and tear. Neither has she proven the amount of any loss she may have suffered on account of the damage to the cupboard.
22. There being no entry condition report and the parties’ oral evidence being contradictory, Ms Chanwimaluang has also not established that further cleaning was required at the end of the tenancy.
23. The Tribunal accordingly dismisses both applications.
0
0
0