Joliffe-Martin v Ferguson

[2011] QCAT 365

CITATION: Joliffe-Martin and Anor v Ferguson and Anor [2011] QCAT 365

PARTIES:	Ms Jacqueline Joliffe-Martin
Mr George Martin
(Applicants)
v
Ms Shiree Ferguson
Mr Jeremy Tritton
(Respondents)

APPLICATION NUMBER: MCDT430-11

MATTER TYPE: Residential tenancy matters

HEARING DATE: 20 June 2011

HEARD AT:  Brisbane

DECISION OF: Ms Williams, Adjudicator

DELIVERED ON: 9 August 2011

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The applicants’ claim be dismissed;

2.    The applicants pay the respondents the total sum of $2,208.60 being rental credits, within 28 days;

3.    The Residential Tenancy Authority releases the $1498.20 bond in favour of the respondents.

CATCHWORDS:

Minor Civil Dispute – Residential Tenancy – section 429 General Dispute between lessor and tenant about a general tenancy agreement – Where applicants claim breach of agreement by rental arrears and underpayment of rent – Where applicants claim compensation for damage to property

Residential Tenancies and Rooming Accommodation Act 2009, ss 362(3)(b), 421(1)

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers pursuant to section 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

Introduction

[1]    The issue in dispute is whether the applicants are entitled to $2,110.01 in unpaid rent, compensation and reimbursement for monies provided to the respondents.

[2]    The matter was listed on 14 March 2011.  Both parties were present, however the first applicant and second respondent did not attend.  The matter proceeded in their absence with Mr Martin (the second applicant) and Ms Ferguson (the second respondent) making submissions and giving evidence to the Tribunal on their behalf.

[3]    Initially the applicants filed a claim in the Registry on 24 February 2010 seeking an order to be made in their favour against the respondents, in the amount of $2,997.92 for rental arrears and compensation for damage to the wooden floor.

[4]    The applicants sought an adjournment to amend their claim in light of fresh evidence filed by the respondents.  The Tribunal adjourned the matter and ordered inter alia:

“Parties granted leave to file with Registry by 4pm, 11 April 2011, submissions and evidence they seek to rely on at hearing.  A copy of same must be provided to the other part by this date.  In the event of the Applicants failing to amend their claim by this date, the Tribunal may dismiss the matter.”

[5]    Consequently the applicants filed their amended claim on 11 April 2011 with additional documentary evidence, arguing they are entitled to compensation for the following items:

·Money given to the respondents on 5 October 2005 for ‘cleaning & food’ in the amount of $650.00;

·Rental Arrears for the period 23 December 2009 to 22 December 2010 in the amount of $85.01; and

·Compensation for damage to the wooden floor in the amount of $1,375.00.

[6]    Also on the 11 April 2011, the respondents filed a counter-application and sought the following orders to be made:

·The applicants’ claim for rental arrears, repairs to the wooden floor and monies said to be provided to the respondents for ‘cleaning & food’ on 5 October 2005, be dismissed;

·The applicants pay the respondents the amount of $2,208.60 for rental credits – being rent paid in excess of the tenants’ liability under their General Tenancy Agreements; and

·The release of the bond held by the Residential Tenancy Authority in the amount of $1,498.20.

[7]    The Tribunal further ordered on 20 June 2011:

“The matter be adjourned for a period of two (2) weeks, to then be heard in Chambers based on the transcript of the proceedings of 14 March 2011 and evidence filed with Registry.

The respondents are granted leave to file a reply to fresh matters the Claimants have referred to in their amended application.  Such reply must be filed in Registry by 4pm on 4 July 2011.

The parties may make submissions to the Tribunal by 4pm on 4 July 2011 as to matters which should be suppressed in the published written decision which will follow.”

[8]    The respondents filed a reply on 1 July 2011 by way of express post.

Legislation

[9] The Tribunal has jurisdiction to hear and decide this matter pursuant to sections 11 and 12 of the Queensland Civil and Administrative Tribunal Act 2009 (the ‘QCAT Act’). This was a claim by the applicants against the respondents for relief under the Residential Tenancies and Rooming Accommodation Act 2009 (‘the Act’) for a residential agreement over the property located at the address identified in the claim.

[10]  Because the applicant lessor is seeking a compensation order to be made in its favour the Tribunal must have regard to the matters listed in s 421(1) of the Act, including whether the lessor has taken all reasonable steps to mitigate the loss or expense suffered.  If this cannot be shown, pursuant to s 362(3)(b) the lessor is not entitled to receive compensation for any loss or expense that could have been avoided by taking the steps.

Relevant Facts

[11]  The first respondent, Ms Ferguson rented the property for approximately six (6) years, from 6 October 2004 to 22 December 2010.  Mr Tritton commenced leasing the property as a joint tenant since October 2007.  The terms of the extended tenancy for this dwelling, were set out in successive written agreements between the parties.

Condition of the Property at Commencement of the Lease

[12]  The Entry Condition report completed by the parties on 7 October 2004 details a number of cleaning issue at the commencement of the lease, including “some rubbish in garden beds”, “kitchen cupboards are dirty as are floors”, “toilet, including bowl dirty”, “dishwasher needs cleaning”.  Correspondence between Ms Ferguson and Ms Joliffe-Martin around this period, confirm cleaning, repairs and pest treatments were required.

[13]  To the applicants’ credit, they arranged for the property to be treated for pests and provided Ms Ferguson the sum of $200 “to take care of cleaning and inconvenience” (as stated on the Entry Condition report).  The applicants also offered the use of their cleaner to assist with these outstanding cleaning issues at the start of the tenancy.

[14]  The sum of $450 was also provided to the first respondent “to contribute towards food for the first three weeks of [her] tenancy… because [she] couldn’t cook at night” due to the multiple pest control treatments at the property.

[15]  In their claim the applicants sought compensation for “repair costs to fix the damage to the floor boards are also being sort (sic).   The floor needs to be sanded back and then re-polished.”  A quote was filed as part of their application to sand, polish and apply three coats of gloss finish to “one room, hallway, kitchen, dining room, living room.”

[16]  At hearing Mr Martin, on behalf of the applicants, clarified the damage to the floors was a “reduction in the high gloss finish” to a patch measuring approximately “two and a half metres square” in the combined lounge/dining area.  The applicants did not provide the Tribunal with photographs, noting the damage “doesn’t really show up in any photographs at all.”

[17]  The Tribunal notes the condition of the wooden floors in the lounge/dining room on the Entry Condition Report are recorded as being in good condition, with “scratch marks” in the entry.

[18]  The respondents claim throughout the course of their six (6) year tenancy, notwithstanding periodic inspections, “flooring claims were never raised and no Notices to Remedy Breaches regarding flooring were ever given by the Lessors…  We were careful regarding floors and used rugs, placed felt under furniture and used floor wax to preserve the condition of the floors on occasion.”  The applicants’ evidence did not contradict these statements. 

[19]  The respondents further argue they had no knowledge of the alleged damage to the floors (namely, wearing of the gloss finish to a patch of the lounge/dining room floor) until the applicants filed their claim.  Nor was the issue raised prior to hearing during conciliation with the Residential Tenancies Authority.

[20]  Ms Ferguson and Mr Tritton refute the existence of such damage and refer to the single quote sourced by the applicants for “sanding and polishing the entire household timber flooring but there is no reference to any specific damage on this quote.  We believe this is an attempt by the owner’s to renovate the property at our expense.”

[21]  If the Tribunal were to find a wearing of gloss to a patch of the flooring in the lounge/dining room, the respondents argue it would come within the meaning of fair wear and tear, for which they should not be responsible.  It is also argued the Tribunal should take into consideration the improvements to the property by the respondents throughout the course of their tenancy.

Alleged rental breaches

[22]  The applicants assert there were numerous breaches by the respondents for rental payments, causing “a total of 24 notices issued…. Some breaches were for in arrears for thirteen weeks, putting a continued strain on the applicants.  Even to the point where the property was to be repossessed…”.  However, it is conceded “on most occasions the breaches were rectified.”

[23]  Ongoing consideration was said to be given by the applicants to the personal circumstances of Ms Ferguson because she had a special needs child.

Findings of the Tribunal

[24]  The applicants’ claim of $650 (as discussed above in paragraphs 5, 6, 13 and 14) for monies paid to the respondents for “cleaning & food” is dismissed.  It is clear from the language used by the parties to describe the two amounts paid, namely $200 and $450 were not loans but compensation for “cleaning and inconvenience” and the temporary loss of amenity “because she [the first respondent] couldn’t cook at night…”.

Exit condition report

[25]  In the applicants’ initial claim, they failed to include a copy of the Exit Condition Report.  At a later date when the applicants amended their claim, a version of the Exit Condition Report was filed which differs from the copy completed by the respondents upon their vacation of the premises.  The respondents maintain they were never provided with a copy of this report, contrary to section 66(2) of the Residential Tenancies Act 2008.

[26]  The subsequent copy bears the lessors’ signature and comments, purportedly completed at the time of their exit inspection on 23 December 2010.  There is a notation written in thick black pen “wooden floors have been damaged” in the lounge room, “quote to repair.”

[27]  The Tribunal notes the date of the quote to repair the wooden floors was dated 18 February 2011, a number of days prior to the lodgement of the QCAT application.  This evidence is consistent with the respondents’ claims that they were never made aware of the damage (despite conciliation) until the commencement of the Tribunal’s proceedings.  Therefore the applicants have failed to take reasonable steps pursuant to section 362 of the Act to mitigate the loss or expense, by allowing the respondents an opportunity to rectify the alleged damage, if it were to exist.

[28]  In the absence of other expert opinion, the Tribunal accepts the second respondent’s (Mr Tritton) Statutory Declaration as evidence of the condition of the wooden flooring.  Although a lower weight is apportioned to this evidence, his professional experience cannot be automatically discounted.

“I have been a carpenter for a period of 17 years with experience in all facets of building construction (residential) including laying and sanding, polishing timber floors.

Based on my experience the timber floor… is original.  There is mild shrinkage (greater in the sleep out) typical of a floor of this age.  The coating on the floor is a semi-gloss slightly yellowing – which is a sign of age and/or quality of the finish.”

[29]  There is a general statutory requirement for tenants to leave the premises, as far as possible, in the same condition at the start of the tenancy fair wear and tear expected.  The Act does not define “fair wear and tear”.  However it would be unreasonable for a lessor to expect a property be left in a perfect condition as it was at the commencement of the tenancy without taking into consideration something which happens during the normal use or changes that happen with aging.  It is also relevant to consider:

·    The term of the tenancy;

·    Whether the premises and its inclusions are original or recently renovated;

·    The number of approved occupants;

·     Whether the property was tenanted by a family with children;

·    Whether approval was given by the lessor for pets to be kept inside the premises; and

·    Whether reasonable steps were taken by the parties to minimise loss or damage to the premises and its inclusion (for example, using felt under furniture to prevent additional scratching to wooden flooring or removing shoes, so as not to stain pale carpets.)  

[30]  A property and its inclusions depreciate over time.  Although some features such as flooring in the main living areas of a residential property, by its very purpose, is subjected to frequent daily usage and may deteriorate at a rate different to other features in a home.  Not to expect a change in the gloss or varnish to polished floors, over the course of time, is unreasonable; as is it unfair not to expect scratches and other imperfections to occur arising from normal use.  Therefore the Tribunal dismisses the applicants’ compensation claim for repairs to the wooden flooring.

Rent

[31]  The Tribunal notes the substantial difference in the rental arrears claimed by the applicants.  In their original claim it was alleged $1,622.92 in outstanding rent was owed by the respondents.  A ledger was prepared by Ms Laycock, who by her own admission is not a book keeper and the extent of her financial training is unclear.

“When I started work for Jacquie and George [the applicants] at the beginning of last year I was asked to re-do the rental ledgers as they had lost their data when they’d had a computer crash, so by going through bank statements and old leases I was able to find payments from different people for the different properties that they owned and allocate them to within the certain leases.”

[32]  Subsequently the applicants amended their claim and seek $85.01 in rental arrears, being a difference of $1,537.91 from the original arrears sought.  This evidence is relevant in so far, as it places doubt over the accuracy of the applicants’ records.  It is also questionable whether any of the twenty-four (24) Notice to Remedy Breach forms issued to the respondents for rental arrears were legitimate.

It is further alleged the applicants failed to keep accurate records and provide receipts during the course of the tenancy, contrary to sections 88 and 89 of the Residential Tenancies Act 2008 – which is punishable by a fine.

“When we requested a copy of the ledger in 2010 the lessors couldn’t produce one” – although the Tribunal notes the lack of documentary evidence to support the respondents’ allegation that the applicants failed to provide a copy upon request.

[33]  In support of their counter-application the respondents engaged Adrians and Dunn Chartered Accountants to undertake an assessment of the rental monies paid.  In their professional opinion, during the course of the tenancy, the respondents have accrued a rental credit owing to them in the amount of $2,208.60.  Therefore in light of their expertise and training, the Tribunal prefers the evidence of the Chartered Accountant and finds:

(a)The respondents not liable for the rental arrears as claimed by the applicants; and

(b)The applicants liable to reimburse the respondents the amount of $2,208.60 for rental credits paid.

[34]  There is no other evidence before the Tribunal which gives rise to a legitimate claim the applicants may have over the rental bond monies currently in trust by the Residential Tenancy Authority.

Conclusion

[35]  In consideration of the matters mentioned above, the Queensland Civil and Administrative Tribunal is not satisfied Mr Martin and Mrs Joliffe-Martin have established the grounds of their claim.  Much of the application lacked substance, with inconsistencies in their evidence; thus causing the Tribunal to form the view that the applicants were not credible witnesses.  It was evident at hearing that such frivolous claims caused unwanted stress and inconvenience to the respondents, which is not acceptable.  The Tribunal dismisses the applicants’ claim and finds in favour of the respondents’ counter-application.