Jong v Beevers Real Estate
[2013] QCAT 90
•18 February 2013
| CITATION: | Jong v Beevers Real Estate [2013] QCAT 90 |
| PARTIES: | Ms Heerak Jong |
| (Applicant) | |
| v | |
| Beevers Real Estate | |
| (Respondents) |
| APPLICATION NUMBER: | MCDT651-12 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 28 May 2012 (Part heard) |
| 29 August 2012 (Part heard) |
| HEARD AT: | Brisbane |
| DECISION OF: | Tammy Williams, Adjudicator |
| DELIVERED ON: | 18 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The applicant pay forthwith to the respondent the sum of $1,600 being partial compensation and rent arrears for the period 21 to 28 January 2012; and 2. The Residential Tenancy Authority release to the respondent the sum of $1,600 in full satisfaction of the Tribunal’s order. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – section 429 general dispute between lessor and tenant about a general tenancy agreement – where applicant claims rental bond upon completion of obligations arising from the Residential Tenancy Agreement – where respondent claims compensation for cleaning and damage to property and rental arrears. Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 Residential Tenancies and Rooming Accommodation Act 2008, ss 188, 277 |
REASONS FOR DECISION
Introduction
The issue in dispute is whether the applicant is entitled to a full bond refund of $1,600.
The applicant filed a claim for the return of the bond. The respondent real estate filed a counter-application, arguing the applicant tenant failed to return the property in a similar condition in which it was originally leased and seeks compensation for the following items:
· Cleaning - $380.00;
· Replacement of light bulb - $64.00;
· Replacement of the letterbox - $25.96;
· Water damage to the vanity basin - $890.00;
· Rental arrears - $405.00.
Although the total compensation sought is $1,764.96, the respondent is prepared to accept the bond ($1600.00) in full satisfaction.
Compensation for Cleaning
The applicant, Ms Jong rented the property for approximately two and a half years.
The applicant asserts she ‘left the premises in the same condition it was in when I moved in except for fair wear and tear’. Ms Jong believes the respondent is trying to take advantage of her because she is an international student.
There is a general statutory requirement pursuant to s 188 of the Residential Tenancies and Rooming Accommodation Act 2008 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.
However, the wording of both sub-ss (2)-(3) limits the liability of a tenant, in so far as:
·Section 188(2) requires the premises and inclusions to be clean, by having regard to its condition at the start of the tenancy [emphasis added]; and
·Section 188(4) requires the tenant at the end of the tenancy, to leave the premises and inclusions, as far as possible, in the same condition they were at the start of the tenancy, fair wear and tear excepted [emphasis added].
Thus for a lessor to successfully establish the liability of a tenant pursuant to ss 188(2)-(3), the weight of evidence must satisfy a Tribunal in finding that there was a change or difference in the property’s condition (outside of what would be regarded as fair wear and tear) – from the commencement of the lease compared to when the tenant vacated.
This ultimately involves an examination of the evidence - such as entry condition reports, photographs and witness statements - to determine the actual condition of the property and inclusions that are the subject of the claim, at the start of the tenancy.
Once this baseline standard or condition of the property and inclusion is established, a determination can be made by the Tribunal as to whether there has been a subsequent change in the standard by examining evidence (such as exit condition reports, additional photographs and witness statements) gathered after receiving vacant possession and comparing it to the earlier evidence.
Exit condition report
The respondent real estate undertook an exit inspection of the property on 28 January 2012. It appears, Ms Beevers for the respondent, spoke with the applicant about her vacating the premises and then later emailed Ms Jong on 31 January 2012, with the results of the exit inspection.
There is still a large amount of cleaning that needs to be undertaken throughout the unit. The curtains throughout need to be cleaned. There are keys that have still not been returned. The vanity in the bathroom has been water damaged beyond repair. I am obtaining quotes for replacement. This will be at your cost. Your rental is paid to 21st January. Keys were initially returned on 26th January. However as discussed with you I am aware that further keys are still outstanding. Please ensure that keys are returned forthwith or rental will recommence or the locks will be changed.
In support of its counter-claim, the respondent filed a Statutory Declaration sworn by Mr Andrew Kim of Exit Clean, the contractor who attended to the outstanding cleaning items on 3 February 2012. Mr Kim provided a detailed statement attesting to the cleaning works undertaken by his company. The extent of this work was consistent with the itemised invoice submitted by Exit Clean and the outstanding cleaning issues noted by Ms Beevers in the Exit Condition report.
From this evidence, the Tribunal finds that the property was left in an unclean state at the end of the tenancy. However the question which needs to be resolved, is whether the property’s condition is of same condition as it was at the start of the tenancy?
Condition of the Property at Commencement of the Lease
The lessor completed and signed the entry condition report on 25 July 2009 and provided a copy to the tenant. A standard direction is written on the front of the report requiring the tenant to ‘discuss with lessor/agent any items where they disagree with their assessment’. The condition report also prompts tenants to include any additional supporting material and return same to the lessor.
On 9 August 2009 the respondent sent a follow up letter to the tenant requesting the entry condition report be returned.
In support of her claim that she returned the property to a similar condition as was at the start of the tenancy, Ms Jong relies upon:
· An unsigned and undated entry condition report;
· Oral evidence and photographs purportedly taken at the commencement of the tenancy, yet the Tribunal notes these were not supplied to the lessor’s agent until the end of the tenancy.
Ms Jong also states she is a professional cleaner, however there is no evidence to support these claims.
The Tribunal finds much of the applicant’s evidence is unreliable and often irrelevant with a proportion of the images detailing the wearing of the property’s fixtures. The Tribunal accepts the property is aged, however this is not what is in dispute. Rather the respondent seeks compensation for the cleaning of surfaces undertaken by the contractor Exit Clean.
On hearing the evidence, the Tribunal is not reasonably satisfied that the applicant can support her claim to the requisite civil standard. Therefore the Tribunal finds in applicant liable to reimburse the respondent for cleaning costs.
Compensation for water damage to vanity basin
The tenant accepts there is damage to the wooden vanity, however argues she should not be liable because ‘the wood was not sealed therefore through normal wear and tear, the table absorbed water. This was not my fault as I did not misuse the basin’.
The respondent strongly refutes the applicant’s claims and relies on a statutory declaration filed by the property’s owner, Mr David Hung Kuei Ying:
Immediately before Helen [the tenant applicant] moved in I had a new bathroom wash hand basin fitted which was professionally recessed in a water-resistant polyurethane coated wood bathroom vanity with drawers. I was shocked to see the black mouldy rotted condition of the vanity unit after she vacated the property earlier this year. Even the drawers in the vanity would not open due to the water damage to the wood.
A plumber’s report provided by Mr Anthony Martin states:
During the inspection of [the] vanity basin’s plumbing I found there where (sic) no water leaks from the existing hot and cold water taps and pipes also there where (sic) no leaks from the existing waste and outlet drain and trap.
The vanity basin and cabinet was in poor condition with swollen timber, sagging, wet rot and draws unable to slide in and out. Possible cause of the damage could be excess of loose water not being cleaned or wiped from vanity bench and cabinet after use.
The respondent further supplied an invoice for the replacement costs of the vanity.
The Tribunal finds the weight of evidence supports the respondent’s counter-claim and is satisfied the respondent has met the requisite standard in establishing the grounds for compensation.
The applicant is liable to compensate the respondent for water damage to the vanity.
Replacement of letterbox
The respondent seeks compensation for the replacement of the original letterbox that was present at the commencement of the tenancy.
During a periodic inspection on 3 August 2011, it was noted the ‘letter box is missing’. The respondent submits damage was also sustained to the concrete support stump. A report completed by AMPM Maintenance states ‘in my opinion this damage… has not been caused by general wear and tear or an issue with the concrete (i.e. concrete cancer) I would suggest that due to the area of the repair the angle it seems to be cause by a constant force – perhaps even being it by a car’.
The applicant denies liability stating: ‘I did nothing to damage it’. Ms Jong was unable to submit any evidence to support her claims that an unidentified third person caused the damage while she was absent from the premises. For example, there is no evidence she notified the respondent as soon as she became aware of the damage or filed a police report.
The Tribunal finds the weight of evidence supports the respondent’s counter-claim and is satisfied the respondent has met the requisite standard in establishing the grounds for compensation.
The applicant is liable to compensate the respondent for replacement cost for the mailbox.
Replacement of light bulbs
The respondent notes on the exit condition report that ‘various bulbs need replacing throughout’. This is at odds with the applicant’s claim that ‘when I left the premises I checked the light bulbs and replaced any that had been burnt out. Then the agent stated that I should pay for bulbs when I had already replaced them’.
Even if the Tribunal were to accept the respondent’s evidence that bulbs need replacing and it is the applicant who is liable - the respondent still needs to establish quantum.
His Honour Justice Wilson, the Tribunal’s President, in Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 explained most cases involving claims of compensation ‘can be thought of in two distinct phases – (1) the liability phase; and (2) the quantum phase’.[1]
[1] At 3 para [12].
Quantum in the present matter requires the respondent establish that the amount of $64.00 as is claimed, was the actual amount for the cost of replacing the said light bulbs.
The respondent relies on a receipt from WY Pty Ltd, however the Tribunal finds it deficient. It has no ABN or other identifying business details, such as postal address and telephone number, for the contractor “WY Pty Ltd.”
Therefore the Tribunal dismisses this aspect of the counter claim on the basis the respondent has failed to establish the cost to replace the said light bulbs.
Liability to pay rent for the period
When did the applicant tenant’s liability cease?
The rent ledger shows rent was paid to the 20 January 2012. The respondent seeks rent of one week being for the period 21 January to 28 January 2012, in the amount of $405.00.
The respondent argues the applicant failed to return two additional keys at the time of vacation. On the date of the exit condition inspection, 28 January 2012, it is noted that two keys are missing.
In reply to the respondent’s email to the applicant of the outstanding issues identified in the exit inspection, Ms Jong claims to have ‘put the keys … into your [the respondent’s] post box a few days a ago’. There is no evidence as to the date of when this occurred.
Even if the Tribunal were to give the applicant the benefit and accept the evidence that she did earlier post the keys to the respondent, the fact still remains that the tenant had outstanding obligations as a tenant after the 20 January 2012 – being the date rent was paid to.
Section 277 sets out the circumstances in which residential tenancy agreements lawfully end. Subsection (4) requires the handing over of vacant possession of the premises by the tenant to the lessor or agent. The Tribunal is satisfied this occurred on the date of the exit inspection. Therefore the tenants’ obligations, including the payment of rent, ceased as of this date.
The Tribunal is satisfied from the evidence available that the tenant owes seven (7) days rent, being for 21 January to 28 January 2012, in the amount of $405.00.
Conclusion
For the reasons outlined herein, the Tribunal finds partially in favour of the respondent for the amount of $1,700.96 compensation. The Tribunal further accepts the respondent’s submissions that it seeks only the release of the bond in the amount of $1,600.00 in full satisfaction of its claim.
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