Karavolas v Wang

[2023] NSWCATCD 135

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Karavolas v Wang [2023] NSWCATCD 135

Hearing dates:

29 August 2023

Date of orders:

27 September 2023

Decision date:

27 September 2023

Jurisdiction:

Consumer and Commercial Division

Before:

G Bassett, General Member

Decision:

(1) The tenants, Antonios Karavolas and Kristine Karavolas, are pay the landlord, Xiaomei Wang, the sum of $741.50 immediately.

(2) The Rental Bond Services is directed to pay the landlord, Xiaomei Wang, the sum of $741.50 from the Rental Bond number T324549-6. Any balance of the bond is to be paid to the tenants, Antonios Karavolas and Kristine Karavolas.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rental bonds

Legislation Cited:

Residential Tenancies Act 2010 section 51(3)

Category:

Principal judgment

Parties:

Applicant: Antonios Karavolas

Second Applicant: Kristine Karavolas

Respondent: Xiaomei Wang

Representation:

Applicants: Antonios Karavolas

Respondent: Josie Younes, Agent

File Number(s):

RT 23/29092

Publication restriction:

unrestricted

REASONS FOR DECISION

Application and procedural history

1. On 24 June 2023 tenants applied for an order to be paid a rental bond.

2. The matter came before the Tribunal for conciliation hearing on 11 July 2023. The second applicant was joined as a tenant. At that conciliation hearing the landlord agreed to limit the claim to the bond.

3. Landlord sought the following amounts for end of lease costs:

1. wall repairs and repainting $990

2. cleaning $82.50

3. replace garden pots $110.00

4. air conditioner repairs $110.00

5. fly screen replacement $54.00

6. lawns $880.00

7. garden bed repair $660.00

8. water use $5.00.

Relevant legislation

4. Under section 51(3) of the Residential Tenancies Act 2010, (“the Act), on vacating the premises, the tenant must:

(a)  remove all the tenant’s goods from the residential premises,

(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,

(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,

(d)  remove or arrange for the removal from the residential premises of all rubbish, having regard to the condition of the premises at the commencement of the tenancy,

(e)  return to the landlord all keys, and other opening devices or similar devices, provided by the landlord to the tenant.

5. Section 175 of the Act empowers the tenant to apply for an order as to the payment of the amount of the rental bond. This claim was made within the period prescribed by the regulations.

Evidence of the parties and factual findings

6. The parties lodged the following documents:

1. 25 July 2023 landlord documents

2. 8 August 2023 tenant documents.

7. Each party gave oral evidence and questioned each other on that evidence. The member presiding also questioned parties from time to time. All document evidence and oral evidence was considered in coming to this determination.

8. The tenancy began on 15 July 2022 and vacant possession was given on 19 June 2023. The bond of $2,900.00 had not been paid out at the time of hearing.

9. Section 29 of the Act requires a landlord to provide a tenant with 2 copies of a condition report before or when the residential tenancy agreement is given to the tenant for signing. The tenant has 7 days in which to comment on the report and provide one copy to the landlord or his or her agent. The tenants did not enter any comments on the ingoing condition report.

10. As soon as is reasonably practical after the end of a tenancy, a landlord or the agent and the tenant must complete the copy of the condition report retained by the landlord or the tenant under this section, in the presence of the other. This is commonly known as the exit condition meeting. In this case the parties were not both present at that meeting held by the landlord’s agent on 20 June 2023.

11. An email was sent to the tenants indicating a list of items they needed to make good in response to that exit inspection (page 23, 25 July 2023 landlord documents). The agent met with a tenant on 21 June and they went through the list of items. On 26 June a quote to make good items was sent to the tenants (25 July 2023 landlord documents). Tenants asserted that the landlord denied them permission to attend the premises to rectify any issues. Tenants also asserted the property was very old and generally in a worn condition when the tenancy commenced.

Wall repairs and repainting

12. Landlord relied on exit photos showing yellow walls in bedroom 4 of the premises (page 217) and a second yellow wall at the exterior of the premises (page 222). Other photos showed a green wall with some holes and a chip. Tenants indicated they were willing to pay $350.00 for the exterior wall as this had been broken by a soccer ball. In relation to the wall with holes and a chip they referred to entry photos showing where an item had been hanging in this area. They said this wall has been painted prior to moving in. For other walls they agreed to only pay a percentage of the amount sought for the green colour. The Tribunal accepts the tenants’ evidence they did not cause all damage to walls and also accepts their admissions of the damage caused by them. At least one wall as shown in the entry condition photos was the colour complained of prior to the tenancy commencing. Only $600.00 of the amount of $990 claimed for painting and wall repairs is allowed.

Flyscreen and water use

13. Tenants agreed to the claim for flyscreen repair ($54.00) and water usage ($5.00).

Cleaning

14. The landlord's exit photos showed dirty yellow marks in exhaust fans and a range hood. Tenants said they were not able to return to the clean this item. The Tribunal is satisfied it was left unclean by the tenants and the claim of $82.50 is allowed.

Replace garden pots

15. Landlord said many garden pots supplied with the tenancy were missing. Photos showed only one pot in the entry report was missing in that area of the exit report. No written comment is made of missing pots in the exit condition written comments though many comments were made on the garden areas. The Tribunal is satisfied that if pots had been missing, and had been supplied at the beginning of the tenancy, the agent would have marked these in the exit report but did not do so. The pots claim is not allowed.

Air conditioner repair

16. Photos of the landlord showed damage to the foam safety cover of electrical items. Tenants said this item was outdoors at the property and open to the elements. They said that the wood structure broke away overtime. The Tribunal is satisfied this damage was caused by wear and tear and does not allow this claim.

Lawns

17. A photo of the landlord show a lawn area to be worn away. On the face of the photo, this was closed by a vehicles parking in the area (images 33 to 38 landlord documents). This claim for lawns was also mixed in with the claim for repairing garden beds and both were the most substantial part of the landlord’s claim.

18. Tenants said they had re-seeded all lawns during the tenancy. Their photos showed holes in the grass in the backyard area and seeds that they put in. They also relied on photos of the grass taken by a neighbour on 6 August 2023 and given to them showing let the grass was extensive. The relatively small area of lawn alleged to be worn in the landlord 's was more than offset by the tenants re-seeding large areas suggesting the law adequately and lawn being bountiful. The Tribunal does not allow this claim.

19. In relation to the claim for garden beds the landlord relied on the photos showing various empty beds. These were compared to those in the ingoing condition report. Tenants took the Tribunal the various photos on the exit report and gave evidence of the wood bases rotting away. They reported timber problems to the landlord during the tenancy. In image 393, for example, string lines maintaining the garden beds had fallen to the floor during the tenancy. Tenants also took the Tribunal to photos 110-116 in the entry condition report showing various weeds growing between plants or empty beds. The Tribunal is satisfied images in the entry report relied on by the tenants do not show garden beds to be in good condition at the commencement of the tenancy or that some others contained plants as alleged by the landlord. The Tribunal also accepts the tenants’ evidence that the support lines of various garden beds deteriorated over time. The claim is not allowed.

Determination

20. But for the flyscreen ($54.00), water use ($5.00), wall repairs ($600.00) and cleaning ($82.50) the Tribunal is satisfied the tenants have complied with their obligations to remove all goods, leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and, in a reasonable state of cleanliness. They removed all rubbish and returned to the landlord all keys, and other opening devices or similar devices, provided by the landlord to the tenant.

21. Tenants are to pay the landlord the sum of $741.50 and the balance of the bond is to be returned to them.

Orders

22. The following orders are made:

1. The tenants, Antonios Karavolas and Kristine Karavolas, are pay the landlord, Xiaomei Wang, the sum of $741.50 immediately.

2. The Rental Bond Services is directed to pay the landlord, Xiaomei Wang, the sum of $741.50 from the Rental Bond number T324549-6. Any balance of the bond is to be paid to the tenants, Antonios Karavolas and Kristine Karavolas.

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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: 22 December 2023