Kirby v Lang; Lang v Kirby

[2023] NSWCATCD 85

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Kirby v Lang; Lang v Kirby [2023] NSWCATCD 85

Hearing dates:

6 June 2023

Date of orders:

15 August 2023 [amended 14 September 2023]

Decision date:

15 August 2023

Jurisdiction:

Consumer and Commercial Division

Before:

J. Alder, General Member

Decision:

Pursuant to section 63 of the Civil and Administrative Tribunal Act 2013, order (1)(c) made on 12 September 2023 is amended as follows:

(1) The Rental Bond Services is directed to pay the landlord, Angela Lang, care of Cassidy Real Estate 108 Pittwater Road GLADESVILLE NSW 2111 Australia the sum of $818.47 from the Rental Bond number T028154-1. Any balance of the bond is to be paid to the tenant, LIAM KIRBY and CHELSEY GUNNING, 2/54 Ronald Avenue GREENWICH NSW 2065 Australia.

NOTE: All rental bond payments are made by electronic transfer to a nominated bank account. If you have not already provided bank account details to NSW Fair Trading please contact 13 32 20 or email [email protected]

Catchwords:

LANDLORD AND TENANT – rental bond

Legislation Cited:

Residential Tenancies Act (NSW) 2010

Category:

Principal judgment

Parties:

Liam Kirby and Chelsey Gunning (applicants/cross respondents)

Angela Lang (respondent/cross claimant)

Representation:

Applicants/cross respondents: self represented
Respondent/cross claimant: represented by Ray White Gladesville

File Number(s):

RT 23/08808
RT 23/09075

Publication restriction:

None

REASONS FOR DECISION

Summary of claim

1. The landlord claims the rental bond ($2,900) plus compensation in respect of the six items as set out below totalling $3,490.97.

2. The tenants dispute all items as to either liability or cost.

3. The tenants vacated the premises on or about 15 February 2023 after a 20 month tenancy.

4. There were two adults and two children who occupied the premises, which was a two bedroom, two bathroom unit in Mosman.

5. Ray White (Agent) managed the premises.

6. Section 51(3) of the Act sets out the obligations of the tenant when giving vacant possession of the leased premises back to the landlord. The obligations include – removing all personal items from the premises, leaving the premises as nearly as possible in the same condition as at the beginning of the tenancy (fair wear and tear excepted), leaving the premises reasonably clean, removing all rubbish from the premises and returning all keys.

7. The onus is on the landlord to prove her claims on the balance of probabilities.

8. Evidence was given by the owner, Ms Lang, who appeared virtually from overseas and her managing agent, Ms Paton who relied on documents filed 18 April 2023. The tenants, Mr Kirby and Ms Gunning gave evidence and relied on documents filed 31 March 2023.

9. Based on the evidence of the parties given at the hearing, in particular the ingoing and outgoing condition reports, a selection of photographs taken at the start and conclusion of the tenancy, invoices and quotes and the oral evidence of the Agent, landlord and tenants, I make findings below.

Findings

Cleaning - $275

10. The owner says the tenants left the premises unclean when they vacated.

11. The tenant says they were dirty at the start.

12. The Agent submits the premises were not dirty at the start, the tenants only noted three dirty items in the ingoing report.

13. The tenants were given an opportunity to go back and re-clean on 21 February 2023 which they did, but at a re-inspection on 22 February 2023, the Agent determined the premises were still inadequately cleaned, with food in the fridge and streaks on the windows.

14. The tenants then paid for a professional clean by Austral Cleaning who attended on 14 February 2023.

15. The tax invoice dated 21 March 2023 from Austral specifies $340 was incurred by the tenants for cleaning.

16. The standard is not perfection, but a reasonable standard. It is also not clear when the landlord’s cleaner carried out the job. The landlord’s invoice from Xinchun Wang for $275 is dated 15 March 2023 and refers only to “cleaning”. The invoice is a month after the vacate date, during which time dirt and dust would have built up.

17. I disallow this claim as I am satisfied that three attempts by the tenants to clean, including paying for a professional clean, is more than reasonable.

Carpet cleaning - $140

18. The Agent says the tenants had a pet and did not carry out a steam clean at the end of the tenancy. The Agent relied on photos to show there were marks on the carpet after the tenants’ cleaner supposedly steam cleaned, compared to the clean photos of the carpet after the landlord’s cleaner had steam cleaned.

19. The landlord relies on an invoice from Ultra Clean Carpet Cleaning dated 13 March 2023 which refers to “quote as requested to steam clean carpets in 2 bedrooms”.

20. The tenants say the professional clean they arranged by Austral included a “carpet clean” as specified in Austral’s tax invoice. The landlord says disputes it was a proper steam clean and says this is likely only a vacuum or a clean and not a steam clean.

21. The tenant say they are entitled to rely on the invoice from Austral which refers to the carpet being cleaned.

22. I am prepared to infer from the Austral invoice and the tenants’ evidence that a steam clean was carried out on 14 February 2023, as in my view, a cleaner would not charge $89 for a vacuum. There have also been various open house inspections since the tenants vacated and the carpets were cleaned, at which time the carpets may have become dirty. The standard is a reasonable one, not perfection.

Fridge shelves - $118.47

23. The tenants concede they broke the fridge shelf and they tried to repair it. They did not report it and say it was caused by reasonable usage.

24. I allow this cost based on the tenants’ admission. I do not consider it to be reasonable wear and tear.

Floor - $2,337.50

25. The landlord says there is a circle the middle of the room caused by the tenant’s chair. It claims the cost to sand and polish this area and the adjoining area as she says partial repair is not possible.

26. The tenants admit this damage, but say the affected area is much smaller and the cost is excessive.

27. The landlord is only entitled to have repaired the affected area, not a wider area to match an undamaged section for cosmetic purposes.

28. Doing the best I can on the available evidence, I allow $500.

Scratches on pantry door - $400

29. The tenants admit they caused a small scratch on the left hand pantry door. The door still works.

30. I allow this claim, based on the admission, but I consider the cost excessive. I allow $200.

Silicone replacement - $220

31. The landlord says mould developed in the silicone as a result of the tenants failing to ventilate and clean the bathroom tiles properly.

32. The claim is $220 as per the quote dated 28 February 2023 from George’s Property Maintenance to “remove the mouldy silicone from the shower at the bottom of the tile walls only and apply new silicone”.

33. The tenants dispute this item and say the bathroom window was not able to be opened.

34. I disallow this claim as I find it to be reasonable to wear and tear over nearly a two year tenancy. I note the claim is based on a quote only and there is no evidence the landlord has incurred this cost.

**********

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 September 2023