Maroney v Bullard - [2016] ACAT 33

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MARONEY v BULLARD (Residential Tenancies) [2016] ACAT 33

RT 1139/2015
Catchwords: RESIDENTIAL TENANCIES – rental bond dispute – whether tenant improvements are excused from ‘make good’ at end of lease – whether damage to property was fair wear and tear – difference between same state of cleanliness and same condition, fair wear and tear excepted, at end of lease

Legislation cited: Residential Tenancies Act 1997 sch 1 s 64

Cases cited:Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWCA 224
JSMManagement Pty Ltd v QBE Insurance (Australia) Ltd [2011] VSC 339
Patmore & Anor v Hamilton [2014] VSC 275
Regis Property Company Ltd and Dudley [1959] AC 370
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272
Taylor v Webb [1937] 2 KB 283

Tribunal: President G McCarthy

Date of Orders:  22 April 2016
Date of Reasons for Decision:         22 April 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          RT 1139/2015
BETWEEN:
JACLYN MARONEY
Applicant/Lessor

AND:
ANDREW BULLARD
ANNE BULLARD
Respondents/Tenants

TRIBUNAL: President G McCarthy

DATE: 22 April 2016

ORDER

The Tribunal Orders that:

The tenants pay the lessor compensation in the sum of $768 comprised of $528 by way of compensation for damage to the premises and $240 for cleaning the premises.
The Office of Rental Bonds is directed to release $768 of the bond to the lessor to be credited against the sum payable under order 1.
The Office of Rental Bonds is directed to release the balance of the bond ($832) to the tenants.

………………………………..
President G McCarthy

REASONS FOR DECISION

On 12 October 2013, the applicant lessor, Ms Jaclyn Maroney, leased her property in Gunghalin, ACT to the respondent tenants, Mr and Mrs Andrew and Anne Bullard, for a rent of $400 per week. Mr and Mrs Bullard occupied the property for approximately two years, with a final inspection occurring on 21 October 2015.
Despite cordial dealings between the lessor’s agent and the tenants during the course of tenancy, a dispute arose at its conclusion over the condition of the property and whether the lessor was entitled to deduct money from the bond to cover the costs of repairing damage to the property and cleaning the property to a standard required at the conclusion of the lease under clause 64 of the tenancy agreement. The dispute was not resolved, and so by application to the Tribunal dated 4 February 2016 the lessor claimed compensation of $2,002 to cover:
...the remaining costs in returning the property to an acceptable as at commencement of tenancy state, taking into consideration fair wear and tear.
Ms Sian Day from the property management agency, Property Difference, appeared on behalf of the lessor. Mr Bullard appeared with leave by telephone for himself and on behalf of his wife.
The lessor claims compensation comprised of the following items:
(a)$1,762, being a portion of an invoice in the sum of $2,002 inclusive of GST for internal painting of the leased premises, as paid to Leigh Edwards Painting Services.
(b)$240, being payment for four hours of general end-of-lease cleaning at $60 per hour paid to Pete Black Carpet Cleaning. The cleaning was of cupboards, walls and floors etc, not carpet.
The invoice from Leigh Edwards Painting Services noted $1,782, rather than $1,762, as the portion of the cost of repair painting that should be paid by the tenants. However I have applied the sum of $1,762, being the amount claimed in the lessor’s application to the Tribunal.
Mr Bullard contended that the tenants are not liable to pay the lessor anything and that the bond ($1,600) should be refunded to him and his wife in full. He contended:
The reasons are that this property was vacated in a clean and repaired manner in accordance with the final inspection held on the 21 October 2015 between Ms Mandi Cousins and myself Andrew Bullard.
The lessor’s agent failed to supply a written report by the final inspection date 21^st of October 2015 as contractually required.
We the respondents maintain that the applicant seeks to use our bond monies to return the property to an as new condition and not used (sic) towards a capital improvement beyond what is considered to be as to fair wear and condition.

Estoppel

Mr Bullard commenced with the submission that at the completion of the final inspection, the property manager’s employee, Ms Mandi Cousins, informed Mr Bullard that everything was “OK”, meaning, he said, that the property had been properly cleaned and repaired. Mr Bullard submitted that the lessor should be held to Ms Cousins’ word and that the bond should therefore be refunded in full to the tenants.
I am not persuaded that Ms Cousins gave any such assurance. Three matters persuade me to the contrary.
First, I received in evidence a copy of the original inspection report upon which Ms Cousins wrote extensive notes in the course of the final inspection. On every page of the 10 page report Ms Cousins wrote notes detailing items of damage to the house and areas in need of cleaning. Having made such extensive notes, it is illogical that Ms Cousins would then tell Mr Bullard that everything was “OK”. Ms Cousins gave evidence denying that she did so.
Secondly, Ms Cousins gave evidence, which I accept, that she had no authority to give any assurance that the property, or any property, was “OK” in the sense of representing to a tenant (and Mr Bullard in this case) that a property had been returned in the condition required under the lease and that the bond would therefore be returned to the tenants. Ms Cousins gave evidence, which I accept, that that was a matter for her employer, Ms Day, after discussion with the relevant lessor. I have no reason to find that Ms Cousins acted in this case contrary to such a fundamental limit on her authority.
Thirdly, Ms Cousins gave evidence, which I accept, that Mr Bullard became irritated and offended by the very process of having to participate in the final inspection, room by room, especially as Ms Cousins pointed out defects in the cleanliness of the property and damage to the property as they walked about. To him, a man of good character, it was an indignity. In his statement to the Tribunal dated 26 February 2016, Mr Bullard wrote:
To close I wish to state that we are professional people in our 60’s and very house-proud. We enjoy our furniture and furnishing and we have absolutely no intention to return a property in the condition that Property Difference state. We support these statements by emails from Mr. Gunning by reference to our character and the state of our home. My wife is an Interior Decorator and takes great pride in the presentation of our home.
Mr Bullard gave similar evidence to that given by Ms Cousins, explaining his annoyance at Ms Cousins’ concerns about the cleanliness of the property. I gained an understanding that Mr Bullard regarded Ms Cousins’ concerns as pedantry. For example, concerning the bathrooms, Mr Bullard stated:
there was one small hair scrap in a sink I washed that away. There was a small amount of dust in a drawer I wiped that clean.
Such statements ignore Ms Cousins’ numerous notes about many chips, dents and scratches and many items that were dirty or greasy. Ms Cousins gave evidence, which I accept, that she became very upset as Mr Bullard – a professional man in his 60’s - repeatedly challenged and complained about the many defects she identified in the course of the final inspection. I gained a clear understanding from Mr Bullard’s evidence that his priority was to hand back the property and be on his way to Armidale to join his wife. Ms Cousins, meanwhile, was a relatively junior property manager just trying to do her job. These circumstances are incidental to the issues I need to decide, but the fact that the clash occurred is inconsistent with the proposition that Ms Cousins gave any assurance that the property had been returned in a satisfactory condition.
I do not suggest that either party’s conduct was unreasonable. Rather, it was a clash of circumstances arising from Mr Bullard’s situation where the property had ‘served its purpose’, and Ms Cousins’ situation where her professional obligation was to ensure on behalf of the lessor that the property was returned in the condition required under the lease.
The circumstances of the final inspection also cause me to reject Mr Bullard’s technical complaint that the lessor did not provide him with a final inspection report. I accept Ms Cousins’ evidence, corroborated by Ms Day, that in light of the tension during the final inspection Ms Day directed Ms Cousins to leave as soon as possible after completion of the inspection. Mr Bullard immediately drove to Armidale. The clash was such that there was no practicable opportunity to provide Mr Bullard with a formal final inspection report, especially where he was objecting in any event to any suggestion that the property had not been returned in a fit state of repair and cleanliness.

Tenant improvements

Concerning the painting repairs, Ms Cousins and Ms Day stated, and I accept, that Mr and Mrs Bullard were good tenants over the course of their two-year tenancy. I accept that they used the property as though it were their own. This extended to placing picture hooks in walls and installing curtain tracks in two rooms in order to improve their enjoyment of the property. I accept that this was done with the lessor’s consent, but that does not excuse the tenants from ‘making good’ at the conclusion of the lease. As noted in an email from Ms Day to the tenants sent on 8 November 2013:
Owner said curtain tracks should be fine, please remove patch when you leave.
Regarding the fittings for the curtain tracks, Mr Bullard said, and I accept, that they were professionally installed. The fittings, he said, were an asset that improved the value of the property but which he and his wife were happy to leave in place for the benefit of future occupants. Accordingly, he said, he and his wife should not be required to pay for their removal or the return of this aspect of the property to its condition at the commencement of the lease.
I reject that submission. Clause 64(b) of the standard residential tenancy terms that formed part of the tenancy agreement states:
The tenant must leave the premises –
(a) ..
(b) in substantially the same condition as the premises were in at the commencement of the tenancy agreement, fair wear and tear excepted. (emphasis added)
In Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272, the High Court considered a situation where a tenant installed a new foyer in commercial premises at the commencement of a long term lease. Despite the quality and value of the installation, the lessor required that at the end of the lease the area of the foyer be returned to its original condition. The tenant refused to do so and argued that the lessor had not suffered loss due to the improvement in the property arising from the new foyer. The High Court rejected the tenant’s claim. At [13] – [15], the Court said:
13.       The Tenant's submission misunderstands the common law in relation to damages for breach of contract. The "ruling principle", confirmed in this Court on numerous occasions, with respect to damages at common law for breach of contract is that stated by Parke B in Robinson v Harman:
"The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed."
Oliver J was correct to say in Radford v De Froberville that the words "the same situation, with respect to damages, as if the contract had been performed" do not mean "as good a financial position as if the contract had been performed" (emphasis added). In some circumstances putting the innocent party into "the same situation ... as if the contract had been performed" will coincide with placing the party into the same financial situation. Thus, in the case of the supply of defective goods, the prima facie measure of damages is the difference in value between the contract goods and the goods supplied. But as Staughton LJ explained in Ruxley Electronics Ltd v Forsyth such a measure of damages seeks only to reflect the financial consequences of a notional transaction whereby the buyer sells the defective goods on the market and purchases the contract goods. The buyer is thus placed in the "same situation ... as if the contract had been performed", with the loss being the difference in market value. However, in cases where the contract is not for the sale of marketable commodities, selling the defective item and purchasing an item corresponding with the contract is not possible. In such cases, diminution in value damages will not restore the innocent party to the "same situation ... as if the contract had been performed".
14.       In circumstances like the present, where the relevant covenant is in the form of cl 2.13, it is not the case that, in Oliver J's words:
"the disappointment of the plaintiff's hopes and expectations from the contract becomes a relevant consideration only so far as it is measurable either by some deterioration of the plaintiff's financial situation or by some failure to obtain an amelioration of his financial situation."
To reason otherwise is to undermine a fundamental postulate inherent in cl 2.13.
15.       Similar thinking underlies a statement made by Dixon CJ, Webb and Taylor JJ in Bellgrove v Eldridge. A builder who had built a house which, in breach of contract, contained defective concrete and mortar, contended that the measure of damages was limited to diminution in value and did not extend to costs of rectification. Their Honours said:
"In the present case, the respondent was entitled to have a building erected upon her land in accordance with the contract and the plans and specifications which formed part of it, and her damage is the loss which she has sustained by the failure of the appellant to perform his obligation to her. This loss cannot be measured by comparing the value of the building which has been erected with the value it would have borne if erected in accordance with the contract; her loss can, prima facie, be measured only by ascertaining the amount required to rectify the defects complained of and so give to her the equivalent of a building on her land which is substantially in accordance with the contract."
So here, the Landlord was contractually entitled to the preservation of the premises without alterations not consented to; its measure of damages is the loss sustained by the failure of the Tenant to perform that obligation; and that loss is the cost of restoring the premises to the condition in which they would have been if the obligation had not been breached.
In this case, it follows that the tenants were required to remove the curtain fittings, particularly where removal was stated as a condition of the lessor’s consent to the installation. Having not done so, the tenants are liable to compensate the lessor for the cost of this rectification work.

Fair wear and tear

The more difficult question is the extent to which the lessor may recover the cost of rectifying the numerous scuffs, dents, chips, scratches and holes noted on Ms Cousins’ final inspection report that, I accept, occurred over the course of the two years when Mr and Mrs Bullard occupied the property.
As noted above, clause 64(b) of the tenancy agreement did not require return of the property in the condition it was provided in absolute terms. Rather, a tenant is required to leave premises only in ‘substantially’ the same condition as it presented at commencement of the lease - and fair wear and tear is ‘excepted’.
In issue is whether the phrase ‘fair wear and tear’ excuses the tenants from liability to repair some or all of the damage noted by Ms Cousins during her final inspection.
In Taylor v Webb [1937] 2 KB 283, the UK Court of Appeal noted that the phrase ‘wear and tear’ has been common in leases and tenancy agreements for two to three centuries. It covers two classes of disrepair:
(a)Disrepair caused by the normal or ordinary operations of natural causes, such as sun, wind and weather.
(b)Disrepair caused by a tenant or other persons on the premises with the consent of the tenants (which would include in this case Mr and Mrs Bullard’s children and grandchildren) as a normal and unintentional incident of their occupation of the property.
The UK Court of Appeal noted that the word ‘fair’ contemplates ‘ reasonable’. It would not include intentional or negligent damage, for example damage caused by pets, or by manifest lack of care or improper or impermissible use of the property.
The approach in the UK has been adopted in Australia. In JSMManagement Pty Ltd v QBE Insurance (Australia) Ltd [2011] VSC 339 at [19] – [29] (footnotes excluded), Osborn J said:
19 The word ‘wear’ [in the Oxford English Dictionary] has as one of its meanings:
The process or condition of being worn or gradually reduced in bulk or impaired in quality by continued use, friction, attrition, exposure to atmospheric or other natural destructive agencies; loss or diminution of substance or deterioration of quality due to these causes.
20 The Macquarie Dictionary expresses its meaning as being:
To impair, deteriorate or consume gradually by use or any continued process
21 In turn the Oxford English Dictionary describes the meaning of the phrase ‘wear and tear’ as
wearing or damage due to ordinary usage; deterioration in the condition of a thing through constant use or service.
22 The Macquarie Dictionary describes the meaning of the phrase as ‘diminution, decay, damage, or injury sustained by ordinary use’.
23 Black’s Law Dictionary [8^th edition 2006] also gives the primary meaning of the phrase as ‘deterioration caused by ordinary use’.
24 In my opinion, the ordinary meaning of the phrase ‘wear and tear’ is that given as its primary meaning by both the Oxford English Dictionary and the Macquarie Dictionary, namely damage due to or sustained during ordinary usage.
25 This is because the word ‘wear’ is coupled with the word ‘tear’. The concept unifying both words is damage caused by ordinary, as against extraordinary, events. ‘Wear’ is concerned with the result of usage taking place in respect of a thing. ‘Tear’ is concerned with the impact of ordinary natural causes such as weather upon a thing.
26 The phrase wear and tear is often used to confine the obligation of a tenant to keep premises in good repair.
27 A Dictionary of Modern Legal Usage states:
Wear and tear. In the context of leases, the phrase wear and tear – a ‘reduplicative phrase’, as linguists call it – includes not only the action of weather but also the normal use of property. A tenant is not liable to replace a carpet that becomes dingy from normal use during the tenancy – but a spilled bottle of black ink is another matter. The phrase is usually preceded by a synonym, for good measure: normal wear and tear, reasonable wear and tear, and fair wear and tear are generally synonymous. (emphasis added)
28 The understanding of the phrase in the context of leases was elucidated by Scott LJ in Taylor v Webb:
The phrase ‘wear and tear’ is a very old English idiom and the clause ‘fair’ (or ‘reasonable’) ‘wear and tear excepted,’ has been common in leases and tenancy agreements for two or three centuries. It is, like many idiomatic expressions, complex in meaning; it implicitly refers to both cause and effect, and in each aspect it covers two classes of disrepair, (a) that brought about by the normal or ordinary operation of natural causes, such as wind and weather, in contradistinction to abnormal or extraordinary events in nature such as lightning, hurricane, flood or earthquake; and (b) that brought about by the tenant, and other persons present in or on the premises with the consent of the tenant, either unintentionally or as a normal incident of a tenant’s occupation, in the course of the ‘fair’ (or ‘reasonable’) use of the premises for any of the purposes for which they were let. Sense (a), the first of the two senses covered by the phrase ‘wear and tear’ when used in repairing covenants, is somewhat analogous to the sense of the words when used in marine insurance. There the perils of the sea against which the policy protects are exceptional or abnormal marine events, at least in point of degree, and sufficiently so to constitute them ‘accidents’: and a line was drawn in old sailing-ship days between the normal damage and cutting away of sails, spars and ropes incidental to ordinary heavy weather on the one hand, which does not constitute a peril insured against, and an abnormal casualty which does; and the old law and even the old idiomatic phrase reappear in statutory guise in s 55, sub-s 2(c), of the Marine Insurance Act 1906. So in the law of landlord and tenant legal interpretation of the phrase as applied to the elements has produced a similar demarcation of degree between the normal and abnormal, the ordinary and the extraordinary; leaving a penumbral zone where a jury may wander and lawfully come to its own conclusion, a zone of ‘give and take’ decisions, as Willes J said in Scales v Lawrence. That the phrase ‘wear and tear’ includes in its scope my sense (b), namely, the tenant’s user and its effect, is too plain to need argument, and is well recognized in the decided cases
29 The judgment goes on to further discuss the meaning of ‘fair’ in the phrase ‘fair wear and tear’ when used in the context of a lease. The view of the legal consequences of a conventional fair wear and tear clause in a lease articulated in Taylor v Webb was subsequently overruled in Regis Property Company Ltd and Dudley. Nevertheless, the passage I have quoted expresses the fundamental notions of wear and tear. It also directs the reader to the context of marine insurance as illustrating the relevant concept of ‘tear’.

These passages were recently cited with approval in Patmore & Anor v Hamilton [2014] VSC 275 at [42].
Whilst not relevant in this case, I note that Osborn J’s statement that “the legal consequences of a conventional fair wear and tear clause in a lease articulated in Taylor v Webb was subsequently overruled in Regis Property Company Ltd and Dudley” concerns a failure to report or address damage by fair wear and tear that leads to much more significant damage.
In Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWCA 224, Hodgson JA of the NSW Court of Appeal quoted from the primary judge’s reasons at [56], with which Hodgson found “no material error”. At [31], Hodgson JA said:
31 The primary judge gave the following reasons:
...
56 Alamdo says that this deterioration is not put beyond the lessee’s responsibility by the “reasonable wear and tear” exception. Its contention, in summary, is that a tenant having the benefit of such an exception is not free simply to stand by and see the demised premises reduced to rack and ruin by the compounded effects of normal wear and tear – that there is a point at which the tenant must step in and put an end to the downwards slide. In this respect, Alamdo relies on a passage in the judgment of Talbot J in Haskell v Marlow [1928] 2 KB 45 which was first rejected by the Court of Appeal in Taylor v Webb [1937] 2 KB 283 but later reinstated as authoritative by the House of Lords in Regis Property Co Ltd v Dudley [1959] AC 370. The passage is as follows:
“The meaning is that the tenant (for life or years) is bound to keep the house in good repair and condition, but is not liable for what is due to reasonable wear and tear. That is to say, his obligation to keep in good repair is subject to that exception. If any want of repair is alleged and proved in fact, it lies on the tenant to show that it comes within the exception. Reasonable wear and tear means the reasonable use of the house by the tenant and the ordinary operation of natural forces. The exception of want to repair due to wear and tear must be construed as limited to what is directly due to wear and tear, reasonable conduct on the part of the tenant being assumed. It does not mean that if there is a defect originally proceeding from reasonable wear and tear the tenant is released from his obligation to keep in good repair and condition everything which it may be possible to trace ultimately to that defect. He is bound to do such repairs as may be required to prevent the consequences flowing originally from wear and tear from producing others which wear and tear would not directly ‘produce’.”
57 Talbot J then gave examples:
“For example, if a tile falls off the roof, the tenant is not liable for the immediate consequences; but, if he does nothing and in the result more and more water gets in, the roof and walls decay and ultimately the top floor, or the whole house, becomes uninhabitable, he cannot say that it is due to reasonable wear and tear, and that therefore he is not liable under his obligation to keep the house in good repair and condition. In such a case the want of repair is not in truth caused by wear and tear. Far the greater part of it is caused by the failure of the tenant to prevent what was originally caused by wear and tear from producing results altogether beyond what was so caused. On the other hand, take the gradual wearing away of a stone floor or staircase by ordinary use. This may in time produce a considerable defect in condition, but the whole of the defect is caused by reasonable wear and tear, and the tenant is not liable in respect of it.”
In this case, where all the damage was to the internal surfaces of the property, I am concerned only with disrepair caused by ordinary use, not natural causes. The question is whether the damage can be properly described as ‘fair (or reasonable) wear and tear’ such that the tenants should not be liable to the lessor for that damage.
In my view, the question must be assessed objectively, meaning neither by reference to the views of a fastidious lessor nor the views of a tenant who is (or was) indifferent to the maintenance and care of the leased property. The need for an objective assessment requires the Tribunal to form a view as to where the balance lies.
Having regard to the oral evidence from Ms Cousins and Mr Bullard, largely confirmed by the photographs and Ms Cousins’ handwritten notes about the size and nature of the dents, chips, scratches and scuffs, I have concluded that none of this damage, so far as I can ascertain, was more than minor damage. I am not persuaded that it was anything but accidental damage arising from normal and reasonable use of the property. In my view, it should be regarded as ‘fair wear and tear’, particularly where it occurred over the course of a two-year tenancy and where such scuffs and dents can reasonably be expected to occur in the course of general living.
This approach is consistent with the lessor’s entitlement to claim significant depreciation of fixtures and fittings against rental income and to claim that the costs of repairs, such as repainting, are expenses incurred for the purpose of deriving income, rather than capital improvement.
I have reached a different view regarding the nail holes, fixing screws and curtain fixtures that arose from intentional actions on the part of the tenants. They did not arise from fair wear and tear. That these actions may seem reasonable, in the sense they were to improve the tenants’ amenity and enjoyment of the house, is not to the point. The tenants’ obligation was to return the property to “substantially the same condition as the premises were in at the commencement of the tenancy agreement”, or ‘make good’. They did not do so, and compensation for the cost of making good is payable.
In this case, where the walls and other areas have been entirely repaired and repainted, regardless of cause, my reasons oblige me to apportion the costs of the work conducted by Leigh Edwards Painting Services in a manner that reasonably distinguishes repair of damage attributable to fair wear and tear from damage attributable to the intentional actions of the tenants. In my view, that apportionment remains necessary in this case regardless of the fact that at least some of the work, for example repainting after patching, might have been necessary in either case.
In other cases, this apportionment might not arise. It is for tenants to make good damage they have caused, except where it is attributable to fair wear and tear. How they do so is a matter for them. If that is not possible without also rectifying damage that is attributable to fair wear and tear, so be it.
Much will turn on the facts. For example, where walls are freshly painted at the commencement of a tenancy, a tenant might need to repaint the walls in order to make good intentional or negligent holes or damage. That the repaint might also rectify scuffs and marks that occurred during the tenancy arising from fair wear and tear is not to the point. Conversely, where walls are scuffed and marked at the commencement of a tenancy, to make good nail or screw holes may only involve patching or even no work at all if the holes made no material difference to the condition of the walls.
In this case, I have approached apportionment by comparing Ms Cousins’ contemporaneous notes made in the course of the final inspection with Mr Edwards’ invoice describing the work done. I regard all of the damage to the skirting boards as fair wear and tear, but only some of the damage to the walls and window frames should be so characterised.
Despite its heading ‘Invoice for Internal Painting’, Mr Bullard challenged the authenticity of Mr Edwards’ invoice for the painting repairs. In his correspondence to the Tribunal sent on 29 February 2016, Mr Bullard submitted:
Of very grave concern to us now is that the invoice supplied by Leigh Edwards Painting services No 3771142 is dated the 3^rd of November 2015 is a manufactured invoice after the event.
This invoice is in fact a quote. It states “Painting to be carried” out on the first page And it further states on page 2 “the existing damaged walls from owner to repair are,” Also “Damaged walls and skirting from tenant will cost.
This is clearly an attempt in our view that this so-called invoice has been manufactured after the event to support Property Difference’s position.
In answer to Mr Bullard’s contention about the “so-called invoice” that was “in fact a quote”, Ms Day provided a copy of the work order that Ms Day sent to Mr Edwards, a copy of an earlier document from Mr Edwards entitled ‘Quote for Internal Painting’ and bank records to evidence that Mr Edwards’ invoice was paid in full mostly by the agent on the lessor’s behalf consequent upon the lessor not having sufficient funds to cover this cost herself.
Having regard to these documents, I reject Mr Bullard’s submission that Mr Edwards’ invoice was in fact a quote and accept that the repainting costs were incurred. It is regrettable that Mr Bullard would challenge the integrity of Mr Edwards and Ms Day in this way where the language in the invoice was readily explainable as a ‘cut and paste’ from the work order.
After comparing Ms Cousins’ notes with the description of the work done on Mr Edwards’ invoice, I have determined that 70% of the damage repaired at the conclusion of the tenancy should be attributed to fair wear and tear. I exclude work done to repair nail holes, fixing screws and curtain fittings. Accordingly, I have determined that the tenants should pay 30% of the claimed amount referenced to Mr Edwards’ invoice by way of compensation, namely $528.
Cleanliness
In accordance with clause 64(a) of the lease, the lessor also seeks compensation for the cost of cleaning the premises to “substantially the same state of cleanliness” that the property was in at the commencement of the lease. Ms Cousins’ notes taken during the final inspection are replete with comment added to the initial inspection report about door handles, walls, bathroom fittings, kitchen fittings, cupboards and the like that were greasy, dirty or needed wiping.
I accept that general dirt and grime occurs or may occur as an incident of ordinary use and occupation, but that does not mean it falls within the exception for fair wear and tear. Such an interpretation would misunderstand the ambit of the exception.
The cleanliness of premises and the condition of premises, at the conclusion of a lease, are separate issues. They are dealt with separately in clause 64 of the standard residential tenancy terms. Clause 64 (a) provides for cleanliness. It states:
The tenant must leave the premises –
(a) in substantially the same state of cleanliness, removing all the tenant’s belongings and any other goods brought onto the premises during the duration of the tenancy agreement
By contrast, clause 64(b) provides for the condition of the premises, as stated in paragraph 18 above. It is only regarding the condition of premises that the exception for fair wear and tear applies.
Turning to the tenants’ compliance with clause 64(a), I see no basis to doubt Ms Cousins’ notes corroborated by the invoice from Pete Black Carpet Cleaning that a professional cleaner spent in excess of four hours carrying out the necessary cleaning.
Mr Bullard told the Tribunal that he and his wife cleaned the premises themselves, and incurred cost only in professionally cleaning the carpets. I am not persuaded by this evidence that the work done by the professional cleaner was unnecessary. Mr and Mrs Bullard are elderly people. I observe in passing that return of long-term rental properties to substantially the same state of cleanliness in which there were presented at the commencement of the lease is not comparable with, say, a holiday lease where professional cleaning is included in the weekly or fortnightly rent payable.
By reference to Ms Cousins’ notes, I am satisfied that at least four hours was reasonably expended in cleaning the property and that an hourly rate of $60 was reasonable. Accordingly, I allow the lessor’s claim for cleaning of $240.

Conclusion

For the above reasons, the Tribunal’s orders are as follows:
(a)The tenants pay the lessor compensation in the sum of $768 comprised of $528 by way of compensation for damage to the premises and $240 for cleaning the premises.
(b)The Office of Rental Bonds is directed to release $768 of the bond to the lessor to be credited against the sum payable under order 1.
(c)The Office of Rental Bonds is directed to release the balance of the bond ($832) to the tenants.
………………………………..
President G McCarthy
HEARING DETAILS

FILE NUMBER:	RT 1139/2015
PARTIES, APPLICANT:	Jaclyn Maroney
PARTIES, RESPONDENT:	Andrew & Anne Bullard
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	President G McCarthy
DATES OF HEARING:	8 March 2016