McCarry v Curtis

[2023] NSWCATCD 182

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

McCarry v Curtis [2023] NSWCATCD 182

Hearing dates:

10 November 2023

Date of orders:

10 November 2023

Decision date:

10 November 2023

Jurisdiction:

Consumer and Commercial Division

Before:

P Zammit, General Member

Decision:

1. The tenants, Cassandra Curtis and Mark Curtis, are to pay the landlord, Dean McCarry and Leeann Keech and Victoria McCarry the sum of $616.00 immediately.

2. The Rental Bond Services is directed to pay the landlord Dean McCarry and Leeann Keech and Victoria McCarry the sum of $616.00 from rental bond number T217157-2. Any amount received is to be credited against the money order. Any balance of the bond is to be paid to the tenants, Cassandra Curtis and Mark Curtis.

Catchwords:

End of tenancy charges – rental bond claim – fair wear and tear

Legislation Cited:

Residential Tenancies Act 2010 ss 51(3), 187(1)(d), 190

Cases Cited:

Gordalski v Ward [2010] NSWCTTT 384

Green v Miller [2005] NSWCTTT 703

Raper v Sanderson [2009] NSWCTTT 385

Category:

Principal judgment

Parties:

Applicants: Dean McCarry, Leeann Keech and Victoria McCarry
Respondents: Cassandra Curtis and Mark Curtis

Representation:

Mr Riddell, Real Estate Agent (Applicant)

Respondents (Self-represented)

File Number(s):

2023/00386038 (previously RT 23/31421)

Publication restriction:

Nil

REASONS FOR DECISION

BACKGROUND

1. This is an application filed by the landlords on 8 July 2023 seeking compensation, orders relating to the rental bond as well as a money order for monies exceeding the rental bond.

RELEVANT LAW

2. Section 187(1)(d) of the Residential Tenancies Act 2010 (“the Act”) provides the ability for the Tribunal to make an order for compensation but that does not exist in isolation. It needs to be enlivened by another section of the Act.

3. Section 190 of the Act says that a landlord or tenant can make an application to the Tribunal for orders when there has been a breach of the residential tenancy agreement.

4. In this matter the landlord is claiming that there has been a breach of section 51(3) of the Act which requires a tenant at the end of a tenancy to return the property to the landlord in the same condition, or as near as possible the same condition as at the commencement of the tenancy, save fair wear and tear, and in a reasonable state of cleanliness.

5. The appeal panel has discussed fair wear and tear on many occasions and it means damage or deterioration that arises when the tenants use the property for its ordinary or intended purpose. Tenants are liable for damage that arises either intentionally or negligently.

6. If the Tribunal finds that the tenants are liable for the damage, the Tribunal then needs to consider the quantum of the damage and consider whether the landlord has mitigated their loss and whether depreciation needs to be applied in accordance with the ATO depreciation schedule.

JURISDICTION

7. I am satisfied that there was a residential tenancy agreement between the parties entered into on 11 February 2022 with the tenancy commencing on 12 February 2022. The tenancy ended on 18 June 2023.

8. Accordingly I am satisfied that the Tribunal has the jurisdiction to deal with this matter.

9. The applicant has been made within 3 months of the alleged breach, so the application is within time.

GARDENING CLAIM

10. The landlord is seeking the sum of $616.00 for gardening and refers to the ingoing and outgoing inspection reports as the points of reference stating that the premises were not returned in the same condition as at the commencement of the tenancy.

11. The landlord has provided an invoice dated 5 July 2023 for the gardening works.

12. The tenants submitted that the invoice is two weeks after the vacate date and that the property was returned with the gardening done. The tenants accepted that there were weeds in the garden but still denied that there was any rubbish left.

13. Based on the evidence before the Tribunal, I am satisfied that there were weeds left in the garden beds and that there were overgrowing areas especially around the brick barbecue structure.

14. The tenants raised the dispute about the date of the invoice, however I am satisfied that the gardens were not returned in same condition based on the outgoing inspection report, noting that this photos are a point in time reference. It is further noted that at that time of year, being winter, the grass would by slower growing.

15. I find the tenants liable to the landlord for $616.00 for gardening.

FLOORING

16. The landlord claims the sum of $3,200 for floor sanding.

17. The landlord submits that there are marks in the entry, the dining room, bedroom 2 and in bedroom 3 and that these marks and scratches and indents are not fair wear and tear. Accordingly the landlord seeks to have the entire flooring sanded to ensure that there is consistency in the flooring throughout the premises.

18. The tenants admit that there are marks but say they are minor scratch marks and are fair wear and tear.

19. The Tribunal notes that there are no ingoing photos to show the condition of the flooring at the commencement of the tenancy. The Tribunal accepts the evidence of the landlord that the floors were sanded at the commencement of the tenancy and the tenants acknowledge that the floors were sanded. However without any photo evidence, it is impossible to determine what the flooring condition was generally like at the commencement.

20. The tenants further note that the photos on the outgoing inspection report are zoomed in compared to an overview photo, which may not pick up the level of flaws. However this cannot be determined as there is no overview photos provided from the commencement.

21. A number of different cases, Gordalski v Ward [2010] NSWCTTT 384; Green v Miller [2005] NSWCTTT 703; and Raper v Sanderson [2009] NSWCTTT 385 have dealt with flooring and the general approach of the Tribunal has been that badly scratched or gouged floors are a tenant’s responsibility and that is not fair wear and tear. However scuffed up floors are fair wear and tear.

22. On the photographic evidence before the Tribunal I am satisfied that the floors are not badly scratched up or gouged. The scratch marks are minor and I am satisfied that they are fair wear and tear and what you would expect from a tenant using a property for its intended purpose and in its ordinary use. There is nothing in the evidence before the Tribunal to led me to believe that there was any damage that would be considered intentional or negligent.

23. The landlords’ claim for flooring is dismissed.

PAINTING

24. The landlord is claiming the sum of $1,200 for patching and painting walls throughout the property.

25. The difficulties faced in this claim was the photographs provided by the landlord. The photographs did not differentiate between the photographs to show the walls that needed cleaning and the walls that needed painting. The Tribunal notes that the cleaning invoice has been paid by the tenants and is not being pursued today. However, the photographs are all bundled in together and once the cleaning was completed, it would be expected that some of the photographs would no longer be relevant as they had marks as opposed to scratches.

26. However, the landlords did provide photographs of chips in the door frame in the bathroom, some paint chips on walls, paint chips on skirting boards.

27. The tenants submit that some scratches on the walls and dents is normal and would be deemed fair wear and tear. Further that the paint was not done properly at the commencement of the tenancy and there were problems noted on the ingoing inspection report.

28. The evidence provided to the Tribunal by both parties was that there was paint peeling off in other arears of the property and that these problem areas were not included on the invoice for works to be done. These other areas were separated as the landlord knew that they had nothing to do with the tenants.

29. Given the evidence that the paint was peeling off in other areas of the property, the Tribunal finds that this shows that the painting was not in a perfect condition, despite the painting having been done prior to the commencement of the tenancy.

30. Based on the photographic evidence, the small scratch or scuff marks and the dents in the wall, I find these marks to be fair wear and tear and damage that is consistent with using the property for its intended or ordinary use. Further the parts that have been classified as chips in the paint, I find are areas where the paint is flaking off the wall due to the circular marks of the chips.

31. There is nothing in the evidence to suggest that the marks, scratches and chips on the walls are anything more than fair wear and tear, and accordingly the landlords’ claim for painting is dismissed.

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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: 13 August 2024