McGhie v SEQ Pty Ltd
[2012] QCAT 666
| CITATION: | McGhie and Anor v SEQ Pty Ltd and Ors [2012] QCAT 666 |
| PARTIES: | Arran McGhie Melanie McGhie |
| v | |
| SEQ Pty Ltd t/as LJ Hooker Brisbane Central Susan Bentley Sue Asquith |
| APPLICATION NUMBER: | MCDT1581-12 / MCDT1582-12 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 2 October 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Paul Favell, Member |
| DELIVERED ON: | 24 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The applications are dismissed. 2. The applicants pay the respondent $2,339.41 forthwith. 3. The RTA pay from the bond the sum of $2339.41 to the respondents and the remainder to the applicants. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Arran McGhie and Melanie McGhie |
| RESPONDENT: | Sue Asquith and Susan Bentley |
REASONS FOR DECISION
The applicants, Arran and Melanie McGhie, entered into a tenancy agreement with LJ Hooker Brisbane Central for the rent of a residential property at 117 Kate Street Indooroopilly on 11 March 2011. The rental period was from 11 March 2011 to 8 March 2012. The weekly rent was $750.00 and a rental bond of $3,000.00 was lodged on the same day with the Residential Tenancies Authority.
An entry condition report was prepared by the then agent for the property (Exhibit 4).
The applicants have made applications to QCAT regarding a bond dispute and a breach of the tenancy agreement.
The applicants lodged two claims with QCAT. The first was a claim made pursuant to section 137 of the Residential Tenancies and Rooming Accommodation Act 2008 (“the Act”). It sought the release of the full rental bond held by the RTA to the applicants in the sum of $3,100.00 on the grounds “that there is no basis for the landlord/agent to seek entitlement to the bond monies for:
a) cleaning and/or repairs to the property, as left by the applicants, which was in a much cleaner state and better condition than when the original tenancy commenced; and
b) unpaid rent or fees for reletting, advertising etc. as the landlord has breached the tenancy agreement resulting in the termination of the same by the tenants.”
They also commenced an application 1582/12 pursuant to section 419 of the Act. In that application they sought $10,261.92 broken down as follows:
a) Reimbursement of overpaid rent 13 weeks (13/04/2012 to 12/07/2012) $5,850.00 (two fifths of rental paid due to downstairs rooms of property being uninhabitable).
b) Waiver of rent and fees from 13/07/2012.
c) Rent to 8/12/2012.
d) Reletting advertising fees nothing.
e) Wasted relocation costs $4,161.92.
f) Building expert’s fee $250.00.
The reason for seeking those orders was said to be,
“an order is sought that the applicants have validly terminated the tenancy agreement due to the landlords breach of the agreement for the reasons set in the affidavit of Arran McGhie filed herewith. The applicants also seek orders that they be reimbursed two fifths of the rent paid from the time the landlord/agent was notified of the rising damp/mould problem due to the property effectively becoming a 3 bedroom rather than a 5 bedroom house; waiver of further rent claimed post-14 July 2012; waiver of any reletting, advertising or other fees; reimbursement of wasted relocation costs and the expert building report fee which the applications were forced to incur”.
By an order made on 2 October 2012 both applications were to be heard together and the evidence in one application was to be the evidence in the other.
In July 2011, SEQ Pty Ltd trading as LJ Hooker Brisbane Central obtained the management of the property. The new managing agent responsible for the rental was Sue Asquith.
There were “a number of maintenance issues” which were raised with the landlord’s former agent during the period from 17 March 2011 and December 2011, which were addressed. Those maintenance issues are not the subject of these applications.
In December 2011, the applicants entered into a new tenancy agreement for the property at an increased rent of $775.00 per week. Consequently, the rental bond increased by $100.00, which was paid to the RTA.
The applicants allege that mould was first noticed on a child’s cot and in the downstairs area “in or about early April 2012.”
Dr John Ayres, a cardiothoracic radiologist, in a letter dated 7 May 2012, outlined what he describes to be “very serious health risks” related to inhabiting premises affected by mould and damp problems. He suggested that the applicants “seek help and advice on rectifying the problem with the landlord and letting agency, and /or attempt expedite a release from your current contract on this basis.” He did not state that he visited the property or conducted any tests.
On 24 May 2012, the applicants served a Form 11 Notice to Remedy Breach on Sue Asquith and Susan Bentley on the following grounds:
“As notified on 13 April 20112 there is a significant rising damp issue with the lower level of the house which results in consistent build ups of mould particularly in the two downstairs bedrooms.
This problem renders the downstairs bedrooms unusable and as such until the problem is rectified the house is now effectively a 3 bedroom house instead of a 5 bedroom house.”
On 6 June 2012, the applicants served a Form 16 Dispute Resolution request on respondent, Susan Bentley of LJ Hooker, listing four issues as the cause of the dispute. These are outlined in Exhibit AM 14.
On 7 June 2012, the applicants served a Form 11 Notice to Remedy Breach on Sue Asquith and Susan Bentley on the following grounds:
“1. As previously notified on 5th June 2012 we dispute the Form 9 Entry Notice for the Painter on 12th June 2012. These works are for renovation purposes and NOT maintenance purposes. We also advise that if these works do go ahead we take NO responsibility for any damage to the works that may occur after the paint is applied.
2. The entrance to our property on 29th May 2012 to inspect smoke alarms is a breach of the agreement as we did not receive ANY notification of this prior to the entrance occurring. The Form 9 Entry Notice was received form the Agent by email on 31st May 2012.”
On 12 June 2012, the applicants and Susan Bentley of LJ Hooker Brisbane Central participated in a dispute resolution facilitated by the RTA. It was unsuccessful.
Kevin Flemming, a registered builder, was engaged by the applicants to produce an expert report on the state and cause of the rising damp problem at the property. In a letter dated 15 June 2012, he recommended that it was “essential that the damp problem with the house and the resulting mould be addressed immediately for possible health concerns.” On 15 June the applicant forwarded the report by email to Sue Asquith and requested that the respondent sign an agreement prepared by the RTA releasing the applicants from the fixed tenancy agreement without financial penalty (Exhibit AM 16). The applicant informed the respondent that if such an agreement was not signed proceedings in QCAT would be commenced.
On 15 June 2012 the applicants served a Form 11 Notice to Remedy Breach on Sue Asquith and Susan Bentley on the following grounds:
“Further to the Form 11 issued on 07/06/2012 in relation to the Form 9 Entry Notice issued for the Painter on 12th June 2012 (and subsequently revised for 14th June 2012) we advise that the painter attended on 15th June 2012 to continue the works and has further advised that the works are not complete and will be continuing on Monday 18th June 2012 for an undefined period of time. These works are now clearly for renovation purposes and NOT maintenance purposes as the paint colours are also being changed. The breaches are or carrying out renovation works and for entering the property outside the Form 9 Notice Entry advised date and times.”
On 18 June 2012 the applicants served a Form 11 Notice to Remedy Breach on Sue Asquith and Susan Bentley on the following grounds:
“Further to Form 11’s issued on 07/06/2012 and 15/06/2012 in relation to painting works we advise that the painter has now attended at 7:30am on each of 14/06/2012, 15/06/2012 and 18/06/2012. This is a further breach of the Form 9 issued for painting works on 14/06/2012.
Furthermore these works are clearly NOT maintenance works and are for renovation purposes, particularly given the paint colours have been changed. Painter has advised Sue Asquith instructed him to paint all the orange and red coloured paint on the house.”
Following the abovementioned notices to remedy breaches, on 19 June 2012, the applicants served a form 13 Notice of Intention to Leave on Sue Asquith of LJ Hooker Brisbane Central by email. The notice stated that the applicants intended to give up vacant possession of the property at midnight on 12 July 2012. The grounds for such notice were stated as follows:
“Unremedied breach – Form 11 Notice to Remedy Breach issued 24/05/2012 to rectify damp issue (refer attached). This issue is resulting in significant mould build up inside the property and presents an unacceptable significant Health issue to ourselves and our children. This issue is a breach of s.185 of the Residential Tenancies and Rooming Accommodation Act (RTRA) 2008.
Unremedied breaches – Form 11 Notices to Remedy Breaches issued 07/06/12, 15/06/12 and 18/06/12 for painting works carried out on 14/06/12, 15/06/12 and 18/06/12. This issue is a breach of s.183 of the RTRA 2008.
Rent currently paid up to 12/07/2012. No more rent payments will be made after this date. No reletting fee or advertising costs will be payable.”
A conciliation between the applicants and the respondent was facilitated by the Residential Tenancies Authority but the dispute was not resolved. A notice of unresolved dispute was issued by the RTA on 19 June 2012.
On 21 June 2012 LJ Hooker Brisbane Central served a Form 9 Entry Notice on the applicants, for the entry of Michael (Moisture Control Services) & Landlord on 27 June 2012, and requesting the following:
“- request bottom two bedrooms are empty of of (sic) all items prior to entering the property so he can inspect the timber floor. All cupboards in the laundry and downstairs kitchen there will be mould sampling done. MCS-Michael requested remove all items in and around the front LHS of the house – large section of the black plastic on the LHS will be pulled down so MCD can take samples.”
In a letter dated 22 June 2012, Johanna Lucas of Barry Nilsson Lawyers informed the respondent Sue Asquith that the applicants intended to vacate the premises prior to 12 July 2012 and that recovery of overpaid monies would be sought.
By a letter dated 12 July 2012, the RTA informed the applicants that LJ Hooker Brisbane Central had requested refund of the rental bond of $3,100.00 relating to the property. The letter required the applicants to either sign or to issue a Form 16 Dispute Resolution Request.
In a letter dated 27 July 2012 addressed to the Residential Tenancies Authority, Barry Nilsson Lawyers outlined the applicant’s disagreement with LJ Hooker’s claim on the rental bond and their intention to proceed to make an urgent application under QCAT relating to the rental bond dispute and the breach of tenancy agreement.
On 1 August 2012, a further notice of unresolved dispute was issued by the Residential Tenancies Authority.
The applicants in part base their application on sections 183 and 185 of the Act.
Section 183 requires the lessor to take reasonable steps to ensure the tenant has quiet enjoyment of the premises and requires the lessor or the lessor’s agent not to interfere with the reasonable peace, comfort or the privacy of the tenant in using the premises.
Section 185 sets out the lessor’s obligations generally and at the start of the tenancy requires the lessor to ensure:
a) the premises and inclusions are clean; and
b) the premises are fit for the tenant to live in; and
c) the premises and inclusions are in good repair; and
d) the lessor is not in breach of a law dealing with issues about the health and safety of persons using or entering the premises.
While the tenancy continues, the lessor:
a) must maintain the premises in a way that the premises remain fit for the tenant to live in; and
b) must maintain the premises in good repair; and
c) must ensure any law dealing with issues about the health and safety of persons using or entering the premises is complied with.
“AM4” is an entry condition report dated 11/03/2011. It has photos attached to it that were taken between 11-15/03/2011. Generally the entry condition report under the comments by the tenant describes many areas as dirty. It describes many marks on walls, stained and worn carpet, over-grown gardens. The photographs attached show various marks, dents, scratches, a dirty oven and marks in the ensuite areas.
“AM17” consists of photographs said to show water lying around and under the house and in some instances of mould. In some instances the mould is hard to see or recognise.
“AM20” shows instances of what is said to be mould which is on air conditioning and the underside of a baby change table.
“AM24” is a copy of a number of photographs taken when the applicants left the property on the 27th of June 2012. In my view, they show the property as in a reasonably clean and good condition.
“AM5” is an invoice from Kent Moving and Storage in the sum of $4,161.92 for local removal from Indooroopilly from Toowong.
“AM26” is an exit condition report dated 02/07/2012. On the lessor/agent side it generally describes the property as dirty and filthy and at one stage absolutely disgusting.
Exhibit 3 shows what is said to be damage done and evident as at the time the photographs were taken on 7 July 2012. One of the photographs purports to show damage done to floorboards on the veranda and another, an accumulation of rubbish left that day.
Exhibit 2 is a collection of photographs taken of 117 Kate Street Indooroopilly on 2 July 2012 during completion of the exit report by LJ Hooker. Generally they show some marks on the floor and other areas and some uncleanliness including the sink collection areas, the over head fans, the cook top, the toilet, the shower area, some walls, the oven and the garage area. There is also some writing which appears to be on fly screens.
Exhibit 1 is a collection of three photographs which are said by the respondent to show the tenants using the downstairs bedroom as at 24 May 2012.
Exhibit 4 is a series of A4 copies of photographs showing much the same thing as the photographs in Exhibit 2.
Exhibit 5 is an affidavit swearing to services which were provided by star express cleaning services. The affidavit was sworn on 10 August 2012. The tax invoice showed the cost of the work to be $341.00. The date of the tax invoice was 14 March 2011 and was done at the request of the applicants. The attachment to the affidavit shows the extent of the work required.
Exhibit 7A is a collection of emails and notices. Part of the exhibit shows a follow up by the landlord in April 2012 when an inspection was made of the area said to be affected by the damp problem. At the inspection the mould on the bed had been cleaned and it was noted that the damp problem had been cleaned. Advice was given by the landlord to cut back the vegetation to the fence line so it was neither overhanging the roof or touching the house and when cut back would allow ventilation of the downstairs bedrooms to take place.
A report of the inspection date 26/10/2011 noted that bedroom 4 was used for storage and needed airing. It is also noted in respect of the downstairs area that the office downstairs needed airing and cleaning. As part of the exhibit there is evidence that periodic inspections were carried out.
Moisture control services provided a report dated 27 May 2012 after an inspection of the property. They provided advice with respect to mould in the lower level of the property. It noted,
“for mould to germinate it requires temperature ideally above 21º degrees centigrade or higher which occurs in Queensland all year round in elevated moisture. Elevated moisture enables mould to absorb nutrients from organic materials like plasterboard, timber, fabric, leather etc so the more moisture this area contains, the increased level of mould germination will occur. To prevent mould this elevated moisture needs to be identified and addressed/rectified. Furthermore, stagnant air (not good ventilation) can further enhance the growth of mould if it is already established.”
It noted that the house is facing East West direction and the property owner lived in the house for approximately 5 years where no water ingress or mould issues were encountered. The report noted observations on inspection and said,
“The tenant has surrounded 3 sides of the house underneath with a black fabric material and has blocked off the front LHS around the rubbish bins which we understand is to prevent the children playing/going underneath the house. This action does restrict natural ventilation which is very critical for this property due to the clearance level on the LHS to the lower floor. The fabric material is breathable but at the same time would be restrictive for natural ventilation.”
It identifies some contributing factors to mould germination as:
a) The low clearance between the ground and the lower level floor of the LHS of the property.
b) Restriction of natural ventilation surrounding 3 sides and blocking small section in the front LHS near the rubbish bins.
c) Shading of the same area due to overgrowth of trees thereby preventing direct sunlight.
It said,
“It is impossible to provide some means of weighting to the above three factors. The only fact is that when the owner resided at this address for five years no mould issues were encountered and the only change to the property in advice to MCS has been the erection of the black fabric material. Would have a mould problem developed if the black material was not erected; this cannot be confirmed nor denied as other issues exist which can contribute to mould germination.”
A course of action was suggested. Part of Exhibit 7A was a mould analytical report provided “Mould Lab” dated 19 July 2012. It gave the results of an analysis of samples submitted. It concluded that the level of airborne mould detected in the sample collected from within the premises was rated as “low”.
From the evidence provided by both sides, I am satisfied that there was some evidence of mould. I am not satisfied as to the cause of the mould, it could be a result of a number of issues.
The applicants provided the respondent with notice of intention to leave and paid rent to 12 July 2012. It was their intention to vacate the premises prior to 12 July 2012.
The severity and extent of the mould when detected is not clear. The reports relied on by the applicants are not conclusive. There is evidence from the respondents which suggests that the mould, when detected, was low or did not exist at all (see the report from Dunwright dated 30/06/2012, part of Exhibit 7A on page 5).
In my view, the damp problem may have been contributed to by a screen erected by the applicants.
In my view, there is a real possibility that that sheeting would have restricted ventilation and contributed to conditions such that mould might be present from time to time in the right circumstances.
The respondent claims the sum of $5,952.41 being for “full bond cleaning, carpet cleaning, yard mowing and whipper snippering, yard rubbish removals, curtain cleaning, garage door damages, wooden deck damage, break lease fees, advertising and water excess charges” as set out in Exhibit 11.
Exhibit 12 is a statement of the owner. It states that prior to the applicants moving in she and her husband carried out cleaning and gardening to the property and on 14 March 2011 a professional clean was carried out. The property was released in March 2012 for an additional 9 months until December 2012. It was renewed in circumstances where the applicants had been looking for another property to rent and offered to pay an advanced lump sum of $775.00 per week for rent for the period 9 March 2012 until 8 December 2012. I am satisfied that the landlord carried out all reasonable requests of maintenance and attended in a prompt way to concerns.
During the course of the hearing and in the application evidence was called about the landlord’s entering the premises and allegations are made about whether they were entitled to do so. I am not satisfied that the landlords or their agents improperly entered the building but in any event, I am not able to be satisfied that there is any loss flowing from such an entry.
I am not satisfied that the applicants were prohibited or prevented from using the downstairs area. In my view, on the material before me, it is likely that they were using that area for storage and still continue to use it. I do not think that there should be any allowance for a rent reduction because of that usage and because I am not satisfied that any mould problem was caused by the respondents.
I note that since the applicants have moved and the black material removed there has been no further problem with mould.
On 27 June 2012 the applicants completed moving out of the property and the keys were handed back to the real estate agent on 28 June 2012. The applicants paid rent until 12 July 2012. The property was empty from 27 June 2012 until 26 September 2012. I note that the property was unable to be rented while it was with LJ Hooker, but within 9 days of Ray White being involved, the property had been re-rented. In my view given the date the applicants were paid to and the notices given no further award should be made for rent.
The respondents have not filed any formal claim for compensation however Exhibit 13 is a collection of receipts which they claim is owing to them because of breaches of the lease by the applicants.
I am satisfied that the garden needed to be attended to and it should have been attended to under the obligations of the lease before the applicants left. The mowing invoice is in the sum of $40.00.
The carpet cleaning from Safe Clean Services was carried out at a cost of $250.00 and Ultra Cleaning Services cleaned the ovens, walls and toilet for a sum of $250.00. A bond clean of $730.00 is claimed.
The claim for $142.40 for the removal of green waste from the driveway is appropriate.
I am not satisfied that the claim from Metro Property Maintenance for replacement a faulty stove light and light fitting in the laundry and replacing cracked tiles in the bathroom was the responsibility of the applicants and in my view no order should be made as to that.
A claim of $2,623.50 is also made for floor sanding of the back deck. I am not satisfied that that was the responsibility of the applicants and that it was required because of damage done by the applicants which was above and beyond the normal wear and tear.
I am satisfied that the claim for $895.00 for the repair of the automatic garage door is warranted as is the claim for water consumption under the general tenancy agreement of $32.01.
I am not satisfied that the other claims made by the respondents are made out.
Accordingly, the order will be that the application by the applicants is dismissed, that the applicants pay the respondents the sum of $2,339.41 and that from the bond in respect of the property at 117 Kate Street Indooroopilly, the RTA pay from that bond the sum of $2,339.41 to the respondents and the remainder to the applicants.
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