Mian Prestige Real Estate t/as Ray White Runaway Bay v Alikhan
[2010] QCAT 453
•09 September 2010
CITATION: Mian Prestige Real Estate t/as Ray White Runaway Bay v Alikhan [2010] QCAT 453
PARTIES: Mian Prestige Real Estate t/as Ray White Runaway Bay V Rizwan Alikhan and Candace Alikhan
APPLICATION NUMBER: 336/10 and 1198/10
MATTER TYPE: Residential Tenancy matters
HEARING DATE: 13 August 2010
HEARD AT: Southport
DECISION OF: Adjudicator Trueman
DELIVERED ON: 09 September 2010
DELIVERED AT: Southport
ORDERS MADE: 1. That the claim 1198/10 is dismissed.
2. That for claim 336/10 the Respondent pay to the Applicant the sum of $10,153.20.
3. That the RTA pays out to the Lessor the sum of $6000.00 Rental Bond in part satisfaction of that Order.
4. That the balance of $4,153.20 be paid to the Applicant within 7 days.
CATCHWORDS : RESIDENTIAL TENANCIES – Cross applications – LESSOR’S claim for rental arrears and compensation for damages, cleaning, repairs and maintenance – TENANTS’ claim for compensation for loss/damages – reimbursement of repairs to the property – compensation – loss of facilities and loss of quiet enjoyment – overstatement of loss of quiet enjoyment, inconvenience suffered and lack of repairs and maintenance. APPEARANCES and REPRESENTATION (if any):
APPLICANT: Natalie Gibbs (Property Manager on behalf of Ray White Real Estate).
RESPONDENT: Rizwan Alikhan REASONS FOR DECISION
Overview of the dispute:
1.The residential tenancy agreement in this matter was entered on 25 February 2009. The premises are at The Peninsula, Sovereign Islands in the State of Queensland. The tenancy was for a fixed term of 12 months with a 12 month option and the rent was $1500 per week with a bond of $6,500.0. The residential tenancy agreement was in the standard form of the prescribed terms of the Schedule to the Residential Tenancies Act 1994 (QLD) (the Act). The lease contained special terms and conditions. The first special term of the lease noted that ‘Annexure ‘A’ attached to the least formed part of the tenancy agreement. The relevant clauses are:
I.All maintenance requests are to be submitted in writing on the Maintenance Request form provided by Ray White Runaway Bay.
II.The tenant hereby agrees to maintain the lawns, gardens and edges of the property.
III.The tenant agrees to remain a minimum of a fortnight in advance with rental payments at all times.
IV.The tenant must return the keys and remote controls (including any additional keys that the tenant may have procured) and vacate the premises on the stated day of departure, otherwise rental will be charged up to and including the date upon which the keys are returned.
V.Upon entering the property all light globes will be working and it is the tenant’s responsibility to organise to have any blown light bulbs replaced during the tenancy. Upon vacating, the tenants must leave al light globes working.
VI.The property will be fully furnished. The tenant acknowledges and agrees that the piano will not be for the tenants’ use and the owner will remove the piano within 2 weeks of the lease starting
VII.The tenant acknowledges and agrees that they have been approved for a property on the basis that prior to moving into the property they pay a 4 week rent as bond and then rent up until the 30/6/09 being a total of $32,928.57 (bond $6500 + rent $26428.57). The tenants agree to pay 6 month rent in advance for the remainder of the period that they occupy the property.
2.This case concerns claims by each of the parties against each other. The Agents claims are for:
(a) Rental arrears from the 25/3/2010 to the 29/4/2010 in the amount of $5,462.20
(b) Cleaning costs of $735.00
(c) Replacement globes to chandelier of $60.00
(d) Locksmith Services for changing locks of $231.00
(e) Repairs and painting of damaged walls of $1800.00
(f) Repairs and painting to render of $220.00
(g) Garden Maintenance of $540.00
(h) Repairs to jetty of $3630.00
(i) Reassembly of Pool table of $600.00
The Agent is seeking the amount of $13,278.20 plus the filing fee to be paid by the tenant. The orders sought are that the Agent retain the bond of $6,500.00 and the tenant pay a further amount of $6,778.00 plus the filing fee of $20 to the Agent.
3.The tenant’s counter claim is as follows:
(a) rent relief for a period of 13 months due to the Lessor’s failure to repair the jetty, air-conditioner, pool fence, dishwasher, television, garage ceiling and wall, electric driveway gate, light fixture, sun shade, driveway tiles, broken toilet seat, locks and doors, alarm codes and loose wires to the Bar B Que.
(b) Reimbursement of funds paid by the Tenant for emergency jetty repairs
(c) Return of the rental bond
(d) A contribution towards payments made to the tenants electricity accounts during the period when the air-conditioner was not working properly
(e) Reimbursement of funds paid by the tenant for service of the dishwasher
(f) Removal costs
The tenant is claiming the compensation amounts as follows:
(a) For rent relief and compensation an amount calculated at $500.00 per week for the entire tenancy period of 13 months - $26,000.00
(b) Jetty Repair of $2300
(c) Return of Rental Bond of $6,500.00
(d) Reimbursement of Electricity accounts of $1600.00
(e) Reimbursement of Dishwasher service cost of $95.00
(f) Reimbursement for Removal costs of $1500.00
The total amount claimed by the tenants against the Lessor is the return of the Bond of plus an additional amount of $31,495.00.
4.The Agent’s case is that the tenants owe rental arrears and should make payment for the cleaning and damages to the property. The Agents claim the tenants counter claim is retaliatory and that the tenants claim is overstated and without merit as all maintenance and repairs if required were carried out. The Agents dispute the jetty required urgent repairs or any repairs at all and in fact in their claim state that it is the tenant who damaged the jetty. The tenant claims he stopped paying rent as a result of repairs and maintenance not being attended to the property. Further, the tenant said that he had been paying rent for a prestigious property that had many maintenance and repair issues and the condition of the property did not justify the high rent that they were paying.
The history of the proceedings in the Tribunal:5.On 11 February 2010 the Owner of the property, Mr Grant Vickers, filed an Application (Claim number 336/2010) seeking an Order for Termination and a Warrant of possession on the grounds of failure to Leave and for objectionable behaviour. That application related to breaches by the tenants for rental arrears and a Notice to leave was served on the tenants with grounds that the lease was ending. That Notice was dated the 2/12/2009 with handover to occur at midnight on 24/2/2010. That application was heard on 30 March 2010 and an order was made for termination of the lease agreement and a warrant of possession issued. A further order made on 30/3/2010 was that any claim for additional compensation was adjourned to be re-listed on the filing of a statement of claim within 3 months from the date of the order.
6.On 14 April 2010 the tenant filed an Application to review that decision and an application for stay. Those applications were heard and an interim order was made on 16/4/2010 that the execution of the warrant was stayed until 23/4/2010. On 22/4/2010 an order was made that the stay was refused and orders and directions were made for the application for leave to appeal with submissions being required to be filed by 30/4/2010.
7.On 14/4/2010 the tenant filed an Application for compensation being claim number 1198/2010.
8.On 20/5/2010 an order was made by the tribunal that claim 1198/10 and 336/10 be consolidated and heard together.
9.On 1/6/2010 an order was made by the President of this tribunal stating that:
1. The applicant’s application for leave to appeal minor civil dispute claim 336 of 2010 is granted.
2. The applicant’s application for leave to appeal minor civil dispute claim 735/of 2010 is dismissed.
3. That applicant must file any appeal within twenty-one (21) days.
10.The tenant did not file an appeal. The Agent filed a statement of claim in relation to claim 336/10 regarding rental arrears and compensation. The matter was re-listed back before the tribunal for hearing on 20/5/2010 when the order was made for both claims to be consolidated.
BRIEF HISTORY OF AGENTS CLAIM
RENT ARREARS
11.The Agent claims that the tenants were issued with Notices to Remedy Breach regarding rental arrears. Notices were issued on 6/8/2009, 16/12/2009, 6/1/2010 and 8/2/2010. The tenant made their final rent payment on 13/4/2010 which paid up their rent until the 25/3/2010. The tenants vacated the property on 29/4/2010. Rent has not been paid for the period from 26/3/2010 to 29/4/2010.
The tenant agrees that he has not paid rent for this period. The tenant contends that the tenant ledger could be wrong though but he did not provide any evidence to support his contention. The tenant stated that he was aware he owed rent but he believed the tenant rental ledger was inaccurate and was “out by a couple of weeks”. The tenant did not produce receipts or bank statements to support that contention. The tenant further gave evidence that while he agreed that rental arrears were owed his counter application should be offset against any further rent owed by the tenants.
CLEANING
12.The Agent provided to the tribunal copies of Entry and Exit Condition Reports, photos and invoice for $735 from KJM Property Services for cleaning services. The invoice particularises that the cleaning that was performed was pursuant to the list provided by the Property manager. That list was provided to the tribunal and identified as a copy of correspondence from the Agent to the tenants dated 5 May 2010 advising that a vacate inspection had occurred at the property and that a list of matters required attention. That list included many issues but in relation to cleaning that was required it noted: lounges, windows to all areas, all carpets, sink, some ceilings, cabinet, oven and range hood, cupboards, light fittings, walls, entry, floors, exhaust fan, mirrors, outside tiled areas walk in robes, rugs, en-suite, garage shelving, storage room and outdoor furniture all required cleaning. The tenant provided to the tribunal a copy of a cleaning receipt from Kleen Freaks for $700 which was undated. The tenant contends that the cleaning was performed on 28/4/2010. The cleaning invoice particularises that 31 hours were spent cleaning the property. The invoice states that window cleaning was not performed and included in that cost. The tenant claims that he cleaned the windows himself. The tenant provided to the tribunal a copy of an invoice from Goodas Carpet cleaning and pest control for $242.00 which confirms that the tenant had the carpets professionally cleaned, sanitised, deodorised and treatment for fleas to the interior of the property on 28/4/2010. The photos provided to the tribunal by the Agent depict the property as dirty.
13.The tenant claims that the property was dirty when he moved into it. This contention was disputed by the Agent and the evidence of the parties as to the condition of the property at the commencement of the lease was vastly different. The evidence provided by each of the parties to support their contention was that each party relied on different Entry Condition reports. The tenant provided a copy of the Entry condition report completed by the tenant and his wife which was not the same report that the Agent sought to rely upon. The Agent provided to the tribunal an entry condition report which had typed entries by the Agent regarding the condition. The Agent gave evidence that the Report was given to the tenant’s wife, Candace Alikhan. That report is initialled on each page and signed by her on the last page. The tenant produced to the tribunal a different copy of an Entry condition report that he contends was completed by him and his wife. That report notes that the condition of the property was very dirty with marks all over the walls. Further, that there were holes in furniture and walls, carpet stains, stains to some furniture, broken telephone outlet, broken blinds, cracked tiles, damage to doors, water leaks, damaged jetty, repairs required to Bar-B-Que, broken toilet seat and some keys missing. I accept that this Entry Condition report was prepared by the tenants and that photos were taken as the tenant produced an email to the tribunal that he had sent to the Agent complaining of similar matters with the property. That email was dated 7 March 2009 sent to the managing Agent at the time, “Ashley”.
14.The Agent sought to rely upon a Statutory Declaration of Cristie Gillespie sworn on 17/5/2010. That witness deposed that the property was in excellent condition and that all chattels and contents were in proper working order. Further, that witness said that the outside of the premises including gardens, paths, pool and jetty were fit and proper. The witness deposes that on the 23 February 2009 that she prepared an inventory of all the furniture and chattels left in the property to be rented by the tenants. The witness said the inventory was prepared on 17/2/2009. The witness does not specifically give any evidence about the cleanliness of the property and I was not provided with any independent evidence by the Agent, other than her oral evidence, that the property was clean. I accept the evidence of the Tenant in this regard as the Entry condition report initialled by his wife was explained by him that his wife collected the keys and signed a copy of the Report at the Agency. The tenant’s wife was given a copy of a report to take home and complete once she had been through the property. I accept that the Entry Condition Report completed by the tenants and provided to the tribunal was completed around the same time as the email from the tenant complaining of cleaning issues. I accept that the email was sent only a week or so after the tenancy commenced. I accept the property was not clean and in pristine condition when the tenants commenced their tenancy. I do not accept that the tenants should pay to the Lessor any cleaning costs for the interior of the property. I find that the tenants should pay for window cleaning as their invoice for cleaning did not include window cleaning. I accept that the tenant may have cleaned windows himself but not to a level that was acceptable to the Agent and to relet the property. I find that the tenant should make a contribution to the cleaning costs and an amount should be paid that would be for the window cleaning only. Taking into account all the evidence and the size of the house and number of windows I assess that the cost for window cleaning that would be fair and reasonable in the circumstances to be $150.00.
REPLACEMENT CHANDELIER GLOBES
15.The Agent claims for replacement globes in the amount of $60. During the hearing the tenant was directed to the relevant special term and condition in the lease relating to replacement of globes. The tenant conceded that the amount should be paid by him.
CHANGED LOCKS
16.The Agent claims for changing the locks at the property. An invoice was provided to the tribunal from A1 Locksmith invoice number 16471 dated 2/5/2010. The amount to change combinations to all external locks and replace front door euro cylinder and key alike was $231.00. The Agent contends that as the tenant was required to vacate the property by way of Warrant of Possession that it was standard practice for the locks to be changed. The Agent gave evidence that the locks were changed after the tenant had failed to return all keys. The tenant gave evidence that he had returned all keys to the office of Ray White in the afternoon on the 29/4/2010. The tenant contended that he left the cleaners in the property while he returned the keys to the Agent and that all keys that were issued to him were returned. The Agent then conceded that in fact the office had received the keys late in the day on the 29/4/2010 but that it had not been brought to her attention.
17.The Agent gave evidence that as the Police were involved and in circumstances of taking possession of the property by warrant that locks are changed as a matter of precaution. The Agent contends that the locksmith had already been arranged and changed the locks early in the morning on the following day. I accept that the tenant returned the keys and did so on the 29/4/2010.
18.The tenant’s evidence was that he left cleaners in the property to finish cleaning the property in his absence while he returned to the Agents office to take back keys confirms the Agents evidence that she had concerns regarding security of the property. From the evidence of the Tenant it could be inferred that other keys were made and were still in the tenant’s possession, as if he returned all keys to the agent, he would have needed keys to be able to return to the property and secure it after the cleaners had left. I find that the Agents action of arranging to change the locks reasonable on the evidence before me and in all the circumstances.
DAMAGE AND PAINTING TO WALLS
19.The Agent provided to the tribunal a quotation for painting and repairs from KJM Property Services dated 12/5/2010. The quotation provides for patch and paint to damaged walls as per list from Property Manager including colour matching for feature walls. The quote includes materials and labour. I am critical to some extent as to the content of the quotation as it does not particularise details as to what actual walls required patch repair or repainting in full, how many walls the quote related to and to what amount of paint was required to undertake the works. The Agent gave evidence that the painting and repairs that were required had not been done as at the date of the hearing. The photos provided by the Agent to support the claim for painting repairs depicted marks and scuffs that were small and minimal. The content of the Entry condition report relied upon by the Agent indicated that the walls were in perfect condition and unmarked. The Entry condition report provided by the tenant suggests otherwise and clearly states that the walls were marked and damaged. As I have previously determined I prefer the Entry Condition report supplied to the tribunal by the Tenants. Further, I note that the claim for repairs and painting are claimed on the basis of a quotation and in the circumstances I cannot find that the painting works are necessary. I find that if the damage and repairs required were of such significance and required to be done they would have been performed by now. The fact that either a new tenant has now entered the property or the owners have moved back into the property and in the absence of an invoice of evidence that the work has been performed and was required to be done, I find that the claim for painting and repairs is exaggerated and therefore unfounded.
RENDER REPAIRS
20.The Agent claims $220.00 for repairs to damaged render to the exterior of the property. An invoice from C&M Solid Plastering dated 17/5/2010 was produced to the tribunal as evidence of the works performed. The invoice particularises that the work performed was to repair chips and scrapes in the render. The amount is for $200 plus GST. The tenant claims that the invoice and allegations of damage is fabricated and contends that the owner had render work performed by the same company to his fence at the property. The tenant contends that the owner was attempting to have him pay for render repair to the fence. The tenant contends that the invoice did not stipulate where the damage was that required repairing. The tenant gave evidence that he did not cause any damage to the render to the house or any where else, and if there were any chips and scrapes to the property they were present at the time he entered into the lease.
The Agent could not produce any photos or independent evidence to support the claim for render repairs. In the circumstances and taking into consideration that the Agent could not substantiate the damage to the render as alleged and that the tenant caused such damage, I find that this claim cannot be made out on the limited evidence provided to the tribunal.
GARDEN MAINTENENCE
21.The Agent provided an Invoice for $540.00 from Stephen Rowsell for costs in relation to “Detailing of property”. The invoice provided to the tribunal totalled $1230.77 and appears to detail that the owner had other gardening works performed at the property. The particulars of the invoice relating to this claim are vague. The Agent gave evidence that the garden maintenance required at the property including weeding, mowing grass, tidying up garden beds and general garden tidy up and taking away the rubbish. The description in the invoice for $540.00 does not align with the evidence of the Agent. The invoice contains other amounts that appear to relate to rubbish removal ($90), replace plants ($125.77) and to mow, edge, clean up and add chemicals to pool ($135.00). The amount of $540.00 does not appear to describe what that cost was for.
22.The Agent relied upon photos attached to the Exit Condition Report as to the condition of the property when the tenants vacated. The only photos of the garden were a photo of some weeds in a small, narrow garden bed, another photo of pot plants left under stairs, another photo taken from the water-front depicting a very narrow garden bed with weeds, and a small part of the garden that was evident when the photo largely depicts the outdoor area. The tenant contended that one of the photos depicting garden pots and rubbish were the owners and not the tenants. The Agent conceded that point. All of the photos provided to the tribunal regarding the garden claim were not useful. The Agent contended that the photos did not accurately depict the size of the garden and that the front of the property had a large garden and lawn area. The Agent did not produce to the tribunal a photo of the alleged large front garden. The tenant disputed that the front garden was large and contended that, although marginally bigger than the back, was not large. The tenant contended that he arranged for a gardener to weed and mow lawns shortly before he vacated. The Agent could not provide any photos to support her contention as to the condition of the front garden. On the evidence provided to the tribunal I find that evidence does not support a claim for any garden maintenance and further that the costs of $540.00 may be unreasonable on the evidence sought to be relied upon.
JETTY DAMAGE
23.The Agent provided a quotation for repairs to the jetty. The Agent contends that the jetty was in perfect condition at the commencement of the tenancy. The quotation for repairs from Dolphin Piling & Salvage dated 18/5/2010 is for $3630.00 which includes gst. That quotation describes the jetty repairs as costs to replace 5 jetty fender piles at $450 each and to supply 2 mooring whips and to install 3 at a cost of $1380.00.
The Agent sought to rely upon the evidence of a Statutory Declaration of Kellie Morris sworn on 20/5/2010 and of the owner Grant Vickers sworn on 19/5/2010 in relation to the condition of the jetty when the tenants moved in and the damage caused by the tenants.
24.The evidence of the witness Kellie Morris is that the owners had attended to all maintenance requests by the tenants in a timely manner except for the demand of the tenants that emergency repairs be performed to the jetty. The witness deposes that the owners have also attended to authorising her to obtain quotes for repairs to maintenance issues in a timely manner. The witness deposes that the tenant advised her that his yacht had been damaged due to lack of jetty repairs. The witness conducted a routine inspection on 20/3/2009 and states that the tenant at that time did not raise issues of repairs to the jetty. The witness deposes that on 26/5/2009 the tenant advised her that while he had been away on holidays that the Company Riviera had caused damage to the jetty and to his boat. This evidence of the witness regarding the damage caused by Riviera was confirmed by the tenant himself.
25.The tenant gave evidence that the jetty and his yacht were damaged when Riviera was conducting sea trials. His evidence was that the Riviera boat was speeding, which caused a wake that resulted in the tenant’s boat crashing against the jetty causing damage to both. The tenant contended that Riviera arranged and paid for the repairs to the jetty and reimbursed the tenant for repairs to his boat. The tenant claims that Riviera paid him approximately $600 for the boat repairs. The tenant did not produce any evidence to support his contention relating to the boat repairs. The tenant advised that in May 2009 the accident occurred.
26.The Agent contends that solicitors letters were exchanged between the parties and to date that the owner nor his solicitor have ever been provided with any evidence to support the tenants contention that Riviera arranged and paid for the damage they caused to the jetty.
27.The sworn evidence of the Mr Vickers was that he disputed allegations and contentions made by the tenant and he stated that he had lived in the property prior to the tenants moving in. Mr Vickers deposed that he moored a 60’ Searay Boat for 12 months at the jetty without damaging his vessel. He deposed that the jetty was in a fit and proper condition when the property was handed over to the tenant. Mr Vickers deposed that he moved to live at the property next door at 46 The Peninsula and witnessed the tenant attempting to moor his boat at the jetty. He deposes that the jetty was not properly set up for the tenant’s boat which was smaller in size. He deposed that the jetty would require modification to suit the tenant’s boat to avoid damage. Mr Vickers deposed that from his observations the tenant at times moored his boat with the stern to the prevailing swell and winds instead of the bow and that this complete reverse position increased the risk of damage. Further that the tenant had his boat tight roped to the jetty which caused it to bang against the jetty which would have resulted in damage to the jetty and to his boat. Mr Vickers deposed that if the tenant’s evidence was to be accepted it would explain why Riviera could have caused damage to the jetty and the boat.
28.The tenant contended that he gave Notice of the repairs and damage to the jetty. The Notice was given to the Lessor in writing by email and in Form 11 Notices to Remedy Breaches. The Notices to Remedy Breaches regarding the jetty repairs were provided to the tribunal and were dated 9/9/2009, 2/10/2009, 14/12/2009, 18/12/2009 and 10/3/2010. A copy of an email from the tenant to the Agent was provided to the Tribunal dated 7/3/2009. The content of that email confirms the tenants contention that the property was not clean when they moved into the property and that there were many maintenance issues and repairs required and in particular that the “jetty… in need of serious repair and replacement of broken fender guards, kleat and whips need line replacement and additional placement of new whip. Electrical box cover needs repair”.
29.The Agent responded to the various emails and Notices to repair the jetty and relied upon the Statutory Declaration of Kellie Morris. Ms Morris deposed that on 13/3/2009 the Owner advised her that the jetty was handed over to the tenant in a fit and proper state of repair. Ms Morris’s evidence is that that on 16/3/2009 the tenant advised that he would arrange the jetty repair and bill the owner. Ms Morris stated that she advised the tenant that he did not have authority to arrange the repairs to the jetty and to then bill the owner. Ms Morris stated that on 17/3/2009 the tenant emailed her and advised her that his yacht had been damaged due to lack of repairs. Ms Morris deposed that the owner arranged for their Solicitor to write to the tenant in regard to “routine” and “emergency” repairs. Ms Morris claims that on 20/3/2009 she carried out a routine inspection at the property and while the tenant provided her with an outstanding list of maintenance issues the jetty was not mentioned.
30.On 26/5/2009 Ms Morris claims she was advised that while the tenants were away on holidays that Riviera had caused damage to the jetty and the tenant’s boat. Ms Morris stated that on 28/5/2009 she advised the tenant that she had faxed JR Smith Constructions for a quote to fix the jetty that was allegedly damaged by Riviera. She further states that she advised the tenant again, due to his repeated requests for refund of jetty repairs that the owner would not be reimbursing the tenant for any alleged jetty repairs. Ms Morris stated that on 19/8/2009 the tenant emailed her that maintenance was required on the jetty as the fender posts had rotted away.
31.Ms Morris states that at no time had she or the owner ever received any evidence from the tenant that in fact Riviera had repaired and paid for the costs of the repairs for the damage they caused to the jetty.
32. Ms Morris stated that on 16/09/2009 the owner arranged for his solicitor again to write to the tenant advising that the jetty was in good repair when he moved into the property and that he would not be reimbursed for any unauthorised repairs to the jetty.
33. Ms Morris stated that on 9/10/2009 the tenant advised that the dock power and light was not working and that she arranged an electrician to fix them.
34.Ms Morris said that by 12/10/2009 the dock power and light were confirmed repaired and operational. Ms Morris deposed that on 23/11/2009 the tenant contacted her and advised that there was new jetty maintenance required. Ms Morris deposed that she discussed the repairs with the owner and the owner advised that he would look into the allegations. Ms Morris said that the owner said to her that he had noted that the tenant’s boat had not been moored at the jetty for some time.
35.On 14/12/2009 Ms Morris claims to have been served with a new Notice to Remedy Breach regarding jetty maintenance and repairs. Ms Morris deposed that on 16/12/2009 the tenant emailed her again with an idea of how to fix the jetty problem.
36.On 18/12/2009 the owner contacted Ms Morris and stated that if there was any damage to the jetty it had been caused by the tenant and that they must pay for rectification. On the same date Ms Morris said that the tenant proposed that any rental arrears owing be offset against jetty repairs.
37.On 21/12/2009 Ms Morris deposed that the owner told her he rejected the tenants proposal and the owner told her that he did not believe the jetty required repairs and if it was damaged it was caused by the tenant or Riviera.
38.Ms Morris stated that the Owner had actioned all other maintenance and repairs. Ms Morris deposed that on 24/12/2009 the tenant advised her of his intention to serve another Breach Notice for repairs including the jetty. Ms Morris stated that at this time the owner’s solicitors forward correspondence to the tenant again regarding ‘emergency repairs’. Ms Morris deposed that on 5/3/2010 the tenant requested that the owners waive the two week notice period and any claim on the bond if they vacated on the basis that the tenants would not pursue any claim for rent relief. I note that it was at this time that the tenants served the owner with a Form 13 Notice of Intention to Leave dated 10/3/2010. The tenant did not give any evidence contrary to the evidence of Ms Morris. I therefore accept the evidence of Ms Morris that the tenant was at this time attempting to negotiate a waiver of rental arrears against the jetty repairs.
39.In the absence of any evidence produced to the tribunal by the tenant I accept the evidence of the Owner and the Agent in this regard as if the jetty was damaged by Riviera and repairs paid for by them the jetty would not be damaged now. Further, if the tenant’s evidence is accepted the jetty repairs complained of by the tenant in March 2009 when his boat was damaged it is the tenants evidence that he arranged repairs at that time and paid for those repairs. The tenant then contends that again in May 2009 the jetty was damaged again when on the evidence of the tenant he contends that Riviera damaged his boat and the jetty again as a result of conducting sea trials. The tenant gave evidence that Riviera paid for the repairs to his boat of some $600 and arranged and paid for the jetty repairs at this time. If the evidence of the tenant is to be accepted it is difficult to accept that the jetty has been in fact repaired on at least two occasions in a 12 month period and yet still remains damaged and currently requires repairs. I consider the action of the tenant demanding jetty repairs again by way of Form 11 Notices to Remedy Breach which he prepared and served dated 9/9/2009, 2/10/2009, 14/12/2009 and 18/12/2009 inconsistent with his evidence. If the jetty had in fact been repaired twice in that time and Riviera had repaired the jetty I find it unbelievable that the tenant would continue to serve Notices to the owner to repair the jetty. On the tenants own evidence, he states damage to the jetty was caused by Riviera.
40.I was not provided with any evidence by the tenant that Riviera arranged and paid for the damage they caused to the jetty. If I accept the evidence of the tenant that Riviera caused the damage, I find the actions of the tenant, by continuing to serve Notices that were without merit regarding alleged jetty repairs, at the least, unfounded, unnecessary and harassing in nature. I cannot make any findings of fact as to whether Riviera did in fact damage the jetty or the tenant’s yacht as I was not provided with any independent evidence to support the tenant’s contention.
41.The tenant claims the jetty required repairs when he moved into the property. The tenant claims that the jetty was wooden and old and that the timber posts were rotten and that the jetty was a fixed jetty which meant that with a swell or wake his boat hit up against it causing damage.
42.The tenant provided to the tribunal a Report from A1 Pontoon and Pier which was undated. The tenant contends that the report was obtained on or about 21/3/2009. The report states that an inspection was undertaken by Paul Freeburn of the mooring whips and cleats. The report notes that:
Upon inspection I found that the rope was starting to fray on the 2 mooring whips and the cleats are pulling out of the timber jetty.
The rope on the mooring whips need to be changed to 12mm nylon rope with spliced ends for easy attachment to vessel. The mooring lines should be lengthened and made so that they can be attached to the jetty, this will allow easy access to and from the vessel as the ropes can be adjusted easily from the jetty.
The mooring cleats need to be removed from the current position. Reinforcement under the jetty is required for a solid fixing point. 100x 75mm hardwood timber needs to be used and secured to the existing beams. Once reinforced, the cleats can then be attached to the reinforcement.
43.The Report does not appear to support the tenant’s evidence that the jetty required repairs. The report states that rope was fraying. That of itself does not suggest that the rope was broken or not performing its function. The report further states that the rope on the mooring whips need to be changed to 12mm nylon rope for easy attachment. This also does not support the evidence of urgent and necessary repairs. The ropes might be better changed to nylon for longevity or to make the tenants ability to moor his vessel more easily. The report suggests that the mooring lines should be lengthened to allow easy access to and from the vessel.
44.I am not satisfied this report more specifically relates to the fact that these changes to the mooring whips are purely to suit the tenants vessel and not an issue of maintenance or repair. The report states that the mooring cleats need to be removed from their current position and reinforced and refixed. I am satisfied as at the date of the report the mooring clears were fixed and functioning. Reinforcing the jetty, or work required to make the jetty better or stronger is not in my view a repair or an immediate maintenance issue. The tax invoice claimed by the tenant appears to have been for reinforce work and attachment of nylon ropes with spliced ends for easier attachment and in my view do not constitute repairs or maintenance that was required. I am not satisfied this evidence constitutes evidence of repairs and maintenance.
45.I am satisfied on the evidence before the tribunal that while the tenant produced a tax invoice for repairs to the jetty I cannot be satisfied if all or any of the amount was paid.
46.The invoice alleges that repairs were undertaken to the jetty on 20/3/2009. The works performed include reinforcement of existing mooring cleats, install 2 extra cleats, install 1x heavy duty mooring whip, splice 3 x mooring whip lines and install mooring whip cleats and fit 4 x heavy duty spring mooring lines. The tenant contended that he had paid the account of $2223.10. The tenant did not produce any independent evidence to support his contention that he had paid any of the account.
47.The tenant claims that the repairs required to be undertaken to the jetty during the tenancy were emergency repairs. The RTRA Act defines emergency repairs at Section 214, they are:
214 Meaning of emergency repairs
Emergency repairs are works needed to repair any of the following--
a burst water service or a serious water service leak;
a blocked or broken lavatory system;
a serious roof leak;
a gas leak;
a dangerous electrical fault;
flooding or serious flood damage;
serious storm, fire or impact damage;
a failure or breakdown of the gas, electricity or water supply to premises;
a failure or breakdown of an essential service or appliance on premises for hot water, cooking or heating;
a fault or damage that makes premises unsafe or insecure;
a fault or damage likely to injure a person, damage property or unduly inconvenience a tenant of premises;
a serious fault in a staircase, lift or other common area of premises that unduly inconveniences a tenant in gaining access to, or using, the premises.48.I am not satisfied that the repairs were emergency repairs. I am not satisfied that if the work was arranged by the tenant, that they were undertaken as usual ‘repairs and maintenance’. I am satisfied that if any work was undertaken to the jetty and arranged by the tenant it was for the benefit of the tenant in that it enabled the tenant’s vessel to be moored there. I accept the evidence of the Owner in that the jetty was set up to accommodate his 60 foot boat and not the smaller size boat of the tenant’s. I find that if any work to the jetty was undertaken by the tenant, he knew that the owner had not authorised any repairs, would not be paying for any invoice for repairs and I am satisfied on the evidence before me that any work to the jetty would be for the sole benefit of the tenant.
49.Further, the tenant gave evidence that he left a wooden fender post at the property to show the owner how it had rotted. The tenant admitted he left the whip cleats behind but he took 1 mooring whip with him. The tenant stated that the claim for the replacement mooring whip should be $650 per pair and that fender posts were $400. The tenant claimed the quote for repairs obtained by the owner for repairs to the jetty were high and over estimated.
50.I am satisfied from the evidence provided to the tribunal, and it is not contentious, that the jetty is now damaged. I cannot determine how the jetty was damaged. I accept and prefer the evidence of the Owner of over the evidence of the tenant in relation to the jetty damage. I find that if the tenant caused the damage he should pay for it. If the tenants evidence is to be accepted as to who caused the damage, being Riviera, I do not believe that Riviera arranged and paid for the repairs. I am satisfied the jetty was damaged during the tenancy and I cannot with any certainty determine who actually caused the damage. In the circumstances I am satisfied that the Tenant could have provided to the tribunal evidence from Riviera proving that they had repaired the damage. In the absence of such evidence I reject the evidence of the tenant and find that the tenant is liable for the damage and should pay for the repairs.
REASSEMBLY OF POOL TABLE
51.The tenants rented the property fully furnished. As part of the inventory a pool table was included in the property. The Agent contends that the owners specifically requested that the pool table remain assembled and in the house and did not want the table to be unassembled and placed in storage. The Agents are claiming a cost of $600 for the reassembly of the pool table. The agent relied upon a Quote from the Billiard Shop Gold Coast dated 17/5/2010 to assemble a 3 piece slate pool table upstairs, includes minor repairs to paint work.
52.The Agent gave evidence that at the time of the hearing that the owner had now assembled his pool table and paid that account.
53.The Agents provided to the tribunal evidence of an email between the tenants and Ms Morris dated 21/4/2009. That email states that:
“The owners have asked that the pool table please remain assembled in the house rather than packed and stored away”.
The tenants replied to the email on 21/4/2009 and stated that:
“We paid professionals 300 dollars to have it disassembled and are under no obligation to reassemble until we hand over at end of lease.”
The email further states that:
“…….if they wish to remove pool table form premises they are welcome to it and we will pay costs to reassemble”
54.The tenant gave evidence at the hearing that he agreed to pay the costs of reassembling the pool table but challenged the cost in light of the fact that he contends he only paid $300 to have it dismantled. The evidence supports the Agents contention that the tenants were requested not to dismantle the pool table. The tenants ignored the request from the owner and advised they would dismantle and store and would pay to reassemble at the end of the tenancy. I accept the tenants paid professionals to disassemble the pool table. I am satisfied that the professionals may have damaged the table when taking it apart. The quote from the Billiard Shop notes minor repairs to paint work. I am satisfied the tenants should pay the owner for this cost.
BRIEF HISTORY OF TENANTS CLAIM
Rent Relief55.The Tenant originally claimed in his Application for rent relief for 13 months at $6000.00. At the hearing the tenant changed his position and contended that he miscalculated his initial claim on the basis he was claiming $500 per month when it should have been a weekly amount. The tenant contended that he wanted an order from this tribunal that would find that the property he was renting at Sovereign Islands at $1500.00 per week should be reduced by $500 per week to $1000.00 per week. The tenant stated that a rent relief of $500 per week for a 13 month period would amount of a return of rent to the tenant of $26,000.00. The basis for his claim is that the tenant states that he should receive rental relief for the fact that the Owner failed to attend to repairs and maintenance, that the property was not clean at the start of the tenancy, and that the tenant had his quiet enjoyment of the premises disrupted by the Owner and Agents actions. In particular the tenant gave evidence that his main claim was for repair and maintenance issues that supported the rent relief was for the problems associated with air-conditioning, the pool, the media room and projector, jetty repairs, and for the property being dirty at the commencement of the lease.
Unclean Property
56.The tenant relied on the Entry condition report and email of 7/3/2009 to support the claim that the property was dirty when they moved in. The tenant did not have any photos to support his contention as to the condition of the property. The tenant contends that he did take photos and provided them in disc form to the agent at the time and his wife delivered them to the Agent when she returned the Entry Condition Report. The Agent who appeared at the hearing gave evidence that there had been a few different property managers dealing with the property and that the photos could have been given to a previous Property manager but that Ms Gibbs did not have any knowledge of entry photos taken by the tenants.
57.In the circumstances the cleanliness of the property at the commencement of the lease is a minor matter when considering the amount of rent reduction claimed by the tenants over the entire tenancy period of 13 months. In the circumstances and from the evidence I am satisfied that the tenants were not happy with the cleanliness of the property. The Agent stated that the property had been professionally cleaned when the tenants moved in. The Agent contended that the owners had moved out to let the tenants move in. The Agent contended that the photos taken by her that were attached to the Entry condition report included in the inventory show the property as clean.
58.The photos depict a range of furniture, chattels and bric a brac and appear to show that the property as clean and in good condition. The photos were taken on the 17/2/2009. The evidence of Ms Gillespie was that she was at the house on 17/2/2009 and that after the owners vacated the condition of the property was described as “excellent”.
59.The Owner deposed that the premises were cleaned weekly by professional cleaners while he resided in the property. He deposed he lived there for approximately 12 months before the tenants moved in. Mr Vickers deposed that a final clean was done by professionals after he vacated and prior to the tenants moving in. From the evidence it is clear that while the tenants were not impressed with the cleanliness of the property they did not at any time request from the owner that cleaners return to the property to undertake further cleaning before they moved in and settled in the property. From the evidence the tenant stated he did not request that the cleanliness of the property was to such an extent that he should receive rental reduction or a rent free period to compensate the tenants for the condition of the property at the time.
60.From the evidence I cannot make any findings that the condition of the property was such that would warrant a rent reduction or payment of compensation to the tenant.
Air-conditioning
61.The tenant claims that the air conditioning in the property did not function properly. His evidence was that for a period of time the air-conditioner did not work at all and at other times, it worked but that it did not work efficiently. The tenant said that it was necessary to have the system operating to all zones of the house and that he could not shut down particular zones and areas. The tenant served Notices to Remedy Breaches regarding the air-conditioning zone function problems on the 14/12/2009, 18/12/2009 and 10/3/2010. The Notice of 18/12/2009 is defective as that Notice was issued prior to the expiration of the minimum time that was required to be allowed for the Notice dated 14/12/2009 relating to the same Breach. The relevant Form 11 being that dated 14/12/2009 states that “Air-conditioning still not working properly”. The Form 11 dated 10/3/2010 claims rent relief and states that the Breach relates to “Airconditioning zone function”.
The tenant also raised in the email of the 7/3/2009 issues with the air-conditioner, the email stated:
“Airconditioning…it stays on even if other zones are switched off but also has initially been switching off in more than 4 zones are on”62.The Agent provided evidence that as early as 28/4/2009 the tenant requested that someone look at the air conditioning unit. The Agent contended that the owners authorised an air conditioner repair on 28/4/2009 but that the tenants advise they are going away and that the unit could be fixed upon their return. On 27/5/2009 the Agent contended that the tenant returned from holidays and requested the air conditioner be fixed. The Agent contends that on the 28/5/2009 the Company ‘Darcy’ were arranged to undertake investigations of the unit. The tenant advised the Agent on 4/6/2009 that ‘Darcy’ had cancelled the appointment. The Agent contended that on 5/6/2009 it was arranged that ‘Deep Chill Air’ would inspect the unit. On 9/6/2009 the Agent contended that the air conditioning unit repairer was waiting on parts that had to be ordered and she was waiting for quotes and parts. On 6/7/2009 the Agent said that the parts had arrived and ‘Deep Chill’ was scheduled to attend the premises the following day to fix the unit. The Agent contended that on 10/7/2009 the air conditioning unit and compressor unit was leaking.
63.On the 13/7/2009 the tenant said that the tenant complained that smoke was coming from the air conditioning vents inside the property. The Agent contended that she advised the tenant that she would get ‘Deep Chill’ back to the property that same day. The Agent contended that ‘Deep Chill’ found that there was no smoke coming though the vents and that there was no problem with the unit. The Agent said she contacted the owner who stated that the tenants should pay for the call out fee as it was a false alarm.
64.The Agent contended that the tenant again on 15/9/2009 contacted the agent complaining that the air conditioning unit was not working and that it was an emergency. The Agent contended that she confirmed with the tenant that ‘Deep Chill’ would be going back to the property to inspect the unit again. On 23/11/2009 ‘Deep Chill’ returned to the property and the tenant advised the Agent on 24/11/2009 that the air conditioning unit was working.
65.The Agent contends that on 14/12/2009 the tenant contacts the Agent again complaining that unit was not working again. The Agent said that the tenant contacted ‘Deep Chill’ on 15/12/2009 to advise them that the motor had burnt out. The Agent said that ‘Deep Chill’ contacted her and advised that new zone barrels were needed to fix the zone problems and that the cost would be $250 plus GST. The Agent said she contacted ‘Deep Chill’ on 22/12/2009 and they confirmed that there was a problem with the zones and it could not be repaired until the new year. The Agent contends that ‘Deep Chill’ advised her that the tenant had air-conditioning and cooling but it is just that the zones could not be controlled.
66.The tenant contended that due to the fact that the air conditioner cannot be zoned that this resulted in excessive power bills. That issue forms a separate part of the tenants claim and will not be taken into account for this matter.
67.The Agent provided evidence to the tribunal that the owners had attended to all maintenance requests regarding the air conditioner in a timely manner. I am satisfied that the tenants had air conditioning during their tenancy and that the time they were without any cooling was minimal and not during the summer period.
68.The Agent provided evidence to the tribunal that there were problems with the zone system and its electronics that meant that the whole house had to be cooled and that shutting off particular zones in the house was not available. The Agent contended that the air-conditioner unit still worked and functioned normally in all other aspects.
69.From the oral evidence of the parties and on the evidence provided to me at the hearing I accept the Agents evidence in relation to the fact that the air-conditioner worked and that the owners responded in a timely manner to the tenants request for maintenance and repairs to the air-conditioning unit.
70.I find that the claim for rent relief due to allegations regarding problems with the air conditioning unit is unfounded and the level as to the extent of inconvenience and discomfort to the tenant is over stated.
71.It may be that the tenants have a valid claim in that the tenants were put to extra expense having to cool the entire house when the zone function did not work properly. However, that will be dealt with later in these reasons where the tenant is claiming for reimbursement for excessive electricity costs during the tenancy arising from the faulty air conditioning unit.
Pool / fence Issues
72.The tenants claim that the pool was not able to be used during part of their tenancy and this resulted in a lack of facility and use of a service they claim they paid for and did not receive. The tenants claim that the pool pump did not work for a period of time and that as a result of the pool company doused the pool with excessive pool chemicals and that the chemical imbalance meant the tenants could not use the pool. The tenants did not serve any Notice on the Agent regarding the removal of the pool pump and their inability to use the pool.
73.The tenant did serve Notice contained in an email dated 7/3/2009 relating to the pool fence claiming that the “design layout did not allow room for resuscitation as there is not room to stand walk on inside of fence area.”
74.From the evidence provided to the tribunal there was no evidence to support the contention that the tenant had issues with the pool pump. The tenant did not serve any Notices to Remedy Breach regarding the pool pump issue. The tenants were informed and knowledgeable regarding their rights and entitlements under the Act and were tenants that had served many Notices to Remedy Breaches in the past. The tenants did not serve a notice regarding the issue regarding their alleged inability to use the pool.
75.The Agent gave evidence that when the tenant vacated the property was the time that it was noted that the pool pump was missing. The tenant gave evidence that the pool company took the pump away for repairs in mid March 2010. At the time the tenant vacated in April 2010 the tenant stated the pump had not been returned. The Agent contended that neither she nor the Owner were aware the pump had been removed for repair. Both the Agent and the tenant agreed that at the date the tenants vacated that the pool was clean and clear. The removal of the pool pump appeared to have not affected the condition of the pool. All evidence as to the condition of the pool with photos taken by the Agent at the date the tenants vacated the property supports the Agents evidence that the pool was clean and clear. The tenant’s contention that he could not use the pool was not substantiated by any independent evidence. The tenant could have obtained a report from the pool company to support his contention that the pool was so overly dosed with chemicals that he was told he could not use the pool. He did not produce such evidence. On the evidence before the tribunal the claim by the tenant for rental relief regarding the pool issue cannot be substantiated.
76.The tenant did not provide any evidence to the tribunal to support his claim for rental relief as a result of the inconvenience or difficulties arising from the configuration of the pool fence. The Agent gave evidence that the pool fencing had been approved. I have no evidence contrary to that position. I find on the evidence that the tenants claim for rent relief for this matter has not been made out.
Media room/projector problems
77.The Agent contended that the tenant advised on 3/7/2009 that the TV projector lamp indicator was not working. The Agent contended the tenant was advised that the owner would arrange for the repair. The Agent gave evidence that on 20/11/2009 the tenant advised her again that the lamp was not working. The owner told the Agent that he will attend too and arrange for the repair to be done again. The Agent contended that a repair person was arranged for 30/11/2009. The tenant said he advised the Agent the repair man did not show up. The Agent contended that on 8/12/2009 the repairer advised her that they were trying to work out why the projector was not working as in their opinion “the lamp should operate for 2000 hours and it had not been that long since the last service”.
78.The Agent contended that she advised the tenant that there were many other televisions in the house to use while the projector was being repaired. The Agent contended that on 21/12/2009 the projector was absent from the property while it was being repaired under warranty. The Agent contended that the projector took longer than expected to repair as it was repaired over the Christmas break and it was difficult to get work done with any urgency.
79.The Agent contended that while the projector was being repaired the media room was still able to be utilised by the tenant. The Agent contended that the tenant had use of 7 other televisions in the property and that the claim was without merit.
80.I accept the projector unit broke down and the Agent arranged for it to be repaired. I accept that it broke down a second time. I accept that the projector was to be repaired under warranty. I accept that this took time and the complicating factor was the repair was required to be done over the Christmas period and this caused further delay. I do not find that the Owners have been tardy or negligent in their obligations to attend to repairs and maintenance of the projector. I am satisfied the owner instructed the Agent to deal with the request for repairs in a timely manner. I accept that at the date the tenants vacated the projector had not been returned to the property. I accept the evidence of the Agent in that the tenant was not disadvantaged in using the projector as the media room was still able to be used. I am satisfied that the tenant was still able to utilise the media room and had other means with which to watch movies and television and the level of inconvenience to him exaggerated.
Jetty Repairs
81.The tenant claims that as a result of the jetty requiring repairs he was not able to adequately moor his boat and the jetty caused damage to his boat. The hearing focused primarily on claims and counter claims in relation to the jetty. The condition of the jetty and whether repairs were required and whether damage was caused to the jetty by the tenant have been already covered in these reasons. On the evidence before the tribunal I have found that the jetty was handed over at the commencement of the lese in a fit and proper condition. I have not been provided with any evidence that supports the tenant’s contention that his boat was damaged by the jetty.
82.Further, I am not satisfied that the jetty required repairs despite the tenants complaints and Notices that it did. I do not accept that the Report from A1 Pontoon and pier proves that the jetty required repairs. In my view the Report merely contains an opinion as to how the jetty could be reinforced and improved. The report does not in my view provide evidence that supports the tenant’s contention that the jetty required repairs. I cannot find that the jetty issue raised by the tenant provides sufficient evidence of itself that would justify a reduction in rent nor compensation for rental relief.
Dishwasher
83.The tenant contends that the dishwasher at the property required repairs and that as a result of a failure to repair it the tenants seek rent relief for not having the use of the dishwasher at the property. The Agent contended that the tenant advised on 7/12/2009 that the dishwasher required repairing. The Agent contended that the Owner advised the Agent that the tenant was permitted to contact a repairer and arrange for advice regarding repair costs. The Agent contended that she told the tenant to proceed with arranging a quote for the repair. The Agent gave evidence that the tenant advised her on 10/12/2009 that they dishwasher was examined and estimated that the repair cost would be $800. The tenant contended that he paid the repair service call out fee of $95.00. The tenant seeks this amount to be reimbursed to him. The Agent gave evidence that on 11/12/2009 the tenant contacted her and advised that his family were coming to visit in 7 days and that he wanted the dishwasher repaired. The Agent contended that she advised the tenant on 14/12/2009 that the Owner had approved to purchase a new dishwasher rather than repair the old one.
84.The Agent gave evidence that the new Miele dishwasher was purchased and arranged to delivered before Christmas. The Agent gave evidence that the dishwasher was paid for by the owners on 15/12/2009 and arrangements were made for it to be delivered to the property on 18/12/2009. The Agent contended that the tenants were not inconvenienced during the short period that the dishwasher broke down and before being replaced. The Agent contended that the owner acted promptly to replace the dishwasher with a new one once it was discovered it was expensive to repair the old one. Further, the Agent contends that there was another dishwasher in the property for the tenants to use and that the Agent advised the tenants on 11/12/2009 that in the interim they could use the dishwasher that was located in the kitchenette within the property.
85.The tenant served a Notice to Remedy Breach dated 12/12/2009 regarding the dishwasher repair and requested that the breach be remedied by 21/12/2009. From the evidence provided to the tribunal I find that the Agent remedied the breach within the time stipulated in the Notice. The Tenant served a further Notice to Remedy Breach issued on 18/12/2009 seeking reimbursement of the cost to service the dishwasher. The Form 11 Notice issued on 18/12/2009 appears defective also on the grounds in that it did not allow the minimum time to remedy the breach as the date for remedy appears to be 20/12/2009.
86.The tenant served another Form 11 issued on 10/3/2010 seeking reimbursement for $95 for the dishwasher service fee. The Agent contends that the owner had been willing to reimburse the tenant with the sum paid by him for the dishwasher service fee upon the tenant providing him with a copy of the Invoice and proof of the amount he paid. The tenant had not provided a copy of the receipt to the Agent, owner or the tribunal to support his contention that he had paid that amount. The tenant gave evidence at the tribunal that he had paid $95 to the dishwasher service repairer but could not produce the receipt to the tribunal. From the evidence provided to the tribunal I am satisfied that the Agent and owner dealt with the dishwasher repair and subsequent replacement in a timely and proper manner. I am also satisfied that the tenant did not dispute that he had access to another dishwasher at the property located in the kitchenette. In the circumstances I am satisfied the tenants claim for rent relief due to the fact that a dishwasher at the property was not available for the tenants use for a short period of time does not warrant the tenant being granted the amount of rent relief sought by him.
Loss of quiet enjoyment
87.The tenant claims that the loss of quiet enjoyment resulted from the fact that numerous maintenance and trades people were required to attend at the property to perform maintenance work. The tenant claimed that he was on one occasion woken up at 6.30am on one day by a trade’s person demanding access to the property to attend to repairs. This event was detailed in an email provided by the tenant to the tribunal as evidence of a loss of quite enjoyment. The email was dated 26/10/2009 sent from the tenant to ‘Kellie Morris’. The tenant claims he was not served with an Entry Notice and requested that the trades-people not come onto the property until after 7am.
88.While the owner is obliged to attend to maintenance and repairs the Owner or Agent must not enter the property unless the reason for entry complies with Section 192 of the Act:
192 Grounds for entry
The lessor or lessor's agent may enter the premises only-- to inspect the premises; or
to make routine repairs to, or carry out maintenance of, the premises; or
if repairs or maintenance have been made or carried out under paragraph (b)--within 14 days after the completion of the repairs or maintenance, to inspect the repairs or maintenance; or
to comply with the Fire and Rescue Service Act 1990 in relation to smoke alarms; or
to comply with the Electrical Safety Act 2002 in relation to approved safety switches; or
to show the premises to a prospective buyer or tenant; or
to allow a valuation of the premises to be carried out; or
if the lessor or agent believes, on reasonable grounds, the premises have been abandoned; or
if the lessor or agent has given the tenant a notice to remedy a breach of the agreement that is a significant breach--within 14 days after the end of the allowed remedy period, to inspect to ascertain whether the tenant has remedied the breach; or
if the tenant agrees; or
in an emergency; or
if the lessor or agent believes on reasonable grounds that the entry is necessary to protect the premises or inclusions from imminent or further damage.89.While I accept the owner and agent were attempting to address issues of repairs and maintenance pursuant to section 192(1)(b) of the Act the conditions that govern the times a tradesperson can enter the property is contained in Section 195 of the Act.
195 When lessor or lessor's agent may enter
An entry under section 192(1)(a) to (i)--
must be made at a reasonable time; and
unless the tenant otherwise agrees, must not be made on--
a Sunday or public holiday; or
(ii) another day after 6p.m. or before 8a.m.
90.The relevant section of the Act is s195(1)(b)(ii) in that a tradesperson must not attend the property where the tenant is living before 8am. If the tenant’s evidence is to be accepted action of the Owner or Agent, as contended by the tenant, breach the Act. The tenant could not refer to any other specific occasion when a tradesperson, agent or owner attended the property without serving the appropriate Entry Notice.
91.The tenant contended that tradespersons attended the property on many occasions which disrupted their use and enjoyment of the property. From the evidence provided to the tribunal from both parties I am satisfied that the following repairs, maintenance and replacements were undertaken:
repair to dock power and light
repairs to projector
repairs to air conditioner
replacement dishwasher
92.The evidence of tradespersons entering on the property in breach of the Act appeared to be a “one off” incident. I am satisfied from the email evidence that both parties provided to the tribunal that other tradespersons came onto the property at other times. From this evidence and from the oral evidence of the parties, I am satisfied that further repairs and maintenance performed were only at the request of the tenant and that the dates and times were in consultation and approved by the tenant.
93.I am not satisfied from the evidence provided to the tribunal by the tenant that substantiates his contention that the tenant’s quiet enjoyment of the premises was diminished. I do not find that by reason of tradespersons attending the property to undertake repairs and attend to maintenance was as a direct request by the tenant for them to be attended too. I find that while the tenants may have been inconvenienced from time to time from tradesperson undertaking maintenance at the premises or the Agent arranging other minor attendances to the property I find that the level of inconvenience and disruptions to their quiet enjoyment and use of the property is overstated. I can not find make any findings or identify evidence that supports the tenant’s contention that the Agent or the Owner interfered with the reasonable peace, comfort or privacy of the tenant while they were in occupation of the property.
94.I find that if the tenants claim that the property required such major repairs and maintenance which was to such an extent that they seek rental relief of $500 per week difficult to accept when the evidence is that the tenants chose to stay in the property when the Owner offered for the tenants to break their lease and find alternative accommodation without penalty.
95.On 11/6/2009 the Agent contended that the Owner agreed for the tenant to vacate the property without penalty. The Agent contended that the tenant emailed her and advised that they were happy to vacate and leave once they found alternative accommodation. The Agent gave evidence that she sent to the tenant a Form 13 on 22/7/2009 requesting the tenant advise of a vacate date. The Agent contends that the tenant did not complete and return that form and on further enquiry from the tenant, the tenant said on 25/8/2009 that the Agent should “desist in asking him when he is vacating.”
96.The Agent served a Notice to Remedy Breach in relation to rental arrears on 6/8/2009. The Agent served on the tenant a Notice to Leave on 2/12/2009 giving the tenant until 24/2/2010 to vacate the property. The tenants did not vacate on 24/2/2010. The tenants served a Notice of Intention to Leave dated 10/3/2010 with notice of their intention to vacate on 24/3/2010.
97.The Notice dated 24/2/2010 was given with grounds stating that the reasons for the Notice were:
“Repeated breaches of the lease agreement by the Lessor. Harassment by Lessor and failure to provide services as promised under the lease agreement. Failure to allow us quiet enjoyment of the premises.”
98.The tenants did not vacate on their advised date. The Agent gave evidence that the tenants advised on 2/3/2010 that their vacate date would be April 14th. The tenants did not leave on 14/4/2010. The tenants vacated 29/4/2010. I find that the conduct of the tenants by continuing to remain in the property despite their apparent lack of satisfaction with the property conflicts with their evidence and the nature of their claim for rent relief.
Reimbursement of electricity account
99.The tenant is seeking a reimbursement from the owner to him an amount of $1600 for excessive electricity consumption during the period the tenant states the air conditioning unit and zone function was not operating properly. The tenant’s evidence was that the amount he is claiming is based on the fact that the prior electricity accounts were much less when the air conditioner was working properly and that his electricity costs escalated during the period when the zone option was not functioning. The tenant gave evidence that as a result of him having to have the air-conditioning operating through out the entire house his use of electricity was increased.
100.The tenant provided to the tribunal copies of various electricity accounts. The accounts that were produced were as follows:
(a) an Origin account for $658.25 with a due date 27/4/2009 – covering the period from 28-1-2009 to 23/2/2009 and 23/2/2009 – 26/3/2009 (57 days)
(b) an AGL Electricity account for $1551.39 with a due date 31/5/2010 covering the period from 26/2/2010 to 4/5/2010 (68 days)
101.The tenant contended that the AGL electricity account was during the period when the air-conditioning unit was not functioning properly. The tenant’s evidence was that the air conditioner was not functioning properly at various times during the tenancy. From the evidence of the Notices to Remedy Breaches served by the tenants and from email communications it is not disputed that the tenant complained about the air-conditioner during the months of February, March, April, May, June, July, and December in 2009 and March 2010. The electricity accounts during these periods are reflected in both statements provided to the tribunal.
102.The tenant’s evidence that the statements prove that the electricity accounts are higher during the time the zone functions did not operate is incorrect. The two accounts cover both periods when the tenant complained that the air conditioner required repairs. The account from Origin covers the period of February and March 2009 when the tenant complained that the air conditioner was not working. Further, the evidence of both accounts cannot be accurately compared as the statements relate to two different companies and it is noted that AGL charges at greater rate of electricity cost per c/kWh than that of Origin. It is impossible to compare the electricity consumption of two companies over the relevant periods when other factors may need to be taken into account.
103.On the evidence before me I cannot be satisfied and I find that the evidence of the electricity accounts does not support the contention of the tenant that the fact that the air conditioner required repairs that were not attended to caused an unreasonable increase in electricity charges to the tenant.
Reimbursement of cost of dishwasher service
104.The tenant claimed to be reimbursed an amount of $95 for the cost of a call out fee he alleges he paid to the dishwasher repairer. The tenant did not provide any evidence to support this claim and the tenant gave evidence that he had a receipt for this claim but had misplaced it. The Agent contended that the owner would agree to repay the tenant upon proof that the amount had been paid. I note that the Agent has been requesting from the tenant for some time evidence and proof of such payment. In the absence of any evidence to support that claim I am not satisfied that the tenant paid such amount. If the tenant had misplaced the receipt he could have arranged to obtain another copy. He did not provide a copy of any receipt for this claim and I therefore find that this claim cannot be substantiated.
Reimbursement of Removal costs
105.The tenant is claiming he be reimbursed for his removalist costs. The tenant provided to the tribunal a receipt from Mini Movers dated 27/4/2010 and proof of payment of $1966.00. The tenant contends that he is claiming to be reimbursed the amount of $1500.00. The tenant contends that his removal costs should be paid as he would have preferred to have stayed at the property and was only forced to move due to the fact he was not happy with the condition of the property and due to the owner’s failure to attend to maintenance and repairs.
106.I accept that the tenancy agreement was for an initial 12 month period with an option to extend clause. I accept the evidence of the tenant in that he had hoped that he could have stayed in the property for 2 years and would have avoided having to move within that time. The tenant claims he left the property due to the fact that he found the position untenable due to the fact his request for repairs were ignored. I have made findings during the body of these reasons that the Agent and owner have attended to requests for repairs and maintenance in a timely manner. I accept that there have been some delays for some matters that were attended too but I find that on most occasions the delay was largely due to matters that were at no fault of the Owner or Agent.
107.The tenant was content to leave the property and had advised the Agent during the entire tenancy that they were not happy living at the property. The tenant served a Notice of Intention to Leave. The tenant contended that he left the property on 29/4/2010 due to the fact that the property lacked maintenance and was not in a condition that he was accustomed to living in. The Agent contended that the tenant was required to vacate when he did as a Warrant of Possession was held by local Police who were threatening to take possession of the property by force if required.
108.The Agent contends that the tenants would have had to move in any event as they had been issued with Notices to Remedy Breach regarding rental arrears and a Notice to Leave which had been ignored.
109.I am satisfied that a Warrant of possession would have resulted in the tenants having to leave the property. The tenants moved out on their own volition and Police intervention was not required. In circumstances whereby the tenants stopped paying rent due to the fact that repairs were not being done is not the appropriate action to take to have any maintenance matters attended too. I am satisfied that the tenant’s actions, by refusing to pay rent, resulted in the issuing of a warrant and termination of the lease. I find that the tenant caused the act of him having to move. In the circumstances and on the evidence before the tribunal I am not satisfied that the Owner should reimburse the tenant for some of his removal costs as the requirement for the tenant to move was his choice to leave and as a result of his failure to remedy breaches regarding rental arrears and the eventual issuing of a Warrant of Possession.
The Relevant Legislation:
110.The Tribunal has jurisdiction to hear and decide this matter pursuant to sections 11 and 12 of the Queensland Civil and Administrative Tribunal Act 2009 (the “QCAT Act”). This was a claim and counter claim by both parties against each other for relief under the Residential Tenancies and Rooming Accommodation Act 2009(‘the Act”) for a residential agreement over the property located at the address identified in the claim.
111.In matters involving a minor civil dispute, the Tribunal may make orders it considers fair and equitable to the parties in order to resolve the disputes. Section 429(1) of the Act provides that if there is a dispute between the lessor and tenant about an agreement, either party may apply to the Tribunal for an order, and the Tribunal make any order it considers appropriate to resolve the dispute.
The assessment of compensation
112.I am satisfied on the evidence provided to the tribunal that the claim by the Agent against the tenant is partly successful. The claims that have been substantiated and will be allowed are:
a) Rental Arrears $5462.20
b) Chandelier globes $60.00
c) Locksmith $231.00
d) Reassemble of Pool table $600.00
e) Window cleaning $150.00
f) Jetty Repairs $3,630.00
g) QCAT filing fee $20.00
TOTAL$10,153.20
113.I am satisfied on the evidence provided to the tribunal that the claim by the tenant for compensation does not have merit and that the claim should be dismissed.
ORDERS
114.Order for Claim 1198/10:
1. THAT the claim is dismissed
Orders for Claim 336/10:
1. THAT the Respondents pay to the Applicant the sum of $10,153.20.
2. THAT the RTA pays out to the Lessor the sum of $6,000.00 Rental Bond in part satisfaction of that Order.
3. THAT the balance of $4,153.20 be paid to the Applicant within 7 days.
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