Molyneux v Cook

[2019] NSWCATCD 94

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Molyneux v Cook [2019] NSWCATCD 94

Hearing dates:

15 July 2019

Date of orders:

29 July 2019

Decision date:

29 July 2019

Jurisdiction:

Consumer and Commercial Division

Before:

P Boyce, Tribunal Member

Decision:

1 The Tribunal orders that the tenants, Philippa Cook and Dean Cheek pay to the landlord, Amanda Molyneux:

(1) Cost of resurfacing scratched timber floor for $2,161.50; and

(2) Cost of Electricity supplied to the premises during the tenancy for $236.72;

(3) In all other respects the landlord’s claim is dismissed.

Catchwords:

LEASES AND TENANCIES — Residential tenancy — Compensation to landlord for damage to residential premises by tenants

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Residential Tenancies Act 2001 (NSW)

Cases Cited:

Cook and Cheek v Molyneux [2018] NSWCATCCD

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Amanda Molyneux (Applicant)
Philippa Cook (First Respondent)
Dean Cheek (Second Respondent)

Representation:

Applicant (Self-represented)
First Respondent (Self-represented)
Second Respondent (Self-represented)

File Number(s):

RT 19/20384

Publication restriction:

Nil

REASONS FOR DECISION

APPLICATION

1. The applicant landlord seeks orders against the respondent tenants:

1. for the payment of an amount of money of $6141.37 (section 187(1) (c)) of the Residential Tenancy Act (the “Act”);

2. for the payment of compensation of $1500.00 (section 187(1) (d)) of the Act.

2. Throughout this judgment the applicant will be referred to as landlord and the respondents as the tenants.

3. The landlord appeared and represented herself at the hearing. After he had given evidence, the landlords life partner, Jason Leo Bates, sought and was granted leave to assist the landlord in the conduct of her case.

4. Respondent, Dean Cheek, appeared on his own behalf and was granted leave by the Tribunal to appear for respondent, Philippa Cook, whose authority was texted to him by Ms Cook at the commencement of the hearing.

JURISDICTION

5. In previous proceedings commenced by the tenants against the landlord, RT19/05600 Cook and Cheek v Molyneux, the Tribunal found that the parties entered into a partly oral and partly in writing residential tenancy agreement on or about 9 March 2018 for a term of 12 months for the premises being the rear section of a deconsecrated Church in Maroubra for a rent of $800 per week. The landlord and her family occupied the front section of the building. There is a shared driveway and parking area at the front of the building, a paved side lane from which there are entrances to both occupancies and shared backyard and lawn area, maintained by the landlord, but available for use by both the landlord and the tenants. The tenants vacated the premises on 23 February 2019 after being served with a termination notice requiring the tenants to vacate the premises by 11 March 2019 (RT19/05600 Cook and Cheek v Molyneux at paragraphs 5, 7, 9 and 11).

6. The Tribunal is satisfied that the tenants and the landlord entered into a residential tenancy agreement (“RTA”) for residential premises within NSW.

7. The landlord commenced these proceedings on 1 May 2019.

8. S 28 of the Civil and Administrative Tribunal Act 2013 provides that the NSW Civil and Administrative Tribunal ("Tribunal") has jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.

9. S21 of the Residential Tenancies Act 2001 grants to the Tribunal the jurisdiction to hear and determine disputes conferred under the Act.

10. The Tribunal is satisfied that it has power under the Residential Tenancies Act to hear and determine the application.

Evidence

11. The landlord relies:

1. on her sworn evidence;

2. Exhibit A2- statutory declaration of Amanda Trudy Molyneux made on 7 April 2019;

3. Exhibit A3-statutory declaration of Xavier John Molyneux made on 7 April 2019;

4. Exhibit A4-The remainder of the bundle of documents filed by the landlord on 3 June 2019.

5. The sworn evidence of Jason Leo Bates;

6. Exhibit A1- statutory declaration of Jason Leo Bates made on 7 April 2019.

12. The landlord also sought to tender documents filed on 28 June 2019 which the landlord was unable to prove had been served on the tenants. Those documents have not been admitted into evidence.

13. The tenants rely on:

1. Sworn oral evidence of Dean Cheek;

2. Exhibit R1-the bundle of documents filed by the tenants on 18 June 2019;

Consideration of Claim

14. The landlord seeks an order for money order for compensation:

1. for damage to the residential premises the subject of the residential tenancy agreement:

1. Cost of resurfacing scratched timber floor for $2,161.50;

2. Cost of repair and servicing air conditioning Unit for $220.00;

3. Energy Australia Electricity Account for $236.72;

4. Cost of end of tenancy cleaning of $150.00;

5. Cost to repair broken gate $250.00;

6. Loss of use of shared area and disturbance of peaceful and quiet enjoyment $3000.00;

7. The tribunal notes that the tenants have paid the previously claimed gas account of $123.15 and it is not pressed by the landlord;

8. Total being $6018.22 (after deducting the gas account of $123.15) and,

2. an order for the payment of compensation for legal costs incurred for advice in prosecuting the claim of $1500.00 .

15. The findings of the Tribunal in Cook and Child v Molyneux include at paragraphs 8, 9 and 10 a commentary about the form of the RTA. There were two standard forms of RTA’s in evidence. The tenants signed a form of RTA submitted by the landlord. It describes a fixed term of 1 year commencing on 9 March 2018 and ending on 8 March 2019. That form of RTA was not signed by the landlord. The form describes the premises as “located” at the “rear of premises-4 Bellevue Street Maroubra” and to “include”, “3 bedrooms, 1 bathroom/laundry, kitchen, (rear yard-common area) with rent payable of $800 per week starting on 8 March 2018. The landlord explains the copy signed by the tenants as being intended to be a preliminary agreement superseded by the other RTA. The other RTA is identical to the tenants’ copy of the RTA except that it describes the premises as to “include”, “2 bedrooms, study, 1 bathroom/laundry, kitchen, (rear yard-shared area)”. This copy is not signed by either the landlord or the tenants and the tenants deny having received this copy. In any case, as with Cook and Cheek v Molyneux, nothing turns in the present proceedings on the discrepancy between 2 or 3 bedrooms.

16. The evidence supports a contention that the landlord has failed to comply with section 14 of the Act in that the landlord failed to ensure that the agreement was in writing at the commencement of the agreement. The delivery of the signed RTA by the tenants to the landlord, even though the landlord now denies receiving it, is sufficient compliance with section 17 of the RTA in that a RTA signed by the tenants and given to the landlord even though not signed by the landlord has the same effect as a RTA signed by both parties if the landlord accepts the rent. Similarly, the landlord is under an obligation to provide a copy of the signed RTA as soon as practicable after it is signed (section 28). The landlord did not comply with section 28.

17. The tenants’ obligations at the end of a tenancy are prescribed by section 51(4) of the Act that on giving vacant possession of the residential premises, the tenant must do the following:

(a)  remove all the tenant’s goods from the residential premises,

(b)  leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and, if there is a condition report, as set out in the condition report applicable to the premises when the agreement was entered into,

(c)  leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy,

(d)  remove or arrange for the removal from the residential premises of all rubbish, having regard to the condition of the premises at the commencement of the tenancy,

(e)  return to the landlord all keys, and other opening devices or similar devices, provided by the landlord to the tenant.

18. The landlord is also under an obligation to complete a condition report before or when the residential tenancy agreement is given to the tenant for signing (section 29(1). The condition report must be in the form prescribed by the regulations (section 29(6)).

19. The evidence is that no condition report in the prescribed form was prepared by or given to the tenants by the landlord before or at the time of giving the RTA to the tenants for signing or at all.

20. Without in ingoing condition report and an outgoing condition report the parties are unable to rely on the presumption that the condition reports are a correct statement of the state of repair or general condition of the residential premises afforded by section 30. In Hall v Hawkins[2015]NSWCATAP197 the Appeal Panel held at :

[61]Section 30(1) contains a rebuttable evidentiary presumption concerning condition reports. If a condition report is signed by both landlord and tenant it is presumed to be a correct statement of the state of repair or general condition of the residential premises on the day specified in the report, in the absence of evidence to the contrary.

[62]At least three significant features of this presumption flow from the terms of s 30(1). First, the presumption only arises if the condition report “is signed by both the landlord and the tenant”. If it is not signed by both parties, the fact that the other party was given a reasonable opportunity to be present when the report was completed under s 29(5) is irrelevant. In other words, giving the other party a reasonable opportunity, in accordance with s 29(5), to be present at a termination inspection and the completion of the condition report does not attract the operation of the presumption in respect of that report. For this reason, the discussion by the Tribunal below of whether the tenant was given a reasonable opportunity to be present at the inspection on 6 January 2015 was not relevant to the question of whether the condition report was presumed to be correct.

[63]Secondly, s 30(1) establishes only a rebuttable evidentiary presumption that certain information is correct. This follows from the inclusion of the qualifying words “in the absence of evidence to the contrary” in the subsection. Section 30(1) does not render a condition report completed by only one party and not signed by the other party inadmissible, or unable to be relied upon, to establish the condition of the premises at the relevant time. In so far as a party uses a form similar to a condition report to record that party’s observations as to the state of the premises at the relevant time, it can be relied upon and the Tribunal should treat it as it would any other record of observations by a witness.

[64]Thirdly, s 30(1) does not deprive evidence, other than a condition report signed by both parties, of cogency or reliability. The statement made by the Tribunal below that “[a]lthough photos can be useful evidence, the most cogent evidence is a compliant condition report” may be true in a particular case, but that will depend on all of the evidence considered in the particular circumstances of the case. Such a statement is not correct as a proposition to be applied in all cases or even as a general rule to be applied without regard to all of the evidence. Section 30(1) does not provide a basis for rejecting or ignoring photographic or other evidence as to the state of the premises at the relevant time, where that evidence happens not to be contained in a condition report signed by both the landlord and the tenant.

21. The landlord seeks to rely on a video recording shown at the hearing to establish the property condition at the commencement of the tenancy and at its end. The date of taking the video is disputed by the tenants, but the Tribunal on the balance of probabilities is satisfied that the video recording was taken by the landlord before the commencement of the tenancy and at its end. The Tribunal admits the video recording as evidence before it.

22. Although there is no ingoing or outgoing condition report, the Tribunal can have regard the video or other evidence at the relevant time (Hill v Hawkins). Perhaps it is useful to comment that had there been an ingoing and outgoing condition report signed by both parties the prospect of the dispute now between the parties would have been avoided or at least limited in scope.

Scratched floor

23. The landlord’s documentary and video evidence shows no marks and scratches on the polished timber floors at the commencement of the tenancy but then appearing at end of the tenancy. The landlord asks the Tribunal to accept that the floors were in a newly sanded and polished condition at the start of the tenancy. The landlord asks the Tribunal that by inclusion of an invoice from 3D Flooring Pty Ltd dated 6 February 2018 the Tribunal implies they were unblemished at the start of the tenancy.

24. The tenants include in their evidence 65 photographs taken on 23 February 2019. Those photographs are tendered to support the tenants’ contention about the condition of the property as distinguished from the condition purported by the landlord. The tenants reference an appendix B in their chronology, but that document is not included in the documents tendered to the Tribunal. The tenants contend that the timber floor may have been scuffed and marked when the landlord moved a cupboard after they moved from the premises.

25. The Tribunal is satisfied with the landlord’s evidence that during the term of the tenancy the polished timber floors were marked by the tenants. The claim is $2,161.50 and based on the quote from 3D Flooring Pty Ltd, the same contractor which carried out the work on the floors in February 2018. Although no claim was made that the damage to the floors was through fair wear and tear, the Tribunal has considered whether the damage would constitute the fair wear and tear. The Tribunal finds that the damage was greater than damage that can be described as fair wear and tear. The same contractor who originally sanded and polished the floors has been asked to quote on making good the floors. The quote refers to “to rectify damage on the floor”. The Tribunal is satisfied that the contractor has made an assessment of the extent of the damage and used its experience and skill to classify the marks to the floor as damage. It having occurred during the tenants’ occupancy and nearly 12 months after the works originally carried out.

26. The Tribunal is satisfied that the tenants are responsible for the cost of rectify damage to the floor in accordance with the quote of 3D Flooring Pty Ltd in the amount of $2161.50.

Air Conditioner

27. The tenants state in their chronology that the air conditioner was causing them problems. However, their text messages in their Appendix D infer that the first time a problem with the air conditioner was raised with the landlord was on 12 February, 2019, 11 days before they vacated the premises. The landlord includes in her claim compensation for the cost of servicing and repairing the air conditioner servicing the premises. The evidence does not support that the tenants caused the need to service the air conditioner nor is there an obligation under the Act or the residential tenancy agreement obliging the tenants to pay for such a service. This element of the landlords claim is dismissed.

Electricity Charges

28. The Tribunal is satisfied that the landlords evidence supports the claim for the cost of electricity supplied by Energy Australia by separate meter to the premises despite the tenants complain that the meter needs to be read. It is known to the Tribunal that Energy Australia does not always read meters and calculations for electricity consumption may be based on estimates. In this case, the landlord has recorded the reading on the electricity meter at the start of the tenancy and at the end. The landlord has applied the cost of electricity for the period for the number of units consumed. The Tribunal is satisfied with the methodology of the landlord’s calculation and will order the tenants to pay to the landlord the amount of the landlords calculation for electricity consumption for the period during the tenancy of $236.72.

Cleaning

29. The landlord also claims $150.00 for the cost of cleaning calculated on the assumption that the cost would be $25 per hour and would take 6 hours. The landlord relies on the photographs tendered to support her claim for the cost of cleaning. The landlord must satisfy her onus of proof that the cleaning was required to put the premises into the condition they were in at the commencement of the tenancy. She has not done so. The photographs do not establish with sufficient veracity the extent that the tenants have failed to fulfil their obligations. In any case, the reliance on an estimate of time and cost by the landlord for carrying out the cleaning is not sufficient to satisfy the Tribunal that the cost is reasonable. The landlord does not profess expertise in contract cleaning and in the absence of some independent evidence in the form of a quote for the scope of works by an independent cleaning company, the Tribunal cannot be satisfied as to the extent and cost of the work required. The claim for cleaning is dismissed.

Repairs to Entry Gate

30. The landlord also claims $250 for the cost of repair to the entry gate. There is no evidence before the Tribunal of the entry gate being for the sole use of the tenants. On the contrary, the residential tenancy agreement in both its incarnations stipulates that the rear yard is used commonly with the landlord. The Tribunal is not satisfied that the damage to the gate is established to be attributed to the tenants. This part of the claim is dismissed.

General damages

31. The landlord seeks damages in the amount of $3000.00 for loss of use of shared area and disturbance of peaceful and quiet enjoyment. There is no evidence that the landlord was denied use by the tenants of the shared areas of the property. The landlord perceived that there may have been a problem had she pressed its use. She chose to avoid the shared use during the latter part of the tenancy to avoid the conflict that regrettable grew between the two former friendly families. The landlord is obliged under the Act and a residential tenancy agreement to provide the tenants with quiet enjoyment of the premises. The extent of the tenants’ responsibility is to not cause a nuisance or disturb the reasonable peace and comfort or privacy of neighbours (Clause 15.2 and 15.3 of the RTA). In any case, the Tribunal is not satisfied that the landlord has satisfied the onus on her to prove the loss of use of the shared area or that the tenant has caused a nuisance or disturbed the peace and comfort of the landlord to the extent that a reasonable person would be disturbed. The basis on which the landlord has assessed her damages claimed of $3000.00 is not explained or supported by evidence that would reasonably demonstrate to the Tribunal the basis of the calculation as reasonable damages.

32. Both parties in their respective falling out with each other have become hyper sensitive to the any perceived slight each against the other. The Tribunal makes this observation from the tone, content and volume of the material filed in their respective cases that is directed to personal criticism of each other rather than confining their material to relevant issues. Additionally, neither party demonstrated at the hearing that they were willing to address the real issues between the parties preferring to interrupt each other’s evidence and enter in argument with each other notwithstanding the Tribunal warned them both to allow each other to give their evidence in a civil way. This element of the claim is dismissed.

Legal Costs

33. The landlord also claims compensation for the legal costs she has incurred in prosecuting the claim. It is noted that legal representation has not been sought or leave granted for the landlord. Section 60(1) of the Civil and Administrative Tribunal Act 2013 provides that each party must pay their own legal costs. The exception to the general rule is if the parties establish that special circumstances warrant an award of legal costs. The landlord has not demonstrated that special circumstances apply to her application. The general cost rule is not displaced. There will be no order as to costs and the claim for legal fees of $1500.00 is dismissed.

Other claims made during conduct of hearing

34. The tenants obliquely refer throughout the material they rely on including a reference to internet connection (and disconnection), Foxtel cables and box, the disappearance of plastic buckets (and their return), damaged dog toy. It is not explained by the tenants or by the landlord what the relevance is of raising those matters as it does not appear that the tenants raise those matters as a claim against the landlord or for some other purpose. In any case, the Tribunal makes no order in this regard, even if it was sought. There is no evidence to support any perceived claim. At best there are merely bold assertions.

Orders

35. The Tribunal orders that the tenants, Philippa Cook and Dean Cheek pay to the landlord, Amanda Molyneux:

1. Cost of resurfacing scratched timber floor for $2,161.50; and

2. Cost of Electricity supplied to the premises during the tenancy for $236.72;

3. In all other respects the landlord’s claim is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 29 March 2022