MORGAN v DOBRY & ANOR (Residential Tenancies)
[2020] ACAT 57
•23 July 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MORGAN v DOBRY & ANOR (Residential Tenancies) [2020] ACAT 57
RT 89/2020
Catchwords: RESIDENTIAL TENANCIES – claim for damages for breach of clause 64 of residential tenancy agreement – failure to leave premises in the same state of cleanliness and condition as they were at the commencement of the tenancy – exception for fair wear and tear – damages assessed
Legislation cited: Residential Tenancies Act 1997 ss 8, 29, 30, 30A standard terms 21, 22, 46, 64
Cases cited:Cooper v Westpac General Insurance Ltd v Cooper [2007] ACTCA 20
Maroney v Bullard [2016] ACAT 33
Westpac General Insurance Ltd v Cooper [2006] ACTSC 91
Tribunal: Senior Member M Orlov
Date of Orders: 23 July 2020
Date of Reasons for Decision: 23 July 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL RT 89/2020
BETWEEN:
PAUL MORGAN
Applicant/Lessor
AND:
JASON LEE DOBRY
SARA DOBRY
Respondents/Tenants
TRIBUNAL: Senior Member M Orlov
DATE:23 July 2020
ORDER
The Tribunal orders that:
1.The respondents are liable to the applicant for damages for breach of the residential tenancy agreement assessed at $3,483.20.
2.ACT Rental Bonds on behalf of the Territory is directed to release the disputed sum to the lessor to be credited against the sum for which the respondents are liable in accordance with order 1.
3.The respondents are to pay the balance of the sum payable in accordance with order 1 namely, $516.10 to the applicant within 14 days.
………………………………..
Senior Member M Orlov
REASONS FOR DECISION
Synopsis
1.The applicant, Mr Morgan, claims damages of $4,159.35 for breach of a residential tenancy agreement by the respondents, Mr and Mrs Dobry, on the grounds that in breach of clause 64 of the tenancy agreement, they failed to leave the premises at the end of the tenancy in substantially the same state of cleanliness and in substantially the same condition as the premises were in at the commencement of the tenancy, fair wear and tear excepted.
2.For the reasons that follow I am satisfied that the respondents breached the residential tenancy agreement substantially in the manner that the applicant alleges. I assess the damages for which the respondents are liable as $3,483.20 which includes $159.50 for the filing fee paid by the applicant and takes into account a credit of $32.90 which ACT Rental Bonds released to the applicant with the respondents’ consent for the cost of damage for which the respondents admit responsibility. The balance of the bond $2,967.10 should be released to the applicant, leaving an amount of $516.10 to be paid by the respondents within 14 days.
Background
3.Mr Morgan owns a residential property in Fadden, ACT (premises). In April 2018, Mr Morgan entered into a residential tenancy agreement with Mr and Mrs Dobry, who were then living in the USA but were moving to the ACT to enable Mr Dobry to complete his PhD. The agreement contained the standard residential tenancy terms (Terms) mentioned in Schedule 1 of the Residential Tenancies Act 1997 (RT Act) (see section 8(1)). The tenancy was for a fixed term commencing on 2 July 2018 and ending on 5 January 2020. The premises were leased “together with all furniture, fittings, appliances and goods listed in the Condition Report” for a weekly rental of $750 payable in advance. The tenants paid a bond of $3,000 which was lodged with ACT Rental Bonds.
4.Clause 21(1) of the Terms required the lessor to give two copies of a condition report completed by the lessor to the tenant within one day of the tenant taking possession of the premises. Mr Morgan prepared and signed a condition report on 2 July 2018, which was the day the tenancy agreement commenced and provided two copies to the tenants. Pursuant to clause 22 of the Terms, the tenants were required to examine the report and, within two weeks after the day of receiving the report, return one copy of the report to the lessor indicating their agreement or disagreement with the report or parts of it. That is, the report should have been returned to Mr Morgan by 16 July 2018. In fact, it was returned three weeks late, on 7 August 2018 (i.e. five weeks after the tenancy commenced) although the document itself was signed and dated 24 July 2018. It appears that Mrs Dobry undertook the task of examining the condition report and annotating the report where she disagreed with its contents. The annotations are detailed and suggest that Mrs Dobry approached the task conscientiously. In an email to Mr Morgan on 8 August 2018, Mr Dobry observed, “I had my wife do the condition report. I thought she was a little excessive, but in any case I apologise for not getting it to you sooner”.
5.Mr and Mrs Dobry occupied the premises with their two young children (and later an infant born during the tenancy) and a Labrador dog weighing about 70kg. Mr Morgan was aware before the tenancy commenced that the tenants had a dog but was unaware that they intended to allow the dog to live inside the house. The significance of the dog’s presence in the house will become apparent later.
6.The tenancy ended by agreement on Friday 10 January 2020 rather than on 5 January as provided by the tenancy agreement. Mr Morgan drove to Canberra from his home in Sydney that morning to inspect the premises. The inspection was scheduled for 12:00pm. The maximum temperature in Canberra that day was recorded as 39.4°C.[1] According to Mr Morgan, he was tired from the drive and the heat and as a result, the inspection was relatively brief and not as thorough as he would have liked.
[1] Bureau of Meteorology website, Canberra Australian Capital Territory January 2020 Daily Weather Observations
7.Mr Dobry attended the inspection with the children’s nanny Leanne Riley. I infer that the ostensible reason for the nanny’s presence was that Mr Dobry’s infant child was with him during the inspection. It appears the real reason for the nanny’s presence was that the tenants wanted a third party to be present as a witness, although there was no evidence to suggest that Mr Dobry informed Mr Morgan that this was the reason for Ms Riley’s presence. It is not clear to me why Mrs Dobry was not present, given that she had undertaken a thorough inspection of the premises and checked and amended the original condition report. According to Mr Dobry, the inspection lasted about 40 minutes, during which “the Lessor was unable to identify any problem with the premises.” Mr Dobry acknowledged that the garage remote control was lost and a shelf in the main bedroom wardrobe had some minor damage. Mr Morgan was said to have “expressed some displeasure with the looseness of the office chair, and claimed that it was broken” but “no other damages (sic) were evident during that inspection”. At the end of the inspection Mr Morgan stated that the premises “look good on the surface” and that he would release the bond in a couple of days.[2] Mr Dobry handed over the keys and he and the nanny left the premises. Ms Riley provided a brief signed statement supporting parts of Mr Morgan’s version of events. Mr Morgan did not dispute Mr Dobry’s account of the inspection.
[2] Document filed by the respondent titled ‘Rental Bond Dispute – Dobry v Morgan’
8.According to Mr Dobry, he telephoned Mr Morgan on Sunday 12 January 2020 to request that Mr Morgan sign the bond release form, during which Mr Morgan “demanded” that Mr Dobry attend a second inspection. Mr Dobry refused claiming that a second inspection was “illegal.” At 7:47pm Mr Morgan left a voicemail message for Mr Dobry:
Jason, its Paul, how about you give me a call back and speak face to face and meet me back here at the premises. The other day you had your nanny and your child with you. I gave you the benefit of leaving and I said that I would be in contact with you and that’s exactly what I’m doing now. Call me back.
(I note that this may explain why Mr Morgan says that the inspection was not as thorough as he would have liked). Mr Dobry did not return the call. The next day Mr Dobry asserts that Mr Morgan sent “over a dozen emails…with false claims and photos that have deleted/altered metadata.”
9.The material filed with the Tribunal included one email sent by Mr Morgan at 6.08am on 13 January 2020 which stated:
I’m currently awaiting your return call to confirm a time either yourself or Sara is physically able to attend on your own to have an uninterrupted discussion the below items.(sic)
10.Major items included damaged and scratched kitchen timber bench tops, badly stained fabric upholstery to the dining room chairs, rectification of poorly patched and painted kitchen and family room ceilings, broken office chair, mould staining of lounge room curtains and sheers and a missing amplifier remote. Minor items included a broken shelf in one of the bedroom cupboards, broken lounge room lamp, damaged Apple TV remote, broken kitchen wall clock and several other minor items. All of these form part of the lessor’s claims in this proceeding. As will appear, I find that most, though not all, of the claims are well founded.
11.Mr Dobry replied by email sent at 1:56pm on 13 January 2020 stating “To make this easy, you can sign my bond release and email it to me by the end of today, or we will sort this out in the tribunal.”
12.The material filed with the tribunal included several emails sent by Mr Morgan on 14 January 2020. The first email was sent at 3:36am and forwarded a copy of the outgoing condition report signed and dated on 13 January 2020. The second email was sent at 7:42am advising that Mr Morgan had prepared the bond release form with the deductions listed “noting that some of these costs are based on estimates & quotations obtained.” The third email was sent at 8:26pm and forwarded photographs of the poorly patched and painted kitchen and family room ceilings and noted Mr Dobry’s response, following the first property inspection on 3 December 2018 which had identified the presence of dark stains on the kitchen ceiling, namely “Ok I will clean this before I move out.” The fourth email was sent at 9:49pm and attached photographs of rubbish that Mr Morgan claimed was left behind and was taken to the tip.
13.It is unclear whether a copy of the original condition report marked up with Mrs Dobry’s comments was available to the parties at the final inspection and, if not, why not. A copy of the condition report completed by Mr Morgan which he signed and dated 13 January 2020 (i.e. on the Monday after the inspection) was in evidence. The report was not signed by Mr Dobry.
14.Mr Morgan was vague as to the date on which he completed the report. I infer from the earlier mentioned communications with Mr Dobry on 12 January 2020 and the emails sent on 13 and 14 January 2020 that Mr Morgan carried out a much more thorough inspection of the premises and completed the condition report on 12 and 13 January 2020.
15.Mr Dobry asserts that in the initial bond release form sent to him, Mr Morgan claimed an amount of only $2,247 and that the present claim, which has increased to $4,159.35 “shows the Lessor’s extreme ill-intent as additional items are continuing to be added now months after the lease terminated.” Mr Dobry asserts generally that the lessor’s “claims continue to go up and he demands that old and heavily used items are replaced with new and upgraded versions.” However, the initial bond release form is not in evidence and Mr Dobry’s assertion that new items have been added months after the event cannot be verified. Further, Mr Morgan advised on 14 January 2020 that he had based the costs claimed in the bond release form on estimates and quotations available to him at the time. The evidence of cost that Mr Morgan presented at the hearing included more detailed evidence obtained after 14 January 2020. If the claim increased in value as a result, it does not follow that the claims are ‘manufactured’ as Mr Dobry appears to suggest.
16.The tenants’ overall answer to the lessor’s claim appears from the following statement by Mr Dobry:
The Tenants returned the property in the same condition they received it, considering for fair wear and tear. The residence…is a dated residence with rotting wood throughout and the appliances, cabinets, electrical infrastructure and other various furnishings were all dated and in heavily used condition at the time the Lease was signed. These are all things that were directly address (sic) on the original check in sheet. The original check in sheet…very clearly states the condition of the premises upon commencement of the lease and the residence was considerably aged at that time and all of the furnishings inside were in a used condition. The premise (sic) was reasonably clean when our lease started and it was cleaned to the same standard upon final inspection.
The issues
17.Mr Morgan claims the cost to clean, flea treat and deodorise the premises, the cost to repair or replace a number of items that he claims were damaged or lost by the tenants, and payment of the final water consumption charges are attributable to the tenants’ usage allowing a credit for overpaid rent.
18.The claim for cleaning costs is based on an alleged breach of clause 64(a) of the Terms. The issue I have to decide is whether the premises were left in substantially the same state of cleanliness as they were at the commencement of the tenancy.
19.The claim for the cost to repair or replace damaged or lost items is based on an alleged breach of clause 64(b) of the Terms. The issue I have to decide in each case is whether the premises (relevantly, the part of the premises or the item of furniture, fittings, appliances or goods leased as part of the premises) were left in substantially the same condition as they were at the commencement of the tenancy, excepting fair wear and tear.
20.The claim for payment of water consumption charges is based on clause 46 of the Terms, which makes the tenant responsible for payment of such charges. Mr Dobry does not dispute the tenants’ liability in principle but claims that after he left the premises on 10 January 2020 Mr Morgan watered the garden “excessively” and that he should not have to pay for the excess water usage.
The relevance of the incoming and outgoing condition reports
21.It will be apparent that the condition of the premises at the commencement and at the end of the tenancy is the critical issue I have to decide. The reason for requiring parties to complete and sign condition reports at the commencement and at the end of a tenancy in a timely way is to avoid or minimise the risk of the kind of disputes that have arisen here.
22.Section 29 of the RT Act provides:
(1) A lessor must, not later than the day after the tenant takes possession of the premises, give the tenant 2 copies of a report about the state of repair or general condition of the premises, and of any goods leased with the premises, on the day the tenant is given the report.
(2) A report under subsection (1) must be signed by the lessor.
(3) The tenant must, within 2 weeks after receiving the copies of the report mentioned in subsection (1), return 1 copy to the lessor, either –
(a)signed by the tenant; or
(b)endorsed with a statement signed by the tenant, indicating whether the tenant agrees or disagrees with the whole of the report or with specified parts of it.
(4) If the tenant returns the copy signed but without further endorsement, the tenant is taken to have agreed with the whole of the report.
(5) To remove any doubt, a condition report for premises may, but need not, contain a list of items at the premises, other than goods leased with the premises.
23.Section 30 of the RT Act provides:
(1) If section 29(1) and (3) have been complied with, a statement in a report mentioned in section 29 about the state of repair or general condition of the premises, and of any goods leased with the premises, (other than a statement in relation to which the tenant, by endorsement, has indicated disagreement) is evidence of that state of repair or general condition on the day the tenant was given the report.
(2) If only section 29(1) has been complied with, a statement in a report mentioned in section 29 about the state of repair or general condition of the premises, and of any goods leased with the premises, is evidence of that state of repair or general condition on the day the tenant was given the report.
(3) If section 29(1) has not been complied with, evidence by the tenant about the state of repair or general condition of the premises, and of any goods leased with the premises, is evidence of that state of repair or general condition on the day the tenant took possession of the premises.
24.Section 30A of the RT Act provides:
(1) A lessor must, together with the tenant, carry out an inspection of the premises at the end of the residential tenancy agreement.
(2) The lessor must, together with the tenant, complete and sign a condition report based on the inspection.
(3) However, a party may complete and sign the condition report in the absence of the other party if the party has given the other party a reasonable opportunity to be present when the report is completed and signed.
25.The applicant complied with section 29(1) by giving the tenant two copies of the condition report on the day the tenancy commenced, namely 2 July 2018. In order to comply with section 29(3), the respondents were required to return a signed copy of the report, endorsed in such a way as to indicate whether the respondents agreed or disagreed with the report or parts of it, by 16 July 2018. They did not do so. In fact, as I have found earlier, the respondents returned the signed and endorsed copy of the report on 7 August 2018 i.e. five weeks after being provided with a copy of the condition report. It follows that they did not comply with section 29(3). It follows also that the evidentiary consequences specified in section 30(2), rather than section 30(1), apply in this case. That is, the statements in the original condition report provided to the tenants on 2 July 2018 are evidence of the condition and state of repair of the premises on that day. However, that does not mean that the statements are necessarily decisive of the issue. Nor does it mean that the endorsements that Mrs Dobry made on the original condition report some weeks later cannot be relied upon as evidence of the condition of the property at the commencement of the tenancy. However, the weight to be given to the evidence must take into account the fact that the respondents were in occupation of the premises for a number of weeks and accordingly, Mrs Dobry’s endorsements may not necessarily represent the condition of the property, or all parts of the property, at the commencement of the tenancy. Nevertheless, as will become apparent, I have given careful consideration to Mrs Dobry’s comments on the original condition report in evaluating each of the applicant’s claims.
26.The parties did not comply with section 30A(2) at the end of the tenancy. Although they conducted a joint inspection they did not complete and sign a condition report based on the inspection. It is not clear why that did not happen, although the presence of the nanny and the baby at the inspection may have played a part. The qualification inherent in the statement attributed to Mr Morgan that the premises “look good on the surface” and Mr Morgan’s telephone message in the evening on 12 January 2018 that “I gave you the benefit of leaving and I said that I would be in contact with you” (which Mr Dobry did not dispute reflected what Mr Morgan had said to him at the end of the inspection on 10 January) suggests that Mr Morgan had in mind to undertake a more thorough examination and to contact Mr Dobry after he had done so and that Mr Dobry acquiesced in that course of action. It is clear that Mr Morgan requested on 12 January, and again on 13 January, that either Mr or Mrs Dobry should attend a further more detailed inspection in circumstances where, on closer inspection, Mr Morgan claimed to have identified a number of issues with the condition and state of cleanliness of the premises. It seems to me that the request was not unreasonable and certainly not “illegal” as Mr Dobry seemed to think and it was unwise of Mr Dobry to decline the opportunity to do so. I am inclined to the view that the circumstances satisfied the requirements in section 30A(3) for Mr Morgan to complete and sign the condition report in Mr Dobry’s absence. However, even if I am wrong, the question of the condition of the premises at the end of the tenancy is a question of fact that must be decided on the basis of all of the available evidence. While I regard the outgoing condition report completed and signed by Mr Morgan on 12 and 13 January as evidence of the condition of the premises at end of the tenancy, I have decided the issue in each case having regard to all of the available evidence without giving the outgoing condition report any special evidentiary significance.
Item 1 — damaged kitchen benchtop surfaces
27.The applicant claims that the timber kitchen benchtops were left in a badly damaged condition and claims $600 as the cost to sand and repolish the benchtops with a clear polyurethane coat, based on a quotation from Sentra Constructions dated 17 January 2020.
28.The incoming condition report describes the bench tops as clean and in good condition. Some weeks later, Mrs Dobry ascribed the code “CF” to the benchtops, meaning she regarded them to be clean and in fair condition at that time. Her comments endorsed on the report stated “Aged, scratched, containing wear around the sink”. Mr Morgan relied on some photographs of the benchtop taken several weeks before he went overseas in about late February 2018 showing them to be in good condition. The lease to Mr and Mrs Dobry commenced in early July 2018. The premises were not permanently let in the interim but were used as short term holiday accommodation rented through Airbnb for several two to three day periods. Mr Morgan’s photographs show the condition of the benchtops in about late January 2018, before the premises were made available for short term holiday letting. They are not direct evidence of the condition of the premises at the commencement of the lease, some five months later. The most that can be said about the photographs is that it is open to infer that the degree of damage to the benchtops evident from the photographs taken at the end of the tenancy was unlikely to have been caused by the limited use of the premises for short term holiday accommodation prior to the commencement of the tenancy. The photographs taken in January 2018 are not irrelevant, but I do not attach much weight to them.
29.The outgoing condition report describes the bench tops as “severely damaged.” Photographs taken on 10 January confirm that the damage is obvious and that the description is accurate. The damage is located immediately to the left of the hot plate and on the kitchen bench return on the right hand side of the hot plate, in both cases some considerable distance from the sink. The damage includes what appear from the photographs to be cuts or deep scratches in the timber surface. Whether the damage was caused by the respondents using a knife without a chopping board, as the applicant suggests, or simply by a lack of ordinary care, I am satisfied that the nature and extent of the damage is not consistent with what may be regarded as ‘fair wear and tear’ as the respondents assert. The onus to establish that the exception applies lies on the respondents. The exception operates where minor changes to the condition of the premises arises from the reasonable use of the property by the tenant or the ordinary operation of natural forces. [3] That is not the case here.
[3] Westpac General Insurance Ltd v Cooper [2006] ACTSC 91 at [14], affirmed on appeal in Cooper v Westpac General Insurance Ltd [2007] ACTCA 20 at [24] – [27]. See also Maroney v Bullard [2016] ACAT 33 at [24]-[29] in which Presidential Member McCarthy reviewed the main authorities on the meaning of the expression ‘wear and tear’ in the context of tenancy law
30.I reject Mr Dobry’s assertion that the damage is the same damage that Mrs Dobry described in her comments on the incoming condition report. First, the damage is not “wear around the sink”. Second, the condition of the benchtops could not reasonably have been described as “aged, scratched” but nevertheless in a “fair” condition, if they were in the same condition at the start of the tenancy as they clearly were at the end of the tenancy, which, as I have found, was aptly described as “severely damaged”. Mrs Dobry’s description of the condition of the benchtops some weeks after the commencement of the tenancy is not consistent with damage of the magnitude that was evident at the end of the tenancy. Mr Dobry’s assertion to the contrary reflected poorly, in my view, on the reliability of his evidence. I observe also that Mrs Dobry could have but did not give evidence at the hearing although she was present in the background (the hearing being by telephone) and clearly was available.
31.I am satisfied that the respondents did not leave the kitchen benchtops in substantially the same condition as they were in at the commencement of the tenancy and that the damage done to the benchtops does not fall within the exception for fair wear and tear. I am satisfied also that the proposed method of repair namely, sanding and repolishing with a clear polyurethane coat is appropriate in the circumstances. Mr Dobry did not challenge the reasonableness of the Sentra Constructions quotation. Accordingly, I assess the value of the claim for item 1 at $600.
Item 2 - cleaning
32.The applicant claims $250 for the cost paid to Scrubbers Inc to clean the premises to an acceptable standard and $28 for tip fees for disposing of domestic waste left behind by the tenants.
33.Mr Dobry said that he arranged for the premises to be cleaned professionally and paid $800 for the service. He claimed to have told Mr Morgan that if he was not happy with the state of the premises, he could call the cleaner and arrange for him to come back.
34.The responsibility lay with the tenants to leave the premises in the same state of cleanliness as they were at the commencement of the tenancy. While I accept that the tenants arranged and paid for the premises to be cleaned professionally, it does not follow that the result produced was satisfactory. Photographs taken by Mr Morgan before the premises were cleaned by Scrubbers Inc. on 13 January 2020, show that the tenants left behind rubbish under beds and other furniture, skirting boards were left dusty and dirty, dirt and hair was left in a drawer in the ensuite bathroom and stains were left in the laundry cupboard. The photographs support Mr Morgan’s oral evidence that the premises were not left in a satisfactory state of cleanliness. Photographs show a trailer load of rubbish left behind by the tenants that Mr Morgan took to the tip on 13 January 2020. Mr Morgan emailed copies of the photographs to the tenants on 14 January 2020 at 9:49pm.
35.I am satisfied that the applicant’s claim is made out. I assess the value of the claim for item 2 at $278.
Item 3 – cleaning stained dining room chairs
36.The applicant claims $120 paid to Mr Steamer on 15 January 2020 for the cost to steam clean stained upholstery on the dining room chairs. The upholstery was freshly steam cleaned a few days before the commencement of the tenancy, as evidenced by a receipt from Mr Steamer dated 26 July 2018.
37.Photographs provided by Mr Morgan show that two of the upholstered dining room chairs were left in a badly stained condition. The incoming condition report recorded the condition of the dining suite as “CG” i.e. clean and good. Mrs Dobry confirmed her agreement in the copy of the condition report returned to Mr Morgan.
38.Mr Dobry said that the stains were not there when they moved in but claimed that they were ‘fair wear and tear’. I disagree. It was unacceptable damage which the lessor was entitled to remedy by arranging for the upholstery to be steam cleaned.
39.I am satisfied that the applicant’s claim is made out. I assess the value of the claim for item 3 at $120.
Item 4 – carpet flea and deodorising treatment
40.The applicant claims $150 as the cost to deodorise and flea treat the carpet.
41.Mr Morgan gave evidence that the premises were left with a strong smell of dog. Mr Dobry asserted that he had arranged for the carpet to be deodorised and flea treated as part of the professional cleaning of the premises. Mr Morgan checked with Rahman Cleaning Service, the service contracted by the tenants to determine whether deodorising and flea treatment had been done. In an email sent on 20 January 2020, Rahman confirmed that “there was an excessive amount of dog hair which needed to be removed as the pet had been living inside” and that he charged $200 to steam clean the carpet. Although the carpet came up well “deodorising & flea treatment were not performed (due to the tenant not specifically requesting this as part of the scope of works requested).” He provided a quotation to carry out flea treatment and deodorising at a cost of $150. The applicant’s claim is based on this quotation, although Mr Morgan did the work himself using products he purchased for that purpose. There was no evidence as to the cost of the products.
42.I am satisfied that the applicant’s claim is made out in principle. However, Mr Morgan is not entitled to recover the amount of the quote to do the work i.e. $150 because he did not incur the cost and there is no evidence to establish the actual cost that he incurred in purchasing products to do the job. Accordingly, I assess the value of the claim for item 4 at nil.
Item 5 – cost to repaint kitchen and family room ceiling
43.The applicant claims $290 for the cost to patch, sand back and repaint the ceiling to the kitchen and family room.
44.The evidence establishes that the kitchen ceiling was freshly painted before the start of the tenancy. Following the first property inspection on 3 December 2018, Mr Morgan advised Mr Dobry by email that there was “stained paint on kitchen ceiling where a dark coloured liquid has sprayed onto the roof surface and not properly cleaned thereafter”. Mr Dobry replied by email the same day stating that he would clean this before he moved out.
45.Mr Morgan did not notice anything wrong with the ceiling at the final inspection on 10 January 2020. However, in an email to Mr Dobry sent at 6:08am on 13 January 2020, Mr Morgan referred to “rectification of poorly patched/painted kitchen and family room ceilings and plaster patch to bedroom four door” and noted that he was “currently awaiting your return call to confirm a time either yourself or Sara is physically able to attend on your own to have an uninterrupted discussion” about this and other items.
46.Mr Dobry gave evidence confirming that there had been some spray marks on the kitchen ceiling but he was not sure what had caused them. He then went on to speculate that the marks may have been caused by water stains from the leaking roof, but did not provide any evidence to substantiate either that the roof had leaked or that the ceiling in question had suffered damage as a result. Mr Dobry said he tried to scrub parts of the ceiling in the kitchen but that the ceiling paint rubbed off. He categorically denied painting any part of the ceiling.
47.Mr Morgan said that the ceiling had been patched roughly with white paint. Photographs produced by Mr Morgan which he had emailed to Mr Dobry on 14 January 2020 at 8:26pm show marks that appear to be consistent with paint marks likely to be left by a paint brush or roller. Even if, as Mr Dobry contends, the marks were caused by his efforts to “scrub” the ceiling, the end result was that the ceiling was not left in the same condition as it was in at the start of the tenancy.
48.Mr Morgan was quoted $290 by Sentra Constructions to patch, sand back and repaint the ceiling, noting that the kitchen and family room ceiling “cannot be blended in and will be required to be repainted in total”. I accept that evidence. Mr Dobry did not challenge the reasonableness of the quoted cost.
49.I am satisfied that the applicant’s claim is made out. I assess the value of the claim for item 5 at $290.
Item 6 – replacement cost for damaged office chair
50.The applicant claims $365 as the cost to purchase and have delivered a replacement Eames reproduction black executive mesh office chair which he claims was left in a damaged condition and had to be thrown out. The claim is based on an on-line quotation from an office furniture and fit-out supplier, JasonL.
51.Mr Morgan explained, by reference to a photograph of the chair, that the shaft was bent, the retaining nut at the top of the shaft was missing and a gas cylinder (which I infer was part of the seat raising mechanism) was also missing. The photograph bears this out. Mr Morgan disposed of the chair at the tip. A photograph bears this out also.
52.Mr Dobry accepted that the chair “needed some repair” and that “the bracket had gotten loose” but claimed he did not have the tools to fix it. He claimed it was still possible to sit in the chair, although the seat was like a “bobble-head instead of tight and rigid”. He claimed this condition developed over time simply though him sitting on the chair for long periods and that there had been no misuse.
53.I infer that the office chair was in sound working order at the start of the tenancy and that at the end of the tenancy it was broken. The bent shaft and lost components, confirmed by photographic evidence, are consistent with damage that is not attributable to fair wear and tear.
54.I am satisfied that the claim is made out. I assess the value of the claim for item 6 at $365.
Item 7 – cost to replace sheer curtains in lounge room damaged by pet
55.The applicant claims $516 as the cost to replace one pair of sheer curtains in the lounge room which he claims were damaged by the respondents’ dog. The claimed cost is supported by a quotation from BASC Pty Ltd.
56.Mr Morgan said that the curtains were newly installed in March 2017. This is confirmed by a quotation from BASC Pty Ltd dated January 2017 and a tax invoice dated 1 March 2017 which was paid a fortnight later.
57.Mr Morgan produced a photograph showing extensive scratching on the lower half of one of the sheer curtains. A quotation from Jim’s Blind Cleaning and Repairs notes that “sheer curtain has been scratched by pet and can’t be repaired but will be cleaned”. The incoming condition report recorded the condition of the curtains as “clean” and “good.”
58.Mr Dobry denied that his dog was responsible for the damage. He claimed that his dog weighed 70kg and that if the dog had scratched at the curtains, he “would have torn it down”. However, having regard to the apparently conscientious care with which Mrs Dobry reviewed the condition report after the start of the tenancy I am satisfied that she would have noted and recorded the fact if the sheer curtains had been damaged in the way that is obvious from the photograph taken at the end of the tenancy. The fact that she did not and indeed confirmed that the condition of the curtains was “clean” and “good” leaves me comfortably satisfied that the damage was done by the tenants’ dog.
59.I am satisfied that the claim is made out. The respondents did not challenge the reasonableness of the quoted cost to replace the sheer curtains, which is only slightly higher than the original purchase cost from the same supplier in March 2017. Accordingly, I assess the value of the claim for item 7 at $516.
Item 8 – cost to clean mould on lounge room drapes
60.The applicant claims $550 as the cost to clean the lounge room drapes of mould. Although Mr Dobry suggested that this was doubling up on the claim for item 7, I am satisfied that there is no double counting. The lounge room drapes were made from a heavy fabric sold in 2010 as “Jewel”. The sheers, which hung behind the drapes, were made in 2017 from a light fabric sold as part of the “Charles Parsons Venice” range.
61.Mr Morgan gave evidence that the lounge room drapes were left with extensive staining from mould. This was one of the issues he raised in his email to Mr Dobry on the morning of 13 January 2020. Photographs produced by Mr Morgan provided evidence of extensive staining by mould on the back of the drapes.
62.In an email sent to Mr Dobry on 25 March 2019 at 5:39pm Mr Morgan stated:
A personal observation made from the suite of photos received, I note the lounge room curtains are crumpled/squashed up against the windows. With the cooler weather rapidly approaching, should the lounges not be moved forward & the curtain/sheer be unable to hang freely, the fabric material will become damp & mildew stains will damage the material from condensation against the glass.
63.A photograph included with the email showed the tenants’ lounge suite pushed up hard against the drapes.
64.Mr Dobry claimed that he moved the couches back against the drapes temporarily to allow access for vacuuming but that he moved them away from the windows following Mr Morgan’s email. He asserted that mould was a “systemic issue” in the house and that “ventilation did not work.”
65.Mr Morgan responded that condensation on windows is to be expected in Canberra and that the house was listed as being without air-conditioning and ducted heating.
66.I am satisfied that if the drapes had shown signs of mould at the commencement of the tenancy, Mrs Dobry would have noted that fact on the incoming condition report. I am satisfied that at the end of the tenancy the drapes were left badly stained by mould. Whether or not Mr Dobry moved the lounge room furniture as he claims, or if he did, how long it sat jammed up against the drapes before he moved it, is not to the point. The fact remains that the drapes were not returned in the same state of cleanliness as they were at the start of the tenancy. I do not regard staining caused by mould in the circumstances of this case as falling within the category of minor damage caused by reasonable use which is excusable as fair wear and tear.
67.I am satisfied that the claim for cleaning costs is made out. The respondent did not challenge the reasonableness of the costs quoted by Jim’s Blind Cleaning and Repairs. Accordingly, I assess the value of the claim for item 8 at $550.
Item 9 – cost to replace broken wardrobe shelf
68.The applicant claims $95 as the cost to replace a broken shelf in bedroom one’s wardrobe based on a quotation provided by Sentra Constructions. A photograph provided by Mr Morgan confirms the damage.
69.The tenants did not dispute that the wardrobe shelf was broken and authorised $22.90 to be deducted from the bond as the cost of material and labour to repair the shelf. That amount has been paid to the applicant. There was no evidence as to the basis of Mr Dobry’s estimate that the shelf could be repaired for $22.90.
70.I am satisfied that the claim is made out and that the reasonable cost of labour and materials to repair the shelf is $95. Giving credit for $22.90 released to the applicant from the bond, I assess the value of the claim for item 9 at $72.10.
Item 10 – replacement cost for broken lamp and damaged kitchen wall clock
71.The applicant claims $190 as the replacement cost for a broken lamp in the lounge room and $119.95 for a broken wall clock in the kitchen. Neither item of damage was picked up in the inspection on 10 January 2020, but both were mentioned in Mr Morgan’s’ email to Mr Dobry on 13 January 2020.
72.Mr Dobry claimed that both were in a working condition when he left the house. The lamp, which was located by the couches in the living room, was not broken and the kitchen clock “worked fine.”
73.Photographs provided by Mr Morgan show that the glass lamp shade was broken, leaving the bare light fitting exposed. Mr Morgan stated that he did not notice it on his walk though on 10 January and that he “looked at the lounges, not at the lamp in the corner.”
74.The applicant bears the onus to establish that the lamp was damaged by the tenant and that it was in a broken condition during the inspection on 10 January 2020. I am not satisfied that the applicant has discharged the onus. I struggle to see how Mr Morgan could have missed seeing the broken lamp if, as he says, he was looking at the lounges. Mr Morgan was not specific about when he first noticed the broken lamp. The evidence shows that the applicant arranged for the premises to be cleaned on 12 January 2020. The broken lamp was first mentioned in Mr Morgan’s email to Mr Dobry early on 13 January 2020 and again in the outgoing condition report dated and signed the same day. In those circumstances, I am unable to exclude the possibility that the lamp was damaged by the cleaners on 12 January 2020.
75.Similarly, the applicant bears the onus to establish that the kitchen wall clock was not in the same condition as it was at the start of the tenancy, fair wear and tear excepted. Although the tenants did not dispute that there was a kitchen wall clock and that it worked, the evidence does not enable me to make a finding as to the reason why it had ceased working at the end of the tenancy, as the applicant claims. Some photographs relied upon by Mr Morgan show that the surface of the kitchen clock had a crack in it, suggesting that it had been dropped or had fallen at some time. However, there was no evidence as to the physical condition of the clock at the commencement of the tenancy or that the damage occurred during the tenancy. Nor was there any evidence as to the age of the clock. It may be a case that it simply stopped working for any number of possible reasons, including age. I am not satisfied that the applicant has discharged the onus of proving that the clock was damaged by the tenants or ceased working as a result of the tenants’ misuse.
76.Accordingly, I am not satisfied that the claim is made out.
Item 11 – replacement cost of Apple TV remote
77.The applicant claims $89 as the cost to replace an Apple TV Siri remote control unit which appears to have been dropped, leaving the corner of the unit badly cracked. Mr Dobry admits the damage, but claims that it is fair wear and tear. I disagree. Accidental breakage is not the same as minor damage caused by fair wear and tear.
78.I am satisfied that the claim is made out. I assess the value of the claim for item 11 at $89.
Item 12 – replacement cost for lost/missing Onkyo amplifier remote
79.The applicant claims $129 as the cost to replace a missing Onkyo Amplifier learning remote for a TX-SR601 amplifier. The amplifier was part of the sound system that came with the premises.
80.Mr Morgan noted the missing remote in his email to Mr Dobry on 13 January 2020 and in a subsequent email sent at 8:47pm on 14 January 2020, provided Mr Dobry with a photograph of the TV and sound system taken before the commencement of the tenancy showing a cluster of remotes, including the one for the Onkyo amplifier.
81.Mr Dobry claimed that he never used the sound system and was unable to shed any light on the whereabouts of the remote.
82.I am satisfied that the claim is made out. I assess the value of the claim for item 12 at $129 based on the quoted replacement cost provided by RIO Sound and Vision on 19 January 2020.
Item 13 – replacement cost of bath mats
83.The applicant claims $75.90 as the cost to replace two Sheridan bath mats, which the applicant claims were left with bleach stains.
84.However, there was no evidence as to the condition or age of the bath mats at the commencement of the tenancy, or that the tenants were responsible for the bleach staining during the tenancy.
85.I am not satisfied that the claim is made out.
Item 14 – replacement cost for missing modem power adaptor
86.The applicant claims $24.95 as the cost to replace an AC adaptor for the modem.
87.Mr Dobry said the modem never worked and he was unable to shed any light on the whereabouts of the adaptor.
88.Mr Morgan acknowledged that he had replaced the old modem with a new modem but was claiming the replacement cost of a part of the old modem that he claimed was missing.
89.There was no evidence as to the type of modem or AC adaptor that had been supplied with the house. Mr Morgan did not contradict Mr Dobry’s evidence that the old modem never worked. Even if the AC adaptor for the old modem was lost, I am not satisfied that the applicant has suffered any loss as a result.
90.I am not satisfied that the claim is made out.
Item 15 – replacement cost of missing garage remote
91.The applicant claims $95 for the replacement cost of a programmable B&D garage door remote control unit, which he claims the tenants failed to return at the end of the tenancy. The evidence shows that there were three B&D remote control units provided to the tenants at the commencement of the tenancy but that only two were returned.
92.Mr Dobry acknowledged that he had lost one unit but claimed that he could buy a replacement unit from Bunnings for $10 and authorised that amount to be deducted from the bond and paid to the applicant, which has been done.
93.The replacement cost of a programmable B&D remote control unit supplied by the local B&D dealer, ACT Doorland, is $95 and is established by a quotation dated 20 January 2020.
94.At the hearing, Mr Dobry claimed to have found the missing unit and that he was now prepared to return it to Mr Morgan. There was no evidence as to the present condition of the control unit, the date when it was found, or any explanation why Mr Dobry did not make arrangements for its immediate return to Mr Morgan. In the circumstances, I am unable to determine whether the control unit in Mr Dobry’s possession is, in fact, the missing B&D unit, or that it is in working order and in substantially the same condition as it was at the start of the tenancy. The tenants’ obligation was to return all of the control units to the applicant at the end of the tenancy i.e. on 10 January 2020. The tenants’ failure to do so was a breach of the tenancy agreement and the applicant suffered damage as a result at that time. Damages are assessed as at the date of the termination of the tenancy.
95.I am satisfied that the claim is made out. I assess the value of the claim for item 15 at $85 after giving credit for the $10 that the applicant has already received for this item out of the bond.
Item 16 – replacement cost of missing garden shears and bow saw
96.The applicant claims $37 for the cost to replace garden shears and $15 to replace a bow saw that he claims were missing at the end of the tenancy.
97.The applicant claimed that the tools were located in a cupboard in the double garage and that they were missing when the premises were vacated.
98.Mr Dobry denied any knowledge of the tools. He claimed that there were no garden tools provide with the premises and that he had to provide his own.
99.The incoming condition report did not include an itemised list of inclusions and there was no other record or objective evidence of the presence, location or condition of the garden shears or bow saw at the commencement of the tenancy.
100.I am not satisfied that the claim is made out.
Item 17 – replacement cost for damaged watering hose
101.The applicant claims $52.90 as the cost to replace a damaged watering hose. A photograph which Mr Morgan emailed to Mr Dobry on 14 January 2020 at 9:27pm shows that the hose had suffered a cut or split and had been taped up unsuccessfully in an attempt to stem the escape of water. In the same email, Mr Morgan stated that the spray nozzles were also damaged or broken.
102.The photograph shows the hose to be in apparently good condition, except for the split. I can see no justification for requiring the tenant to pay for a new hose in those circumstances. Mr Morgan accepted that the hose could be repaired easily using a hose joiner, which is available from Bunnings. There was no evidence as to the cost of a hose joiner or a replacement spray nozzle.
103.In the circumstances, I am not satisfied that the claim is made out.
Item 18 – replacement cost of golf umbrella
104.The applicant claims $59.95 as the cost to replace a golf umbrella that he says was part of the inclusions but which was missing at the end of the tenancy.
105.Mr Dobry claims to have “zero recollection” of a golf umbrella.
106.The incoming condition report did not list a golf umbrella as part of the inclusions and there was no other record or objective evidence of the existence, age or condition of the umbrella at the commencement of the tenancy.
107.In the circumstances, I am not satisfied that the claim is made out.
Item 19 – replacement cost of digital bathroom scales
108.The applicant claims $78 as the cost to replace a set of digital bathroom scales because the LED display no longer worked at the end of the tenancy.
109.The incoming condition report did not list the digital bathroom scales as part of the inclusions and there was no other record or objective evidence of the age or condition of the bathroom scales at the commencement of the tenancy. Mr Dobry said “they certainly were not new” and that they “worked fine when I left.”
110.In the circumstances, I am not satisfied that the claim is made out.
Item 20 – water consumption charge
111.The tenants were responsible for paying for water consumption charges to the end of the tenancy. The applicant arranged for the meter to be read by Icon Water on 10 January 2020. An invoice from Icon Water dated 7 February 2020 establishes that the water consumption charge for the period ending on 10 January 2020 was $414.42. The respondents are liable for that amount less a credit for rent overpaid in the amount of $185.72 leaving an unpaid balance of $228.70.
112.I mentioned earlier in these reasons that Mr Dobry claimed that Mr Morgan watered the garden “excessively” after being handed back the keys on 10 January 2020 and objected to paying for the excess water usage. There was no evidence to support this assertion. Mr Morgan may well have watered the garden in the afternoon on 10 January but there is no basis upon which I could make a finding that the watering was “excessive” or that the watering occurred after the meter was read by Icon Water. If Mr Dobry wished to reply on these matters in reduction of his liability under the express terms of the tenancy agreement, he bore the onus to establish his assertions by evidence. He did not do so.
113.I am satisfied that the claim is made out. I assess the value of the claim for item 20 at $228.70.
Summary
114.I have assessed the total value of the applicant’s claims at $3,322.80, made up as follows:
·item 1 – $600
·item 2 – $278
·item 3 – $120
·item 4 – nil
·item 5 – $290
·item 6 – $365
·item 7 – $516
·item 8 – $550
·item 9 – $72.10
·item 10 – nil
·item 11 – $89
·item 12 – $129
·item 13 – nil
·item 14 – nil
·item 15 – $85
·item 16 – nil
·item 17 – nil
·item 18 – nil
·item 19 – nil
·item 20 – $228.70
115.In the circumstances, I am satisfied that it is appropriate to make an order that the respondents reimburse the applicant for the filing fee paid to the Tribunal in the amount of $159.50.
116.The respondents previously authorised ACT Rental Bonds to release $32.90 to the applicant for the cost of damage for which they admitted responsibility. I have given credit for that amount in valuing the applicant’s claims. The balance of the bond $2,967.10 should be released to the applicant in partial satisfaction of the respondents’ liability. That leaves an amount of $516.10 owing by the respondents which should be paid to the applicant within 14 days.
.………………………..
Senior Member M. Orlov
HEARING DETAILS
FILE NUMBER:
RT 89/2020
PARTIES, APPLICANT:
Paul Morgan
PARTIES, RESPONDENT:
Jason Lee Dobry and Sara Dobry
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member M Orlov
DATE OF HEARING:
29 April 2020
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