Network Developments NSW Pty Ltd v Hay

Case •

[2025] NSWCATCD 42

•

11 June 2025

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Network Developments NSW Pty Ltd v Hay [2025] NSWCATCD 42
Hearing dates: 11 March 2025
Date of orders: 11 June 2025
Decision date: 11 June 2025
Jurisdiction:Consumer and Commercial Division
Before: JA Rose, Senior Member
Decision:

(1)      The respondent tenant, Andrew Hay, must pay the applicant landlord, Network Developments NSW Pty Ltd, the sum of $5,950.38 immediately.

(2)      The Tribunal directs the Rental Bond Board to pay the applicant landlord, Network Developments NSW Pty Ltd the whole bond and any interest accrued on rental bond number T474141-4. Any amount received under this order is to be credited against the money order at (1) above.

(3)      The remainder of the applicant landlord’s claim is dismissed after hearing on the ground that the Tribunal is not satisfied to the civil standard (being the balance of probabilities) on the material before it that there are grounds for the Tribunal to make the remaining orders sought by the applicant.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — tenant’s obligations on vacating the residential premises, including the obligations to leave the premises in the condition required by the tenancy agreement

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rental bonds — Payment and release

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Residential Tenancies Regulation 2019 (NSW)

Cases Cited:

Adoncello v Sazdanoff (Tenancy) [2006] NSWCTTT 577

Elhassen v Ayoub [2018] NSWCATAP 34

Fitzpatrick v Wu NSWRT, 2001, (01/16425)

Graham, Caste, Pilonchery v French (Tenancy) [2013] NSWCTTT 15

Kjoller v Tailford [2016] NSWCATAP 4

Pancio v Crompton & Jennings [2015] NSWCATAP 110

Texts Cited:

Nil

Category:Principal judgment
Parties: Network Developments NSW Pty Ltd (Applicant)
Andrew Hay (Respondent)
Representation: D Younan, property manager (Applicant)
A Hay, in person (Respondent)
File Number(s): 2024/423273
Publication restriction: Nil

REASONS FOR DECISION

Introduction

  1. This proceeding arises out of a residential tenancy agreement between the applicant as landlord (the “landlord”) and the respondent as tenant (the “tenant”) in respect of a residential house at Victoria Road, Ryde NSW (the “premises”) dated 27 January 2023 (the “tenancy agreement”). Pursuant to the terms of the tenancy agreement, the tenant provided a rental bond of $2,560 (the “bond”), which is currently held by NSW Rental Bonds. The tenant vacated the premises on 30 October 2024, bringing the tenancy to an end.

  2. On 14 November 2024, the landlord lodged its application in this proceeding, seeking orders for:

  1. the bond to be paid to the landlord: and

  2. the tenant pay the landlord an additional $8,787.71 (making a total of $11,347.71),

pursuant to ss 175 and 187 (1) of the Residential Tenancies Act 2010 (NSW) (the “RT Act”).

  1. In the “Reasons for the Order(s)” panel on the application form, the landlord stated that its application covers the following amounts:

  1. Rent owing – $405.71

  2. Cleaning – $330 incl GST

  3. Removal of rubbish – $800 + GST

  4. Repair to the timber flooring – $3500 + GST

  5. Removal of the light cover for the fan in the master bedroom - $330 incl GST

  6. Replacement of a ripped curtain - $42

  7. Repair of torn fly screens - $220 + GST

  8. Multiple cracks in the windows and replacing a smashed panel of glass that was replaced with plastic – $1000 + GST

  9. Trimming of hedges– $275 incl GST

  10. Repairing poor paint work, screw holes from plantation shutters and blinds, and glue - $2500 + GST

  11. Replacing curtain rods that had been removed - $550 incl GST

  12. Replacing a missing oven tray - $250 + GST

  13. Replacing light globes that are not working - $45

  14. Replacing lost keys to the front door - $250 + GST

  1. For the reasons set out below, I find that the tenant is liable to pay the landlord $5,950.38 on the landlord’s claim in the proceeding. The landlord is further entitled to recover the tenant’s bond and apply it against that debt.

The hearing

  1. The proceeding came before the Tribunal for conciliation and an initial (group list) hearing on 28 November 2024. Conciliation was not successful so the Tribunal (Member Block) made orders listing the proceedings for hearing as a special fixture and requiring the parties to provide to each other and lodge with the Tribunal the documents they intended to rely on at the hearing, in advance of the hearing. Both parties have lodged bundles of documents in accordance with those directions.

  2. The proceeding then came before me for hearing on 11 March 2025, with an allocation of 3 hours. The landlord was represented at the hearing by Ms Danielle Younan from McGrath Estate Agents Ryde, its managing agents (the “managing agents”). The tenant appeared in person.

  3. At the start of the hearing, Ms Younan stated that the landlord pressed each of the 14 items set out above, together with its claim against the bond. The tenant informed the Tribunal that he conceded items (1) rent arrears ($405.71), (5) removal of the light cover ($330.00); (6) replacement of the curtain ($42.00); and (12) replacement of the oven tray ($275.00) – for a total of $1,052.71. This left the remaining 10 items for determination by the Tribunal.

  4. The hearing then proceeded in the usual manner. Both parties were given reasonable opportunities to present their evidence and to respond to the evidence presented by the other party. They were also given reasonable opportunities to present their arguments to the Tribunal and to respond to the arguments made by the other party. I am satisfied that both parties received adequate procedural fairness.

The evidence

  1. The landlord relied on the bundle of documents that it had lodged with the Tribunal on 23 December 2024 (exhibit L1). The tenant did not object to any of those documents being used as evidence in the proceeding.

  2. The tenant relied on the bundle of documents that he lodged with the Tribunal on 16 January 2025 (exhibit T1). The landlord similarly did not object to any of those documents being used as evidence in the proceeding.

  3. Both Ms Younan and Mr Hay gave sworn oral testimony.

The common ground between the parties

  1. It was agreed between the parties – and I find accordingly – that:

  1. there was a residential tenancy agreement between the parties which started on 27 January 2023, as set out in the landlord’s evidence;

  2. the tenant paid the bond of $2560, which is currently frozen;

  3. the ingoing condition report dated 27 January 2023 (the “ICR”) contained in the landlord’s evidence is an accurate record of the condition of the premises at the start of the tenancy agreement;

  4. the tenant vacated the premises on 30 October 2024; and

  5. the managing agents’ email to the tenant dated 4 November 2024, contained in the landlord’s evidence, comprised the outgoing condition report prepared by the managing agent, and was an accurate record of the condition of the premises on that date (the “OCR”).

Jurisdiction

  1. Section 187(1) of the RT Act gives the Tribunal to make orders for (amongst other things) the payment of money and the payment of compensation, on application by a landlord or a tenant or in any proceeding under the RT Act. Section 175 also gives the Tribunal jurisdiction to make an order as to the payment of the amount of the rental bond, on application by a landlord (amongst others).

  2. I am satisfied that there is a residential tenancy agreement in force between the parties and that the Tribunal has jurisdiction to hear and determine the dispute between the parties under the RT Act. I am also satisfied that the amounts claimed by the landlord are within the Tribunal’s monetary jurisdiction under that Act.

The applicable law

  1. By section 66 of the RT Act, a tenant must not make alterations to premises without the landlord’s written consent. The terms of this section are as follows:

(1)    A tenant must not, without the landlord’s written consent or unless the residential tenancy agreement otherwise permits, install or cause to be installed a fixture or make or cause to be made any renovation, alteration or addition to the residential premises.

(2)    A landlord must not unreasonably withhold consent to a fixture, or to an alteration, addition or renovation that is of a minor nature.

(2A)    The regulations may make provision for or with respect to the following-

(a)    the kinds of fixtures, or alterations, additions or renovations that are of a minor nature in relation to which it would be unreasonable for a landlord to withhold consent,

(b)    the circumstances in which the giving of consent by the landlord to the fixture, alteration, addition or renovation may be conditional on the fixture only being installed, or the alteration, addition or renovation only being carried out, by a person appropriately qualified to install a fixture, or carry out alterations, additions or renovations, of that kind.

(3)    A landlord may withhold consent to any other action by the tenant that is permitted under this section whether or not it is reasonable to do so.

(4)    A fixture installed by or on behalf of the tenant, or any renovation, alteration or addition to the residential premises by or on behalf of the tenant, is to be at the cost of the tenant, unless the landlord otherwise agrees.

(5)    This section is a term of every residential tenancy agreement.

  1. Section 67 governs the removal of fixtures installed by the tenant, providing:

(1)    A tenant may, at the tenant’s cost and before the tenant gives vacant possession of the residential premises, remove any fixture that was installed by the tenant in accordance with this Act or the residential tenancy agreement.

(2)    A tenant must notify the landlord of any damage caused by removing a fixture and must repair the damage or compensate the landlord for the landlord’s reasonable expenses of repairing the damage.

(3)    Despite subsection (1), a tenant is not entitled to remove a fixture without the consent of the landlord if the fixture was installed at the landlord’s expense or the landlord provided the tenant with a benefit equivalent to the cost of the fixture.

(4)    This section is a term of every residential tenancy agreement.

  1. Section 69 gives a landlord the right to seek an order from the Tribunal that the tenant compensate the landlord for the cost of rectifying work done by or on behalf of the tenant to the premises, whether or not the landlord consented to the carrying out of the work.

  2. Section 71 (1) of the RT Act provides that a tenant may alter, remove or add or cause or permit the alteration, removal or addition of a lock or other security device for the residential premises only if the other party agrees, or with a reasonable excuse. By section 72, if a tenant alters, adds or removes a lock or other security device at residential premises, he or she must give the landlord a copy of the key or opening device required to open a lock (etc) within 7 days, unless the landlord agrees or the Tribunal authorises a copy not to be given.

  3. Subsection 51(3) of the RT Act sets out the tenant’s obligations in vacating residential premises. The subsection provides as follows:

(3)    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.

  1. Each of the above provisions are deemed to be terms of every residential tenancy agreement.

  2. Lastly, s 166(1) sets out matters that a landlord is expressly entitled to claim from a tenant’s rental bond, including:

(a)    the reasonable cost of repairs to, or the restoration of, the residential premises or goods leased with the premises, as a result of damage (other than fair wear and tear) caused by the tenant, an occupant or an invitee of the tenant,

(b)    any rent or other charges owing and payable under the residential tenancy agreement or this Act,

(c)    the reasonable cost of cleaning any part of the premises not left reasonably clean by the tenant, having regard to the condition of the premises at the commencement of the tenancy,

(d)    the reasonable cost of replacing locks or other security devices altered, removed or added by the tenant without the consent of the landlord,

(e)    any other amounts prescribed by the regulations.

As set out in subsection 166(2), that list does not limit the matters for which the landlord may claim from the rental bond for a residential tenancy agreement.

  1. I have determined the landlord’s claim in accordance with these provisions.

Findings of fact

  1. Much of the factual background to the matter was not the subject of any significant controversy between the parties. The primary controversy concerned (a) whether the tenant had left the relevant parts of the premises in the condition required by the tenancy agreement; and (b) the reasonableness of the amounts claimed by the landlord. I will deal with the facts relating to those matters separately, below.

  2. Having weighed and considered the evidence produced by both parties, I am satisfied on the balance of probabilities that the background facts of the matter are as follows.

  3. The premises is a 3-bedroom, weatherboard-and-tile residential house and a separate garage on landscaped grounds at Victoria Road, Ryde NSW. The age of the house is not known; however, it appears to be at about 100 years of age, from the photograph that are in evidence. The house included (amongst other rooms) a lounge room, a kitchen, a hallway, three bedrooms, a bathroom, a laundry. The floors throughout the premises were timber floorboards, with floor tiles in the bathroom and in the laundry. The walls throughout the premises were generally painted in a light or white colour. The front boundary of the property was lined by large hedging plants.

  4. The managing agents managed the premises on behalf of the landlord at all material times, since at least December 2021.

  5. The tenant is a qualified carpenter who was worked in the carpentry trade for over 30 years. In January 2023 he worked for the landlord.

  6. In the afternoon on 25 January 2023 the managing agents’ Xavier Moore conducted an ingoing inspection of the premises in anticipation of leasing the premises to the tenant. He took at least 366 photographs at that time, which recorded the condition of the premises during that inspection. Mr Moore subsequently prepared the ICR, which included 50 pages of written comments concerning the condition of the premises at that time and copies of those photographs.

  7. On 27 January 2023, the managing agents arranged a landscaper to conduct a “full garden cleanup with removal of subject of subsequent waste and items left behind by the tenants” at the premises, for which they paid the landscaper $275. They also arranged for a cleaning service to undertake a “kitchen and bathroom cleaning” at the premises, for which they paid $220. I will return to these matters below.

  8. The parties entered into the tenancy agreement on 27 January 2023. The tenancy agreement was in the form prescribed under the RT Act, with additional terms and special conditions. The agreement permitted the tenant to occupy the premises for an initial term of 12 months, starting on 27 January 2023 and ending on 26 January 2024, after which the agreement would continue as a periodic tenancy.

  9. The tenancy agreement provided (relevantly):

  1. The rent was $1,280 per fortnight (equal to $640 per week), payable in advance starting on 27 January 2023. The tenant agreed to pay the rent on time (clause 3.1).

  2. The tenant was also required to pay a rental bond of $2,560, which was equal to 4 weeks’ rent at that rate.

  3. Only one person may ordinarily live in the premises at any one time.

  4. The tenant agreed:

  1. not to intentionally or negligently cause or permit any damage to the premises (clause 16.4);

  2. to keep the premises reasonably clean (clause 17.1);

  3. to notify the landlord as soon as practicable of any damage to the premises (clause 17.2);

  4. it was the tenant’s responsibility to replace light globes at the premises (clause 17.4);

  5. not to install any fixture or renovate, alter or add to the premises without the landlord’s written permission (clause 30.1);

  6. that certain kinds of fixtures alterations, additions or renovations, as specified by clause 22(2) of the Residential Tenancies Regulation 2019, could only be carried out by a person who was appropriately qualified to carry out those alterations, unless the landlord gave consent (clause 30.2);

  7. to repair any damage caused by removing the fixture, or compensate the landlord to the reasonable cost of repair (clause 30.6);

  8. not to alter, remove or add any lock without reasonable excuse unless the landlord agreed (clause 33.1); and

  9. to give the landlord a copy of the key to open the lock that the tenant had changed, within 7 days of the change (clause 33.2).

  1. The tenant further agreed that when the agreement ended and before giving vacant possession of the premises to the landlord, the tenant would:

  1. removal the tenant’s goods from the premises (clause 18.1);

  2. leave the premises as nearly as possible in the same condition, fair wear and tear excepted, as at the commencement of the tenancy (clause 18.2);

  3. leave the premises in a reasonably clean, having regard to their condition at the start of the tenancy (clause 18.3);

  4. remove or arrange for the removal of all rubbish from the premises in a way that was lawful and in accordance with council requirements (clause 18.4);

  5. make sure that all light fittings on the premises had working globes (clause 18.5); and

  6. return to the landlord all keys and other opening devices or similar devices provided by the landlord (clause 18.6).

  1. As separate promises in the special conditions, the tenant also agreed:

  1. not to paint, mark, affix posters, use nails, screws or adhesives, or in any way to face the premises without 1st obtaining the landlord’s prior written consent (clause 59.2);

  2. to maintain all garden areas (clause 59.6);

  3. on vacating the premises, the tenant was also required to:

  1. repair damaged the premises arising or as a result of the tenant’s actions, fair wear and tear excepted (clause 66(c));

  2. remove the tenant’s property from the premises including rubbish and property in the premises not the property the landlord (clause 66(d)); and

  3. leave the premises (including the grounds) in a neat and tidy condition (clause 66(e)).

  1. Lastly, the parties also agreed that:

  1. the rules of law relating to mitigation of loss or damage on breach of contract would apply to a breach of the tenancy agreement (clause 40); and

  2. where the landlord had in compliance with the RT Act provide the tenant with a signed condition report and the tenant had not returned that report within 7 days after taking possession of the premises, the tenant would be deemed to have accepted the landlord’s condition report (clause 57), which would form part of and be included in the tenancy agreement (clause 57.1).

  1. The tenant acknowledged receiving the tenancy agreement, the condition report and two keys for the premises on 27 January 2023. The tenant took possession of the premises that day.

  2. The tenant did not sign or return the ICR to the managing agents within the 7 day specified in the tenancy agreement. Pursuant to the agreements of the parties noted in clause 57 of the tenancy agreement, and restated at the start of the hearing, I conclude that the ICR contained in the landlord’s evidence is an accurate record of the condition of the premises at the start of the tenancy agreement.

  1. On 5 May 2023, the managing agent conducted a routine inspection of the premises, following which they prepared the routine inspection report dated 16 May 2023 that is contained in exhibit L1. That report stated (my underlining):

“Upon inspecting the property it appears that the tenant is taking good care of the home. It was presented in satisfactory condition, however there is no visible damage done by the tenant to the property. In the next few pages we have commented on all areas inspected and we have also included photos taken at the time of inspection and where necessary we have also added some annotations to photos to highlight any problem areas.”

The balance of the report stated that that the premises was – without exception – “presented in a neat and tidy condition, with no visual maintenance issues”. The photographs included with the report showed that there were hanging curtains in the windows of the lounge room, the kitchen and the bedrooms, and that the floors throughout those rooms were in their original condition, as stated in the ICR. They also shows that the hedges around the outside of the premises were, generally speaking, neat and tidy. In the absence of evidence to the contrary, I find that the report dated 16 May 2023 is an accurate record of the condition of the premises on that date.

  1. Over the remaining term of the tenancy, the tenant made a lot of alterations to the premises in his own time. On his evidence, this included pulling down asbestos -containing sheds in the backyard. Additionally, many of the jobs that he did for the landlord in the course of his employment produced a lot of leftover materials. The tenant used those leftover materials to make additions or alterations to the premises, including by adding cupboards, bench tops, venetian blinds, plantation shutters, floating floors and carpet tiles inside the premises. He asserts that he did this with the verbal agreement and approval of the director of the landlord, referred to as “Stephen”. I will return to that below.

  2. The fixed term of the tenancy agreement ended on 26 January 2024. The tenant continued to occupy the premises on a periodic tenancy basis but otherwise on the same terms as contained in the tenancy agreement. From 19 April 2024, the rent increased to $1,320 per fortnight, equal to $660 per week.

  3. On 6 September 2024 Ms Younan conducted a further inspection at the premises, during which she took about 57 photographs to record the state of the premises on that date. She subsequently prepared the routine inspection report dated 4 October 2024 that is in exhibit L1. Under the heading “Work to be carried out by Tenant”, Ms Younan recorded (my underlining):

“The area was kept in a clean and orderly state, the tenant has installed plantation shutters, blinds, cabinetry, flooring et cetera throughout the property in a very poor manner. It has been communicated to him at the inspection that this was not satisfactory and will need to be removed and rectified upon vacating.”

Particular comments made by Ms Younan in that report were:

  1. The gardens: “were not as tidy as would like them. We have spoken to the tenants again about the hedges that need maintaining.”

  2. In bedroom 1: “poorly installed plantation shutters, blinds and cabinets [had been] installed. The tenant has been informed that these items need to be removed and damage rectified.”

  3. The kitchen: “has flooring installed over the timber floors and modifications made to it and the window. Again, the tenant has been informed this will need to be rectified.”

  4. In the lounge room: “The tenant has made modifications to the property by installing plantation shutters and flooring. There is also 2 cracked windows. The tenant has been informed he will need to rectify this.”

  5. The laundry, the bathroom and bedrooms 2 and 3 were “presented in a satisfactory condition, with no visual maintenance issues.”

The photographs included in the report substantiated Ms Younan’s comments. They showed hedges that were becoming overgrown, plantation shutters in various rooms and flooring products that had been installed over the top of the floorboards in the kitchen and the lounge room. In the absence of evidence to the contrary, I find that the report dated 4 October 2024 is an accurate record of the condition of the premises on that date.

  1. Notwithstanding the limitation on the number of occupants living at the premises at one, the tenant lived at the premises with his girlfriend and her mother, who had dementia. The tenant says (and I accept in the absence of evidence to the contrary) that he and the landlord’s director had a falling out, including concerning the number of people living at the property.

  2. On or shortly before 8 October 2024, the tenant gave notice to the managing agents that he intended to vacate the premises on 27 October. The managing agent acknowledged the tenant’s notice the next day, advising the tenant of the rent that was required to be paid to that vacating date ($1,442.86) and informing the tenant (amongst other things) that he can attend the final inspection.

  3. On 29 October, a contract cleaner engaged by the tenant undertook a “bond clean” at the premises, for which the tenant paid $550.

  4. The tenant ultimately vacated the premises on 30 October 2024, bringing his tenancy to an end on that date. At that time, the tenant’s rent was paid to 24 October 2024, with a part-payment of $160 towards the remaining 6 days’ rent. Consequently, the tenant’s rent was $405.71 in arrears when he vacated the premises.

  5. In surrendering the premises, the tenant completed and signed a “Surrender of possession/Bond refund details” form, which stated that a complete set of keys had been returned; the property was clean; the property was vacant of goods/furniture and personal items; and the tenant would not be attending the outgoing inspection as invited by the managing agents. The form also contained an image of the two keys that were surrendered by the tenant at that time. Those keys (which were alike) were visibly different to the keys that the managing agents had provided to the tenant at the start of the tenancy agreement.

  6. Ms Younan conducted an outgoing inspection of the premises on Monday, 4 November 2024, at which she took a number of photographs to record the condition of the premises on that date. Copies of those photographs have been produced in exhibit L1. At 12:41 PM that afternoon, Ms Younan sent an email to the tenant, attaching copies of those photographs and asserting that there were 17 issues which required addressing by the tenant; and noting that the tenant preferred to return to the premises to remove and repair of those items himself. The email stated (my underlining):

As discussed I have conducted the outgoing inspection, please consider this email to be the outgoing inspection report to you. A copy of your ingoing report has been attached for your easy reference.

There are some issues that require addressing;

1.   Rent owing – you owe $405.71 in rent

2.   Cleaning – there are areas that require further cleaning, particularly behind the plantation shutters you have installed but other areas to as shown in the attached photos.

3.   Removal of plantation shutters – all of the plantation shutters require removal and you must make good any damage to the property. They do not fit the windows, aren’t practical and most are broken so they need to go.

4.   Removal of timber flooring and carpet flooring – you have installed timber hybrid flooring over the top of the solid timber flooring and carpet tiles. There are 3 colours of timber hybrid flooring installed + carpet, it all needs to be removed.

5.   The large and impractical light cover for the fan in the master bedroom must be removed.

6.   The built in desk and cabinet in the master bedroom must be removed

7.   The curtain that has a large rip to it needs to be replaced

8.   The fly screens that are torn need to be re-meshed

9.   There are multiple cracks in the windows that require repair, there is also a windrow in the laundry that has been com-pletely smashed and replaced wit[h] plastic. This need to be properly repaired with glass.

10.   The hedges need to be done

11.   There is some stuff left in the garden are[a] that requires removal – one being the huge timber chair

12.   Some areas of the property have had very poor paint work done, this needs to be fixed

13.   The extraction fan in the kitchen needs to be uncovered

14.   The roller blinds that do not fit the windows need to be removed

15.   The oven tray is missing, this needs to be returned or replaced

16.   There are some light globes that are out that need to be replaced

17.   The items left on the curb need to be removed if they have not been already

You have lost all keys except for 2 keys to the back laundry door – you will need to provide keys to each lock throughout the property.

I understand you would prefer to return to the property to remove and repair items yourself. I am happy to give you the op-portunity to do this, however if it is not done to a satisfactory condition we will need to charge you for it.

Once I know your plans and how much of the above you do I can obtain quotes for you. In the meantime as a minimum you must pay the rent of $405.71 that you owe.

Please advise when you would like to return to the property.

I am satisfied from my review of the photographs produced by the landlord that the above is an accurate summary of the changes which the tenant had made to the premises and had left at the end of the tenancy, as well as the condition of the premises more generally at the end of the tenancy.

  1. That summary is also consistent with the routine inspection report dated 6 September 2024, extracted above. The tenant had been on notice from at least that date that the modifications he had made to the premises should be removed when he vacated the premises.

  2. The following afternoon, 5 November, the tenant went back to the premises without the landlord’s consent. After gaining entry to the inside of the house, he removed the cabinetry that he had installed in the master bedroom, the plantation shutters and other modifications that he had made to the premises during the course of the tenancy, throwing the parts onto the lawn outside the house, separately from the items that had been already left on the kerb.

  3. The next day, on 6 November 2024, Ms Younan had a conversation with the tenant by text message, in the following terms (my underlining):

Ms Younan:    Hey Andrew. Sorry can’t answer right now.

When do you want to go back to the property to rectify those things?

Tenant:    I started

Ms Younan:    How have you accessed the property?

Tenant:    Window

The time I finish work it’s too late to drop in and get the keys

Ms Younan:    Okay that’s trespassing though. I will turn a blind eye this time but you can’t access the property again without permission please

Tenant:    Well you want it fixed up can I go there after work today

Ms Younan:    You’re telling me you’re already inside now? Why do you need to go after work?

Tenant:    I didn’t say that. I said it’s too late when I finish to get keys, nothing about me being there now. Where did you get that from?

Ms Younan:    Andrew you said that you had “started” fixing up all the stuff and when I asked you how you accessed the property you said “window”

That is a very obvious indication that you are already inside the property.

What time do you want to visit the property tonight to complete the work?

Tenant:    You sent email Monday Tuesday after work. I was there today. Wednesday I’ll be there after work 5 PM.

Ms Younan:    Okay I’ll have an agent meet you at 5 PM

  1. Either that evening or the following day (7 November), Ms Younan went to the premises to inspect the work that the (now former) tenant had undertaken. She took a number of photographs to record the condition of the premises as it was presented to them on that occasion. Those photographs showed:

  1. the hybrid flooring and carpet that the tenant had left in the premises had been taken up, and the blinds/shutters and furniture left by the tenant had been removed;

  2. there was a lot of rubbish including cigarette butts left on the floor, which had not been cleaned and which was clearly damaged;

  3. there was tape and glue residue on the timber floor in various places;

  4. there was dried paint or plaster on the floor, near an area of wall that had clearly been patched;

  5. there were still timber spacing pieces attached to the window frame, where some of the plantation shutters had been;

  6. curtain rods were missing from the curtain rod holders;

  7. there was damage to the window frame and to the paint on the architraves around windows, whether plantation shutters had been;

  8. various windows were in a dirty condition;

  9. there was a large and unkempt pile of broken cabinets, blinds, timber and other rubbish in the yard, immediately outside the house;

  10. there was a pile of carpet squares on the concrete path, immediately outside the house.

  1. At 6:09 PM on 7 November, Ms Younan sent the following email to the tenant in respect of the state of the premises that had been observed at that inspection:

I re-visited the property after you returned yesterday and I am by no means satisfied with the work you have done.

You have just ripped everything out and thrown on the lawn, you have patched and painted a wall in the master bedroom but it’s [a] completely different colour. You’ve puttied over holes in the flooring with a grey colour. The property is now filthy with cigarette butts inside.

I can’t allow this remediation to continue: see photos. As such the following claims will be applied to your bond;

1.   Rent owing – you owe $405.71 in rent

2.   Cleaning – $330 incl GST to re-clean the property

3.   Removal of rubbish – we organised a company to dispose of all the rubbish you left on the lawn. The cost to do this is $800 + GST

4.   Repair to the timber flooring – the flooring is covered in glue that you have used to stick the hybrid flooring/carpet down. This will need to be sanded back and re-lacquered with the holes you have drilled in the floor puttied over with the correct colour. The cost to do this is $3500 + GST

5.   The large and impractical life cover for the fan in the master bedroom must be removed – $330 incl GST

6.   The curtain that has a large rip to it needs to be replaced – $40

7.   The fly screens that are torn need to be re-meshed – $220 + GST

8.   There are multiple cracks in the windows and replacing the panel of glass you completely smashed and have replaced with plastic – $1000 + GST

9.   The hedges need to be done – $275 incl GST

10.   Fix the poor paint work and where you have screwed into the walls and windows to install the plantation shutters blinds/installed glue – $2500 plus GST

11.   Install curtain rods where you have removed them – $550 incl GST

12.   The extraction fan in the kitchen needs to be uncovered – free the handyman will do this at no cost

13.   The oven tray is missing, this needs to be returned or replaced – $250 + GST

14.   There are some light globes that are out that need to be replaced – $45 handyman will do this when he’s there

You’ve lost the key to the front door, the keys we have on our office set do not work in this lock so you will need to replace it – $250 + GST

Your bond is $2,560 which we have claimed in full which means there is a balance payable $8,787.71.

We understand this is a significant amount so if you would prefer to pay this off in instalments I can discuss this with you[r] land-lords, otherwise I will be see[k]ing instructions on how to recover this cost.

  1. I have determined the landlord’s claims based on these findings.

The parties’ submissions

  1. Ms Younan submitted that the landlord was entitled to recover the amounts claimed as the tenant had not left the premises in the condition required by the tenancy agreement, having regard to the condition of the premises at the start of the tenancy agreement. In particular, she submitted that:

There was paint smeared over the flooring, walls had been painted a completely different colour, cigarette butts were now on the floor, the property was very unclean, all the rubbish had been thrown on the front lawn and the damage caused to the flooring and walls as a result of the modifications to the property was revealed.

As a result of [the inspection on 7 November] it was decided that the tenant would not be permitted access to the property to attempt to fix anything further as it was causing more damage. An email was sent to the tenant advising him of this with the final amounts we will be seeking to rectify the damages.

  1. The tenant made general submissions in opposition to the claim, including (relevantly, and in summary):

  1. When he moved in, the old timber floors had high traffic marks, the old stain was disappearing, the boards were broken, there were gaps and the cold breeze would come up through the floor.

  2. He and the director, Stephen had conversations about the modifications he made to the premises, in which Stephen agreed that the modifications could be made. Later, Stephen said he would let the managing agents decide whether any of those modifications could remain.

  3. He had made several other modifications to the premises, in addition to those the subject of this claim, which the landlord was not asking him to remove – including removing the shed and adding bench tops, bathroom fixtures, a new toilet cistern, a new front door and other modifications. He inferred from this that the landlord had benefited from the modifications that he had made.

  4. He should not be liable for the remaining amounts claimed because the landlord did not allow him to return to the premises and continue to fix the issues identified by the agent at the end of the tenancy.

  5. The landlord did not incur some of the costs now claimed, as it had its own staff carry out the work concerned at no cost to the landlord.

  6. He submits some of the invoices relied on by the landlord are fake.

  1. He also made specific submissions in response to each item. I will consider those submissions as I deal with each of the remaining items claimed by the landlord.

Consideration – applying the law to the facts as found

  1. Rent owing


    (5)

       Removal of the light cover for the fan in the master bedroom


    (6)

       Replacement of a ripped curtain


    (12)

       Replacing a missing oven tray

  1. As noted above, these items are agreed between the parties.

  1. Cleaning

  1. The tenancy agreement and the RT Act only require the tenant to return the premises in a “reasonable” state of cleanliness. A reasonable state of cleanliness is to be distinguished from a “perfect” state: Graham, Caste, Pilonchery v French (Tenancy) [2013] NSWCTTT 15, so a tenant is not strictly liable just because the premises are not in the state of cleanliness of premises compared to the start of the tenancy.

  2. For a landlord to succeed on a claim for cleaning costs, the evidence needs to be sufficient to persuade the Tribunal, on the balance of probabilities, that:

  1. the tenant has not left the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy; and

  2. the amount claimed as the cost of returning the premises to the required level of cleanliness required by the tenancy agreement is also reasonable.

  1. What is reasonable is to be assessed objectively according to contemporary standards: Adoncello v Sazdanoff (Tenancy) [2006] NSWCTTT 577 at [78]. It is not assessed according to the standard of a fastidious and obsessive landlord: Fitzpatrick v Wu NSWRT, 2001, (01/16425). See also Pancio v Crompton & Jennings [2015] NSWCATAP 110.

  2. While the tenant arranged for the premises to be cleaned on 29 October, he made a significant mess in the premises when he returned to the premises on 5 November, to remove the blinds, shutters, carpet, floating floor, cabinetry and other items that he had installed during the tenancy. The tenant’s answer to this was only that the mess was to be expected because of that work, which he said only had to be done when the agent insisted that the floor (etc) be removed, despite the landlord’s verbal suggestion that those items could be left in place when the agent inspected the premises. I am not satisfied on the evidence that the landlord gave that assurance. Further, it is inconsistent with what the agent had told the tenant on or about 6 September 2024, as recorded in the routine inspection report of that date.

  1. I do not accept the tenant’s submissions on those matters. Consequently, it is necessary to assess the cleaning claim against the terms of the written lease between the parties. Further, despite the submission made by the tenant that he should have been given the chance to go back and clean the premises, the landlord was not obliged to allow the tenant to do that. As Ms Younan correctly submitted, that is not a step that the law requires the landlord to take to mitigate this part of the claim. Consequently, it is appropriate to compare the state of cleanliness at the start of the tenancy agreement against the state the premises was in when the tenant last left the premises, on 5 November.

  2. Weighing the state of cleanliness that the premises was in at the start of the tenancy, against the state which the tenant last left the premises in when he returned to them on 5 November, I am more than satisfied that the tenant left the premises in an unreasonable state of cleanliness, for which he is responsible under the tenancy agreement. I therefore find that the tenant breached clause 18.3 of the tenancy agreement and s 51(3) of the RT Act by failing to return the premises to the landlord in a reasonable state of cleanliness. Consequently, the landlord is entitled to recover from the tenant an amount equal to the reasonable cost of cleaning the premises to return it to the state of cleanliness required by the tenancy agreement.

  3. The landlord relies on a quote dated 18 December 2024, for $300 + GST, to conduct an “lend of lease cleaning” for the kitchen, bathroom and three bedrooms. In the absence of a competing quote or other evidence that the reasonable cost of cleaning the premises would be lower, I accept that quote as reasonable and find that the tenant is liable to compensate the landlord $330 on this item (noting that rental property-related expenses are input-taxed, regardless of whether the landlord is otherwise conducting a GST-registered business).

  1. Removal of rubbish

  1. As set out above, s 51(3)(d) and clause 18.3 of the tenancy agreement required the tenant to 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. There is no reference to reasonableness in either of those provisions. Consequently, the tenant is strictly liable for any rubbish left on the premises at the end of the tenancy, save only to the extent that the premises was rubbish-affected at the start.

  2. On the evidence before the Tribunal, there was no rubbish on the premises at the start of the tenancy agreement. The premises was initially rubbish-free when Ms Younan inspected it on 4 November, but that quickly changed when the tenant (on his own admission) returned to the premises the following day and threw a large amount of rubbish out the window, onto the lawn and the outside path when he was removing his modifications without the consent of the landlord. Again, the landlord was not obliged to let the tenant back onto the premises to remove the rubbish that he had put there.

  3. As with the cleaning claim, it is appropriate to assess the landlord’s claim by comparing the state of rubbish at the start of the tenancy with the state of rubbish after the tenant had begun removing his modifications. Having compared the premises between those dates, I am satisfied that that the tenant did not remove or arrange for the removal of all rubbish at the premises, in breach of clause 18.3 and s 51(3), and that he is therefore liable to pay the landlord the reasonable cost of removing his rubbish from the premises.

  4. The landlord claims $880, including GST. In doing so, the landlord relies on a tax invoice from a contractor, dated 15 December 2024, which identifies the premises and charged $1,320 for work described as “Remove and dispose of abandoned house hold items located around the property & on nature strip 16.10.2024”. There are some issues with that invoice: firstly, it is addressed to a third-party company (that is, not the landlord or its managing agents); secondly, it exceeds the amount claimed (although Ms Younan submits that the estimated cost was $880 and that the landlord is entitled to that amount); and thirdly, it states that the work was done on 16 October, nearly 3 weeks before the rubbish concerned was left at the premises.

  5. For those reasons, the tenant argues that the invoice is mistaken and that it related to another job that the landlord was doing. He consequently submits that there is no evidence of what it should have cost the landlord, acting reasonably, to remove the rubbish. The tenant also relies on an unsworn statement from a former employee of the landlord, who asserts that he went to the premises with a truck at the landlord’s request on 7 November and picked up all the rubbish in the back yard by 10 AM that morning, producing a photograph to show that the rubbish had been removed. There are some issues with that evidence, too: firstly, the statement is unsworn and the employee concerned (Julio Szep) did not give evidence to the Tribunal verifying the truth of the statement; secondly, the date and time of Mr Szep’s trip to the property sits awkwardly with Ms Younan’s email to the tenant complaining of the rubbish at the premises, which was not sent until after 6 PM that same day. Leaving aside the date and time, however, the tenor of Mr Szep’s evidence confirms that the landlord has tasked an employee who could have been used on other activities to remove the rubbish left by the tenant at the premises, for which it presumably paid the employee.

  6. Taking the evidence as a whole, while I am satisfied that the landlord has incurred costs in removing the tenant’s rubbish from the premises, I am not satisfied that the $880 claimed by the landlord is a reasonable figure. In these circumstances, it is appropriate for the Tribunal to make an assessment of an amount which it considers to be reasonable. Doing the best that I can on the evidence that is before the Tribunal I therefore assess the landlord’s claim on this item nominally at $300.

  1. Repair to the timber flooring

  1. As I have noted above, section 51(3) of the RT Act and clause 18.3 of the tenancy agreement required the tenant to:

… 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 …

  1. As noted there, the condition of the premises when the tenancy agreement was entered into is a relevant factor in determining the tenant’s liability. Further, the tenant is again not strictly liable for any change in the condition of premises during a tenancy: any wear and tear that is associated with reasonable use, or which arises as a result of natural forces (such as the ageing of an asset) is ‘fair’ will not constitute a breach of the tenant’s obligation: Elhassen v Ayoub [2018] NSWCATAP 34 at [6]. What is ‘fair’ wear and tear is again assessed objectively according to contemporary standards, and not according to the standard of a fastidious and obsessive landlord.

  2. For a landlord to succeed on a claim for repair or restoration costs, the evidence therefore needs to be sufficient to persuade the Tribunal, on the balance of probabilities, that:

  1. the tenant has not left the residential premises as nearly as possible in the same condition as when the original tenancy agreement was entered into, fair wear and tear excepted:  Kjoller v Tailford [2016] NSWCATAP 4 at [34]; and

  2. the amount claimed as the cost of repairing or restoring the premises to the condition required by the tenancy agreement is reasonable. 

The first of those issues again requires the landlord to prove on the balance of probabilities the condition of the premises at start of the tenancy agreement and after the tenant has vacated the premises at the end of the tenancy agreement. It also requires the landlord to demonstrate that the condition in which the premises was left was outside the scope of what would normally be considered fair wear and tear, including having regard to the original condition in which the premises was let.  It is then an objective question of fact whether condition of the premises on the latter date complies with the terms of the tenancy agreement having regard to the earlier condition of the premises and the scope of the change in condition.

  1. The landlord does not dispute that the timber floor was worn and had marks on it at the start of the tenancy agreement. By the various comments contained in the ICR, the timber floor in the various rooms had “various scratches consistent with age”, or had “various cracks consistent with age”, or showed “general wear and tear”, or was “aged, scratched”. It was otherwise reported to be “clean” and “undamaged”. The photographs in the ICR showed a timber floor that was old with inconsistent colouring in various areas where the surface lacquer or oil staining had worn away to reveal lighter coloured timber in the lounge room, the kitchen, the hallway and the bedrooms. Conversely, there were also darker sections in the kitchen, where the timber appeared to have absorbed grime into its grain. Lastly, the photographs show that there was damage to the floor and tape stuck to the floor in the doorway between the kitchen and the hallway.

  2. Given the difference between the photographs and the inspecting agent’s commentary, I accept the adverse comments made by the inspecting agent but I otherwise prefer the photographs as a more accurate record of the condition of the floor at the start of the tenancy agreement. I therefore reject as untrue the comments in the ICR that the floor was “undamaged” at that time.

  3. The photographs taken by Ms Younan on 5 November, after the tenant had removed the hybrid floating floor and the carpet squares, showed that all of the above damage was still present at the end of the tenancy agreement. However, it is clear from those photographs that the timber floor was in a worse condition than it had been at the start of the tenancy. For example, white paint had dried onto the floor in various places, and there was glue stuck to the floor in other places. There were also various holes in the floor which appeared to have been caused by screws or nails, together with some nails still in the floor in various places. Further dark marks had also developed on the floor in the higher traffic areas, such as in the kitchen and the lounge room, even though the floor had been covered by the hybrid floor or the carpet squares in those places. Because of these matters, I find on the evidence that the tenant did not return the timber floor to the landlord in as nearly as possible the same condition as it was in at the start of the tenancy agreement.

  4. Having found that the timber floor was not in as nearly as possible the same condition as it was in at the start of the tenancy agreement, it is necessary to consider whether the additional damage was caused by fair wear and tear. Reasonable damage arising from walking on the floor – particularly in high traffic areas – is normally accepted to be fair wear and tear. Additional damage arising in places where the premises was already damaged at the start of the tenancy can also be considered wear and tear if it was a continuation of the deterioration that had already started before the tenancy agreement began, even though it may not be proportionate to the period of the tenant’s term of occupation. This is particularly relevant in the case of the timber floor in places that were already scratched or where the lacquer or oil staining had already worn off, exposing the raw timber below.

  5. I accept the tenant’s arguments that the additional dark track marks that developed in the high traffic areas are within the scope of fair wear and tear. Those track marks appear to be a normal incident of living in a house with timber floors. I also accept the tenant’s arguments that much of the additional damage that was caused to the floor was probably a continuation of the deterioration that had started before the tenant began occupying the premises. Already-damaged floors will deteriorate faster than floors that have become damaged during a tenancy agreement. Taking into account the original condition of the floor at the start of the tenancy agreement and making an allowance for fair wear and tear, I assess the additional damage that the tenant is responsible for to be about 25% of the damage to the floor which was apparent at the end of the tenant’s tenancy.

  6. The landlord relies on a quote from local Carpet Court store, which has quoted a price of $3,850 incl GST for work that includes:

Removal of nails and hot glue throughout property.

Repair holes in flooring caused by screws/nails

Sand back damaged areas and provide a protective oil

Additional lacquer in highly damaged areas – living room and kitchen.

While the tenant argues that the amount claimed by the landlord is not reasonable, he has not produced any competing evidence that would show a lower amount for undertaking the work quoted on by Carpet Court, or if any of that quoted work is not reasonable.

  1. In the absence of evidence to the contrary from the tenant, I accept that the quote provided by the landlord is a reasonable price for undertaking the work that has been quoted. However, for the reasons that I have set out above I am not satisfied that the tenant is responsible for the whole of that amount. Despite the landlord’s arguments to the contrary, it is clear that the quoted work will also improve the floor from the state that it was in at the start of the tenancy. Secondly, some of that work will repair the fair wear and tear damage. The quoted amount should be adjusted to remove work that would fix these defects in the floor for which the tenant is not responsible.

  2. I consider the assessment that I have made above (25%) to be an appropriate measure of the tenant’s liability to contribute to the cost of the works claimed by the landlord. Adopting that assessment, I assess the reasonable cost of repairing the damage caused by the tenant’s breach of s 51(3) and clause 18.3 of the tenancy agreement in respect of the floor to be $962.50.

  1. Repair of torn fly screens

  1. According to the evidence before the Tribunal, there was no appreciable damage to the fly screen mesh in the windows at the premises at the start of the tenant’s tenancy.

  2. While the landlord originally claimed the cost of repairing three fly screens, it was noted during the course of the hearing that the landlord had only produced evidence showing that one fly screen was damaged at the end of the tenancy. Accordingly, the landlord reduced its claim at that time to the one screen.

  3. The tenant sought to argue that the screen concerned (which was in one of the bedrooms) had been caused by the wind, as the window concerned was three metres off the ground. Consequently, he argued that he is not liable for the damage to the screen. The argument is not substantiated by any evidence that shows it to be plausible, and in the absence of any such evidence I do not find the tenant’s argument convincing. I therefore find that the tenant did breach his obligation to return that one fly screen concerned in as nearly the same condition as possible as it was in at the start of the tenancy agreement.

  4. The quote relied on by the landlord priced the repair of three torn fly screens at $220 + GST. The tenant has not produced any competing evidence to demonstrate that a lesser amount would be more reasonable. I therefore accept the quote produced by the landlord as being a reasonable cost to repair three screens. On the evidence contained in that quote, it is reasonable to assess the cost of re-meshing that one fly screen at $81.67, which is one-third of the amount quoted by the landlord’s handyman.

  1. Replacing the smashed panel of glass

  1. While this started as a claim for multiple cracks in the windows and for the replacement of a plastic panel, the amount claimed by the landlord concerns only the glass sheet that was replaced by the plastic panel. Consequently, the part of the claim that alleged cracks in other windows can be put to one side.

  2. A comparison between the ICR and the photographs taken by Ms Younan on 5 November confirms that the original pane of glass in the laundry window has been replaced by a sheet of plastic (or similar) over the course of the tenancy. That change in the condition of the laundry window is more than would normally be explained by wear and tear.

  3. The tenant asserts that the original glass pane was smashed when the back door slammed in the wind, but he has produced no evidence to support that assertion – such as evidence of contemporaneous communication with the landlord or the managing agents when it occurred, reporting the damage to the window and asking for it to be repaired. In these circumstances, I am not satisfied that the damage to the window should be considered wear and tear. Consequently, the tenant is liable for failing to return the laundry window in the condition that it was in at the start of the tenancy.

  4. The landlord relies on a handyman’s quote of $1,100 to replace the plastic sheet with another glass pane. The tenant has produced SMS communication with an unspecified person, who he says provides a glass replacement service, in which two glass panels are priced at $570 +GST. Based on this, he argues that the amount claimed by the landlord should be reduced to $170-$200.

  5. It is not clear from those messages whether the other person is a legitimate glass replacement service, whether the price quoted is legitimate, or if it includes removal of the plastic sheet and installation of the new panels. In those circumstances, I prefer the quote produced by the landlord’s handyman. I therefore find that the tenant is liable to pay the landlord $1,100 on this part of the claim.

  1. Trimming of hedges

  1. The ICR described the front lawn area of the premises as “clean” and “undamaged” but made no specific comment about the condition of the hedges around the front yard. The photographs included in the ICR were taken on 25 January 2023 and show overgrown and bushy hedges around the front boundary of the property that were generally untidy. The landlord asserts that the hedges were then trimmed two days later, as part of a “full garden clean up” that was done at the property by a landscaping contractor. The landlord has produced the contractor’s invoice as evidence that the clean-up was done, however it has not produced any photographs to show the condition of the hedges after the clean-up was completed.

  2. As I have noted above, the parties agreed in the tenancy agreement that where the landlord had provide the tenant with a signed condition report at the start of the tenancy and the tenant had not returned that report within 7 days after taking possession of the premises, the tenant would be deemed to have accepted the landlord’s condition report and that report would form part of and be included in the tenancy agreement. That agreement applies equally to the landlord and to the tenant. Therefore, despite the evidence produced to assert that there was a full garden clean-up a few days after the ICR was prepared, the tenancy agreement requires that the ICR be used as the relevant standard for assessing the condition of the premises, including the hedges, at the start of the tenancy agreement. On this basis, the invoice can be ignored and the relevant comparison to adopt under clause 18.3 and s 51(3) is the condition that was shown in the ICR.

  3. Ms Younan’s outgoing email to the tenant simply stated that “[t]he hedges need to be done”. The two photographs taken by Ms Younan at the end of the tenancy shows that the hedges were again overgrown, bushy and untidy at that time, to essentially the same extent that was shown in the photographs attached to the ICR. Consequently, I am satisfied that the tenant has indeed returned the hedges to the landlord in the condition that they were in as shown in the ICR.

  1. The landlord also relies on clause 66(e) of the tenancy agreement which (as set out above) required the tenant to leave the premises (including the grounds) in a neat and tidy condition. To the extent that this clause requires the tenant to return the premises and the grounds in a better condition than they were in at the start of the tenancy, the clause seeks to impose an obligation on the tenant that is greater than the obligation imposed by the RT Act and is therefore unenforceable.

  2. This part of the landlord’s claim therefore fails, as the landlord has not established on the balance of probabilities that the tenant has breached the requirements of the tenancy agreement or the RT Act in respect of this part of the claim.

  1. Repairing poor paint work, screw holes from plantation shutters, blinds, and glue

  1. The ICR recorded no relevant damage to the walls or the architraves around the windows in the premises. That conclusion was somewhat supported by the photographs that were included with the ICR, but there were exceptions shown in the photographs. For example, the television arial cable was fixed to the window frame in the lounge room, from top to bottom, damaging the window frame. There were also areas on walls, doors and window frames where the paint had peeled or come off the underlying surface. The standard shown in those photographs is therefore the standard which the tenancy agreement required the condition of the walls to be assessed against at the end of the tenancy.

  2. As noted in the factual findings, the tenant made many modifications to the premises, including by attaching blinds, plantation shutters and other items to the walls and the window frames. After those items were removed, there were many holes left in the walls and the window frames. The television cable had also been detached from the window frame in the lounge room and was hanging loose. There was also tape residue left on the window frame, from tape which the tenant had attached to the frame during the tenancy. As noted above, there were also remnants of timber spacing pieces that had been attached to the window frames for the plantation shutters. The tenant had also painted patches on various walls and ceilings in the premises, which had been done badly. During the hearing, the tenant acknowledged the badly patched painting but argued that the affected areas were very small.

  3. These changes in the condition of the walls, ceilings and the window frames between the start and the end of the tenancy were recorded in the photographs taken by Ms Younan on 5 November. That deterioration in the condition of the walls and window frames has not been explained by fair wear and tear. Consequently, on comparing the condition of the premises at the end of the tenancy to the condition shown in the ICR, I am satisfied that the tenant failed to return the walls, ceilings and window frames of the premises in the condition that they were in at the commencement of the tenancy agreement and, therefore, that he has failed to returned those parts of the premises in the condition required by clause 18.3 and s 51(3) of the RT Act.

  4. The landlord relies on a painter’s quote of $2,500 + GST, covering windows, walls and the bathroom ceiling. The quote describes the work to be performed as:

Placing putty over the holes in the woodwork (windows) and walls from the installation of blinds and plantation shutters, paint and colour match paint (the paint will not appear perfect without painting the whole walls) [at $1,300 + GST], painting to hallway, front bedroom and living room ceiling, colour match and paint walls where tenant has tried to paint [at $650 + GST]. Remove and clean paint off IXL fitting, colour match and paint bathroom ceiling where tenant has tried to paint [at $550 + GST].

The tenant has not produced any competing quote for the work concerned. Nevertheless, he argues that the quote produced by the landlord is excessive.

  1. Because of the existing damage to some of the painted surfaces in the premises at the start of the tenancy agreement I am not satisfied that it would be reasonable for the tenant to pay the whole amount quoted by the landlord’s painter. An allowance must also be made for the fact that some portion of the useful life of the existing painting had already expired as an incident of normal use, for which the tenant should not be responsible. Taking these matters into account and doing the best I can on the available evidence whilst also noting that the amount quoted is for repairing and painting parts of the premises, and not the premises as a whole, I consider that a deduction of 40% of the quoted price is an appropriate adjustment. I therefore find that the reasonable cost payable by the tenant on this item is $1,650.

  1. Replacing curtain rods that had been removed

  1. The photographs included in the ICR shows that there were basic metal curtain rods hanging in the various windows throughout the premises at the start of the tenancy. By comparison, after the removal of the tenant’s blinds and plantation shutters, many of those curtain rods were missing. I conclude from this, and in the absence of any other explanation, that the curtain rod is concerned were removed by the tenant during the course of the tenancy agreement.

  2. Consequently, it is clear that the tenant failed to return these parts of the premises to the landlord in the condition that they were in at the start of the tenancy agreement. Again, the missing curtain rods are not explained by fair wear and tear.

  3. The landlord’s handyman has quoted $550 to supply and install six curtain rods for the windows concerned. The tenant argues that this is excessive as: firstly, only 5 rods are missing; and secondly the cost of purchasing an equivalent curtain rod from Bunnings in a three-metre length is only $8.49, has shown in the internet screenshot produced in his evidence.

  4. I accept the tenant’s complaints about the handyman’s quote. The quote does not identify the windows concerned and does not distinguish between labour and materials in coming to his price. Given the cost of materials identified by the tenant, the remaining charge for the labour involved in cutting and hanging five or six curtain rods appears excessive. Given that the landlord is a construction company, I see no reason the landlord could not undertake this work itself had a significantly lower cost. Consequently, doing the best that I can on the available evidence, I assess the reasonable cost of completing this work at $150, including labour and materials.

  1. Replacing light globes

  1. The ICR recorded that the light fittings throughout the premises were clean, undamaged and working at the start of the tenancy agreement. That conclusion was supported by the photographs included in the ICR.

  2. Ms Younan is email to the tenant on four November recorded only that there were “some” light globes that were not working, without identifying the globes concerned. One of the photographs attached to the email showed that a heat lamp in the IXL fitting in the bathroom had been replaced with just an ordinary light globe. In another photograph, only one of three light globes in the kitchen – lounge room was shown to be illuminated. Tenant sought to argue that he did not “think” that there were any blown light globes and that he thought the heat lamp concerned might be faulty. He has not produced any evidence to substantiate those claims. Consequently, I dismiss the tenant’s claims as unsubstantiated.

  3. Having compared the evidence between the start and end of the tenancy agreement, I am satisfied that the tenant has failed to return the IXL heat lamp in the bathroom in the condition that it was in at the start of the tenancy agreement and that he has failed to return the kitchen – lounge room with working globes in the light fittings. The tenant is therefore liable to compensate the landlord for the reasonable cost of returning these parts of the premises to the condition required by the tenancy agreement.

  4. The landlord’s handyman has quoted $45 + GST to supply and replace light globes that are missing or blown. In the absence of evidence to the contrary, I consider that to be a reasonable cost for reinstating those parts of the premises to the condition required by the tenancy agreement. Consequently, the tenant is liable to compensate the landlord for that amount (which is a total of $49.50) on this part of the claim.

  1. Replacing lost keys to the front door

  1. The evidence clearly establishes that the keys returned by the tenant at the end of the tenancy agreement did not match the keys that were given to him at the start of the tenancy agreement. Further, I accept Ms Younan’s evidence that the keys supplied by the tenant did not open the front door of the house. I prefer that evidence over the tenant’s assertion that the locks on the front and back doors were keyed alike.

  2. The tenant’s assertion that he changed the locks during the tenancy at the request of the landlord’s director is not substantiated by any evidence. As set out above, s 66 of the RT Act required the tenant to obtain the “written” consent of the landlord before making alterations to the premises, such as this. No such written consent has been produced. The tenant has not satisfied me pursuant to s 71 of the RT Act that the landlord agreed to him changing the locks on the front door, or that he had a reasonable excuse for doing so.

  3. I am also not satisfied on the evidence that the tenant has returned to the landlord any keys required to open the lock he installed in the front door, as he was required to do under the tenancy agreement. In those circumstances, it is reasonable for the landlord to replace the lock in the front door at the tenant’s cost, to ensure that the landlord has obtained vacant possession of the premises from the tenant.

  4. I therefore find that the tenant has failed to comply with the terms of the tenancy agreement and that he is liable to pay the landlord the reasonable cost of purchasing a new lock for the front door. In the absence of evidence to the contrary, I am satisfied that the amount claimed by the landlord’s reasonable. I therefore find that the tenant is obliged to pay the landlord $275 on this item.

Conclusion – the landlord’s claims

  1. It follows from the above that the landlord’s various claims have succeeded as follows:

  1. Rent owing (as agreed) – $405.71;

  2. Cleaning – $330.00;

  3. Removal of rubbish – $300.00;

  4. Repair to the timber flooring – $962.50;

  5. Removal of the light cover for the fan in the master bedroom (as agreed) - $330.00;

  6. Replacement of the ripped curtain (as agreed) - $42.00;

  7. Repair of one torn fly screen - $80.67;

  8. Replacing the smashed panel of glass – $1,100.00;

  9. Trimming of hedges – $NIL;

  10. Repairing paint work, screw holes from plantation shutters and blinds, and glue - $1,650.00;

  11. Replacing curtain rods that had been removed - $150.00;

  12. Replacing the missing oven tray - $275.00;

  13. Replacing light globes - $49.50.

The total amount payable by the tenant to the landlord on this claim is therefore $5,950.38.

Payment of the bond

  1. I am satisfied on the evidence that amounts claimed by the landlord are covered by s 166 of the RT Act and that the landlord is entitled to claim the amounts which I have found to be payable by the tenant from the tenant’s bond under that section.

  2. As the total of those amounts is greater than the value of the bond, it follows that the landlord is entitled to recover the whole bond and apply that against the amount owing by the tenant. In those circumstances there should be an order under s 175 that the bond be paid to the landlord.

Conclusion and orders

  1. For the above reasons, I find that the tenant is liable to pay the landlord a total of $5,950.38 on the landlord’s claim in the proceeding. The landlord is further entitled to recover the tenant’s bond and apply it against that amount. The Tribunal therefore makes the following orders:

  1. The respondent tenant, Andrew Hay, must pay the applicant landlord, Network Developments NSW Pty Ltd, the sum of $5,950.38 immediately.

  2. The Tribunal directs the Rental Bond Board to pay the applicant landlord, Network Developments NSW Pty Ltd the whole bond and any interest accrued on rental bond number T474141-4. Any amount received under this order is to be credited against the money order at (1) above.

  3. The remainder of the applicant landlord’s claim is dismissed after hearing on the ground that the Tribunal is not satisfied to the civil standard (being the balance of probabilities) on the material before it that there are grounds for the Tribunal to make the remaining orders sought by the applicant.

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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: 08 August 2025

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