Newton v Century 21 on the Coast and Heffner
[2011] QCAT 174
•3 May 2011
| CITATION: | Newton v Century 21 on the Coast and Heffner [2011] QCAT 174 |
| PARTIES: | Pauline Newton |
| v | |
| Century 21 on the Coast Lisa Marie Heffner |
| APPLICATION NUMBER: | MCDT23-11 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 9 February 2011 |
| HEARD AT: | Coolangatta |
| DECISION OF: | Ms J Cowdroy, Member |
| DELIVERED ON: | 3 May 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The applicant is to pay the respondent the sum of $5,848.22 in the following manner: (a) $150 per week for 12 weeks, increasing to $200 per week for 19 weeks; (b) payment in full to occur by 16 September 2011. |
| CATCHWORDS: | Residential tenancies legislation – dispute between landlord and tenant – compensation sought for cleaning and repairing damage – whether claim reasonable – consideration of fair wear and tear |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mrs P Newton and Mr F Newton |
| RESPONDENT: | Ms E Dummer of Century 21 on the Coast Ms Heffner, owner |
REASONS FOR DECISION
Background to the Application:
This matter originated as an application by the tenant for termination of a tenancy agreement due to excessive hardship. The matter was heard on 2 February 2011 before another member, at which time the tenant signalled an intention to vacate the premises and had offered $50 per week to repay the outstanding rent. The matter was adjourned until 9 February 2011 to enable the tenant to reconsider her offer of repayment.
Applicant’s case
The applicant acknowledged that she owed a considerable amount of rent and did not dispute the amount sought. She and her husband lived in the unit for 15 months and previously had lived in another unit in the same building for 2-1/2 years. She considered they were good tenants.
The business which she and her husband operated had been forced to cease trading as of January 2010. Whilst she had obtained employment, her income from that employment and her husband’s part pension did not enable them to meet the rent of $3,575 per month and they had been compelled to seek cheaper accommodation.
Mrs Newton indicated an intention to enter into a repayment plan, which initially had been in the form of $50 per week. She had reconsidered that offer and now offered to repay the outstanding rent by way of $150 for 12 weeks, increasing to $200 per week for the following 19 weeks, and the remainder on 16 September 2011.
Mrs Newton resisted the claim for cleaning, advising that the premises had been left in a clean condition. The list of items requiring attention, according to the respondent, included things that could not be cleaned satisfactorily when she moved in. The marks on the terrace were due to the terrace above being gurneyed and sealant laid. Because of the overhang of the unit above, the sealant collected on her balcony and left marks.
Some of the items said to be missing such as the air conditioning key and the key to the study door were never given to her. When she moved into the premises she spent a great deal of time cleaning due to their dirty state. Mrs Newton acknowledged that the owner had organised painting of some areas during the tenancy. Generally, Mrs Newton was adamant that the items listed did not require cleaning and that 12 hours of cleaning at a cost of $400 was unjustified.
Respondent’s case
The tenant vacated the premises at 1708/33 TE Peters Drive, Broadbeach on 7 February 2011. As at that date, rent of $9,647.74 was owed. A bond of $3,300, held by the Residential Tenancies Authority had been released to the owner, leaving an amount of $5,848.22 outstanding.
The owner sought an order for that amount, and interest if the debt was repaid in instalments. The owner also sought compensation for cleaning, repairs and damage to the property. A shower shelf was missing in the master bedroom and quotes were being sought for its replacement. There was damage to the laundry door and sticky tape marks on the walls – both areas required repainting. Quotes for that work were being obtained. The premises were four years’ old and were in an excellent condition when the tenancy commenced.
The agent produced photos of the premises and a copy of the entry report dated 24 November 2009.
[10] The owner contended she was in financial hardship due to the non-payment of rent and sought a payment plan that would reduce the debt in a shorter time span than that proposed by the tenant.
Adjournment
[11] It became obvious that the matter could not be finalised for two reasons: firstly, the tenant was not aware of the applicant’s claim for compensation other than for rent, and quotations were not yet available to quantify the compensation sought. In those circumstances, a direction was made in the following terms:
1.The respondent is to file and serve a copy to the applicant, invoices and submissions in relation to the claim for compensation for repairs and damage.
2.Within 14 days of the receipt of those documents, the applicant is to provide written submissions in response.
3.The decision was reserved pending the receipt of the documentation.
Resumed Hearing (on the papers)
[12] On 1 April 2011, the QCAT registry received further material from the applicant. She advised that as she had not heard from the respondent, she requested the information ordered on 9 February 2011. She received it on 22 March 2011.
[13] The material comprised two quotes: one for cleaning for $352 including GST; and the other for $88 for the supply and fitting of a glass shelf to the ensuite shower.
[14] In response, the applicant provided a statement, denying that any cleaning was required. The premises had been cleaned thoroughly before vacating and any marks, chips or stains were evident when moving in. Mrs Newton reiterated her contention that there never was a glass shelf in the ensuite shower.
[15] Mrs Newton also provided a letter from Leonie Tattersal who helped her clean the unit when she moved in. Ms Tattersal also cleaned the premises on a fortnightly basis up until shortly before the applicant vacated. Photos taken by the applicant at the end of the tenancy were provided, as well as e-mail material.
Consideration
[16] Taking the matters raised in turn, Mrs Newton indicated her intention to repay the outstanding rent in full. Her offer of $150 per week, increasing to $200 after 12 weeks, is consistent with the household income outlined during the hearing. To require her to pay any more may well become a commitment which is beyond her capacity to meet. Mrs Newton indicated at the hearing that she would commence making payments in line with this payment plan. As for the claim for interest, I decline to make an order, as the lessor will be repaid in full in about eight months.
[17] In respect to the claim for cleaning, none of the photos produced to me by either party demonstrate that the unit required 12 hours of cleaning. Even on the basis that all of the items described in the “cleaning list” were necessary, 12 hours of cleaning is excessive. Mrs Newton impressed me as a sincere person and I accept her evidence that she left the premises in a clean state. Some of the items that are listed as requiring attention Mrs Newton contended were in a poor state when she took up residency. The list also includes small items like the removal of wire on tap and pot plant removal that are of minor significance, in terms of time and effort.
[18] The chips and mark on tiles are not the liability of the tenant. There were cracked and chipped tiles noted on the entry report. And if more have occurred, then I consider they constitute fair wear and tear. The owner has received a considerable sum of money from the tenants and it is not unreasonable that some maintenance needs to be carried out after a 15-month tenancy. I therefore disallow the claim for cleaning.
[19] I accept the applicant’s evidence that the glass shelf in the ensuite was missing from the beginning of the tenancy. I disallow that claim.
[20] The order of the Tribunal is set out at the beginning of this document.
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