Ray White Palm Beach v Mowlem
[2011] QCAT 257
•6 June 2011
| CITATION: | Ray White Palm Beach v Mowlem and Anor [2011] QCAT 257 |
| PARTIES: | Ray White Palm Beach |
| v | |
| Melissa Mowlem and Benjamin Somerfield |
APPLICATION NUMBER: MCDT766-10
| MATTER TYPE: | Residential tenancy matters |
HEARING DATE: 12 January 2011 and 15 March 2011
HEARD AT: Coolangatta
| DECISION OF: | Ms J Cowdroy, Member |
DELIVERED ON: 6 June 2011
DELIVERED AT: Brisbane
ORDERS MADE: 1. The respondents are to pay the applicant the sum of $284.70 within 30 days.
| CATCHWORDS: | Residential tenancies – water damage due to defect in tenants’ appliance – opinions as to cause of damage – inadequate waterproofing – tenant ordered to make contribution to cost of repair |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms K Wade and Ms S Myers for Ray White Palm Beach on 12 January 2011 and Ms Wade on 15 March 2011 |
| RESPONDENT: | Ms Mowlem and Mr Somerfield on 12 January 2011; Ms Mowlem on 15 March 2011 |
REASONS FOR DECISION
Background to the Application
This concerns a dispute between landlord and tenant in respect to premises at 2/3 Barracuda Court, Palm Beach. The tenants Ms Mowlem and Mr Somerfield entered into a residential tenancy agreement, to run from 1 May 2010 to 30 April 2011.
The applicant seeks an order that the tenants compensate the lessor for the cost of repairs, as a result of water damage to the kitchen and laundry. The amount of the claim is $2,934.70 which represents repairs of $2,850.00 and a plumbing account for $84.70.
The tenants refute that they are responsible for the water damage, which required removal and replacement of kickboards in the kitchen, pantry panels, splash-backs, floating floorboards and cutting out water damaged sections of plasterboard in the laundry.
Adjournment
The matter was heard on 12 January 2011, following which it was adjourned to await a report from the Gold Coast Council and for the parties to provide submissions. The report from the Council was not forthcoming, consequently the matter was heard again on 15 March 2011, as which time it was indicated that the matter would be decided on the basis of the evidence received as at 15 March 2011.
APPLICANT’S CASE
The water damage affected the kitchen and laundry area. The tenants advised there was a water problem. The original e-mail to Ray White from Ms Mowlem dated 9 August 2010 states: “something wrong under the kitchen floor – the kitchen floor is laminate and water comes through the gaps underneath (not sure wear (sic) the water is coming from but really noticed it after all the rain) – I don’t know if it’s a major problem or not – plumbing or leaks??.”
The applicant arranged for a plumber, FreeFlow, to attend to the problem. The plumber’s inspection revealed that the water damage had occurred as a result of a leaking seal on the tenants’ washing machine. The water travelled underneath the washing machine across the floor and through the wall into the kitchen.
This information was contained in a statutory declaration from Luke Myers from Freeflow Plumbing dated 10 January 2011. He states that he investigated a water leak to the laundry and kitchen and observed that washing machine hoses at the connection to the supply taps had no rubber seals. When he turned on the tap, the water escaped, leaking on to the floor of the laundry and subsequently through the wall to the kitchen floor. He supplied seals and tested to ensure no further leakage. There was no other leak identified on the site at the time of inspection.
The agent produced photographs taken on 9 August or 10 August 2010. They depict water damage to the kick boards and to the base of the cupboards in the kitchen. The lessor cannot claim on insurance as the damage was due to the tenants’ appliance. The invoice from Freeflow Plumbing for that attendance is for $84.70.
On 11 October 2010 Ms Mowlem contacted the agent again referring to water problems on the opposite wall. The wall backs onto the back of the bathroom and occurred after a lot of rain. She referred to the fact that the problem with the leak in the machine had been fixed and the washing machine had been turned off for the past three weeks, including taps off. Further investigation occurred.
[10] According to a statutory declaration from Cameron Wetherall he attended the property on 12 October 2010 re “possible water leak in the laundry”. He tested the water service and inspected for possible roof leaks and could not find any. On 19 October 2010 he attended the property again and found water leaking between shower spindles/taps and tiles. This was sealed and there were no further leaks in this area. He noticed that there was no floor waste in the laundry, however this was typical of buildings at its time of construction and did not contravene any plumbing or building code.
[11] The agent had had discussions with the tenants who had been given an opportunity to rectify the problem. The premises are 22 years old. The quotation for repair is not for a full renovation but to bring the kitchen back to its original state at the commencement of the tenancy.
RESPONDENTS’ CASE
[12] Photographs were produced by Ms Mowlem. She contended that there were a number of defects that led to water intrusion including the lack of waste plates, the lack of waterproofing and a problem with the sink next to the washing machine, all of which combined to produce the water damage. Ms Mowlem reported that she was not aware that the washer in the washing machine was leaking as she never observed any pooling of water on the laundry floor. There were other problems such as a leak under the sink of the washing tub, which was not repaired until November.
[13] Some repairs had been carried out prior to their tenancy, but they were of a sub-standard and temporary nature. The tenants had the Gold Coast Council inspect the property, however no report was forthcoming as to their findings.
[14] The respondents relied on two reports: the first was from Coastline Building Certification Group dated 26 October 2010. The inspector at that firm holds a NSW Building Consultancy Licence and a Qld BSA Licence. That firm was asked to inspect and report on the damage caused to the kitchen “due to a water leak from the laundry”.
[15] The firm reported that there was no floor waste to the laundry in which case the floor must fall/drain to an external opening in the laundry. The floor tiles to the laundry had been replaced, which would have required the installation of a waterproof membrane, which was not evident. If a floor waste and waterproofing had been installed, damage to the kitchen would not have occurred.
[16] The report noted that the skirting tiles had been removed and replaced with timber skirting. There was also evidence of repairs to the plumbing to the bathroom backing on to the laundry. The tenant advised that repairs had been made to the tap wear of the laundry that had been leaking for some time. Coastline opined that the leaking tap could have caused the damage to the kitchen as it backed onto the affected area.
[17] The second report was from Tony Martin, a licensed builder, plumber/drainer/gasfitter that was undated. He was also tasked to inspect the water damage and provide an opinion on probable causes. Mr Martin reported that the source of the water leakage is not restricted to the laundry; there is “clearly a leak from the bathroom, most probably in the shower in the main bathroom which adjoins the laundry.”
[18] The report also commented on the lack of proper sealing to the original floor tiles in the bathroom and laundry and the joints where the wall tiles meet the floor tiles. There would have been no damage “to the areas in question” if the wet areas had been properly finished.
Consideration and Findings:
[19] The Tribunal carefully considered the evidence of all parties in light of the legislative obligations imposed on both the lessor and tenant. Section 188(4) requires the tenants to leave the property and inclusions, as far as possible, in the same condition it was in at the start of the tenancy – with fair wear and tear excepted.
[20] An issue of contention between the parties was to whether a faulty hose beneath the kitchen sink and a leak in the laundry sink tap were repaired, with Ms Mowlem claiming that the faulty hose beneath the kitchen sink was repaired but was not mentioned on the invoice from FreeFlow. I note that the invoice from Freeflow specifically states that there was no leak from shower or tap ware.
[21] However, if, as it is contended by the applicant, that the absence of washing machine hose seals were the source of the problem and this was rectified, then it follows that the water problems observed and reported on 11 October 2010 are due to other causes.
[22] I accept that there was a leak from the tenants’ washing machine hose seals, having regard to the evidence of Mr Myers. It may be the case that the tenants were not aware of the problem. Having had regard to the range of opinions on the matter, and giving due regard to the evidence of both parties, I am satisfied that it is appropriate to make an order that the tenants make some contribution to the damage, on the basis that their appliance contributed to the water damage.
[23] I am not satisfied that that alone is responsible for the water damage to the kitchen. There is a range of opinions as to other causes, including lack of waterproofing, and the lack of appropriate materials when earlier renovations were carried out.
[24] In making the order, I was mindful of the recommendation of Coastline Building Certification Group that a more invasive inspection occur to determine if there are any further leaks. This suggests that the diagnosis of the problem may be complex and multi-factorial.
[25] I order that the tenants pay to the applicant the sum of $284.70 representing a $200 contribution to the cost of repair of the water damage and the plumbing bill for $84.70.
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