Ray White Redland Bay v Rai
[2010] QCAT 566
•21 October 2010
| CITATION: | Ray White Redland Bay v Rai [2010] QCAT 566 |
| PARTIES: | Ray White Redland Bay |
| V | |
| Pia Rai, Manoj Rai |
| APPLICATION NUMBER: | Minor Civil Dispute - Tenancy 2093/10 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 21 October 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Tammy Williams, Sessional Member |
| DELIVERED ON: | 21 October 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The Tribunal orders the Respondents to pay out to the Applicant the sum of $1,147.50 by 30 November 2010 |
| CATCHWORDS : |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Johnstone |
| RESPONDENT: | Mrs Rai |
REASONS FOR DECISION
Introduction
The issue in dispute is whether the applicant is entitled to $5847.60 compensation from the respondents.
Ray White Redland Bay filed an application with the Queensland Civil and Administrative Tribunal (QCAT), naming Mr Manoj Rai & Mrs Pia Rai as the respondents.
Hearing
The Tribunal held a hearing at the Queensland Civil and Administrative Tribunal’s hearing rooms in Brisbane. Both parties were present, however the first respondent, Mr Rai did not attend. The matter proceeded in his absence with Mrs Rai making submissions and giving evidence to the Tribunal on behalf of both respondents.
The respondents entered into a written tenancy agreement and leased the property from December 2008 to 4 June 2010. They vacated the premises during the period 25 and 26 June 2010; after which the owners moved into the property.
The applicant’s claim the respondents left the property in a non-liveable state. As such urgent repairs and cleaning were said to be needed before the owners could take possession of the property.
At hearing the applicant argued it was entitled to compensation for the following items:
·Rent arrears (for the period 12 June to 26 June 2010) - $900;
·Carpet replacement - $3,110;
·Cleaning costs - $390;
·Cost of repairs - $1,447.60
From the outset (and to their credit) the respondents accepted liability for the outstanding two weeks rent; leaving the three remaining issues to be disputed at hearing.
Relevant Legislation
The Tribunal has jurisdiction to hear and decide this matter pursuant to sections 11 and 12 of the Queensland Civil and Administrative Tribunal Act 2009 (the ‘QCAT Act’). This was a claim by the applicant against the respondents for relief under the Residential Tenancies and Rooming Accommodation Act 2009 (‘the Act’) for a residential agreement over the property located at the address identified in the claim.
Because the applicant lessor is seeking a compensation order to be made in its favour the Tribunal must have regard to the matters listed in s421(1) of the Act, including whether the lessor has taken all reasonable steps to mitigate the loss or expense suffered. If this cannot be shown, pursuant to section 362(3)(b) the lessor is not entitled to receive compensation for any loss or expense that could have been avoided by taking the steps.
Relevant Facts
Ms Johnston, the applicant’s agent completed an Exit Condition report on 26 June 2010 without the tenants present and noted various items requiring cleaning and repair. The report was completed by Ms Johnston despite having earlier met with Mrs Rai at the property.
At hearing Mrs Rai stated she was surprised by the applicant’s claim for compensation as she had “left the property in good order after a walk through with Ms Johnston”; and during this time the applicant’s agent had advised her of additional work which needed to be done to the property prior to vacating. Mrs Rai maintains she complied with the request and attended to each of those items pointed out to her by Ms Johnston, stating:
“[I] affected repairs and cleaning to the property including carpet, linoleum, flyscreens and picture hanger wall holes which included repainting. A gernie of the back patio area had also been performed.”
This evidence was supported by Mr Jefferies, a witness for the respondents, who assisted Mrs Rai with the additional cleaning and repairs as requested by the applicant.
However Ms Johnston argued despite Mrs Rai’s and Mr Jefferies’ attempts to rectify the cleaning issues and repairs, the respondents still failed to return the property in a similar condition to what it was at the start of the tenancy. Therefore Ray White Redland Bay sought compensation for the costs it says incurred by engaging tradespeople to undertake work on the property.
The owners moved into the property on 26 June 2010 – the day of the final inspection and also the same day the respondents handed over vacant possession. Several days later (after the owners had commenced their occupancy) the abovementioned tradesmen were contracted to rectify the alleged outstanding cleaning issues and repairs.
At the core of this dispute is whether such cleaning and repairs costs were reasonably required.
Evidentiary Issues
This matter was determined based on the evidence before the Tribunal at hearing and certain findings were made as to the sufficiency of this evidence.
The General Condition of the Property
When the tenants first moved into the property they failed to complete and sign the Entry Condition Report, despite being reminded by the applicant in writing, to do so. All of the items listed in the report were inspected by the then property manager and were said to be “clean, undamaged and working.”
The Tribunal notes the Residential Tenancy Agreement does not include any special terms requiring the tenants to have the surfaces of the property (both interior and exterior) or the carpets professionally cleaned at the end of their tenancy period. Nonetheless there is a general statutory requirement for the tenants to leave the premises, as far as possible, in the same condition at the start of the tenancy fair wear and tear expected.
The Act does not define “fair wear and tear”. However it would be unreasonable for a lessor to expect a property be left in a perfect condition as it was at the commencement of the tenancy without taking into consideration something which happens during the normal use or changes that happen with aging. Regard must also be had to the age of the property and inclusions; that a family with children lived at the premises for over a twelve month period with an approved pet (a dashound).
The Tribunal also considered the written statement prepared by A Clean Scene as supplementary evidence as to the condition of the carpets:
“On 25 June 2010 we repaired some carpet damage.... The carpet in question was the main bedroom (polypropylene – large loop) and the study (cheap nylon plush). The back two bedrooms was also nylon carpet but had no problems. All the carpet in the property appeared to be between 5 and 10 years old.”
Credibility Issues
[At hearing the parties relied on both oral and documentary evidence. In particular the Tribunal found inconsistencies with the applicant’s evidence.
[Ms Johnston’s written submissions dated 29 July 2010 appears to be in part, an exaggeration of her own findings contained in the Exit Condition report. For instance in relation to the cleanliness of the property she states:
“The house needed to be cleaned. There were various marks on the walls, the bathrooms had not been cleaned, all of the windows, sills and tracks needed to be cleaned. The curtains were filthy and had various marks on them” (emphasis added).
Whereas the Exit Condition Report indicates only the dining room, ensuite, bedroom four and the main bathroom’s window tracks/sills were said to require cleaning (four out of eleven rooms and “not all of the windows, sills and tracks” as suggested in the written submissions). Likewise not every curtain or blind in the property was recorded in the report as requiring further cleaning.
The Tribunal also notes the applicant arranged for an ‘exit clean’ to be undertaken on 30 June 2010 - four days after the owners had already commenced moving into the property. Of particular relevance is that the invoice does not itemise the areas of the house requiring additional cleaning. Therefore it appears the contractor charged for the cleaning to all interior surfaces despite the Exit Condition Report only listing some items requiring further cleaning - in which case is an excessive cost.
Ms Johnston further states in her written submissions “the tenants claim to have had the carpets cleaned however there is no evidence to prove this as the tenant did not provide a receipt on the day.” Yet in the Exit Condition Report, Ms Johnston herself describes the condition of the floor coverings in each of the four bedrooms as either “clean” or “has been cleaned.” As to the issue of whether the respondents were required to have the carpets professionally cleaned at the end of their tenancy, the Tribunal notes from the copy of the Residential Tenancy Agreement submitted as part of the claim (which noticeably did not have ‘Annexure A’ attached to it), there was no such requirement listed as a contractual term.
A significant part of the applicant’s claim for compensation was the cost of replacing the carpets in the premises. Ms Johnston argued:
“The carpets in bedrooms two and three had to be replaced because they smelt of urine and you could not put any furniture or have anyone live in those rooms because if this. After further investigation from the carpet layer, the urine had soaked into the underlay. There was no way that cleaning the carpets would have got the smell out.”
It was suggested at hearing that the urine could have been from the respondent’s dog. However when questioned by the Tribunal, Ms Johnson admitted she did not detect the smell when she met with Mrs Rai at the property for the ‘walk through’ and nor was such an odour noted the Exit Condition Report. Mrs Rai insisted the family’s dog had long been toilet trained and this was supported by the fact that the applicant had never detected an odour during any of the periodic inspections throughout the course of the tenancy. Mrs Rai’s explanation for the sudden ‘urine’ odour was that the property was locked up after the carpet cleaners had completed the job.
“The carpets were cleaned by The Carpet Man. The cleaning was performed after the repair work and the house was left closed during a rainy period in mid-winter. The carpets would have taken 2-4 days to completely dry and this would have been the animal urine which would have been the residual dampness and chemical smell from the carpets being cleaned.”
This is a plausible explanation and is a view consistent with that of A Clean Scene, a specialist in carpet cleaning, repairs and replacement:
“It is a fact that the carpet backing (Jute) when wet can smell and be confused as a urine odour. However when the carpet and backing is completely dry this odour does not remain. I suggest this is the likely reason for the detected ‘urine’ smell.”
Notwithstanding the ‘urine’ explanation given by Ms Johnston to justify the replacement of the carpet in two bedrooms; the Tribunal notes that new carpet was supplied and installed on 29 June 2010 to all four bedrooms, robes and the garage – at a cost of $3110 (as per the claim), several days after the owners moved into the premises.
The respondents argue the amount is excessive as the property was furnished with an average to low quality brown coloured carpet which was not new at the commencement of the tenancy. At hearing Mrs Rai referred the Tribunal to the written statement provided by A Clean Scene which described the carpet as “cheap nylon plush”, “polypropylene” and “all the carpet in the property appeared to be between five to ten years old.” It was submitted by A Clean Scene, based on their experience in supplying and installing carpet “the approximate price to lay similar quality carpet in the four rooms would be $1,400.”
The applicant’s claim for compensation also includes two amounts for the cost of repairs, being $368.50 and $1079.10, both invoiced by the same tradesperson. Some of these charges were for items which the Exit Condition Report did not identify as needing repair, such as the replacement of two toilet seats and cleaning to the exterior of the house. There was no evidence before the Tribunal to indicate this was justified.
It was not until 22 July 2010 (one month after vacating the premises) that the applicant emailed the respondents and advised of all the work done to the premises and sought recovery of the costs ($2, 737.60 for rent, cleaning and “for all the repairs and so forth”). And yet eleven days later, the applicant filed the claim with QCAT in the amount of $5,847.60. The respondents were not made aware of this sudden increase until they received the Notice of Hearing and a copy of the claim. Mrs Rai argued the haste of the claim meant there was no opportunity to conciliate; or for follow up by the Real Estate for the cleaning of the garden - as she had previous agreed to reimburse the applicant upon production of a receipt.
Issues relating to Mitigation of Loss and Expense
One of the main thresholds the applicant must establish is whether the lessor has taking all reasonable steps to mitigate the loss or expense suffered. If this cannot be shown, pursuant to section 362(3)(b) the applicant is not entitled to receive compensation for any loss or expense that could have been avoided by taking the steps.
At hearing Ms Johnston admitted to taking no other mitigating steps another than attempting to telephone Mrs Rai over the following days. Although the applicant’s agent was unable to contact Mrs Rai and was aware she was moving into new premises during this time; tradespeople were engaged without any further attempts to contact the respondents using other methods such as post or email until the 22 July 2010 – four weeks later and immediately before the filing of the QCAT claim for compensation.
Furthermore Ms Johnston admitted she “knew it could be a problem having the owners move into the property” within a day or two of the respondents vacating; as this did not allow sufficient time for a tenant to be given an opportunity to rectify any damage or repairs to the property.
Conclusion
In consideration of the matters mentioned above, the Queensland Civil and Administrative Tribunal is not satisfied Ray White Redland Bay has established the grounds of its claim. Much of the application lacked substance and on many occasions relied upon evidence which simply did not exist. It was evident at hearing that such frivolous claims caused unwanted stress and inconvenience to the respondents, which is not acceptable.
The Tribunal dismisses the applicant’s claim other than the two items the respondent admitted liability (rent and cost of cleaning the garden), totalling an amount of $1, 147.50. This is to be deducted from the rental bond monies already received by the applicant in full satisfaction of this order.
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