Read v Haskell - [2011] SADC 11

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Under Residential Tenancies Act 1995)
READ & ORS v HASKELL & ORS
[2011] SADC 11
Judgment of His Honour Judge Cuthbertson
17 February 2011
LANDLORD AND TENANT
RESIDENTIAL TENANCIES ACT - RECOVERY OF DAMAGES - APPEAL AGAINST ORDERS OF TRIBUNAL - WHETHER CERTAIN DAMAGE HAD BEEN CAUSED BY THE TENANTS
Appeal against findings and orders of the Residential Tenancies Tribunal - An issue was whether certain damage was proved to be the responsibility of the tenants - Whether Tribunal erred in not finding that certain damage located on termination of tenancy must, by inference, have been caused by the tenants.
HELD: Findings by Tribunal varied in part. Tenants to pay landlords certain additional amounts.

READ & ORS v HASKELL & ORS
[2011] SADC 11
Introduction

The appellants are the landlords of premises at 10 Michael Street, Lockleys. The respondents were the tenants.
At the conclusion of the tenancy the landlords made application to the Residential Tenancy Tribunal for payment of the bond held in respect of the tenancy and further compensation in relation to alleged damage at the premises. The application is dated 2 July 2010.
The landlords annexed 10 separate claims amounting to what are described as claims 1 to 10. The total amount of the claims was $4,214.33. The bond was $1,560 and thus there was an excess of claims above the bond of $2,654.33.
The Tribunal judgment from which the landlords have appealed is dated 17 August 2010. The final order of the Tribunal was that the security bond of $1,560 be paid to the landlords in the sum of $1,126.93 and to the tenants in the sum of $433.07.
The landlords appeal against the judgment of the Tribunal by Notice of Appeal dated 14 September 2010. The appeal is against the resolution of claims number 3, 4, 6, 7, 8, 9 and 10. The basis of the appeal is that the findings of the Tribunal were wrong. I will deal with each claim seriatim.
New material
The landlords seek to place new material before this court which was not placed before the Tribunal at first instance.
I note that the Notice of Hearing in this matter commences as follows:
TAKE NOTICE THAT you are required to attend with such documents and WITNESSES you feel may be able to provide information which will assist in determining the dispute.
N.B.1. YOU ARE ADVISED TO BRING TO THE HEARING ALL DOCUMENTS UPON WHICH YOU MAY INTEND TO RELY (e.g. Rent Book, Inspection Sheet, Receipts, Photographs etc. Please note that photographs must be presented in hard copy or CD/DVD and video evidence can be presented but you need to provide the CD/DVD evidence to the Tribunal at least 3 days before the hearing).
The documentation, including a DVD of a final inspection of the premises, is either not relevant or of only marginal relevance. It would not have affected my decision in this appeal. I decline to receive the material on the appeal as most of it could have been presented before the Tribunal.
Claim three
Claim 3 annexed to the landlord’s claim claims $2,406.40 for cleaning and painting made up of a claim for painting of $1,760 and a claim for cleaning of $646.40
Painting
The plaintiffs’ painting claim asserts that touch up wall paint was used by the tenants with a different colour and finish to the existing walls making the result unsightly. The landlords asserted that it was going to be necessary to repaint the house and a painter’s quote was enclosed as part of the claim.
The tenants deny that they have effected any repairs. Photographs tendered to the Tribunal clearly show the patchwork where it would appear that touch up painting was done using a paint roller with a different colour paint. The landlords produced a quote for the painting for $1,760.
No explanation is given in the judgment appealed from for the rejection of the claim for the painting except that the Tribunal was not satisfied that the level of proof required had been met. It is said that the tenants tried repeatedly to inspect the premises with the landlord. It is said that they would hardly pursue this if they knew they would be showing the landlord obviously damaged walls.
The reasoning seems to me less than compelling. The tenants had to show the landlord the premises at some stage whether the walls were damaged or not. It is difficult not to come to the conclusion on the evidence, based on the balance of probability, that the patchwork quilt of painting must have been done during the tenancy of the tenants.
With respect to the Tribunal I do not see in its reasoning any explanation as to how the patchwork painting can have got there. It wasn’t there at the beginning of the tenancy and it is absurd to suggest that someone did it at the end of the tenancy.
The tenants made an assertion during the course of the appeal that it was probably done by the landlords. I allowed the landlords to give evidence on this limited topic as I thought it was a serious allegation.
The landlords vehemently denied that they effected this disfigurement and I accept their evidence in that regard. I think it is absurd to suggest that the landlords would have done this themselves.
In my view the disallowance of the claim insofar as it is based on the patchwork painting is against the weight of the evidence even making allowance for the fact that the Tribunal heard the evidence. In my view it was unreasonable not to infer, on the balance of probability, that the authors of the quilt work paint repairs were the tenants or someone present with their permission during the currency of their tenancy.
I allow the claim for painting in the sum of $1,760.
Cleaning
The claim for cleaning of $646.40 was particularised on the basis that the premises were not cleaned by the tenants and 3 days cleaning was required to make the property suitable for re-tenanting. In addition it was asserted that 8 hours were spent washing and rehanging curtains which were badly soiled by 5 cats.
I note that the Tribunal had the benefit of evidence from the landlords and evidence from the tenants. The tenants’ evidence was boosted by the more independent witness, Jessica Brobie, who gave evidence that she saw the tenants carrying out various cleaning works and that the premises inside and out looked clean.
The Tribunal had the advantage of seeing and hearing and assessing the witnesses. Whether or not cleaning of a house is adequate is very much a question of judgment. Evidence was led that the plaintiffs were particularly fastidious. The only independent evidence supported the tenants.
Usually where a landlord engages an agent, a representative of the agent who has some degree of independence makes the inspection of the premises and forms a view as to whether the cleaning is adequate. Ideally the landlords would have been better served if they had some independent witness who could have testified that the cleaning of the house was not adequate.
I see no reason to disagree with the factual findings of the Tribunal and the allowance of $100 compensation for cleaning to the landlords may indeed have been generous.
Claim 6 – Garage door remote control
This claim is for a garage door remote control for $121.
At the commencement of the tenancy the landlords provided 2 remote controls for the garage door. Upon them being returned at the end of the tenancy one did not work and when opened was found to be corroded.
It is suggested that the item had been dropped in liquid. Corrosion does not take place immediately, it takes place over a period of time. There is no evidence that the particular remote control had not been dropped in liquid prior to being handed over for the tenancy and slowly developed corrosion during the course of the tenancy.
The claim was rejected by the Tribunal which found that there was no evidence as to the condition of the interior of the remote control at the commencement of the tenancy and that accordingly the Tribunal was not able to find that the landlords had proved that an act by the tenants had prematurely damaged the remote control.
I am not in a position to say that this decision was wrong and accordingly I uphold the finding of the Tribunal.
Claim 7 - Floorboards
This is a claim in relation to external rumpus room floorboards for $660.
There is said to be damage by excessive water damage in the entrance and gouge marks to the boards. The area of alleged water damage is about two foot in from the doorway. There is undisputed evidence that the gutter would overflow in the vicinity of the doorway outside the doorway. This was fixed during the currency of the tenancy and has not been denied by the landlords. There is no evidence whether this would have allowed water to splash underneath the door or to travel through the wall cavity onto the concrete slab and thus under the floor boards.
The tenants denied that the doors were left open so as to allow rain water to enter the house in the vicinity of the doorway.
The Tribunal, on this topic has indicated simply that it is not satisfied that the claim has been proved. The Tribunal has pointed out that it may well be a matter of normal wear and tear.
Due to the complication of the fact that there was indeed overflowing of the gutter immediately outside of the door I am of the view that it was not unreasonable for the Tribunal to consider that it had not been proved on the balance of probabilities that this water damage was caused by an improper act of the tenant going beyond any wear and tear.
I note that the quote leaves no room to distinguish which damage is attributable to the water damage and which is attributable to the gouging.
It seems to me that the gouging can be regarded somewhat differently. Whereas there may have been an “innocent” explanation for the water damage it is difficult to see that there is any such explanation for the gouging. It must have been caused by moving of heavy furniture whether by the removalist or by the tenants themselves.
Bearing in mind that proof is on the balance of probabilities in my view it was an error on the part of the Tribunal not to have inferred that authorship of the gouging lay with the tenants. I emphasise here that it is not a question of whether the tenants were acting deliberately or accidentally. Their obligation was to return the premises as found subject to ordinary wear and tear and the gouging could not be regarded as wear and tear.
There is a complication in awarding damages. I am informed by the landlords that the floors had to be repaired in any event due to the water damage and this has not been held to be the responsibility of the tenants.
I would award a nominal figure of $100 for the likelihood that more extensive repairs and sanding would have to occur in order to remove the gouging.
Claim 8 – Waste disposal unit
The landlords claim that new tenants who moved in found that the sink was not draining the water properly. An examination revealed that there were spoons that were located in the waste disposal unit in the kitchen.
The tenants deny that they placed the spoons there and no check was done at the time of transfer. The new tenants were not called and so it would be impossible to determine whether it was the new tenants or the previous tenants who put spoons in the waste disposal.
In those circumstances the Tribunal was not in error in finding that it had not been proved satisfactorily that it was the old tenants and not the new tenants who were responsible for the spoons, especially in the light of denials by the old tenants that they had placed any in the waste disposal.
Claim 9 – Weed mat
This relates to a weed mat said to be of value of $143.60.
The landlords had put a weed mat in place prior to letting the premises. The tenants got permission to remove part of the weed mat to plant certain plants. The tenants claim they put the weed mat back in place.
On the appeal it was pointed out to me by the tenants that they did not take the mat away and replace it. They simply placed approximately 26 holes in it to allow for the planting of 26 rose bushes.
The rose bushes were already grown and would have had a root clump and thus the holes would have to have been sufficient to enable a root clump to be planted through the weed mat.
The 26 holes would have been sufficient to damage the weed mat. On the other hand the weed mat was some 2 years old and would have been subject to deterioration in the weather. I would allow $50 damages for the damage to the weed mat which was in effect admitted by the tenants. They placed holes in it in order to plant the roses.
Claim 10 – Carpet runner
This claim is that a carpet runner which was provided with the house had been soiled and smelled of cat’s urine requiring the landlord to have it cleaned at a cost of $165 at the expiration of the tenancy.
The tenants agreed that when they had the carpet cleaned they did nothing in relation to cleaning the mat but they said that it was rolled up in a cupboard and not used.
The landlords claimed that they saw the carpet runner in the hallway and thus by implication assert that it was used.
In relation to this matter the Tribunal preferred the evidence of the tenants and thus was not satisfied that the carpet had been used and soiled by the tenants. There is nothing before me whereby I should overturn this finding which was clearly open to the Tribunal and is not demonstrated to be wrong. The Tribunal preferred the evidence of the tenants on this topic and its finding was open to the Tribunal on the evidence.
Conclusion
I am informed that the orders of the Tribunal have been carried into effect and the security bond has been paid out as directed.
Accordingly I will make the following orders:
(1)    That the appeal by the landlords be allowed in the following respects:
(i)     As to Claim 3 there be an award for painting of $1,760.
(ii)    As to Claim 7 as to the floorboards there will be an award of $100
(iii)   As to Claim 9 as to the weed mat I will award $50.
All other claims are dismissed.
Based on the original orders the tenants are liable as follows:
(1)    Rent - $780
(2)    Water - $233.93
(3)    Cleaning - $100
(4)    Window keys - $13
(5)    Painting - $1,760
(6)    Floorboard damage - $100
(7)    Weed mat damage - $50
Total = $3,036.93 less security bond $1,560, therefore, total = $1,476.93
This is the amount that the tenants should pay the landlords on the assumption that the landlords keep the security bond.
I make the following orders:
·     Appeal allowed.
·     Judgment for the appellants for $3,036.93.
·     Appellants to have security bond of $1,560 together with an additional $1,476.93.
As I am told that the funds have already been paid out according to the direction of the Tribunal adjustments will have to be made to reflect my orders.