Reefport Pty Ltd v Banchetti; Banchetti v Reefport Pty Ltd
[2012] QCAT 279
•27 June 2012
| CITATION: | Reefport Pty Ltd v Banchetti; Banchetti v Reefport Pty Ltd and Anor [2012] QCAT 279 |
| PARTIES: | Reefport Pty Ltd (Applicant) |
| v | |
| Deborah Banchetti (Respondent) Robina Realty Ms Yolanda Anderson (Agent) |
| Deborah Banchetti (Applicant) |
| v |
| Reefport Pty Ltd & Robina Realty (Respondent) |
| APPLICATION NUMBER: | MCDT153-12 / MCDT163-12 |
| MATTER TYPE: | Residential tenancy matters |
| HEARING DATE: | 24 April 2012 |
| HEARD AT: | Coolangatta |
| DECISION OF: | J Bertelsen, Adjudicator |
| DELIVERED ON: | 27 June 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The RTA pay out to the parties the rental bond of $1,800 as follows: Owner – $900.10 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Reefport Pty Ltd – Phillip Baxter & Pauline Baxter – Directors Yolanda Anderson – Property Manager |
| RESPONDENT: | Deborah Banchetti |
REASONS FOR DECISION
Application
By application 153/12 filed 21 March 2012 Reefport Pty Ltd (the applicant) made claim for arrears of rent, painting and repairs, floor repairs and water consumption charges in respect of Ms Banchetti’s tenancy of premises 1/21 Bayswater Avenue, Varsity Lakes for the period 25 November 2010 to 7 February 2012.
By application 163/12 Ms Banchetti (the respondent) sought compensation for excessive electricity costs, reimbursement for water charges, compensation for partially unfit premises, removal costs, connection and redirection fees all in addition to a refund of the rental bond.
Background and evidence
The respondent took up residence of the premises on 25 November 2009 at a rental of $450.00 per week. The tenancy was lastly the subject of a general tenancy agreement for the period 25 November 2010 to 24 November 2011 at a rental of $460.00. On 25 November 2011 the applicant issued a notice to leave expiring 25 January 2012. The respondent vacated the premises on 7 February 2012. The bond held by the RTA was $1,800.00.
Applicant’s claims
Rent to vacate date
The premises is one of a three townhouse complex constructed in about 2004.
The applicant’s ledger discloses rent payable for 2 February 2012 onwards is credited $358.57. With the premises being vacated on 7 February 2012 six days rent was owing i.e. $394.29 less the ledger credit of $358.57 left $35.72 owing. The calculation as such was not disputed but rather a rent reduction was sought.
Painting/repairs
The applicant asserted painting repairs had not been carried out properly and produced photographs of what it considered defective/poor quality repairs eg roller marks visible and covering only part of the stairwell. One Wayne Hely licensed contractor of Painters in Paradise was retained to repair and repaint walls at a cost of $484.00.
The respondent at about the time of vacate retained Frank Nordmann to “paint all walls in the downstairs living areas, staircase, study nook, upstairs hallway and bedrooms 1, 2 and 3” at an invoiced cost of $350.00 over 3 days. Mr Nordmann did not purport to be a licensed contractor. A BSA licence search by the applicant indicated that he held no licenses in Queensland.
Floor repairs
The applicant asserted that at the commencement of the tenancy in 2009 the timber floors were in good condition; that some repairs were carried out at that time to ensure the timber floors were in such good condition (repair invoice produced); that upon inspection shortly after vacate multiple small indentations as well as deep gouges and scratches to the floor surface and indented kick marks to the stairwell were identified; that the timber floor had been thickly coated with oil to disguise damage; all of which was well beyond fair wear and tear and that the repair of the timber floor by “Dan the floor sanding man” cost $1,475.00; that close up colour photos produced displayed the damage (and sort of damage) occasioned.
The respondent asserted that at tenancy commencement she completed an entry condition report noting amongst other things “scratches on the timber flooring”; that upon vacating the timber flooring was left in good condition, fair wear and tear excepted; that persons present at the premises at about the time of vacate confirmed this; and that the cost effectively constituted an improvement. Colour photos taken at a distance of some metres were produced.
Water consumption
The applicant claimed $653.12 for water consumption for the period May 2011 to February 2012. The respondent had previously paid $357.12 for water consumption for the period May to November 2010. It was not made clear to the Tribunal whether the claim was for total consumption or excess consumption. No evidence that the premises was water efficient was produced.
Respondent’s claims
Excessive electricity costs
The respondent asserted she was forced to pay excessively high electricity bills during the course of the tenancy. She said she raised this with the applicant’s agent (but does not state when); that the applicant’s agent “should have been aware that the hot water system could be a contributing factor”. The respondent contacted Origin Energy on 22 July 2011 and was referred to Energex whose technician performed a meter test on 4 August 2011. The meter was found to be in good order. A more rigorous situ test was arranged for 4 November 2011 when once again the meter was found to be in good order. The hot water system was then observed by the examining technician who concluded that it was malfunctioning, that it had not been serviced, that the thermostat might be faulty and that it was not wired for off peak usage. Upon advice from the examining technician the hot water system was switched on and off every other day over a one month period. That resulted in approximately halving the electricity cost.
The respondent thereafter on 16 January 2012 called in an electrician, Mr Electric, to test the hot water system. His service note states that he adjusted the thermostat from 100ºC to 55ºC and that such a high setting would have caused very high power consumption. A copy of the service note was emailed to the applicant on 31 January 2012.
The applicant asserted there was never any complaint by any past occupant of the premises; that the applicant was never notified of any complaint in relation to excess electricity consumption until receipt of the email from the respondent on 31 January 2012; that it was never the subject of discussion prior to that time.
The applicant produced an affidavit by Roland De Mezeeres, licensed electrician, (sworn 21 April 2012) who, on 21 April 2012 conducted a comprehensive inspection and testing of the hot water system. He drained and refilled the tank and tested the functioning of the thermostat. He stated, “the system has a cut out switch which automatically cuts out the power irrespective of the thermostat setting to prevent water heating above 80 degrees. It is not possible for the system to heat water over 80 degrees and to the 100 degrees alleged.” He further observed, “it is not normal industry practice to service hot water systems every 6 months. All that is required is that from time to time it is desirable to pull the pressure relief valve … is not regarded as a service … and does not require the attendance of an electrician. Failure to do so would not affect the thermostat.” He further stated, “unless an electrician or technician conducted the tests which I undertook it would not be possible to make any statement about whether the hot water service was or was not functioning correctly … it is not physically possible for the hot water system to have operated for 24 hours per day with loss of thermostat control.”
Mr Mezeeres found the hot water system to be in perfect working order.
Water charges
As stated previously there was no evidence produced to the Tribunal to indicate the premises was water efficient nor any evidence by the respondent that she had paid $573.50. The only evidence available to the Tribunal of actual payment was the applicant’s acknowledgement (in ledger and notes) of receipt of $357.12 on account of water consumption.
Rent reduction
On 8 October 2010 the respondent expressed concern about bubbling paintwork along the entrance wall of the premises. On 21 October 2010 the respondent notified the applicant that the timber flooring in the entrance area which occupies 2-3 square metres had started lifting. As of 16 May 2011 neither had been fixed. On 16 August 2011 Tony’s Termite and Pest Control attended the premises and cut out small holes in the entrance wall gyprock and upstairs bedroom wall. September through November 2011 the extent of the termite problem was assessed and on 21 November 2011 the applicant issued an entry notice advising Gecko Flooring would commence repairs to replace floorboards in the entrance area. As of the date of vacate the termite problem had not been finally addressed nor had the holes in walls and lack of proper entrance foyer flooring. The respondent alluded to some water leaks and mould. There was no suggestion that these were not or would not have been attended too. They did not loom large as opposed to the termite/floorboard issue.
Compensation for removalist and associated costs
On 10 October 2011 the applicant forwarded a general tenancy agreement to the respondent to consider, sign and return to secure the tenancy offered. On 25 October 2011 the respondent indicated a willingness to enter into a new tenancy agreement once all outstanding maintenance issues had been attended to and finalised. Prior to the respondent returning the signed tenancy agreement the applicant on 23 November 2011 withdrew the offer of a fresh tenancy agreement. On 25 November 2011 the applicant issued its notice to leave.
Conclusions on evidence
Applicant’s claim
Rent to vacate date
There was no dispute as to the calculation of balance rent payable of $35.72.
Painting/repairs
The close up photographs produced by the applicant indicated an attempt to repair/repaint walls which was unsatisfactory. Those walls have since been painted by a third party licensed contractor at an invoice cost of $484.00. The Tribunal accepts the necessity to repair/repaint and its cost.
Floor repairs
At first glance the photographic evidence would indicate the floors to be in good condition but upon close inspection to have suffered some scratching and minor indentation damage. Some aesthetic appeal may have been lost but not such as to detract from the floors’ utility or warrant the sanding and polishing of 59m2 as invoiced by “Dan the Floor Sanding Man”. In circumstances such as these the Tribunal may exercise its discretion to arbitrarily allow a portion of the repair cost. The Tribunal considers, based on all the evidence, but particularly the photographic evidence that 50% of the claim ought to be allowed on account of that damage, scratching in particular, beyond fair wear and tear. The claim is allowed at $737.50.
Water consumption
No evidence was produced to definitively confirm that the premises was water efficient. Nor was it ever clear whether there was ever excess consumption. In these circumstances the claim for water consumption is disallowed.
Respondent’s claims
Excessive electricity costs
Enquiries by the respondent lead to the hot water system being switched on and off every other day for a 1 month period. That resulted in an approximate halving of electricity cost. Much the same result could have been achieved much earlier by switching the hot water system to off peak. The only comprehensive and exhaustive test of the hot water system was carried out by Mr De Mezeeres, licensed electrician, at the applicant’s expense. He found the hot water system to be in perfect working order. The respondent only raised a concern that she put in writing by email of 31 January 2012 virtually at the expiration of the tenancy. It smacks of a latter day attempt to offset the applicant’s claims rather than being a genuine grievance arising during the course of the tenancy. The Tribunal disallows the claim.
Water charges
No evidence was produced by the respondent to support payment of $573.50 for water consumption. Rather evidence of payment of $357.12 was acknowledged in the applicant’s ledger and notes. Payment was made under a misapprehension or misunderstanding as opposed to a failure to exercise a right to claim within a particular time frame. The Tribunal allows the claim to the extent of $357.12.
Rent reduction
The photos produced by both parties clearly display a modern townhouse premises. Unfortunately, termites managed to penetrate the building. That resulted in the floor boards in the entrance area being removed leaving 3-4 square metres of exposed concrete flooring. Additionally 2 small holes were cut in the walls. The respondent claimed 10% of weekly rental for the premises being partially unfit to live in for the period 16 August 2011 to 7 February 2012. That was for 25 weeks at $46 per week totalling $1,150.00. What the respondent suffered was a minor loss of amenity. It was on 16 August 2011 that termite presence was confirmed in the light of earlier general concerns on the part of the respondent. The respondent from 16 August to 7 February 2012 lived with a persistent element of minor disruption as well as some aesthetic and practical displeasing aspects in day to day living at the premises. During that period the premises did not quite live up to its initial standard. However, it could not be said that this loss of amenity constituted a substantial decrease in the liveability of the premises as contemplated by s 94 of the RTA legislation. Rather it is more appropriately categorised as a breach of the terms of the applicable residential tenancy agreement for failure to repair where notice had been given as encompassed by s 419 of the RTA legislation. Section 419(3) provides that an application, in this instance, for the applicant to remedy the breach must be made within 6 months of the respondent becoming aware of the breach. No formal notice to remedy breach was ever issued by the respondent nor was any application made for compensation in respect of any such breach until the respondent filed, as part of what was effectively her counter claim, this claim for rent reduction on 29 March 2012. Once again this claim smacks of a latter day attempt to offset the applicant’s claims rather than being a genuine grievance of real substance arising during the course of the tenancy. The respondent’s evidence of her desire to remain in the premises and a lack of any application prior to 29 March 2012 is consistent with the minor nature of loss of amenity. The claim is disingenuous, well out of time and properly dismissed.
Compensation for removalist and associated costs
The respondent sought to make the applicant responsible for her removal costs and connection/redirect fees on the basis of “their lease offer made and accepted in October 2011”. The only offer ever made by the applicant was for the respondent to consider, sign and return to secure the tenancy offered. In the respondent’s own words she intended to do that on 24 November 2011. The offer was withdrawn before that occurred. The respondent’s belief that she had a new lease is not enough. It was open to the applicant to withdraw at anytime prior to final acceptance ie lease return. The Tribunal therefore does not accept any claim for subsequent expense that might only be claimable on account of a break lease.
Final conclusions
In terms of the above conclusions the applicant’s claims are allowed at $35.72, $484.00 and $737.50 a total of $1,257.22. The respondent’s claims are allowed at $357.12. The applicant’s claim is therefore allowed at a net figure of $900.10.
Order
The Residential Tenancies Authority pay out the rental bond of $1,800.00 to the owner as to the sum of $900.10 and to the tenant as to the sum of $899.90.
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