Richard & Lesley O'Sullivan v Sue Coleman
[2006] ACTRTT 15
•27 April, 2006
Richard & Lesley O’Sullivan -v- Sue Coleman
ACTRTT15 [2006]
CATCHWORDS
Condition of premises – fair wear and tear
Improvement to premises – tenant must get permission
Contract law – obligation cannot be delegated
LEGISLATION
Residential Tenancies Act 1997 (ACT)
CASE LAW
________________________________________________________________________
Case Reference Number: RT 1707 of 2005
RE: Premises at 31 McMaster Street, Scullin ACT 2614
________________________________________________________________________
Decision
Member: A. Anforth
Date: 27 April, 2006
The tenants, Richard O’Sullivan and Lesley O’Sullivan are to pay the landlord, Sue Coleman, the sum of $1585.00 within 28 days of this decision being published.
That the Office of Rental Bonds is directed to release the whole of the bond to the lessor.
That the lessor is to give credit to the tenants for any sum received from the Office of Rental Bonds.
REASONS FOR DECISIONS
On 16 September 2004 the parties entered a residential tenancy agreement (the lease) for a house at 31 McMaster St, Scullin in the ACT for a fixed term of 1 year. The rent was at $250 pw and a bond of $1,000 was paid and lodged with the Office of Rental Bonds.
The Ingoing Condition report prepared by the parties on 16 September 2004 indicated that the house was generally in “fair” condition although some of the carpets were described as “poor”.
The lease contained a special term permitting pets provided any damage caused by the pets was repaired. The tenants had a dog and two cats, which on the tenants own evidence lived inside the premises.
On 30 August 2005 the tenants notified the landlord that they would not be renewing the lease due to a work related transfer. In that email the tenants admitted to having “animals” at the premises and said that they would attend to any damage caused by the dog. The letter indicated that the tenants would have the premises and yard cleaned and repaired prior to vacating. The tenants contracted with their neighbour, Mr Ian Grace, to clean the premises and yard.
On 28 September 2005 the landlords agent emailed the tenants detailing the cleaning of the premises which had been undertaken by the landlord’s cleaner and the account which included $60 for filling in holes in the back yard caused by the dog and mowing; $156 for carpet cleaning; cleaning and removal of various items of property left on the premises at a cost of $620.00. The cleaning required the house to be off the market for 5 days being $178.57. The total claimed was $1023.57. In addition the tenants were alleged to owe rent for the last two weeks of the lease, being $500.00. The landlord made a claim for the rental bond.
On 9 October 2005 the tenants emailed the Office of Rental Bond in the following terms:
Thanks for your email. Our mailing address is PO Box 105 Rockingham City, Rockingham WA 6968. I recently received a MS Word document of the claim form that we need to fill out to dispute the claim. My wife and I have filled this form out and I have scanned the form as an Adobe Acrobat .pdf file. Receipt of this form was subsequent to a telephone conversation my wife had with Shane Richards from your organisation. We rented the property from Ms Coleman from 16 September 2004 until 16 September 2005. Shane informed my wife that a fax would be sufficient. Provided you have Acrobat Reader V5.0 or later on your computer, you should be able to read and print the file. As an added failsafe, I shall print this email and send you a copy together with the original Refund of Bond form. Note that we have not
Condition of the House
Even though the house was always in a slightly ramshackle condition and featured amateur attempts at painting and the securing of door plates, but we accepted it for what it was and even declined an offer from her to have it cleaned before we moved in, performing the task ourselves.
We had pets there with her full knowledge and Ms Coleman knew that we kept them inside. In fact, Ms Coleman visited the premises on more than one occasion and never objected to the pets being inside. During our time there, we marginally improved the premises - in fact, I even provided security lights on the basis that Ms Coleman pay for the wiring which she did. In addition, at our own expense, we repaired the wardrobe in the master bedroom, replacing the dowel which was useless. In addition, we paid to secure the car port gates so that they could be locked and provided padlocks. We paid to replace most of the internal door locks which were defective. Further, we replaced the security chain lock at our expense and shored up the fence which was rotten and falling down. On several occasions, we fixed the sliding doors into the lounge room which, due to wear, regularly jumped their tracks. Similarly, at our expense, we fixed the kitchen fluorescent light when it became faulty and really needed replacement. When we moved in, we were given a dishwasher (by Ms Coleman) which we intended to install. However, circumstances prevented us from doing so. Prior to this, Ms Coleman provided us with a clothes dryer which we paid to install. She also provided us with a "Tastic" bathroom light which we paid to install. We saw our contribution to the upkeep of the house as "give and take". There were two metal sheds on the premises, neither of which was in good condition. Both of them leaked when it rained and the doors of one of them were broken beyond repair. We disclaim any responsibility for the condition of these sheds. Similarly, the walls were marked prior to our taking up residence and the floor coverings were worn and marked. We considered this to be due to the age of the house.
During our tenancy, Ms Coleman, her son and her husband attended the premises on various occasions to effect plumbing repairs and to lop trees. We considered her to be a good landlady. During our time in the premises, I had a dispute with a Government Agency and found myself unemployed in October, 2004 and throughout the entire festive season. In fact, even though I subsequently secured alternative employment in Canberra during the first half of 2005, none of it was satisfactory to me and did not meet my standards.
In June 2005, I accepted an offer from the Western Australian branch of a large multinational corporation and I accepted. The offer included three months' probation and subsequent relocation. I informed Ms Coleman by email of the fact that we would not be renewing the lease and actually spoke to her on the telephone about it. At no stage during this conversation or prior to this did she ever state dissatisfaction with our tenancy except for a short period where we fell marginally behind in the rental.
The lessor was aware that we had paid people to clean the premises the day after we left. They washed and ironed the curtains and cleaned the floors. This was not easy because it rained almost the entire time the removalists were in attendance and prior to that, when we were disposing of possessions we no longer needed. Ms Coleman and her husband turned up before the cleaners had finished, fired them and then employed her own cleaners. I spoke to her on the phone soon after this and she undertook to send me an email re the matter and details of her claim, but none was forthcoming. Frankly, we were shocked and horrified by her behaviour as prior to this incident, we had no problems with her. I personally sincerely doubt the validity of any claim she wishes to make and, given the circumstances, am considering claiming the costs of out contribution as an offset against any claim which may be entitled to or, if the act allows, as an offset against her allegation.
On 11 October 2005 the tenants emailed Mr Grace and forwarded a copy of the landlords email. The email asks Mr Grace to comment on the landlords claims concerning his failure to adequately clean the premises.
On 11 October 2005 the tenants emailed to the Office of Rental Bonds. In that email the tenants set out the essence of their defence to the landlords claim:
(a) the tenants retained Mr Grace to clean the house and yard but the landlord allegedly attended the premise at the time Mr Grace was cleaning and dismissed him from the premises.
(b) the tenants could not fill in the holes in the back yard caused by the dog and could not mow because it had been raining immediately before they vacated the premises.
(c) the rain also precluded the removal of a computer cabinet left on the premises
(d) the tenants denied being responsible for various grease and fat deposits in the kitchen
(e) the tenants denied that the scratch marks on the back door were caused by their dog
(f) the tenants alleged that the general dirtiness of the house was caused by someone leaving the back door open and dust coming into the house.
In an email of 12 October 2005 the tenants declined to pay for the replacement of a light fitting in the master bedroom on the basis that it had been destroyed by some one putting a bulb into the socket with an excessive high power rating causing the socket to melt. The tenants denied that they did this and denied any knowledge of the matter.
10. On 16 November 2005 the tenants lodged an application with the Tribunal seeking a refund of the bond.
11. On 2 December 2005 the landlord filed with the Tribunal her response to the tenants claim and appended the following documents
(a) a copy of the lease
(b) a copy of the tenants email of 30 August 2005
(c) a copy of an email of 13 September 2005 from the landlord to the tenants arranging for the final inspection and notifying that 2 weeks rent was outstanding.
(d) a rent ledger
(e) a copy of the landlords email of 28 September 2005
(f) a receipt for the professional cleaning and carpet costs incurred
(g) a set of photographs of the carpets, walls, doors, stove, sink, yard taken on 22 September 2005
(h) a full list of items cleaned
12. The landlords response increased the claim for outstanding rent to $750.00.
13. The landlords response read as follows:
1. CORRECTION OF MISTAKES IN MR O’SULLIVAN’S APPLICATION
Firstly, to correct matters of fact as per the Applicant’s filling out the Form is concerned:
¨ The “PREMISES” at 31 McMaster Scullin were let under a standard ACT Tenancy Agreement (Attachment A) (not “Occupancy Agreement” as specified by Mr O’Sullivan);
¨ The Rental on the property was $250 PER WEEK, (NOT per calendar month, as Mr O’Sullivan has said);
¨ The “condition of Premises Report” stated that certain things were in a “poor” condition... this included the linoleum in the kitchen, which was damaged. “Poor condition” does not mean “dirty”.. the house was in very clean and liveable condition when the tenants took possession. I allowed them to have pets, provided that the carpets were cleaned on vacation of the premises, and that any damage to the grounds were fully repaired upon vacation of the premises, as formally agreed at ADDENDUM 2 of the Tenancy AGREEMENT.
¨ The O’Sullivans had a dog on the premises the whole time, and the neighbours complained to their agent “SYNERGIE” (Woden) enough times to warrant the agent writing to me asking me to take action against my tenant to control the constant barking of the dog.
¨ As Mr O’Sullivan stated, I DID visit the property several times, in order to replace a blind, and fix a tap. I only saw the kitchen and hall and 2 bedrooms, and although they were “untidy” by my standards, I did not feel that their “lifestyle” warranted any intrusive action. Our relationship was cordial.
STATEMENT CONTESTING APPLICATION RT 05/1707
I CONTEST THE APPLICATION ON THE FOLLOWING GROUNDS:
¨ On 30 August 2005, by email to me, the lessor, Mr O’Sullivan gave Notice that he and his wife would be vacating the premises on “approx 15 September 2005”. (Attachment B). It should be noted that Clause 88 of the Tenancy Agreement provides for the Tenant to “give the Lessor not less than 3 weeks notice of the date on which he or she intends to vacate the premises”. In spite of the reduced Notice, I replied to Mr O’Sullivan’s email on Tuesday 13 September 2005 (Attachment C), accepting his notice, with the PROVISO (line 2) that “the people over the road do it (“the necessary cleaning and repairs”) on time and to a satisfactory standard”... Mrs O’Sullivan subsequently rang me to say that the “Uplift” was scheduled for Friday 16 September, and that the cleaners would clean the house on the weekend of 17/18 September 2005.
¨ My husband and I went to the premises at approximately 4PM on Sunday the 18 September, and a man whom I know to live several doors away, but do not know his name, was mopping the floor of the laundry, and said he was “just finishing up”. As I had noticed muddy footprints in the hall, I asked him if he could please make sure to mop the entry hall before he left, and he agreed. My husband and I then made a quick inspection of the house, and noticed that
(a)there was a VERY LARGE, steel computer cabinet left in the bedroom (REFER PHOTOGRAPH # 0017),
NB [In fact, the man advised me that he was “making arrangements for the removal of the Cabinet”, and when he returned on Tuesday 20 September 2005 to do so, I helped him dismantle it, and lent him tools to do so, and I helped him carry out the parts from the house].
(b)that the kitchen walls were very grubby. I asked the man if he intended to clean the kitchen, and he replied that “he had done all that he had been paid to do”. AT NO STAGE did I “dismiss” him as alleged by Mr O’Sullivan. We left him to “finish off”, and I returned on Monday for a more detailed inspection. At this time I took PHOTOGRAPHS on my digital Camera to ensure that there would be “proof” of my grounds for dissatisfaction with the condition of the premises.
Kitchen:
¨ smelled of cigarette smoke impermeated into walls/curtains/etc
¨ Walls and ceiling yellowed and grimy, with sticky tape marks,
¨ oil spatters on walls near stove-top;
¨ Cupboards and drawers not cleaned properly;
¨ Exhaust fan filthy, and light fitting dirty.
I employed 2 students to :
¨ scrub the ceilings and walls and doors;
¨ removed stains from walls;
¨ remove grease spatters from walls near stove;
¨ clean exhaust fan and lights;
¨ clean top and interior of glass cupboard;
¨ clean out drawers and disinfect;
¨ clean scratches/damage to laundry door preparatory to repainting;
¨ clean exterior of laundry cabinet.
¨ Wash and re-hang curtains.
Bathroom
Cabinet dirty.
Yard
Mr O’Sullivan undertook in his email that “Any holes in the yard will be filled in”
¨ Holes made by dog not filled in;
¨ Grass not mown.
Receipt at Attachment E for $680 for 8 hours cleaning , plus lawns mowed
Bedrooms:
¨ Carpet Stained and smelling of Pet urine (the tenants owned a large dog and a cat). I had allowed the tenants to have pets provided that they had the carpet cleaned on vacation of the premises. This was not done, so I had “Electrodry” clean, de-stain, and sanitise the carpets in the bedrooms ( the rest of the house has polished wooden floors, except for linoleum in the kitchen/dining).
(Receipt for $166 at Attachment F.
¨ Wardrobe doors in Main bedroom marked with sticky-tape gum;
¨ Light fitting in main bedroom in state of disrepair.
The Photographs at Attachment G show “before” and after cleaning was done by my agents:
Mr O’Sullivan undertook in his email that “Australia Post will be instructed to forward the mail”...... however, I had to make special arrangements for up to 2 weeks to take his mail to Belconnen Mail exchange for forwarding to WA, as Mr O’Sullivan had left no forwarding address.
Mr O’Sullivan rang me at approximately 10PM on 21 September asking when he would be getting his Bond back, to which I replied that I was still assessing the cost of restoring the property to reasonable condition.On September 28 I emailed Mr O’Sullivan (Attachment D) with details of the costs I had incurred, and indicating my intention to claim the entire bond money as a result. I also asked him to forward back-rent owing, but to date have had no response until I received Notice from the Rent Tribunal of his Application.
Outstanding Rent
As a result of the necessary work (cleaning/mowing/repairs, etc) taking until Friday 23 September 2005 to complete, I was unable to advertise the house until Saturday 24 September. At that stage Mr O’Sullivan had only paid rent up to 1 September 2005. I have emailed him asking for the 2 week’s outstanding rent (which was 2 weeks at that time, but later became 3 weeks because of the unsatisfactory condition of Premises), but he has not responded. The Rent payments, apart from the first $1000 month in advance, which was paid in cash, were paid into my ANZ bank account, and I will be happy to present relevant Bank Statements for the perusal of the Tribunal.
I therefore Claim $250 for the extra week’s lost rent while the premises were being emptied/cleaned /mowed/repaired/etc.
I also incurred costs having to attend the premises every day for the week (20 kilometres each way) to supervise the work being done, and many hours of time.
Background/ Referee
I purchased this house in Scullin to supplement my pension when I was made redundant in 1999. I have had 2 lots of tenants in the house before the O’Sullivans, and have both times have gladly refunded the entire bond monies. The previous tenant (who lived at the premises for approximately 3 year), Ms Faye Matthews (02 62784754) has kindly agreed to attest to my being a reasonable and co-operative Landlord.
(See Attachment H)On the other hand, it is my understanding (as told to me by Mr O’Sullivan), that the O’Sullivans had a very acrimonious parting with their previous Agent (L J Hooker) for a residential Tenancy at McGregor.
“Condition of Premises Report”
The “Condition of Premises Report”, as per the copy provided by Mr O’Sullivan, was executed in good faith, and the terms “Fair” and “Poor” were used IN AS FAIR AS POSSIBLE DESCRIPTION AS I COULD in relation to the CONDITION of the various rooms, because the premises are NOT new, and the carpets/paintwork etc had seen some wear.......... But the house was very habitable and CLEAN when the O’Sullivans moved in (as attested by Ms Faye Matthews, the previous tenant), and the grounds were neat and mown.
14. On the 2 December 2005 the tenants faxed to the Tribunal a letter denying the rent arrears and enclosing a tabulation of rent allegedly paid together with five page of bank records
15. The matter was listed before the Tribunal on 8 December 2005. The tenants appeared in person by telephone link up and the landlord appeared in person.
16. At the hearing the landlord tendered a short reference from Fay Mathews who had been the landlord’s previous tenant. That reference said that the landlord had always been a helpful and supportive landlord.
17. The also tendered a tabulation of her claim being:
(a) cleaning $620.00
(b) mowing $60.00
(c) carpet cleaning $155
(d) petrol $40.00
(e) fill in holes in yard $20.00
(f) lost rent $250.00
(g) costs $100.00
(h) my time, 30hrs $?
(i) 3 weeks rent $750.00
18. At the haring the landlord denied that she had dismissed the cleaner (Ian Grace). She said that Mr Grace had indicated to her that he had done as much cleaning as he intended to. The landlord then took the view that the cleaning job had been inadequate and arranged to have professional cleaners do the work.
19. There was a dispute between the parties concerning the amount of rent which had been paid as well as the circumstances of Mr Graces’ involvement with the cleaning. The Tribunal informed Mr O’Sullivan that evidence would be required from Mr Grace if he wished to take issue with what transpired between Mr Grace and the landlord and advised him of the right to request a summons to issue for Mr Grace’s attendance. The Tribunal informed the landlord that evidence of rent received into the landlords bank account would also be required.
20. The matter was adjourned to a date to be fixed by the Registrar with the following orders:
1That the lessor is to serve on the Tribunal and the tenant by 15 December 2005:
(a) A spreadsheet of rent received;
(b) Copies of bank statements showing rent received;(c) All photographs relied upon;
(d) Statements from all witnesses relied upon.2That the tenant is to serve on the lessor and the Tribunal by 29 December 2005:
(a) A response to the lessors claim;
(b) A statement from all witnesses relied upon.3That each party is to advise the other, which of their witnesses are required for cross examination not less than 7 days prior to the hearing.
21. On 13 December 2006 the landlord filed with the Tribunal a range of documents:
(a) a rent spreadsheet
(b) 22 pages of the ANZ bank statements
(c) a further copy of the list of cleaning and repairs undertaken
(d) colour copies of the photographs previously filed with additional photos of the yard and the house also taken on 22 September 2005.
(e) a statement from Ken Huggan dated 12 December 2005 who is the landlords husband. The statement related the conversation with Mr Grace at the premises on 18 September 2005. the statement read:
On Sunday the 18th of September 2005,1 accompanied Ms Coleman to her rental property at 31 McMaster Street in Scullin for the purpose of inspecting the premises after the previous tenants (O'Sullivan) had vacated.
Upon arriving at the property we found a gentleman on the premises (subsequently indicated as being a Mr Grace who also resides in McMaster Street), cleaning the laundry floor. Ms Coleman asked him what he was doing there and he indicated that he and his wife had been engaged by Mr O'Sullivan to clean the premises for a total cash payment of $200. He also indicated that he was just finishing up his duties. Ms Coleman asked him to carry on with his duties and he did so while Ms Coleman and I inspected the premises further. Ms Coleman and I noted, amongst other matters relating to the condition of the premises, the very poor condition of the kitchen and Ms Coleman enquired as to whether he was engaged to clean the kitchen, and also asked him to mop the muddy entrance hall before he left. Mr Grace stated that had completed "what he had been paid to do". He finished up his duties some time later, noting to us that he was available to do jobs if we required, also on a cash only basis of payment.
I can further attest to the fact that the condition of the premises, prior to cleaning, is accurately described by the photographic evidence submitted to the tribunal.
I can also attest to the fact that the rental records as indicated by payment to Ms Coleman's ANZ account are a true and accurate record of the rental payments received.
22. The matter was listed before the Tribunal on 9 March 2006. On that occasion the tenants appeared by telephone and the landlord appeared in person.
23. The tenants faxed to the Tribunal on the morning of 9 March 2006 a spreadsheet of rent payments and document responding to various points of the landlords claim. The document read:
This document is a point by point response to Ms Coleman's allegations of 29 September 2005 re the condition of 31 McMaster Street. I paid Mr. lan Grace a fee to provide cleaning services for our corporate move to Canberra. The services which he provided included filling in of holes in the back yard. I have seen Ms Coleman's photographs and can only say that neither 1 nor my wife were there when cleaning took place. Since the last hearing, I have on several occasions requested Mr. Grace to send me an email confirming his verbal report to me re the events surrounding his dismissal by Ms Coleman who, I submit, took over the cleaning responsibilities for the premises by dismissing Mr. Grace. Prior to leaving, my wife was seriously ill and unable to participate much with some of the tasks associated with the move. Soon after we arrived in Perth, she was hospitalized for some time and did not come back home until just prior to Christmas.
In mitigation of the circumstances, I can only say that during the week in which we moved, the weather was abhorrent and the rain rarely abated which meant that it was impossible for tasks such as filling in holes or lawn mowing to be done effectively or at all. 1 paid for topsoil to be delivered and for Mr. Grace to spread it. Similarly, I left a 19-inch communications rack on the premises for pickup by a colleague. Unfortunately this did not happen due to the weather which preceded Ms Coleman's inspection visit. As stated, this was a corporate move by a very large corporation and 1 can produce a reconciliation of costs from our accounts department. Mr. Grace was paid for his efforts.
Before making individual comments re Ms Coleman's allegations, I also wish to point out that by her own admission, several aspects of the premises were in poor condition as evidenced by the Condition Report which she signed. I find much of the content of her statement defamatory and even though I have not briefed my Canberra solicitors, I may refer this matter to them for advice. Lawns mowed, and holes in backyard filled in - (Photos available) $60 By her dismissal of Mr. Grace, Ms Coleman has accepted responsibility for this. Missing Hose fittings replaced Surely this is not a major issue.
Bedrooms
- Carpets to 3 bedrooms stained from animal urine, etc -cleaned($30 per room) stain treatment ($11 per room), sanitised and deodorised ($11 per room) = TOTAL $156
Our animals are house trained. Brie, our dog in particular is a pedigreed show dog and hospital visitor. I resent Ms Coleman's implications and dismiss this issue. Although our animals were allowed inside, they were certainly NEVER allowed to urinate inside. I challenge Ms Coleman to prove that the stains were animal urine. The carpets were stained before we moved in. The bedrooms were and I appropriated two of them - one as a dining room and another as a business office/computer room. During the week before our
move, our dog and two cats were boarded by Dog trainers who were responsible for moving them to Perth.- Wardrobes in Main bedroom marked with sticky-tape gum; Light fitting left in state of disrepair; (Photos available)
The name is Blue tack. We didn't do it. It was there before we moved in. Personally, I hate the stuff and have never used it. This is an attempt by Ms Coleman to capitalise on the situation.
-Computer cabinet left in 2nd bedroom ( removed by neighbour on Tuesday 20/9/005) (Photos available)
I have already explained this issue and am grateful for Ms Coleman's help.
Kitchen / Family Room: UNACCEPTABLE (Photos of all the following are available)
-Walls and ceiling smoke stained
The walls and ceiling were dirty before we moved in. All one had to do was leave the back door open and the kitchen would fill up with airborne dirt as evidenced by deposits on our furniture,fat marks on wall behind stove
We do not use fat in our cooking. These walls were marked before we moved in.
exhaust fan and light fittings filthy;
Please refer to my comments re airborne dust when doors were opened. I have seen the photographs of the filters. All dust filters were almost impossible to clean, i.e., they would become dirty soon after they were cleaned. Similarly, the house was open in terrible weather circumstances during the move. The exhaust fan in the kitchen quickly gathered dirt under those prevailing circumstances.
cupboards doors greasy;
The cupboard doors were greasy from before we moved in. Any attempts to clean them did not yield a very good result. I was reluctant to remove the glass doors on the basis that they may not have been able to be refitted,
walls marked with sticky-tape gum and smoke and grease stains. (Photos available)
We have never used sticky tape on walls, nor have we ever used blue tack. I loathe the substance.
Telephone books missing
I lie telephone books belonged to our service which 1 paid tor and were NOT Ms Coleman's. In fact, when we moved in, the telephone services were faulty and had to be replaced. The present telephone in the premises is Telstra's property and we paid rental on it.
Laundry
-Back door dirty and scratched by what appear to be dog- claw marks, laundry sink dirty inside and out. (Photos available)
This door was dirty and scratched prior to our moving in. Ms Coleman visited (to carry out repairs on various items) on several occasions and never made any adverse comments. Neither we or our animals did it. If Ms Coleman had presented us with a set of before photographs to accompany the condition report there would be some basis for this form of proof. Unfortunately she didn't, so it's her word against ours.
Bathroom - cabinet dirty inside (Photos available)
This was part of the cleaners brief. They were engaged because we had no time to supervise cleaners and also because we trusted them.
Hall
Heating vent in hallway very dirty and filter clogged. (Photos available) Please refer to my previous comments re dust in the atmosphere.
Professional cleaning Charges - 8 hours @ "End of Lease" Rate - $380.60 for first 4 hours and $59.40 for each additional hour = Total of $620
I his is nut our cost. We paid for cleaning services and made an engagement which Ms Coleman chose to terminate.
This meant that the house was unlettable until 21 September - an extra 5 days rental owing: $178.57
We are NOT responsible for opportunity lost and I am not aware that such a claim being allowable under the act.
The TOTAL for the above work is $1023.57, which is more than the amount of the Bond. Therefore I have submitted the Rental Bond Form asking for no refund to be given.
On the basis of the fact that the bond is being withheld pursuant to these proceedings, should we be successful, we will claim bank interest on the bond amount retrospective to 16 September 2005.
This does NOT take into account the 2 weeks rent owing, as per the Schedule that I forwarded to you 13/9/2005. 1 would appreciate you forwarding the outstanding rent at your earliest opportunity to:
I have reconciled Ms Coleman's ledger against my bank statements and computer (the bank's) generated records and have included this information in a document titled "Summary of Rent Payments 31 McMaster Street R.D. and I. A. O'Sullivan. This document shows three payments which Vis Coleman has not recorded. In all other respects, her listing coincided with mine except that most of my listing is based on date <>1 initiation of transaction. As the document shows. I have overpaid her. If she wishes to challenge this. I am prepared to ask my bank to validate any disputed transactions. Please note also that I am prepared to swear an affidavit to support my comments within this document.
24. These submissions were not faxed to the landlord and the landlord first saw them when provided with a copy by the Tribunal at the hearing. The landlord complained of the prejudice to her in the tenants failure to comply with the practice directions. The tenants also had not obtained and served any statement from Mr Grace and did not have Mr Grace available for cross examination. In the circumstances the Tribunal determined that the matter could not fairly proceed on the date and again adjourned the matter to a date to be fixed by the Registrar with the following orders:
1That the matter is adjourned for further hearing on Friday, 7 April 2006 at
2:00pm.
2 That the Tribunal directs that:
(a) That the tenant is to file and serve evidence from the bank by 23 March 2006.
(b) That the lessor is to file and serve submissions in response by 30 March 2006.
(c) Any summons to give evidence or produce documents shall be lodged with the Tribunal no later than 21 days prior to the hearing date.
25. On 23 March 2006 the tenants forwarded to the Tribunal the following submission:
This document relates to proceedings to date with respect to the disputed bond for the rental of the property at 31 McMaster Street, Scullin. I have discussed the outcome to date with my wife and we have mutually come to the conclusion that the matter must end on the basis that if we continue, resolution within the tribunal is unlikely. Therefore, we do not wish to proceed further.
During the most recent hearing, advice was given by the Tribunal Member presiding over the matter that both parties should consider the matter unemotionally and look for an acceptable commercial compromise. I have thought about that advice and consider it to be sound. Therefore, I approached the Tribunal last week, asking were there processes in place for making such an offer. In response to advice given re lack of processes, I am sending this letter and its associated documents to the Tribunal.
I have business and personal commitments which will become adversely affected by further proceedings. Therefore, in the interest of not prolonging this matter further, my wife and I have made the decision that we are prepared to forego half of the bond, with the other half going to Ms Coleman. Please note that this offer is not negotiable and valid for seven days.
Should this offer be accepted, it is assumed that no further hearings will take place and that it will not be necessary for Mr. Grace to be summonsed. Please advise whether or not this is the case. In the meantime, I am proposing deferring summonsing Mr. Grace.
In the process of framing this offer, I once again double checked my reconciliation of payments against Ms Coleman's spreadsheet listing and discovered an error on my part, i.e., I had confused three payments made to Ms Coleman's account by charitable institutions, St. Vincent de Paul and Anglicare. I have since amended my records to account for these payments. As pointed out during the most recent hearing, I do not have a receipt from Ms Coleman for the $500 payment for 16 September, 2004. In view of this, I have removed that transaction from my records. There was also an error in the cumulative column for 6 January. This error was caused by me. I have since corrected it. The purpose of introduction of a cumulative column was to provide a validatory check on the "Paid" column. I apologise for this error. As a result of this correction, the sums of the two columns now balance. However, I still note that Ms Coleman's accounts show a total of $12,500 against my total of $13,000, i.e., they do not balance against my records. Thus, in view of the line item on the enclosed bank statement, it appears that all rent was paid in full, thus negating Ms Coleman's claim of unpaid rent.
In accordance with a recently received order made by the Residential Tenancies Tribunal, I approached Bank West for evidence and received conclusive proof in the form of a statement sent to me from the bank at my request immediately following the last hearing that I paid $500 to her account 012-941-272718227 on 08 August 2005 using my Bank West zero MasterCard, so it appears that the $500 transaction has gone astray. Had I realised this at the time of payment, I would have taken action to trace the money. However, I received no advice from Ms Coleman re non-receipt of the payment. The first I heard of it was in response to my taking action through the tribunal.
In accordance with the Residential Tenancy Tribunal Orders, I spoke further to the bank who sent me a statement containing details of the transaction and who also offered to do a formal trace of the transaction, advising me that it takes six weeks to trace a transaction at a cost to me of $1 2. The bank has asked me to fill out a form if I wish to proceed with the matter and I have done so. Note that I have blanked out my home and work phone numbers in the copy of this document which I have enclosed for the information of the Tribunal. I cannot change the bank's procedures, so it is up to the Tribunal whether it accepts the bank statement as evidence or elects to wait for the bank's due process to complete. I have no say in that.
This document is an offer of commercial expedience; it is not in any way to be construed as an admission of liability with respect to Ms Coleman's claims, nor does it waive the right to pursue the matter further should the offer not be accepted.
26. On 30 March 2006 the landlord filed a further submission in the following terms:
RESPONSE TO MR O'SULLIVAN'S SUBMISSION dated 07 March 2006 (received by Tribunal 09/3/06)
1. RENT ARREARS
Mr O'Sullivan maintains that he has paid $13000, the correct amount for tenancy from 16 September 2004 to 15 September 2005. Ms Coleman maintains that receipts amount to $12,500.In order to expedite the resolution of this matter I have supplied a spreadsheet (Attachment A) outlining the tenants" claims as to what rent payments were made, and the details of actual payments to the rental account (#2727 18227) into which Mr O'Sullivan made deposits. I have had to do this in the absence of any official bank records from Mr O'Sullivan, in defiance of the Tribunal's ORDERS dated 13 March 2006. For evidence of my accounting for these payments I have already TWICE supplied a complete set of my bank statements to the tribunal AND to the APPLICANTS.
I understand from the orders dated 13 March 2006 that Mr O'Sullivan was instructed to provide official bank records as evidence in this matter. I note that he has breached these orders in failing to provide copies of which records which are readily available to any bank account holder. The only item he has supplied is a credit card statement for 8 August 2005. a payment which, so far as I am aware, has never been in dispute... it is clearly evident in my bank records as the last payment received from the O'Sullivans.
I draw the Tribunal's attention to the discrepancies between Mr O'Sullivan's spreadsheet as presented to the Tribunal on the 9 March 2006, and the "revised" one sent to Ms Coleman with an "Offer without Prejudice" (copy to the Tribunal on 20 March 2006) . I have spent many, many hours trying to decipher them, as the entries are in random date order, one entry of payment was for a date 7 months before the lease came into existence, several DUPLICATIONS of date were discovered, although only one payment had been made on those dates... There was NO OFFICIAL EVIDENCE SUPPLIED for ANY of it.
However ultimately I would note that, according to my bank statements (which are available to the Tribunal), Mr O'Sullivan has paid a rental sum of $12,500 during his tenancy, which was credited to my rental account. This is S500 short of the $13,000 owed for the period of his tenancy. Furthermore, the lease required 3 weeks notice to be given, of which only 16 days were given (ref: Mr O'Sullivan's email of 30 August 2005). This alone would have warranted an extra rent of 5 days, even if the premises had been in acceptable condition.
The O'Sullivans vacated on FRIDAY the 16th September 2005. But because they arranged to vacate first, and THEN get cleaners in, it was going to need at LEAST another 3 days (ie until the MONDAY 19th September 2005 before the final inspection could be made. As evidenced by my email dated 13 September 2005, I ADVISED the O'Sullivans AT THAT STAGE that 2 weeks + 3 days rent was owing, PROVIDED that the cleaning and restoration was SATISFACTORY (ATTACHMENT C of Submission 1).
As it transpired, it took a full week to organise workmen and get the work done, meaning a total of 3 weeks outstanding.
CONDITION OF THE PREMISES
Regarding the state of the premises, I have provided extensive photographic evidence to the Tribunal and Mr O’Sullivan evidencing the condition in which the premises were left. The premises were in good condition as noted in the report on the conditions of the premises at the commencement of the tenancy, and the letter from the previous tenant, Faye Mathews, a teacher at Canberra College.The "Condition of Premises" report was signed by Mr O'Sullivan with NO COMMENT. The premises were in good. CLEAN, habitable condition at the time of letting, as attested to by the previous tenant, Ms Faye Mathews, who received her full bond back after renting the premises for over 2 years.
I would restate that Mr O'Sullivan's statement that I dismissed his cleaning agent Mr Grace is simply untrue/incorrect. As corroborated by my husband, Keith Huggan, and attested to in his statement, I asked Mr O’Sullivans cleaner ("Mr Grace") to mop the entry hall (which had muddy footprints) before he completed his duties, to which he agreed. 1 ALSO asked him if he was going to clean the kitchen, to which he replied that he "had done all that he had been paid to do". At no stage did I dismiss "Mr Grace" - it would be a logical absurdity to dismiss someone who was being paid to undertake cleaning duties on behalf of the tenant. 1 would have been pleased to have Mr Grace summonsed to resolve the matter, but Mr O'Sullivan has elected not to do so.
3. OFFER OF SETTLEMENT BY MR O'SULLIVAN
On 22 March 2006 1 received an "Offer without Prejudice" from Mr O'Sullivan to settle this dispute by accepting $500.
I am not prepared to settle with Mr O'Sullivan on the terms he has outlined. I wish to claim, at a minimum, the entire bond money, plus extra for unpaid and "lost" rent, on the basis of :-
·Two weeks rent being unpaid for the fortnight commencing 1 September 2005 ($500);
·The costs of additional cleaning to make the premises fit for tenancy ($680);
·Carpet Cleaning:($155)
·Lost rent amounting to one week in being unable to rent the premises because of these extensive cleaning requirements ($250).
TOTAL: $1585
27. On 4 April 2006 the tenants filed a further submission, which read:
I am writing with respect to the scheduled hearing on 7 April, 2006. On Saturday, I received a Registered letter from Ms Coleman re the cross-claim she intends to make. I have enclosed a copy of the envelope (Exhibit 'C') to point out to the Tribunal the fact that I am at a disadvantage by living in Perth with respect to this matter because there are no one-day communications here except for fax and email You will note that Ms Coleman's envelope is imprinted with a stamp of "6PM 28/03/06" You may note also that the envelope is stamped as "carded" on 31 March, 2006. That is the date on which Australia Post's Advice card is placed in my PO Box which I clear once a week on Saturday, Unfortunately, the return path for documents submitted by me is just as unsatisfactory; I use Express Post and one day guarantees don't apply between Perth suburbs and East Coast cities.
Rather than prolong this matter further, I therefore spoke via telephone yesterday with Sean, an assistant Registrar at the Tribunal and asked whether it would be appropriate under these circumstances to email my submission and he replied in the affirmative, so 1 hope that all parties have Acrobat.
The documents I am sending include a revised summary of our rental payments ('Exhibit A') reconciled to on a Statement and Page basis to Ms Coleman's ANZ bank account. Today's submission also contains copies of the relevant bank statements from our joint bank account (Exhibit 'B') During the last two hearings and indeed, in her statements. Ms Coleman has insisted that she is counter-claiming outstanding rent moneys of approximately $750 During the most recent hearing, Ms Coleman agreed that the amount of rental for a $250 per week lease is $13,000 based on a simple multiplication of $250 by 52, resulting in a product of $13,000 1 agreed with her and at that stage, I had calculated my payments (based on bank transactions (the numbers preceded by 'N') and copies of bank statements. Figures extracted from my database of transactions throughout the lease totalled $13,000 whereas Ms Coleman stated that she had only received $12,500. I, on the other hand, had sent a document to the Tribunal and to Ms Coleman - that document being Statement 501981506 from an account which I hold at Bank West showing that an Internet banking transaction for $500 had been directed to her account at the ANZ bank. Ms Coleman denied knowledge of that transaction and as a result, cost me a fee of around $60 for the bank to carry out a transaction search which takes six weeks from the time the request is initiated,
In previous submissions, I have relied on information held in databases housed on computers which I own. I always attempt to pay my bills as and when they fall due. However, during the last part of 2004 when I suddenly found myself out of work and in receipt of the dole, it wasn't easy to do that and we spent a very bleak Christmas that year. In fact, during the period, 28 October, 2004 and January 2005, our rent was in arrears (as shown on my reconciliation). I have noted that in the document which heads up my present submission, Summary of Rent Payments, KG. & LA O'Sullivan (Exhibit 'A'). You will note that there is a column in this document which addresses our performance during the lease - i.e., whether it was in arrears or current. During the period when 1 was unemployed, were it not for charitable institutions such as St. Vincent de Paul and the like, we would not have survived. By the time Ms Coleman realised we had been in arrears with our payments, with assistance, we had piloted ourselves out of that state, I had a new job and we had managed to maintain our obligation to Ms Coleman.
To demonstrate this to Ms Coleman, who understandably rang me when she realised that we had been in arrears and had enlisted the help of charitable institutions, I created a summary table of the payments we had made (Exhibit 'B')and their source and 1 emailed it to Ms Coleman. Although I no longer have the email, Ms Coleman rang me to express her relief at the fact that the rent was not only up to date, but we were in credit.
Even though I no longer have the email, I still have the table and have included it in our submissions. You will note that the disputed $500 cash which we paid Ms Coleman on 16 September is included reconciliation statement. My wife and 1 distinctly remember making a withdrawal from an auto-teller although we cannot locate the as a result of several of our belongings vanishing on the move from Canberra to Perth. We withdrew the money from a joint account which we have with Westpac and I have asked Westpac to search for the transaction. On the basis of my interpretation of Ms Coleman's reconciliation, 1 have reinstated that transaction into this submission on the basis that if Ms Coleman accepted it in when I sent her a copy of the table, it must have been correct. Also, when 1 checked Ms Coleman's own reconciliation under the heading, Attachment C, Record of Payments the second line item (Exhibit 'C') states that the rent up until 30 September was Paid in Advance.
I note also that part of Attachment C was a very nice email from Ms Coleman (Exhibit 'G') thanking us for being very pleasant tenants and wishing us all the best in the future. This is totally inconsistent with respect to her more recently stated views during the rest of her submission.
As far as the documentation which Ms Coleman sent me at the direction of the Tribunal after the first hearing, the most useful one was her ANZ bank statement and I thank her for that, because this time, 1 did a full reconciliation of my records against each relevant statement page in her bank statement. When I had fully reconciled the payments I had made against those which she had received, I realised that the total which I had calculated was wrong. Instead of having paid Ms Coleman $13,000,1 had actually paid her $13,500 and, 1 was able to locate the so-called missing Bank West transaction which was tabled at the last hearing and which reconciles as being received into Ms Coleman's ANZ bank account on 8 August, 2005, the same day I sent it.
In view of the fact that the lease expired on 18 September, 2005 I want the surplus back and am hereby requesting the Tribunal that we be reimbursed that money plus the search fees which I have paid the bank. From my past studies of the Laws of Trover, I do not believe that she can withhold the $500 surplus, unless she wishes to reconsider her decision in dismissing my generous offer of $500. I am prepared at this stage to make another offer of $500 (once again) for her consideration, i.e., if she agrees, she can keep the $500 provided she waives her unsubstantiated intended claim of $750. In addition, my wife and I are prepared to concede $250 of our bond to her, such action being by way of a commercial expedient, not an admission of liability for any perceived claim she has against us. The offer extends to the proceeds of the next Tribunal hearing at which, we hope that the Member will make a ruling re this issue
28. Annexed to this submission was:
(a) a spreadsheet of rent payments
(b) an envelope addressed to the tenants by registered mail
(c) a character reference
(d) St George bank statements of the tenants.
29. The matter was then listed before the Tribunal again on 7 April 2006. The tenant appeared in person by telephone and the landlord appeared in person.
30. The landlord advised that she now modified the claim made to that set out in her submission of 27 March 2006, namely:
(a) Two weeks rent for the fortnight commencing 1 September 2005 of $500.00
(b) Cleaning costs of $680.00
(c) Carpet cleaning of $155.00
(d) Lost rent during the week taken to clean, being $250.00
31. The tenant advised that Mr Grace was not being co-operative and would not provide a statement. The tenant choose not to have a summons issued for his attendance. The tenants said that his wife was a smoker and smoked inside.
32. The landlord gave evidence that the final clean had been undertaken to university students over 3 days and the next day the carpet cleaners came.
33. The matter was then reserved for a decision in writing to be given.
34. Subsequent to the matter being reserved the tenant forwarded to the Tribunal further submissions received by the Tribunal on 11 April 2006. These submission have not been read and form no part of the present decision.
Findings of fact:
35. The Tribunal is only required to come to relevant findings of fact on the balance or probabilities.
36. In the present case an Ingoing Condition Report was prepared and signed by the parties (section 29 Residential Tenancies Act 1997). This documents indicates the premises were ageing but clean. The tenants did not take issue with any lack of cleanliness in that report.
37. The tenants claim that the premises were in fact not clean at the time they took possession and that they declined an offer from the landlord to have the premises cleaned, rather they voluntarily undertook that task themselves. The Tribunal is not convinced that this was the case, but in any event it is irrelevant. Prescribed term 54 provides that the landlord must hand over the premises in a reasonable clean condition at the start of the lease. If the landlord is prepared to do this but the tenants chooses to undertake that task themselves then the landlord has honoured her obligation.
38. The tenants claim that they have carried out various small improvements to the house. Absent some agreement with the landlord for these improvement to be made, the tenants are in breach of prescribed term 67. If the tenants have the landlords permission to carry out these improvements then in the absence of any agreement with the landlord to the contrary, the tenants are not entitled to any compensation from the landlord for the improvements.
39. The Tribunal has had the benefit of the photographs of the house at the end of the lease after Mr Graces cleaning. These photographs show that the cleaning commissioned by the landlord was justified. In fact the tenants were not present after the cleaning by Mr Grace and so have no direct knowledge of the quality of the job undertaken by Mr Grace. The landlord did personally see the premises as well as taking the photographs.
40. The tenants assert that the landlord sacked or dismissed Mr Grace before he had completed the cleaning. The landlord denies this as does her husband who was also present on the occasion in question. There is no evidence from Mr Grace and the tenants declined to compel his attendance. The tenants themselves were not present on the occasion and so cannot give probative evidence of what in fact happened. The Tribunal has no reason to disbelieve the landlord and so finds that Mr Grace carried out his functions unhindered by the landlord.
41. The tenants had a dog and two cats in the house. The tenants claim that their dog is an exception to the general rule that dogs and carpets don’t mix. The Tribunal has heard many cases of dogs and cats living inside houses and regularly hears the assertion from tenants that their dogs and cats are the exception. The Tribunal has no difficulty accepting the landlord’s evidence that the house smelt from the dog, the carpets required cleaning and the scratch marks on the back door were caused by the dog.
42. The landlords claim that the urgency of their departure deprived them of the opportunity to carry out the cleaning. They further assert that rain in the days preceding their departure prevent them from filling the holes dug by the dog in the back yard and mowing. These matters are irrelevant to the Tribunal’s consideration. Leases are contracts governed by the common law of contract save to the extent that the Residential Tenancies Act 1997 or some other statute modifies or abrogates the common law. It is a central plank of contract law that strict performance of contractual obligations is required, mere personal inconvenience or difficulty in performing is no defence to a failure to carry out contractual obligations (Cheshire and Fifoot Law of Contract 8th ed at [9.5]). The tenants contractual obligation was to return the premises to the landlord in the state in which it was received minus fair wear and tear (prescribed term 64). It is a matter for the tenants how they go about satisfying that contractual obligation, but the obligation is not one that can be delegated to Mr Grace or any other person. The tenants remain personally liable for performance of the contract, and in the present case that obligation was not discharged.
43. The landlord gave evidence that the cleaning took 3 days and the carpet cleaning took one day. The Tribunal has no reason to disbelieve this. It is not commercially practicable to lease a house whilst cleaning is taking place and nor is it the case that prospective tenants can be found immediately after the cleaning is complete. Accordingly the claim for one weeks loss or rent for the down time involved in the cleaning is reasonable in the circumstances.
44. The Tribunal has perused the competing rent ledgers and is satisfied that the tenants were in fact in rent arrears of two weeks at the time of vacation of the premises. The tenants assert that a payment was made for the sum in dispute which appears to have gone astray. It is the tenants duty to ensure that the rent payments reaches the landlord. It is not the landlords duty to chase the tenants. In the present case the landlord denies having received the sum and the tenants have not adduced evidence from the bank to the contrary. Further, the Tribunal notes that the landlord has consistently maintained the claim for rent arrears from the first exchange of correspondence but curiously the tenants did not take issue with the claim until late in the piece. Even the claim filed by the tenants in the Tribunal did not take issue with the landlords rent claim.
45. The Tribunal finds that the tenants were in fact 2 weeks in rent arrears at the end of the lease.
46. The landlord produced invoices for the cleaning and carpet cleaning. These invoices were not challenged by the tenants and appear reasonable on their face. The Tribunal finds that these payments should be awarded to the landlord.
47. The Tribunal therefore orders:
a)The tenants, Richard O’Sullivan and Lesley O’Sullivan are to pay the landlord, Sue Coleman, the sum of $1585.00 within 28 days of this decision being published.
b)That the Office of Rental Bonds is directed to release the whole of the bond to the lessor.
c)That the lessor is to give credit to the tenants for any sum received from the Office of Rental Bonds.
A. Anforth
Member
11 May 2006
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