Robinson v Schubert - [2012] QCAT 664

CITATION:

Robinson v Schubert and Anor [2012] QCAT 664

PARTIES:	Tony Francis Robinson
v
Horst Schubert Marina Schubert

APPLICATION NUMBER:

MCDT1023-12

MATTER TYPE:

Residential tenancy matters

HEARING DATE:

7 November 2012

HEARD AT:

Southport

DECISION OF:

Paul Favell, Member

DELIVERED ON:

20 December 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondents pay to the applicant the sum of $3,413 forthwith.

2. The RTA pay out $1,000 held in bond with respect to the premises at 4 Brighton Parade, Southport to the applicant in part payment of the sum of $3,413.

CATCHWORDS:

Minor civil dispute residential tenancy – application for bond

Residential Tenancies and Rooming Accommodation Act 2008, s 137

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Tony Francis Robinson

RESPONDENT:

Horst Schubert and Marina Schubert

REASONS FOR DECISION

The applicant applies to the Tribunal for an order for the payment of the bond for the rental property at 4 Brighton Parade, Southport, Queensland 4215, of which he is the lessor.
The applicant contends that the rent arrears started approximately 2 years ago and had continued since around that time. The applicant contends that, pursuant to a court order, the respondents should have been out of the property with all their possessions by 30 August 2012. The applicant took possession of the rental property on 31 August 2012.
The applicant inspected the house and reported the following: “pool motor not working/filthy pool; pool area disgusting/filthy; carpets ruined; oven filthy and ruined; holes in doors and walls; Auto Garage not working; Shower glass wall broken; vanity surfaces damages; most globes missing/switches broken; the house dirty throughout; garage full of rubbish; piles of rubbish outside beside garage; glass doors removed from second bedroom put in garage not working.”
The applicant claims for a total of $10,368 of repairs which is particularised as follows:
Carpet                 $2900
Painting               $1980
Vertical blinds       $250
Auto garage door $440
Gas oven            $848
Pool motor  $289
Vanity repair        $165
Shower glass       $300
Electrician           $150
Rubbish removal   $350
Bunnings misc.     $2700
Total                   $10368
The applicant also claims for $1,750 which represents 5 weeks rent owing from 30 July 2012 to 30 August 2012. The amount claimed excludes legal costs and costs for his personal labour.
The respondent, Mr Horst Schubert, claims that the applicant entered the premises before the respondents had time to exit the premises properly and changed the locks. As a result, Mr Schubert contends that his hard wired alarm system is still installed at the premises. Mr Schubert claims sole responsibility for payment of the rent.
The exit condition report provided substantiates the reported condition of the premises upon exit.
The entry condition report (Exhibit 7) with some minor exceptions shows the property as being undamaged and clean. The exceptions are that in bedroom 1 there was a yellow stain on the carpet. In the en suite, the side wall of the vanity was damaged. In bedroom 3 there was a yellow stain on the carpet and one of the towel rails in the bathroom was broken.
With the exceptions of the claim for a pool motor of $289, electrician of $150, rubbish removal of $350, the claims were supported by receipts. The Bunnings claim of $2,700 of miscellaneous was supported by a series of Bunnings receipts. I am told by the applicant that that expenditure was necessary in order to bring the house into the condition it was prior to it being let.
A series of photographs was tendered showing the pool in a dirty condition, parts of areas inside the garage showing damage done and rubbish left behind. There was also a picture of a broken screen door, a dirty oven, an electrical connection pulled from the wall, damage done to a door in bedroom 3, attempts at repairs to some walls, and general rubbish left behind.
The respondents have let the premises for some ten years. I was told that the rental is $350 per week and the bond lodged at the RTA is $1,000.
The tenants moved out on 30 August 2012. The respondents admit that there was damage done to the shower screen. So far as the painting is concerned, they say that the painting had been done six years ago and in 2010. They claim that the paint was just old.
They say with respect to the carpet it was 12+ years old. It had some old stains on it and would have had to be changed in any event.
They said that when they left the pool motor was working and that they did not break the garage door. So far as the vanity repair was concerned they say that there were no big parts missing but there may have been some small black marks.
They contend that they had paid their rent up to 30 August 2012.
They deny any responsibility for the curtains and say that they just faded.
They claim that because they were locked out on 30 August 2012 they did not have the opportunity to remove an alarm which they had wired in to the premises, which alarm they say cost them $1,800 and was fully serviced.
They deny that portions of the rubbish shown in the photographs was left there and say that it was later taken away by the council.
There is some difficulty in determining which claims were properly made here as it seems to me on examination of the Bunnings invoices that there has been a purchase of items which were not necessarily related to any action or inaction by the tenants. Further, there were claims made by the applicant for cleaning, for example, for high pressure cleaning around the pool, which in my view is something which would have been required because of time and is not other than normal wear and tear.
There is a difficulty also with respect to the outstanding rent. I am not able to determine with precision when the rent was paid up to and there is a disagreement about further payments. I am however satisfied on the balance of probabilities that there was five weeks rent owing and I allow the claim for rent of $1,750.
I accept the submissions made by the respondents about the carpet, painting and vertical blinds and I do not intend to allow the claims in respect of those items. The claim in respect of the garage door is disputed and I cannot be satisfied that that repair is the responsibility of the respondents. I accept that condition of the gas oven and I will allow that claim but I do not accept the claim for the pool motor, there being a positive assertion made under oath that the pool motor was working when the respondents left. Further, there is no quote or receipt produced in that respect. I allow the claim for the repair to the vanity and the shower glass and I allow the claim for rubbish removal.
If the house required significant work as the applicant has claimed, I would have expected more evidence, photographic or otherwise, to support that claim. I am not satisfied that it was in such a bad condition as the applicant contends for although I can see that there was a certain amount of rubbish left behind in the garage and outside and that there were doors that had been damaged.
I note that the carpet cleaning was done and paid for by the respondents.
The respondents also produced a statutory declaration that became Exhibit 9 swearing to the cleanliness and tidiness of the house during the time the house was observed by Mr Curry, a property manager.
In my view, the items which are set out in the Bunnings receipts have not been sufficiently connected with the need for them to be acquired because of action or inaction of the tenants. Some of the items are items which would be required in any event after they left such as pool treatment items. There are claims for a heavy duty tarpaulin, the reason for which has no explanation. There are claims for many items associated with maintenance. In the absence of further evidence I cannot be satisfied that all of the expenditure at Bunnings should be the responsibility of the respondents.
I allow the claim of rent arrears of $1,750. I allow the claim for the gas oven for $848, the vanity repair of $165, the show as glass of $300 and rubbish removal of $350. The order will be the respondents pay to the applicant the sum of $3,413 forthwith.
As to the claim for the security system left behind, that was not the subject of a claim lodged in this Tribunal and in my view does not come within the minor civil dispute jurisdiction.
I further order that the RTA pay out $1,000 held in bond with respect to the premises at 4 Brighton Parade, Southport to the applicant in part payment of the sum of $3,413.