Salvemini v Abuelmagd - [2021] SADC 110

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
SALVEMINI v ABUELMAGD
[2021] SADC 110
Judgment of her Honour Judge Schammer
12 October 2021
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - JUDICIAL REVIEW
Minor Civil Review of an order made by a Magistrate with respect to a transferred proceeding under the South Australian Civil and Administrative Tribunal Act 2013.
Damage sustained to kitchen bench top during the course of a residential tenancy.
Landlord lodged compensation and bond claim. Magistrate ordered payment of the sum of $1,400.00 from the bond to the landlord, including a sum of approximately $190.00, for damage to the kitchen bench top.
Landlord lodged Notice of Review as to the adequacy of that allowance.
The Application for Review was heard on 1 July 2021, at which time the court ordered the appellant provide further quotations for the cost to repair the kitchen bench top.
On 14 September 2021, the appellant forwarded to the court four further quotations, being fresh evidence, which was not available to the Magistrate.
Orders:
The decision of the Magistrate is varied to include a sum of $850.00, in lieu of $190.00, for compensation for the damage to the kitchen bench top.
As the bond has already been distributed in accordance with the orders of the Magistrate, I order:
1. Judgment in favour of the appellant as against the respondent in the sum of $660.00.
2. No order as to costs.
South Australian Civil and Administrative Tribunal Act 2013 (SA) s 38; Magistrates Court Act 1991 (SA) ss 38, 39; Residential Tenancies Act 1995 (SA) s 69, referred to.
Harradine v District Court of South Australia [2012] SASC 96, considered.

SALVEMINI v ABUELMAGD
[2021] SADC 110
[Civil]
Introduction

On 14 December 2018, Wael Metwally Ali Abdalla Abuelmagd (the respondent), entered into a residential tenancy agreement (RTA) as tenant with respect to a property at 19 Exmouth Road, Exeter (the property).
The property is owned by Heidi Salvemini (the appellant). The appellant did not engage a property manager and instead dealt directly with the respondent with respect to the RTA.
The initial RTA was for a fixed term of 12 months, which was renewed for a further fixed term of 12 months on 13 December 2019.
In May 2020 the respondent informed the appellant of a necessity for him to terminate the RTA early, in order to relocate interstate to pursue employment opportunities.
The respondent and his family vacated the property on 2 July 2020. Before doing so, the respondent arranged for various photographs to be taken of the property and for video recordings to be made, to confirm the state of the property at handover.
The appellant attended the property at 2:30pm on 2 July 2020, by which time the respondent had vacated the property.
At that time, she noticed damage to the laminate on the kitchen bench top and made other observations as to the cleanliness of the property and areas on the walls where the respondent had ‘patched up’ the paintwork, using a slightly different coloured paint.
On 4 August 2020 the appellant lodged a ‘Compensation or bond claim’ with the South Australian Civil and Administrative Tribunal (SACAT) with respect to the damage she identified to the property at the time of the handover (claim).
By the claim, the appellant sought payment of the sum of $4,980.90, which sum included components for rent in arrears, water usage, break tenancy costs, cleaning and repairs. Specifically, the claim included a sum of $2,720.00 for damage said to have been sustained to the kitchen bench top during the course of the tenancy.
The claim proceeded to a hearing before a judicial registrar, Magistrate Files, on 23 September 2020. The judicial registrar was exercising his jurisdiction to deal with a transferred proceeding within the meaning of s 38C of the South Australian Civil & Administrative Tribunal Act 2013, such that the claim is a “minor civil action”.
The Magistrate heard evidence from the parties and had access to the various photographs and video recordings taken by the appellant and the respondent at or about the time the respondent vacated the property.
By order made on 28 September 2020, the Magistrate determined that from the bond of $2,700.00, an amount of $1,400.00 was to be paid to the appellant, with the remainder, $1,300.00 to be refunded to the respondent.
The sum of $1,400.00 ordered to be paid to the appellant, comprised a sum of $300.00 for water usage/supply charges and break lease charges and a further sum of $1,100.00 said to comprise the following:
1.A portion of the claimed cleaning costs;[1]
2.The full claimed cost to re-paint damaged walls within the property ($870.00); and
3.A notional amount for the damage to the kitchen bench top.
[1] The amount claimed being $105.90.
The Magistrate did not specify the amount included for the claimed damage to the kitchen bench top. However, he stated the allowance included “compensation for a couple of hours” for cleaning.
The hourly rate claimed for cleaning was $21.18.
As such, it appears the Magistrate allowed a sum of approximately $190.00 by way of compensation for the damage to the kitchen bench top.
The Application for Review
On 19 October 2020, the appellant filed a Notice of Review.
By that Notice, the appellant seeks a review of the Magistrate’s decision to order the respondent pay only the sum of $190.00 for the damage to the laminate bench top and in lieu seeks an order that compensation of $2,720.00 be ordered for the replacement of the damaged laminate bench top.
The appellant takes no issue with any other aspect of the orders made by the Magistrate.
The Procedure on Review
Section 39 of the Magistrates Court Act 1991 (MCA) outlines the procedure to be followed in the determination of minor civil actions in the Magistrates Court and provides a mechanism whereby a party dissatisfied with the judgment given in a minor civil action, may apply to the District Court for a review of the matter.
Section 38(7) of the MCA states:
(7)The following provisions apply to such a review by the District Court:
(a)     subject to paragraph (ab), the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(ab)if, in the case of a review that relates to a minor civil action in respect of a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013, a party was represented by a legal practitioner at the proceeding, then the party may be represented by a legal practitioner at the review by the Court;
(b)     the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)     the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)     in determining the matter, the Court may—
(i)affirm the judgment; or
(ii)rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A)substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e)     in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
In Harradine v District Court of South Australia [2012] SASC 96 at [53], Blue J outlined the principles which apply to a review by a District Court Judge of a minor civil action.
The review is not in the nature of an appeal, nor is it necessarily a hearing de novo as the judge is entitled to have regard to the evidence adduced before the magistrate. The judge is not required to re-hear the evidence, although they may do so. Where a case turns on disputed facts or credibility, the judge may consider it appropriate to hear the evidence fresh. The judge may also receive ‘fresh evidence’ in certain circumstances.
Ultimately, s 38(7)(e) MCA, requires the judge to ‘act according to the equity, good conscious and the substantial merits of the case without regard to technicalities and legal forms’.
The Hearing of the Review
The appellant attended the hearing of the Application for Review in person and the respondent attended by way of telephone link. Both parties were unrepresented, as they had been at the hearing before the Magistrate.
During the hearing I heard submissions from both parties with respect to the issue in dispute, namely the appellant’s claim for compensation for damage said to have been sustained to the laminate kitchen bench during the course of the tenancy. I also heard brief evidence from both parties on that issue.
In addition, I had the benefit of reviewing the video material and photographs that had also been available to the Magistrate.
The Evidence
There are two bench tops in the kitchen at the property, one that serves as an “island bench” (albeit fixed to a wall at one end) and one bench top adjacent to the rear wall of the kitchen, housing the oven/stove top (oven bench top).
The damage said to have been sustained to the kitchen bench top comprises two specific areas on the island bench, namely:
1.A small chip in the laminate located above and to the right of the kitchen sink (the chip); and
2.A circular area of discolouration, where the laminate appears lighter, immediately to the right of the kitchen sink (the discolouration).
Both areas of damage are apparent in the photographs supplied to the court by the appellant and in the video recording submitted by the court to the appellant.
The respondent acknowledges that there is a small chip on the island bench top. On 21 November 2019 the respondent submitted a maintenance form to the appellant wherein he expressly referred to this damage, which he described as ‘that hole on the kitchen counter that popped out without using that area of the counter’.
The respondent gave evidence before the Magistrate that he was uncertain how the chip was sustained. He said that he first noticed it after he returned from a period overseas and suggested that it possibly came out of the heat associated with the home environment or alternatively, because of an issue with the quality of the bench top. He told the Magistrate that following the submission of the maintenance form, the appellant had attended at the property and observed the damage but had not taken any action with respect to it. He understood that this may have been because it was something to do with a warranty issue.
As to the second area of damage on the island bench, the respondent denied that he had done anything to cause that damage.
The respondent relied upon statutory declarations provided by two witnesses who were present at the property on 2 July 2020 immediately before he vacated the property and made various observations with respect to the property.
In a statutory declaration made on 15 September 2020, Mr Jay Amar stated:
… During my presence on the inspection, I have witnessed that the house cleanliness was in its satisfactory condition, paintworks on walls has visible marks and scuffs which due to normal wear and tear, ensuite bathroom and main bathroom shower and taps are in good working order, garage door tested and working, heating and cooling air-condition tested and working and kitchen benchtop is clean and no marks or discolouring. Overall, the property looks decent to me. (my emphasis)
A statutory declaration made on 16 September 2020 by Mostafa Fahim Abdelwahab Basiouny, includes the following:
… I found the house to be in an excellent condition in terms of cleanliness and functionality with no damage to any of the house components. The only thing I noticed was couple of spots on the living room walls paint that needed retouching. I found no damage or discolouration in the kitchen benchtop. (my emphasis)
The respondent also relied upon two video recordings, one of which was made primarily by Mr Mostafa and another taken by his wife, both on 2 July 2020. The area of discolouration cannot be seen in these recordings.
However, at the time the recordings were made, a small organic compost bin was positioned on the kitchen bench top, directly to the right of the sink. That bin was placed directly over the area of discolouration, such that it covered it.
The appellant gave evidence before the Magistrate that when she arrived at the property at around 2:30pm on 2 July 2020, it was vacant. She conducted a walk-through of the property and when she was in the kitchen, observed the small organic bin adjacent to the sink on the bench top and moved it to place it underneath the sink. It was then that she noticed the area of discolouration on the kitchen bench top, immediately under where that bin had been located.
She immediately took a photograph of the discolouration, which photograph was provided to the Magistrate.
The appellant also provided to the Magistrate a quotation for the replacement of the damaged bench top from Alluring Kitchens dated 29 July 2020. The quotation reads as follows:
Quote: Replacement of damaged benchtop.
Colour is no longer available. Both tops have been quoted.
Supply and install of new laminate benchtop
Includes cut out for sink and cooktop provision.
Install existing gas cooktop and sink.
Silicon to tiles.
Based on island benchtop. Approx 2.7 x .9 and .9 x .6
Total = $2,630 + GST
Dumping if required is $90 + GST …
The appellant informed the Magistrate that the repair work as quoted had not been undertaken and that there may be an additional fee (not included) for the sink to be removed and replaced by a plumber.
The appellant informed the Magistrate that she intended to replace the bench top, noting that the property was a brand new house at the time the respondent first moved in and had never previously been lived in.
The respondent gave evidence that he did not intentionally place the organic bin on the bench top so as to try to hide any damage to that bench top.
He said “I did not leave the house with that patch there”[2] and referred to the fact that neither Mr Amar, nor Mr Mostafa, who had provided statutory declarations of their observations on 2 July 2020, had observed that patch. He said he did not know how the patch had come to be there.
[2] SACAT transcript of hearing at p 38.
Findings of the Magistrate
The Magistrate observed that pursuant to s 69(1)(c) of the Residential Tenancies Act 1995 (Act), it is a term of a residential tenancy agreement that the tenant must not intentionally or negligently cause or permit damage to the premises or ancillary property.
He further observed that pursuant to s 69(3) of the Act, at the end of the tenancy, the tenant must give the premises and ancillary property, back to the landlord in reasonable condition and in a reasonable state of cleanliness.
As to whether the premises are in a ‘reasonable condition’, the Magistrate noted that this was an objective standard to be applied by the court having regard to all of the circumstances. He further observed that pursuant to s 69(4) of the Act, that the court was required, when deciding whether the premises were in reasonable condition, to take into account both the condition of the premises when the tenant took possession and the probable effect of reasonable wear and tear since that time.
The Magistrate reviewed the various materials provided to him and the evidence given by the parties at the hearing. He correctly noted that the landlord (appellant) held the legal onus of proving a breach by the tenant.
As to the claim relating to the damage to the kitchen bench top, Magistrate Files determined that he was satisfied that the respondent had breached the obligation to return the premises at the end of the tenancy in reasonable condition. He observed that the property comprised a newly built home prior to the tenancy, with no previous tenancy, such that the kitchen bench top would have been in as new condition at the commencement of that tenancy. He noted the two areas of damage to the bench top which and although expressed, it is implicit that he found that damage had been caused by the tenant during the course of the tenancy.
Magistrate Files observed that the claim made by the appellant included the cost to replace the entirety of the bench top and determined that any compensation awarded should only reflect the fact that the damage to the bench top caused by the tenant was minor.
It was on that basis that he then made the orders as previously stated, including a component of approximately $190.00 to reflect compensation for that damage.
Submissions/Evidence on the Review
On the review, the appellant submitted there were two issues with respect to the orders made by the Magistrate, namely:
1.That the order did not specify how much compensation was actually ordered pertaining to the damage to the bench top; and
2.That the Magistrate did not explain why he had allowed the sum as allocated.
In this respect she noted that of the amount ordered of approximately $190.00 reflected only a very small percentage of the amount sought of $2,720.00.
In response to specific questioning by me, the appellant confirmed that the laminate that had been used on the bench tops was now discontinued and that is why the quotation provided by Alluring Kitchens referred to the replacement of the laminate not only on the island bench, but also the undamaged oven bench top.
She explained that she had attempted to obtain additional quotations for the replacement of the laminate but had been unable to do so due to a new tenant having taken possession of the property and a lack of available tradesmen due to the pandemic.
The respondent gave evidence that he did not agree that the area of discolouration reflected damage that had been caused by him during the tenancy.
He gave the following evidence:[3]
So yes, it's around 40 or 50 cm, maybe, beside the sink and the point here that it is away from any source of heat. It is something that came out like this. I don't know how did it come. It was not something that came out from any action or anything that I placed on that part. This is my main argument here regarding this stain and the small hole on that benchtop which I highlighted to Ms Salvemini since November '19 which was around eight months before I leave the property.
[3] T 5.4-13.
The respondent went on to give evidence that both areas of damage ‘came out of the blue’.[4] He expressed an opinion that the laminate may have been ‘over-stretched over the bench top’ thus causing the discolouration.[5] Alternatively, he stated that the discolouration may have occurred ‘because of the sun’s rays or something of that sort’.[6]
[4]    T 6.14.
[5]    T 6.16.
[6]    T 6.21-22.
I requested the appellant to provide three further quotations with respect to the cost to replace the laminate on the bench top by COB 6 August 2021, with such quotations to specify those costs attributable to the island bench only and if possible, to make reference to a potential cause of the damage.
There was a delay in the provision of the quotations by the appellant, such that they could not be provided within the timeframe as ordered. I subsequently granted an extension of time for the quotations to be provided to COB 10 September 2021.
The appellant submitted four quotations by email on 14 September 2021. Despite the late provision of this material, it is in the interests of justice that it be received.
Included in the materials provided was a further quotation from Alluring Kitchens dated 11 September 2021 which refers to the supply and install of ‘new laminate bench tops’ in the sum of $1,980.00 (exclusive of GST).

Notwithstanding the wording of that quotation, the fact it does not include a component for the cook top to be disconnected and reconnected and is for a sum lower than that initially quoted by them, suggests that this quotation relates only to the cost to replace the laminate on the island bench and not the oven bench top.
The quotation also states ‘from the image provided it appears to be heat-related. Blistered.’
The three other quotations provided all relate to the installation of a new laminate bench top and by their terms, appear to relate only to replacing the laminate on the island bench. Those quotations are respectively in the following sums:
1.The Retro Revamp Team - $2,200.00 (plus GST)
2.GSB4 Pty Ltd - $2,190.00 (plus GST)
3.Adelaide Kitchen Renovations - $3,200.00 (plus GST).
It is apparent that each of these quotations was provided on the basis of photographs and measurements provided by the appellant, rather than as a result of an onsite attendance.
Findings
I have carefully considered the evidence that was provided to the Magistrate, both by way of documentation and oral testimony, in addition to the further evidence provided on review.
I am satisfied that there are two areas of damage on the island bench top, namely the small chip and the area of discolouration.
The small chip is likely to have been caused by connection with a sharp object during day to day use of that island bench by the tenants and is arguably the result of reasonable wear and tear.
I am satisfied that it is more likely than not (ie on the balance of probabilities) the area of discolouration was caused by the actions of the tenant (and/or his family) during the course of the tenancy. I accept that the respondent may have no actual knowledge of how the damage was caused and it may be that it was caused during his personal absence from the property while overseas, by other family members or visitors to the home.
However, the area of discolouration is consistent with it being caused by a hot plate or saucepan being left on the laminate, thus blistering the surface below.
I accept the evidence of the appellant that the properly was brand new at or about the time of the commencement of the tenancy and that the respondent and his family were the first people to live at the property.
As such, I agree with the observations of the Magistrate that the bench top was in ‘as new condition’ at the commencement of the tenancy and thus, in damaging the bench top during the tenancy and specifically in causing the area of discolouration, the respondent has not given the property back to the appellant in ‘reasonable condition’ notwithstanding that some reasonable wear and tear is to be expected during the 18 months of that tenancy.
In my view, the area of discolouration represents damage going beyond that of ‘reasonable wear and tear’.
The Magistrate made an order of only $190.00 by way of compensation for such damage.
In my view, this sum is insufficient to properly compensate the appellant for the damage.
I agree with the observations of the Magistrate that the appellant should not be entitled to the full cost to replace the kitchen bench top having regard to the nature and extent of the damage.
The property is used for residential tenancy purposes and is an investment property. It is to be anticipated that there will be some damage to the property during the course of such tenancies consistent with ordinary and reasonable wear and tear.
The choice of laminate for the surface of the kitchen bench top was no doubt precipitated by cost considerations. Laminate is a cheaper alternative to more costly surfaces such as reinforced stone or granite. However, it is also less durable and more prone to damage, particularly damage by heat.
The property has been re-let without the damage being repaired and the court has no knowledge as to what, if any, further damage may have been sustained to the bench top since the respondent vacated the property.
Of the four additional quotations provided by the appellant, the quotation provided by Adelaide Kitchen Renovations is significantly more expensive than the others.
The average of the other three quotations is a sum of $2,123.33 (exclusive of GST). Each of these quotations relates only to the replacement of the laminate on the island bench. As that particular laminate has been discontinued, the appellant will, in any event, also need to replace the laminate on the oven bench top, in order for the two bench tops to match, incurring further expense.
In all of the circumstances, I consider it appropriate to award a sum of $850.00 by way of compensation for the damage to the island bench top, representing approximately 40% of the average of the three quotations.
Orders
The decision of the Magistrate is varied to include a sum of $850.00, in lieu of approximately $190.00, for compensation to the landlord for the damage to the kitchen bench top.
Given the passage of time, the bond of $2,700.00 has already been distributed to the parties in accordance with the orders made by the Magistrate on 28 September 2020.
To reflect the findings of this court, it is therefore necessary for an order to be made to provide for payment by the respondent to the appellant of the sum of $660.00, representing the difference in the amount of compensation awarded by this court with respect to the damage to the kitchen bench top ($850.00), as to that allowed by the Magistrate ($190.00).
As such, this court orders:
1.Judgment in favour of the appellant as against the respondent in the sum of $660.00.
2.No further order as to costs.