St George Community Housing Limited v Natasha Jane Pearson

[2024] NSWCATCD 69

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

St George Community Housing Limited v Natasha Jane Pearson [2024] NSWCATCD 69

Hearing dates:

12 September 2024

Date of orders:

17 December 2024

Decision date:

17 December 2024

Jurisdiction:

Consumer and Commercial Division

Before:

N Kennedy, Senior Member

Decision:

(1)   The respondent, Natasha Jane Pearson, is to pay the applicant, St George Community Housing Limited, the sum of $548.80 within 14 days of the date of these orders.

Catchwords:

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – Condition reports – Fair wear and tear

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Residential Tenancies Regulation 2019 (NSW)

Residential Tenancies and Housing Legislation Amendment (Public Housing) – Antisocial Behaviour Bill 2015 (NSW)

Cases Cited:

Vasales v Li [2021] NSWCATAP 295

Yang v NSW Land and Housing Corporation [2016] NSWCATCD 37

British Westinghouse Electric and Manufacturing Company Limited v Underground Electric Railways Company of London Limited [1912] AC 673

BM & JA Holdings Pty Limited v Clarence Street Developments Pty Limited [2012] NSWSC 1236

Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd (1976) 1 NSWLR 5

Texts Cited:

Nil

Category:

Principal judgment

Parties:

St George Community Housing Limited (Applicant)
Natasha Jane Pearson (Respondent)

Representation:

Mr Kioa (Applicant)
Ms Cheung (Applicant)

Solicitors:
Homeless Persons Legal Service (Respondent)

File Number(s):

2024/00198728

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This is an application by St George Community Housing Limited (the landlords) for orders pursuant to section 187(1)(d) of the Residential Tenancies Act 2010 (RT Act) for compensation to be paid to the landlord for damages caused by the tenant upon the vacant possession of the property being handed back to the landlord. The claims the landlord is making for compensation are for the 51 items listed in the 156B evidentiary certificate and reproduced in a table format including the respondent’s responses to the itemised claims and provided to the Tribunal at the hearing. (Exhibit A2)

2. The landlord has withdrawn the following items claimed from Exhibit A2: Items 7, 8. 9, 11, 19, 20, 23, 24, 29, 33, 34, 35, 41, 49, 50 and 51. That leaves a total of 35 line items from the 156B evidentiary certificate in contention.

Procedural History

3. The landlord made the original application to the Tribunal on 29 May 2024.

4. The application was listed for Conciliation and Hearing on 21 June 2024. Both the tenant’s representative and the landlord’s representative attended the hearing, however, the parties were unable to come to an agreement. The matter was adjourned to be set down for a Special Fixture hearing.

Evidence and Hearing

5. The landlord’s documentary evidence was filed and served on 5 July 2024. The tenant’s representative confirmed that a copy of the evidence had been served on the tenant in accordance with the Tribunal’s directions on 21 June 2024. The landlord’s bundle was marked Exhibit A1.

6. The tenant’s documentary evidence was filed and served on 19 August 2024. The landlord’s representative confirmed that a copy of the evidence had been served on the tenant in accordance with the Tribunal’s directions on 21 June 2024. The tenant’s bundle was marked Exhibit R.

7. A further table showing the items claimed in the 156B evidentiary certificate, the cost of each item and the respondents position on the claim was handed up at the hearing, without objection, and marked Exhibit A2.

8. Mr Kioa and Ms Cheung, representatives employed by the landlord, attended on behalf of the landlord and also gave evidence under a solemn promise to tell the truth. Ms Szabo, a solicitor from Homeless Persons Legal Service, represented the tenant at the hearing. The tenant did not attend the hearing. Each party in attendance at the hearing was given an opportunity to present their case in accordance with the principles of procedural fairness.

Material Facts

9. The dispute arises from a standard form residential tenancy agreement made on 7 April 2020 in respect of a residential premises. The agreement was for 13 weeks commencing on the 7 April 2020, with the fixed term ending on 7 July 2020. The rent payable under the agreement was $550 per week, with the first payment payable on the 7 April 2020.

10. An ingoing condition report was completed by the landlord, and photographs have been supplied with that ingoing report, as well as photographs from approximately two months after the end of the tenancy, provided in their evidence bundle. No exit condition report has been filed. The landlord has supplied a copy of the residential tenancy agreement, tenant ledger, an ingoing condition report from approximately 3 months after the end of the tenancy, confirmation of the eviction date, a 156B evidentiary certificate, an asset scope of works from the day the tenancy ended and correspondence between the parties, among other documents.

11. The tenant has not completed the ingoing condition report provided in the landlord’s bundle, however, the tenant’s bundle does contain an ingoing condition report completed by the tenant at the commencement of the tenancy.

12. The tenant has provided written submissions, the tenant signed ingoing condition report, a copy of Exhibit A2, correspondence between the parties, photographs from the tenancy, invoices for tenant completed works and copies of various of the respondent’s policies, among other documents.

13. The tenant lived in the premises for approximately 4 years.

14. The landlord has supplied a 156B evidentiary certificate in the bundle of evidence showing their claims. These items can be grouped into the following claims for breach (omitting the claims withdrawn by the landlord at the hearing) to be:

1. Replacement of kitchen including cupboards, tiling, plumbing and electrical, range including wiring in kitchen and pantry cupboard Preparation of walls in hall

2. Removal of the floor coverings in the hall, lounge, bedroom 2 and kitchen

3. Wall skim coats and preparation (painting not included) as claimed below:

1. Hall, lounge, laundry, bathroom and kitchen unauthorised painting

2. Bedrooms 1 & 2

3. Laundry wall damage other than unauthorised painting

4. Replacement of tenant installed cabinet in bathroom

5. Laundry batten light fixture replacement

6. Bedroom 1 floor replacement for area under tenant installed built-in wardrobe

7. Removal of transfers and hooks and soap holder etc in bathroom

8. Replacement of internal laundry door

9. Replacement of damaged internal door hardware to bedroom 2

10. Removal of large items from bedroom 2

15. The total amount claimed by the landlord, after the withdrawn items have been removed, is $15,869.78. The landlord has submitted to the jurisdictional limit of $15,000.

Contentions of the Parties

16. The landlord contends that the tenant failed to return the property in a reasonably clean condition and as nearly as possible in the same condition as they received the property, fair wear and tear excepted.

17. The landlord contends that the unauthorised works carried out by the tenant in the premises are substandard and as they were not rectified upon vacant possession, they are tenant damage that is other than fair wear and tear.

18. The tenant contends that the unauthorised alterations have been completed by professional contractors. The tenant further contends that the landlord has not demonstrated any loss as a result of the unauthorised alterations, as the premises remained habitable and tenantable.

19. The tenant contends that the unauthorised works were rectifications works required due to a roof repair and should be considered urgent repairs.

20. The tenant contends that some damages were identified by the tenant on the ingoing condition report and that the outgoing photographs were taken significantly after vacant possession was given to the landlord.

21. The tenant also contends that the landlord did not mitigate their losses, if any, by allowing the tenant to return to carry out any rectification works as per their policy. The tenant also contends that the 156B evidentiary certificate establishes reasonable costs of works performed, not that the works were required.

22. The tenant contends that the landlord did not comply with the Uncollected Goods Act and disposed of the tenant’s goods without serving the appropriate notices. Therefore, the tenant contends they should not be liable for a disposal cost of goods where the landlord has not complied with the Uncollected Goods Act.

Jurisdiction

23. In order for the Tribunal to exercise its powers contained in the RT Act, the Tribunal must be satisfied there is a residential tenancy agreement between the parties in compliance with section 13 of the Act, pursuant to section 6 of the RT Act.

24. An application for breach of a RT agreement must be made within 3 months of the applicant becoming aware of the breach, pursuant to section 190(1) of the RT Act and regulation 39(9) of the RT Regulations.

25. The RT Act, section 187(4)(a) and regulation 40(b) prescribe the jurisdictional monetary limit of the tribunal for matters other than the bond to be $15,000. The claim before the Tribunal in this matter exceeds this jurisdictional limit, however, the landlord submits to the jurisdictional limit.

26. The tenant vacated the premises on 1 March 2024, when the landlord became aware of the breaches and the application was made on 29 May 2024. I am satisfied on the evidence before me that the Tribunal has jurisdiction to hear this matter.

Considerations

27. Section 51(3) of the RT Act, which is a term of every residential tenancy agreement (section 51(5) RT Act) states:

(3) On giving vacant possession of the residential premises, the tenant must do the following—

(a) remove all the tenant’s goods from the residential premises,

(b) leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and, if there is a condition report, as set out in the condition report applicable to the premises when the agreement was entered into,

(c) leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy,

(d) remove or arrange for the removal from the residential premises of all rubbish, having regard to the condition of the premises at the commencement of the tenancy,

(e) return to the landlord all keys, and other opening devices or similar devices, provided by the landlord to the tenant.

28. The Tribunal must determine if the tenants breached the residential tenancy agreement by breaching their obligations under section 51(3) of the RT Act. This obligation requires the tenants to leave the premises, as nearly as possible, in the same condition, fair wear and tear excepted, as at the commencement of the tenancy.

29. The Appeal Panel defined the principles which the Tribunal should apply when assessing damages in end of tenancy matters in Vasales v Li [2021] NSWCATAP 295 at [29] as:

(1) a tenant, for the term of the residential tenancy agreement, is bound to keep the premises in a satisfactory condition, but is not liable for damage or deterioration of condition due to fair wear and tear;

(2) if any want of repair is alleged and proved in fact, it lies on the tenant to show that it comes within the exception. Fair wear and tear means the reasonable use of the house by the tenant and the ordinary operation of natural forces: Regis Property Co Ltd v Dudley [1959] AC 370 (referred to with approval by the NSW Court of Appeal in Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWCA 224);

(3) The requisite standard is that commonly prevailing among the tenants of comparative premises and that the issue should not be approached from the standpoint of the fastidious and obsessive landlord: Pancio v Crompton & Jennings [2015] NSWCATAP 110. In Pancio v Crompton & Jennings [2015] NSWCATAP 110 the Appeal Panel at [24] applied the principles set out in Adoncello v Sazdanoff [2006] NSWCTTT 577 where the Tribunal referred with approval to the following statement in Fitzpatrick v Wu (RT 01/16425):

“... It is the concept of “fair wear and tear “ which causes the disputes in these matters and in particular whose standards determine whether wear and tear is fair” ... Given that the section is intended to have application to premises generally in NSW, Parliament could not have intended that the standard of “fair” wear and tear be the subjective standard of each individual landlord. Presumably Parliament had in mind something more objective in nature. In the absence of any guidance on the point from the Supreme Court and having regard to the apparent absence of consideration on the point in other decisions of the Tribunal, the present Tribunal takes the view that the requisite standard is that commonly prevailing among the tenants of comparative premises and that the issue should not be approached from the standpoint of the fastidious and obsessive landlord.”

(4) Secondly, where the cost of restoring or replacing property is disproportionate to the extent of the damage, the measure of damages is the actual loss in value. In some cases, there can be a significant difference between the cost of restoring damaged property and the loss of capital value associated with that loss. In such cases, the Tribunal will assess the loss by reference to the lesser of the cost of restoration and the loss in capital value. Often the latter will be substantially less that the former and will need to take into account depreciation values.

30. Section 29 of the RT Act states:

(1) A condition report relating to the condition of residential premises on a day specified in the report must be completed by or on behalf of a landlord before or when the residential tenancy agreement is given to the tenant for signing.

(2) The landlord or landlord’s agent must, before or at the time the tenant signs the residential tenancy agreement, give to the tenant 2 copies, or one electronic copy, of the completed condition report.

Maximum penalty--20 penalty units.

(3) The tenant must complete and give one copy of the condition report to the landlord or landlord’s agent not later than 7 days after taking possession of the residential premises and both the landlord and the tenant must retain a copy of the report.

(3A) Subsection (3) does not apply to the tenant if the landlord or landlord’s agent has failed to give to the tenant copies of the condition report in accordance with this section.

(4) At, or as soon as reasonably practicable after, the termination of a residential tenancy agreement, the landlord or landlord’s agent and the tenant must complete the copy of the condition report retained by the landlord or the tenant under this section, in the presence of the other party.

(5) It is not a breach of subsection (4) for the condition report to be completed in the absence of the other party if the party completing the report has given the other party a reasonable opportunity to be present when it is completed.

(6) A condition report is to be in the form prescribed by the regulations and may be included in a prescribed standard form of residential tenancy agreement.

31. Section 30 of the RT Act states:

(1) A condition report that is signed by both the landlord and the tenant is presumed to be a correct statement, in the absence of evidence to the contrary, of the state of repair or general condition of the residential premises on the day specified in the report.

(2) This section does not apply--

(a) to any matter that could not have reasonably been discovered on a reasonable inspection of the premises, or

(b) to any statement in the report about which the tenant makes a written dissenting comment on the copy of the report completed by the tenant and retained by the landlord.

32. The tenant has not completed and signed the condition report submitted into evidence by the landlord at the commencement of the tenancy. However, the landlord accepted that the tenant had completed the ingoing condition report provided in the tenant’s bundle at the time of the commencement of the tenancy. The landlord disputes that this signed copy was returned to the landlord at the time. However, the comments made by the tenant are accepted as the tenant’s record of the condition of the premises at the time the tenancy commenced.

33. The landlord did not notify the tenant of the date and time of an exit inspection and has not provided an exit condition inspection report. The landlord has provided photographs after vacant possession taken on 22 April 2024, almost two months after the vacant possession date. An asset scoping tool completed on 1 March 2024 by the landlord is provided listing works scoped. The works attributed to tenant damage at this time are scoped to be $7,753.26 and does not contain a number of items pressed by the landlord at the hearing, including the replacement of the kitchen (cupboards, tiling, plumbing and electrical), replacement of pantry cupboard in the kitchen and replacement of the range in the kitchen. This would indicate the landlord has not assessed these items to be in disrepair at the time of the inspection on 1 March 2024.

Alterations to the premises by the tenant

34. Section 66 of the RT Act states:

(1) A tenant must not, without the landlord’s written consent or unless the residential tenancy agreement otherwise permits, install or cause to be installed a fixture or make or cause to be made any renovation, alteration or addition to the residential premises.

(2) A landlord must not unreasonably withhold consent to a fixture, or to an alteration, addition or renovation that is of a minor nature.

(2A) The regulations may make provision for or with respect to the following--

(a) the kinds of fixtures, or alterations, additions or renovations that are of a minor nature in relation to which it would be unreasonable for a landlord to withhold consent,

(b) the circumstances in which the giving of consent by the landlord to the fixture, alteration, addition or renovation may be conditional on the fixture only being installed, or the alteration, addition or renovation only being carried out, by a person appropriately qualified to install a fixture, or carry out alterations, additions or renovations, of that kind.

(3) A landlord may withhold consent to any other action by the tenant that is permitted under this section whether or not it is reasonable to do so.

(4) A fixture installed by or on behalf of the tenant, or any renovation, alteration or addition to the residential premises by or on behalf of the tenant, is to be at the cost of the tenant, unless the landlord otherwise agrees.

(5) This section is a term of every residential tenancy agreement.

35. Section 69 of the RT Act states:

(1) The Tribunal may, on application by a landlord, make any of the following orders--

(a) an order prohibiting the tenant from removing a fixture,

(b) an order that the tenant compensate the landlord for the cost of rectifying work done by or on behalf of the tenant on the residential premises.

(2) The Tribunal may make an order under subsection (1)(b) only if the Tribunal is satisfied that--

(a) the work was not done to a satisfactory standard, or

(b) the work, if not rectified, is likely to adversely affect the landlord’s ability to let the residential premises to other tenants.

(3) The Tribunal may make an order that the tenant compensate the landlord for the cost of rectifying work done by or on behalf of the tenant whether or not the landlord consented to the carrying out of the work.

36. The tenant admits that they made a number of alterations without the landlord’s consent. The landlord has conceded they were aware of the tenant’s breach in relation to section 66 of the RT Act from not long after the alterations were completed by the tenant in late 2021 or early 2022 during the tenancy, although the exact date was not identified.

36. Had the landlord brought any action in this application pursuant to section 190 of the RT Act for breaches pursuant to sections 66 of the RT Act and/or sought any remedy pursuant to section 69 of the RT Act, the landlord would likely have been substantially outside the time limitations of the RT Act and RT Regs for bringing such a claim. However, the landlord has not pressed these claims.

37. The landlord is pressing breach pursuant to section 51(3) of the RT Act only. It is of note, in relation to alterations made by the tenant, that the RT Act contemplates that the landlord would only be entitled to be compensated if the conditions of sections 69(2)(a) and (b) of the RT Act are satisfied.

Replacement of kitchen including cupboards, tiling, plumbing and electrical, range including wiring in kitchen and pantry cupboard

39. The ingoing condition report provided by the landlord indicates that the benchtop and tiling and the cupboards are original to the premises, aged, marked and wear and tear noted. The tenant’s ingoing condition report indicates that one electrical power point is not working, and the cupboards are unclean with cockroaches present.

40. The ingoing condition report provided by both parties shows there was no pantry cupboard or range hood (or kitchen stove extraction fan) in the premises at the commencement of the tenancy.

41. The tenant has admitted that in October 2022, the tenant paid a contractor to remove the existing kitchen and install a new replacement kitchen.

42. Therefore, I find the tenant has breached section 51(3)(b) of the RT Act, by not returning the premises in a similar condition as they received the premises as the alterations included the removal of the existing kitchen and replacement with a new different kitchen. The alterations were deliberate and could not be considered ‘fair wear and tear’.

43. However, when assessing if the landlord is entitled to compensation due to the breach as a result of the alterations, the Tribunal considers Yang v NSW Land and Housing Corporation [2016] NSWCATCD 37, where the Tribunal stated at [52]:

“The guiding principle for assessing damages is that a party is to be put in the same position, not in a better or worse position, that the party would have been in had the breach not occurred.”

44. The Tribunal went on the discuss the assessment methods applied in past Tribunal cases for losses, in Yang v NSW Land and Housing Corporation at [63]:

“In Palumbo v Tomlinson [2012] NSWCTTT 109, the Tribunal awarded a tenant compensation for mould damaged furniture, bedding, clothes and belongings (including a golf bag and exercise equipment) on the basis of the cost of both new and second hand cost of replacement items (depending on the particular item), less a depreciated amount for the age of the goods that required replacement (paras [33]-[59]). In Aboutaleb v Al-Hayek [2011] NSWCTTT 378, the Tribunal awarded a tenant compensation for mould damaged furniture, bedding, clothing and belongings taking into account depreciation for 5 years use of the bedding, and the second hand value of the belongings (at para [69]). In Rolls v NSW Land and Housing Corporation [2010] NSWCTTT 458 the Tribunal held that were a tenant’s goods are destroyed “the amount of the loss is usually fixed by reference to the second hand market value i.e. taking into account depreciation of the second hand goods” (at para [59]), citing Cachia v Kniepp (RTT 91/006944).”

45. The landlord has provided a 156B evidentiary certificate evidencing the reasonable costs of the works claimed in this matter. However, the Tribunal accepts the tenant’s argument in relation to the explanatory note to the Residential Tenancies and Housing Legislation Amendment (Public Housing) – Antisocial Behaviour Bill 2015 passed in 2015, which addressed that a 156B evidentiary certificate did not to prevent the argument about whether the work was necessary as a consequence of a breach by the tenant.

46. The landlord did not dispute that the kitchen, installed by the tenant, had been professionally installed by a tradesperson. The landlord offered no submissions or supporting documents to show the replacement kitchen (including cupboards, plumbing, tiling and electrical) installed by the tenant were in an unsatisfactory condition compared to the original kitchen in the premises at the commencement of the tenancy. The landlord offered no explanation or supporting documents as to why the kitchen installation by the tenant made the premises untenantable, or why the kitchen installed by the tenant should be replaced. No supporting documents were provided to demonstrate the depreciated value of the kitchen the tenant removed.

47. There is insufficient evidence to find the replacement kitchen installed by the tenant was not done to a satisfactory standard or that the newly installed kitchen adversely affected the landlord’s ability to let the premises to another tenant. Additionally, there is insufficient evidence to find the landlord has suffered any loss due to the installation of new kitchen. It is also worth noting that there was no pantry or range in the pre-existing kitchen, these additions were added by the tenant, and could be considered an upgrade of the facilities. Therefore, the claims for damages for the kitchen replacement including cupboards, tiling, plumbing and electrical, range including wiring and pantry cupboard are dismissed.

Removal of the floor coverings in the hall, lounge, bedroom 2 and kitchen

48. The ingoing condition report shows the vinyl floor coverings in the lounge, bedroom 2 and kitchen as new, undamaged and clean. The vinyl flooring in the hall is marked as clean and in working order. The tenant has agreed with these assessments by the landlord without any comment in the tenant’s ingoing condition report.

49. The tenant has installed laminate hardwood flooring in these areas in 2022. The tenant engaged a contractor to install the laminate hardwood flooring in these areas.

50. The landlord referred to some slight chipping or lifting along the edges of limited minor areas of the laminate flooring installed by the tenant in the rooms other than bedroom 2. The landlord has not identified any damage to the flooring laid by the tenant in bedroom 2.

51. The tenant has indicated that the floors were replaced in October 2022 and used for approximately 18 months. During that time a roof leak was reported by the tenant to the landlord, that affected the ceiling. The tenant reported water pooled inside the front door, an area referred to by the landlord as showing slight chipping or lifting at the edge of the flooring. Additionally, in January 2023 the tenant reported via text that the roof leak as having flooded all the way to the lounge and water was making it’s way to the kitchen. The landlord’s maintenance log provided by the landlord refers to roof and ceiling works being attended to under work orders from May to October 2023.

52. I accept the tenant’s submissions that the minor damage to the laminate flooring laid by the tenant in the hall, lounge and kitchen, that could be considered other than fair wear and tear, was likely as a result of the roof leaks allowing water to flood through the flooring.

53. However, I find the tenant has breached section 51(3)(b) of the RT Act, by not returning the premises in a similar condition as they received the premises as the alterations included the removal of the existing vinyl flooring in the hall, lounge, kitchen and bedroom 2. The alterations were deliberate and could not be considered ‘fair wear and tear’.

54. In considering whether the landlord was entitled to compensation as a result of the tenant’s breach, the Tribunal has again considered the principles in Yang v NSW Land and Housing Corporation. The landlord did not dispute that the flooring, installed by the tenant, had been professionally installed by a tradesperson. The only submissions put by the landlord for losses related to affecting the landlord’s ability to re-tenant the premises due to minor chipping and lifting. No supporting documents showed that these damages were substantial or required the relaying of new flooring. No supporting documents were provided to demonstrate the depreciated value of the flooring the tenant removed.

55. Further, it is arguable that the landlord contributed to the claimed damages, although minor in nature based on the photographs by the landlord, considering the substantial time period taken in repairing the roof leaks according to the landlord maintenance log. The tenant reports flooding from the roof and ceiling leaks on 19 January 2023 to the landlord’s representative via text message and the first action logged in the maintenance log in relation to roof and ceiling leaks is 19 May 2023. There are then several entries in the landlord’s maintenance relating to the ceiling up to 20 October 2023.

56. There is insufficient evidence to find the replacement flooring installed by the tenant was not done to a satisfactory standard or that the tenant installed flooring adversely affected the landlord’s ability to let the premises to another tenant. Additionally, there is insufficient evidence to find the landlord has suffered any loss due to the tenant installed flooring. Therefore, the claims for damages for the replacement of the tenant installed flooring are dismissed.

Wall skim coats and preparation (painting not included) as claimed below:

Hall, lounge, laundry, bathroom and kitchen unauthorised painting

57. The landlord’s claim is that the tenant painted the walls in the hall, lounge, laundry, bathroom and kitchen without prior approval. The landlord’s ingoing condition report states the walls in the hall, lounge, laundry, bathroom and kitchen are freshly painted and undamaged. The tenant has agreed with this statement in relation to the kitchen, laundry, bathroom (in relation to walls that are not tiled but painted only) and lounge. The tenant has noted that the hall ceiling is showing water damage and there are signs of mould on the walls in their ingoing condition report.

58. The tenant has admitted that in October 2022, the tenant paid a contractor to paint the kitchen, lounge, laundry, bathroom and hall walls.

59. Therefore, I find the tenant has breached section 51(3)(b) of the RT Act, by not returning the premises in a similar condition as they received the premises as the alterations included the repainting of the kitchen, lounge, laundry, bathroom and hall painted walls. The alterations were deliberate and could not be considered ‘fair wear and tear’.

60. In considering whether the landlord was entitled to compensation as a result of the tenant’s breach, the Tribunal has again considered the principles in Yang v NSW Land and Housing Corporation. The landlord did not dispute that the painting, completed by the tenant, had been professionally completed by a tradesperson.

61. The landlord offered no submissions or supporting documents to show the kitchen, lounge, laundry, bathroom and hall walls, painted by the tenant, were in an unsatisfactory condition compared to the original kitchen, lounge, laundry, bathroom and hall walls in the premises at the commencement of the tenancy. The landlord offered no explanation or supporting documents as to why the kitchen, lounge, laundry, bathroom and hall walls painted by the tenant made the premises untenantable, or why the same walls painted by the tenant should require preparation for a topcoat. No supporting documents were provided to demonstrate the depreciated value of these walls painted by the landlord prior to the commencement of the tenancy.

62. The landlord has indicated initially that they were pressing item 50 of the table in Exhibit A2 in relation to the removal of hooks and brackets. The outgoing photographs relied upon by the landlord to demonstrate the condition of the premises at the time of vacant possession, were taken approximately eight weeks after the end of the tenancy and it is unknown whether any or which trades had been in the premises in that 8 week period or any work they had undertaken. The landlord subsequently withdrew the claim for the removal of hooks and brackets from the lounge.

63. It is also appropriate to again note the reports of water penetration through the hall ceiling and the landlord’s extensive time period to commence and complete repairs, as noted above, could have arguably negatively impacted the condition of the walls.

64. There is insufficient evidence to find the kitchen, lounge, laundry, bathroom and hall walls painted by the tenant were not done to a satisfactory standard or that the newly painted walls adversely affected the landlord’s ability to let the premises to another tenant. Additionally, there is insufficient evidence to find the landlord has suffered any loss due to the newly painted walls. Therefore, the claims for damages for the kitchen, lounge, laundry, bathroom and hall walls in relation to the unauthorised painting by the tenant are dismissed.

Bedrooms 1 & 2

65. The landlord and tenant’s ingoing condition reports agree that the walls in bedrooms 1 & 2 are undamaged and freshly painted. The outgoing photographs show that wall brackets associated with the built-in wardrobes installed by the tenant remained permanently attached to the walls.

66. The tenant does not deny that the built-in wardrobes were installed by the tenant and that the whole of the wardrobe was not removed by the vacant possession date.

67. Therefore, I find the tenant has breached section 51(3)(b) of the RT Act, by not returning the premises in a similar condition as they received the premises as the brackets holding the built-in wardrobes remained attached to the walls in bedrooms 1 & 2. The alterations, or installation of the built-ins, were deliberate and could not be considered ‘fair wear and tear’.

68. The tenant has argued that the landlord would not be entitled to any compensation in relation to the rectification of any damage caused to the bedroom walls due to the removal of the built-in brackets, as the landlord did not mitigate their losses by providing the tenant with an opportunity to rectify the issues after vacant possession.

69. The tenant will not be liable for compensation or damages if the landlord has not taken all reasonable steps to mitigate their losses. British Westinghouse Electric and Manufacturing Company Limited v Underground Electric Railways Company of London Limited [1912] AC 673; BM & JA Holdings Pty Limited v Clarence Street Developments Pty Limited [2012] NSWSC 1236.

70. Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd (1976) 1 NSWLR 5 at [9] held that the party seeking to rely on the failure to mitigate defence, bears the onus of proof in respect to the failure to mitigate:

“Although a plaintiff cannot recover full loss consequent upon a defendant’s breach of contract, where he could have avoided such loss by taking reasonable steps, nonetheless a defendant who seeks to rely upon a failure to mitigate must show that the plaintiff ought, as a reasonable [person], to have taken certain steps for the purpose of doing so.”

71. The tenant became homeless upon vacant possession. The tenant’s representation has indicated that the tenant is difficult to contact, this being sighted as the reason no statement, statutory declaration or affidavit was provided in their evidence bundle and why the tenant did not attend the hearing.

72. The landlord commenced communication with the tenant in, what appears to be, an attempt to mitigate losses by emailing the tenant concerning goods left in the premises in which the landlord would dispose of, should the tenant not collect them. The tenant was provided additional access periods to remove their goods. These, on the balance of probabilities, could be considered steps to mitigate their losses, particularly as the tenant did attend and organised further access to remove the remainder of her goods.

73. The tenant’s representatives have raised the landlord policies, stating they will speak to tenant’s about any end of tenancy charges and provide an opportunity for the tenant to rectify any damages. The tenant did not attend the hearing in person and has not provided any statement, statutory declaration, or affidavit, despite being legally represented, indicating these conversations did not occur. No further evidence was provided by the tenant demonstrating the landlord’s failure to mitigate or attempt to comply with this policy.

74. There is insufficient evidence to find that the landlord has failed to mitigate their losses in this matter.

75. In considering whether the landlord was entitled to compensation as a result of the tenant’s breach, the Tribunal has again considered the principles in Yang v NSW Land and Housing Corporation. The landlord is seeking the reasonable costs to rectify the damages caused to the walls, not including the repainting costs. The landlord has provided a 156B evidentiary certificate demonstrating the reasonable costs to rectify the damage by skim set the walls and prepare them for a topcoat of paint. The total of items 30, 31 and 32 of the table in Exhibit A2 is $263.80 for bedroom 1 and for items 42, 43 and 44 of the Table in Exhibit A2 is $263.80.

76. For the same reasons as above, the landlord has not demonstrated any loss for the tenant painted walls, not affected by the built-in wardrobes. Doing the best that I can on the evidence before me, I estimate the area affected by the wardrobe to reasonably be approximately one quarter of the walls as the wardrobes appeared to stretch along one wall in each room.

77. I find the reasonable cost of rectification for the damages caused by the built-in wardrobes installed by the tenant not fully removed prior to vacant possession is $527.60 x 0.25, totalling $131.90.

Laundry wall damage other than unauthorised painting

78. The parties agree on their respective ingoing condition reports that the laundry walls were undamaged.

79. The outgoing photographs relied upon by the landlord to demonstrate the condition of the premises at the time of vacant possession, were taken approximately 8 weeks after the end of the tenancy and it is unknown whether any or which trades had been in the premises in that period or any work they had undertaken. It is unclear as to what or whom may have caused the damage to the laundry walls.

80. There is insufficient evidence to find the tenant has breached section 51(3)(b) in relation to the damage to the walls (other than the tenant’s unauthorised painting) of the laundry and the claim for compensation on this ground is dismissed.

Replacement of tenant installed cabinet in bathroom

81. The landlord’s ingoing condition report states the bathroom cabinet is aged but in working order. The tenant has noted that the mirror is old and the cabinet is not clean in their ingoing condition report. There is no mention of damage to the cabinet on the tenant’s ingoing condition report.

82. The tenant did not dispute that they replaced the bathroom cabinet with an unauthorised cabinet of their own. The tenant did not dispute that this cabinet did not have the mirror doors attached at vacant possession, making the installed cabinet not done to a satisfactory standard.

83. Therefore, I find the tenant has breached section 51(3)(b) of the RT Act, by not returning the premises in a similar condition as they received the premises as the tenant had replaced the bathroom cabinet. The alterations, or installation of the bathroom cabinet, was deliberate and could not be considered ‘fair wear and tear’.

84. In assessing whether the breach entitles the landlord to any compensation and considering section 69(2)(a) of the RT Act, I find the incomplete cabinet is not done to a satisfactory standard. Considering a similar argument put forward by the tenant in relation to mitigation by the landlord above, for the same reasons above, I find this argument fails and the tenant has failed to prove the landlord did not mitigate their losses.

81. The 156B evidentiary certificate indicates the reasonable cost of replacement of the bathroom cabinet is $519.71. However, the landlord’s ingoing condition report notes the cabinet as aged. The landlord did not provide any evidence of the age or the depreciable life of the cabinet. Taking into consideration Yang v NSW Land and Housing Corporation quoted above, awarding the landlord the reasonable cost of a new cabinet for a cabinet that was noted to be aged, on the balance of probabilities, would put the landlord in a better position than if the breach had not occurred. Therefore, as the landlord has not provided any evidence of the depreciated value of the cabinet or it’s age or depreciable life, I award the landlord nominal damages of $100.

Laundry batten light fixture replacement

86. The landlord’s ingoing condition report indicates that the laundry light fixture is undamaged. However, the landlord has agreed that the tenant’s ingoing condition report was completed at the time of the commencement of the tenancy.

87. The tenant has noted on their ingoing condition report that the laundry light fixture is broken. The ingoing condition report was completed by the landlord on 25 March 2020 and the tenancy commenced on 7 April 2020. The tenant’s ingoing condition report is a contemporaneous record at the commencement of the tenancy, as agreed by the landlord, and therefore, a preferable record.

88. In considering all the circumstances, on the balance of probabilities and the evidence before me, there is insufficient evidence to find the tenant has breached section 51(3)(b) of the RT Act in relation to the laundry light fitting. Therefore, the claim for compensation on this ground is dismissed.

Bedroom 1 floor replacement for area under tenant installed built-in wardrobe

89. The landlord noted that there was new vinyl flooring in bedroom 1 on the ingoing condition report, which was not disputed by the tenant. The tenant agrees that they installed an unauthorised built-in wardrobe in this room. The tenant also acknowledges that the wardrobe was partially removed by the tenant upon vacant possession.

90. Therefore, I find the tenant has breached section 51(3)(b) of the RT Act, by not returning the premises in a similar condition as they received the premises as the shell of the built-in wardrobes remained attached to the floor in bedroom 1. The alterations, or installation of the built-ins, were deliberate and could not be considered ‘fair wear and tear’.

91. The landlord is claiming compensation for the replacement of the vinyl tile flooring damaged in the removal of the incomplete, or remainder, of the built-in wardrobe. The tenant has raised the argument of the landlord’s failure to mitigate as a defence. For the same reasons as above, this argument fails, and the tenant has not demonstrated the landlord’s failure to mitigate.

92. The 156B evidentiary certificate indicates the reasonable cost of replacement of the vinyl flooring tiles in the area damaged by the built-in is $354.73. However, the landlord’s ingoing condition report notes the vinyl flooring was new in March 2020, and therefore, the depreciable age would be 4 years. Taking into consideration Yang v NSW Land and Housing Corporation quoted above, awarding the landlord the reasonable cost of new flooring tiles, on the balance of probabilities, would put the landlord in a better position than if the breach had not occurred. Therefore, as the landlord has not provided any evidence of the depreciable life or second-hand value of the vinyl flooring, I award the landlord nominal damages of $100.

Removal of transfers and hooks and soap holder etc in bathroom

93. The tenant has conceded they applied the transfers, hooks and soap holder in the bathroom. The tenant conceded they did not remove these items upon vacant possession.

94. Therefore, I find the tenant has breached section 51(3)(a) & (b) of the RT Act, by not removing all of the tenant’s goods and not returning the premises in a similar condition as they received the premises, as the tenant’s items were left on the tiles in the bathroom. The alterations, or installation of the claimed items on the bathroom walls, were deliberate and could not be considered ‘fair wear and tear’.

95. The landlord is claiming compensation for the removal of the items claimed from the bathroom walls. The tenant has raised the argument of the landlord’s failure to mitigate as a defence. For the same reasons as above, this argument fails, and the tenant has not demonstrated the landlord’s failure to mitigate.

96. The landlord has provided a 156B evidentiary certificate stating the reasonable costs for the removal of the items on the bathroom walls is $116.90. I award the landlord the amount of $116.90 in compensation for the removal of the items from the bathroom walls.

Replacement of the internal laundry door

97. The landlord has noted the laundry door to be freshly painted and undamaged on the ingoing condition report. The tenant has disputed this on the tenant’s ingoing condition report, stating the door is damaged. The landlord has claimed compensation for the replacement of the laundry door, as it is not present in the outgoing photographs.

98. The outgoing photographs relied upon by the landlord to demonstrate the condition of the premises at the time of vacant possession, were taken approximately 8 weeks after the end of the tenancy and it is unknown whether any or which trades had been in the premises in that period or any work they had undertaken. The landlord’s evidence is unclear as to whom may have removed the laundry door.

99. There is insufficient evidence to find the tenant has breached section 51(3)(b) in relation to the damage to the laundry door and the claim for compensation on this ground is dismissed.

Replacement of damaged internal door hardware to bedroom 2

100. The door in bedroom 2 is noted on the landlord’s ingoing condition report as undamaged and freshly painted. The tenant has agreed with this assessment in their ingoing condition report. The tenant acknowledges that the door hardware was damaged upon vacant possession.

101. The tenant’s representative, in oral submissions, indicated that domestic violence may have been the cause of the damage to the door hardware. However, the tenant has not provided a statement, statutory declaration or affidavit in their evidence bundle. The tenant did not attend the hearing and did not give any oral evidence. The tenant has not provided any other supporting documents that identify that the damage to the bedroom 2 hardware was caused, or recorded as damaged, as a result of a domestic violence incident.

102. Therefore, I find the tenant has breached section 51(3)(b) of the RT Act in relation to the door in bedroom 2.

103. The 156B evidentiary certificate indicates the reasonable cost of replacement of the bedroom 2 door including hardware is $552.44. However, the landlord’s has not provided any evidence as to the age, depreciable life or second hand value of the bedroom 2 door. Taking into consideration Yang v NSW Land and Housing Corporation quoted above, awarding the landlord the reasonable cost of a new door, on the balance of probabilities, would put the landlord in a better position than if the breach had not occurred. Therefore, as the landlord has not provided any evidence of the depreciated or second-hand value of the door, I award the landlord nominal damages of $100.

Removal of large items from bedroom 2

104. The landlord has claimed the removal of large items from bedroom 2. The ingoing condition report does not note any items of furniture in the premises at the commencement of the tenancy. The tenant has not noted on their ingoing condition report any large items of furniture in bedroom 2 at the commencement of the tenancy.

105. The landlord’s exit photographs, taken approximately 8 weeks after vacant possession, do not show large items left in bedroom 2. The landlord wrote to the tenant on 3 April 2024 listing items left in the premises and organising access for the tenant to remove these items. The email exchanges between tenant and landlord at this time clearly indicate the tenant did attend the premises to remove goods.

106. The landlord has not provided a list of the large items in bedroom 2 that they say were removed, nor is there any evidence to show that large items were left in bedroom 2 after the tenant’s access to remove goods.

107. There is insufficient evidence to find the tenant has breached section 51(3)(a) in relation to the removal of items from bedroom 2. Therefore, the claim for compensation on this ground is dismissed.

Conclusion

108. Given the findings above in relation to the alterations and the uncollected goods, it is unnecessary to consider the tenant’s submissions relating to urgent repairs or the service of notices for uncollected goods.

109. I have found that there is sufficient evidence before the Tribunal to establish the tenant has breached the residential tenancy agreement by breaching section 51(3) of the RT Act for the above claims and compensation is awarded to the landlord in the amount of $548.80. The tenant is to pay the landlord the sum of $548.80, within 14 days of these orders.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 09 May 2025