Tedesco v Liu

[2015] SADC 50

DISTRICT COURT OF SOUTH AUSTRALIA

(District Court Administrative Appeals Tribunal: Appeal Under Residential Tenancies Act 1995)

TEDESCO v LIU AND ANOR

[2015] SADC 50

Judgment of His Honour Judge Tilmouth

27 March 2015

LANDLORD AND TENANT - RESIDENTIAL TENANCIES LEGISLATION

Orders of the Residential Tenancies Tribunal upheld on appeal.

TEDESCO v LIU AND ANOR
[2015] SADC 50

1. This is an appeal from decisions of the Residential Tenancies Tribunal of 10 December 2014 and affirmed on 11 December 2014 by a different member of the Tribunal.  The decisions ordered that a sum held by way of a security bond lodged with the Tribunal of $940, be paid out to the landlord (appellant) in the sum of $428.67 and to the tenants (respondents) in the sum of $511.33.  For reasons which follow those orders must be affirmed.

2. There are essentially three matters of complaint raised on the appeal.  There was an additional complaint that the appellant was not given proper notice of the first hearing, and that the first member might have in some way been compromised.  These are however of no consequence since the court has reheard the underlying substantive matters on the merits.

3. The first issue raised related to a finding by the Tribunal that a final inspection of the premises was conducted on 12 July 2014, at which the landlord “indicated that the property was reasonably clean at the end of the tenancy and then changed his mind”.  That there was such an occasion was denied on the appeal by the landlord.  There is however anecdotal evidence supporting the fact of such a meeting, comprised of an SMS message on 11 July 2014 (the day before) from the landlord to the tenant inquiring “did you move out today is unit empty?” and a response from the tenant “not yet. I will move out tomorrow … so when will you come to check?”  That there was such an inspection is also supported by a receipt issued by cleaners engaged by the tenants (to be detailed later) in as much as it shares the date of 12 July 2014.  During the course of his submission in reply to the appeal, Mr Tedesco admitted that he did go to the property on 12 July 2014.  He said: “… well with the management I went there about one-ish … Saturday… the 12^th”.  That cause of complaint therefore cannot be sustained.

4. The second issue raised by Mr Tedesco related to a finding of the Tribunal that carpet cleaning claimed by him of $109 was wrongly disallowed “as it is disputed by the tenants who provided a tax invoice for carpet cleaning undertaken on 12 July”.  That finding was upheld in the second reasons of 11 December, when the so called “tax invoice” was referred to as simply an “invoice” in the second reasons of the Tribunal.

5. It is perfectly correct as contended, that the document in question is not a tax invoice as such.  It was never purported to be one by the tenants.  It was a receipt partly written in Chinese, purporting to charge $100 for carpet cleaning in two rooms of the subject premises, dated 12 July 2014.  The receipt was provided by a franchise “Smileclean”.  The fact that the residence was so cleaned is supported by the same sms exchange related earlier, to the extent that the response of 11 July 2014 also included this statement “the carpet cleaning will be finished at 3 o’clock”.  This coincides in point of time with the receipt itself.

6. Mr Tedesco questioned why an enquiry later on 28 August 2014 would be made of him for a copy of his own ‘cleaning receipt’, but it is hardly surprising that even if the premises had been cleaned by the tenant, a landlord would want to clean again.  This aspect of the appeal must therefore also fail.

7. The third issue agitated in support of the notion that cleaning was required of the landlord was by reference to various photographs taken by him some time after the premises were vacated on 13 July 2014.  These photographs were appended to a bundle of documents he submitted during the appeal and were dated 17, 18, 19, 22 and 23 July 2014.  The fact of the matter is that these do not suggest anything untoward or out of the ordinary, or anything requiring further cleaning outside of ordinary wear and tear.

8. Finally the appellant referred to the fact that signed the security bond refund form on 28 August and 1 September 2014.  He argued this amounted to an admission that the amount of $940 was owed to him by way of refund.  However Mr Tedesco himself conceded that when signing the document the tenant “wasn’t too happy with it”.[1]  This state of affairs was confirmed by the tenants: “we found something wrong [so that] when we had the opportunity to file application to complain to the Tribunal we did that”.[2]  Accordingly the execution of the bond form cannot be regarded as any kind of admission of owing the full amount of the refund claimed in light of those events.

   [1]    T6.10-20

   [2]    T10.21-36

9. It might be mentioned that the respondents raised the question of the rent having been unilaterally increased from the 1^st of June 2014, from $235 to $260. Their complaint to that effect may be noted, however as that matter was not agitated before the Tribunal, this court simply has no jurisdiction over that question.

10. For the above reasons, the appeal must be dismissed. There will be no order as to costs of the appeal.