Trimble v Riksen
[2013] QCAT 144
| CITATION: | Trimble v Riksen [2013] QCAT 144 |
| PARTIES: | Vic Trimble (Applicant) |
| V | |
| Mark Riksen (Respondent) |
| APPLICATION NUMBER: | MCDT 2445/12 |
| MATTER TYPE: | Minor civil dispute matter – Tenancy |
| HEARING DATE: | 25 February 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | J Bertelsen, Adjudicator |
| DELIVERED ON: | 25 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The RTA pay out to the parties the rental bond of $8,200.00 as follows: Owner $87.90 Tenant $8,112.10 |
| CATCHWORDS: | Monthly rental applicable to tenancy agreement – state of premises at date of vacate – responsibilities at date of vacate – responsibilities thereafter – state in which premises is required to be left |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | represented by Casey Snell of Ray White, Bulimba |
| RESPONDENT: | Mark Riksen |
REASONS FOR DECISION
By application filed 30 November 2012 Mr Trimble seeks $2,661.51 on account of rent, pool remediation, repairs to walls and additional cleaning.
Background and evidence
Mr Riksen rented the premises 103/90 Wynnum Road, Norman Park under a general tenancy agreement for the period 23 October 2010 to 26 October 2012. The premises was a large 4 bedroom, 3.5 bathroom residence. Mr Riksen vacated the premises on 31 October 2012.
Claim 1 – rent $1,454.51
Ms Snell asserted rent was paid to 26 October 2012, that 5 days rent, 27 October to 31 October 2012 was owing by Mr Riksen i.e. $1,454.51.
The application annexed a ledger for the period 23 October 2012 to 26 October 2012. Mr Riksen produced a complete record of rent payments made by him during the course of the tenancy. Mr Riksen also produced a copy of a portion of the tenancy agreement reciting rent at $8,907.74 per month. He asserted that was the calendar monthly rent having initially made 2 payments in October and November 2010 ($4,100.00 and $7,028.57) so as to have rent paid up to the end of November 2010. He then paid monthly rent at the beginning of each calendar month thereafter. $8,907.74 per calendar month equates to $106,892.88 per annum i.e. $292.85 per day i.e. $2,050.00 per week. That accords exactly with the bond of $8,200.00 paid to the RTA as the bond. There was no suggestion that the bond, particularly for rental of a premises of this calibre, would be anything less than the RTA maximum allowable i.e. 4 week rents equivalent. Nor legislatively could it have been any more.
It appears the rent was increased by 3% on the first anniversary of the tenancy i.e. by $267.23 per month from 23 October 2011. The new monthly rental therefore was $9,174.97. Mr Riksen’s internet transfers continue at $8,907.74 for the months of November and December 2011 and January 2012 but were adjusted to the increased rent for those 3 months by the payment by him of $267.23 on 3 occasions. The internet transfer for monthly rent payable on 1 February 2012 was $9,174.97.
It is apparent that no adjustment for increased rent was made for the period 23 October 2011 to 31 October 2011 i.e. 9 days was paid at the daily rate of $292.85 and not the increased $301.64. The difference payable by Mr Riksen for this period is 10 days x $301.64 – $292.85 = $87.90.
Mr Riksen continued to pay rent (as he had done all along) on or about the first of the month through to his last payment on 2 October 2012 being rent for the month of October 2012. The rent was paid on the first of each month for some 24 months. Even if it was suggested that monthly referred only to a 4 week period the chronology of payments and acceptance of those payments on a calendar monthly basis makes any interpretation other than the rent being paid at the beginning of the calendar month being for the whole of that calendar month illogical and unsustainable in that the agent would have to have tolerated rent being behind for a substantial part of the tenancy. Additionally such an argument would be entirely at odds with the bond quantum. Finally, the Tribunal is satisfied that the only rent for which Mr Riksen is liable is $87.90.
Claim 2 – black spot algae in the pool $200.00
Ms Snell asserted that the black spot algae in the pool was required to be treated after the expiration of the tenancy.
Mr Riksen asserted that the pool was fully cleaned before departure i.e. drained, brushed and refilled. That included adding some 200kg of salt to the pool water. This work was undertaken in conjunction with JC Pools. During the course of the tenancy JC Pools serviced the pool with Mr Riksen paying for chemical additives and the owner being responsible for equipment maintenance.
Ms Snell relied on the report by Brisbane Pool Boys dated 8 November 2012. That report noted “power at the pool will be required before the pool can be cleaned”.
The Tribunal is satisfied on balance that the presence of algae is referable to the pool being left unattended for at least 8 days and power to the pool being disconnected for at least part of that time. There was no evidence produced to suggest the presence of algae as at 31 October 2012. The claim for algae removal is rejected.
Claim 3 – paint and patch wall in second bedroom $517.00
Ms Snell asserted paint chips on the walls that required painting and patching; that the painting was not adequate. Mr Riksen asserted that hooks were removed and walls adequately patched. He followed what he termed “standard patch procedure” and suggested this was just fair wear and tear; that he did it “as good as he could”. It was not clear that the patch painting matched the wall paint. No photographs were produced. More importantly when asked was any opportunity given to rectify Ms Snell answered that she was not sure. In the circumstances there is no persuasive evidence that the patching was not adequate; nor was there any evidence that Mr Riksen was given an opportunity to rectify. The claim for painting and patching is rejected.
Claim 4 – additional cleaning $490.00
Ms Snell stated the overall clean was fine but some cleaning of inside windows, skirting boards and bathroom was nevertheless subsequently required.
Mr Riksen retained the bond cleaner recommended by the owner’s agent Morning Due Cleaning Services to carry out a full bond clean. That was done and he paid their invoice. Mr Riksen asserted that if he was made aware of any dissatisfaction on the part of the owner’s agent he would have had them return to complete anything missed. No photographic evidence was produced. Rather it appears a quote for further cleaning from the same entity was obtained on 9 November 2012 in the absence of Mr Riksen being aware.
No evidence was produced to support any contention that Mr Riksen was given opportunity to rectify any apparent shortcomings on the part of Morning Due. The claim for additional cleaning is rejected.
Orders
The RTA pay out to the parties the rental bond of $8,200.00 as follows:
Owner $87.90
Tenant $8,112.10
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