Vladica v Badawi and Karellas

[2025] NSWCATCD 16

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Vladica v Badawi and Karellas [2025] NSWCATCD 16

Hearing dates:

28 November 2024

Date of orders:

21 March 2025

Decision date:

21 March 2025

Jurisdiction:

Consumer and Commercial Division

Before:

JA Rose, General Member

Decision:

(1)   The Respondents, Sam Badawi and Marzena Karellas must pay the Applicant, Nevin Vladica the sum of $5,650.13 immediately.

(2)   The balance of the Applicant, Nevin Vladica’s claim is dismissed as the Tribunal is not satisfied to the civil standard (being the balance of probabilities) on the material put before the Tribunal that there are grounds to make the orders sought.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — NSW Civil and Administrative Tribunal — Jurisdiction and power — orders by consent of the parties

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — Rent

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — Break fee

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — The tenant’s obligation to return the rented premises reasonably clean at the end of the tenancy agreement

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — The tenant’s obligation to return the rented premises in the same condition as at the start of the tenancy agreement, fair wear and tear excepted

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — Fixtures and alterations — The tenant’s obligation to remove its fixtures and repair damage or compensate the landlord

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Cases Cited:

Adoncello v Sazdanoff (Tenancy) [2006] NSWCTTT 577

Elhassen v Ayoub [2018] NSWCATAP 34

Fitzpatrick v Wu NSWRT, 2001, (01/16425).

Graham, Caste, Pilonchery v French (Tenancy) [2013] NSWCTTT 15

Hall v Hawkins [2015] NSWCATAP 197

Kjoller v Tailford [2016] NSWCATAP 4

Pancio v Crompton & Jennings [2015] NSWCATAP 110

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Nevin Vladica (Applicant)
Sam Badawi and Marzena Karellas (Respondents)

Representation:

S Warner, property manager (Applicant)
S Badawi and M Karellas, in person (Respondents)

File Number(s):

2024/00292365

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This proceeding arises out of a residential tenancy agreement between the applicant as the landlord (the “landlord”) and the respondents as the tenants (the “tenants”) in respect of a residential house at Raglan Street, Mosman NSW (the “premises”), dated 30 March 2023 (the “tenancy agreement”). Pursuant to the terms of the tenancy agreement, the tenants provided a rental bond of $6200 (the “bond”), however that amount was insufficient to cover the total amount claimed by the landlord at the end of the tenancy agreement. Consequently, the landlord claims the remaining balance of $10,473.83 against the tenants.

2. By the application form that was lodged on 9 August 2024, the landlord described the basis of his claim as follows:

“The tenant broke their lease and is required to pay a 2 week mandatory lease break fee. The tenant left the property owing 48 days rent. The tenant owed $152.19 as a final water usage bill. The tenant kept a dog and did not steam clean the carpets on departure. The tenant made many alterations to the property during their tenancy, including 9 security camera[s] installed around the property, two new TV brackets on walls, addition[al] power outlets on walls, drilled holes into the walls to brace shelving units, drilled holes into laundry joinery (cupboard) to [mount] a cordless vacuum cleaner, installed a water filtration unit and drilled a hole through the kitchen floor, welded a chin-up bar to a structural beam in the garage, etc. The tenant refused to remove and make good these alterations and the Landlord has incurred costs in doing so. The tenant left a lot of rubbish around the property and the gardens and grounds were left in a poor condition. These were cleaned up and the Landlord has incurred costs in doing so. The tenant fed Cockatoos on the back deck, establishing and encouraging daily visits. The birds chewed and damaged the balcony rail. The owners hold the tenant responsible for establishing and encouraging this behaviour and have incurred costs in repairing the damage.”

3. The application came before the Tribunal for conciliation and an initial (group list) hearing on 27 August 2024. Conciliation was not successful, so the Tribunal (Member Sutherland) adjourned the proceeding for hearing as a special fixture on a date to be confirmed by the Registrar. In doing so, the Tribunal made directions for both parties to lodge with the Tribunal and provide to each other copies of the documents that they intended to rely on at the hearing. Both parties have lodged documents with the Tribunal, in substantial compliance with those directions.

The hearing

4. The proceeding came back before the Tribunal for hearing by me on 28 November 2024, with an allocation of three hours. The landlord was represented by Raine & Horne real estate at Mosman, his managing agents (the “managing agents”). The tenants appeared in person.

5. The hearing proceeded in the usual manner, with the landlord having to prove its claim to the civil standard, which is the balance of probabilities. Accordingly, the landlord went first, followed by the tenant. After the parties gave a brief summary of their respective positions, both parties had reasonable opportunities to present their evidence, to test the evidence produced by the other party, and to present evidence in response to that evidence. Both parties also had reasonable opportunities to make their arguments to the Tribunal and to respond to the arguments made by the other party. I am satisfied that both parties had a reasonable opportunity to be heard and to have their submissions considered in the proceedings.

6. The landlord confirmed at the start of the hearing that he continues to claim the sum of $10,473.83. That amount was made up as follows:

Rent from 1 May to 17 June 2024	$6,999.22
Lease break fee	$3,100.00
Water usage	$152.19
Carpet cleaning (dog)	$540.00
General cleaning	$770.00
Painting (repair the damaged balustrade and repaint)	$300.00
General repairs (remove chin up bar etc)	$1,895.00
Electrical repairs (remove GPO’s & data)	$486.42
Painting (walls after electrical, holes in walls & cameras)	$1,320.00
Gardens	$1,111.00
Total claim	$16,673.83
Bond	$-6,200.00
Balance	$10,473.83

7. The tenants informed me that they conceded two parts of the landlord’s claim, totalling $1,263.19: the claim of $1,111 for end of lease gardening repairs; and the claim of $152.19 for water usage. The remainder of the landlord’s claims were disputed. In particular, the tenants disputed the claim for a break fee on two grounds: firstly, that they had spent more than $46,000 on the property, improving it for the landlord; and secondly, that they had no choice but to move out of the premises because they were being harassed, pushed and spied on by the landlord and their neighbours, breaching their right to quiet enjoyment of the premises. The tenants also dispute the condition of the premises as recorded in the ingoing and outgoing condition reports that have been produced by the landlord.

8. I reserved my decision at the end of the hearing. For the reasons that I now set out, I have decided that the respondent tenants are liable to pay the landlord the total sum of $5,650.13. The balance of the landlord’s claim should be dismissed.

The common ground between the parties

9. It was common ground between the parties, and I find accordingly, that:

1. There was a residential tenancy agreement between the parties for an initial fixed term of 2 years that started on 15 April 2023 and was scheduled to end on 14 April 2025.

2. The tenants brought the tenancy agreement to an early end, by vacating the premises and handing back the keys to the landlord in early-mid-June 2023.

The evidence

(a)   The landlord’s evidence

10. The landlord relied on the bundle of documents that he lodged with the Tribunal on 27 September 2024 (exhibit L1), which included:

1. a written summary of the landlord’s claim;

2. a bundle of SMS text messages exchanged between the parties at about the start of the tenancy agreement;

3. the tenants’ application to rent the premises;

4. the tenancy agreement;

5. an ingoing condition report for the premises, prepared by the managing agents and dated 25 April 2023 (the “ICR”);

6. a bundle of enlarged copies of various photographs extracted from the ICR;

7. a routine inspection report dated 16 September 2024 (sic), prepared by the managing agents in respect of an inspection said to have been conducted on 25 August 2023 (the “routine inspection report”);

8. an outgoing condition report for the premises, prepared by the managing agents and dated 8 June 2024 (the “OCR”);

9. a bundle of emails exchanged between the parties on and after 17 June 2024, dated variously;

10. a bundle of invoices for the works claimed by the landlord, dated variously;

11. a written chronology of events.

The landlord also relied on a tenant payment history report for the premises, dated 28 November 2024 (exhibit L2).

11. The landlord did not adduce any sworn oral evidence for the Tribunal to consider, although the managing agents made significant oral submissions on his behalf that I have taken to be unsworn evidence for the landlord.

(b)   The tenants’ evidence

12. The tenants relied on the bundle of documents which they lodged with the Tribunal on 22 October 2024 (exhibit T1). That bundle included:

1. a written response to the landlord’s summary document;

2. bundles of SMS text messages, dated variously;

3. a bundle of email correspondence between Mr Badawi and the managing agents;

4. a bundle of invoices, dated variously, said to be invoices for repairs done to the premises at the tenants’ expense;

5. responses to particular photographs in the landlord’s bundles of documents;

6. an invoice and a bundle of messages between the tenants and a pest controller;

7. a bundle of professional cleaning invoices;

8. a transaction receipt for a payment made on 10 May 2024; and

9. the tenants’ “final submission”.

13. The tenants also did not adduce any sworn oral evidence for the Tribunal to consider. They too made significant oral submissions that I have taken to be their unsworn evidence.

Jurisdiction

14. Section 187(1)(c) and (d) of the Residential Tenancies Act 2010 (NSW) (the “RT Act”) give the Tribunal the power to make orders for the payment of money and/or compensation for a breach of a residential tenancy agreement.

15. Based on the common ground between the parties and on the evidence that the parties have produced, I find that there was a residential tenancy agreement in force between the parties and that the Tribunal has jurisdiction to hear and determine this dispute under the RT Act. The total amount claimed by the landlord is within the limits of the Tribunal’s monetary jurisdiction under that Act.

Findings of fact

16. Having weighed and considered the competing evidence produced by both parties – much of which was not the subject of any significant controversy – I am satisfied on the balance of probabilities that the facts of the matter are as follows.

17. The premises is a two-story residential house on landscaped grounds at Raglan Street Mosman, NSW. The managing agents have managed the premises at all material times on behalf of the landlord.

18. The premises contained, amongst other things, the following rooms: an entrance/hallway; a lounge/dining room; a kitchen; a laundry; 4 bedrooms; 2 bathrooms; an additional living room at the rear of the building; and a carport. There was also a large timber balcony at the back of the building.

19. On 23 March 2023, the tenants applied to the managing agents to rent the premises for two years while they knocked down and rebuilt the house on their property, in another part of Mosman. The tenants disclosed on their application that they had two daughters and two dogs. In their application form they disclosed that they wanted to install an air-conditioning system at the premises, secure the main entry door and clean the premises before they moved in. They acknowledged that they had inspected the premises and accepted the property in its current condition. The same day, after the landlord accepted that application, the tenants paid the managing agents a holding deposit of $1,550.

20. On 30 March 2023 the landlord and the tenants entered into the subject tenancy agreement. As noted above, the tenancy agreement gave the tenants the right to occupy the premises for a period of two years that was scheduled to start on 15 April 2023 and end on 14 April 2025. The relevant terms of the tenancy agreement, which were in accordance with the standard form prescribed under the RT Act, with additional terms and special conditions, included the following:

1. the starting rent was $6735 per month (equal to about $1,550 per week), which was payable in advance starting on 15 April 2023.

2. The tenants were required to pay a rental bond of $6200, which was equal to 4 weeks rent at that rate.

3. The tenants were required to pay separately for water usage.

4. The tenants agreed to pay rent on time (clause 3.1).

5. The tenants agreed not to intentionally or negligently cause or permit any damage to the premises (clause 16.4).

6. The tenants agreed that, when the of the premises to the landlord, they would (amongst other things):

1. remove all the goods from the premises (clause 18.1);

2. leave the premises as nearly as possible in the same condition, fair wear and tear excepted, as at the start of the tenancy (clause 18.2);

3. leave the premises reasonably clean, having regard to their condition at the start of the tenancy (clause 18.3); and

4. remove or arrange for the removal of all rubbish from the premises in a way that was lawful and in accordance with council requirements (clause 18.4).

7. The tenants further agreed:

1. not to install any fixture or renovate, alter or add to the premises without the landlord’s written permission (clause 30.1);

2. to pay the cost of a fixture installed by on behalf of the tenants, or any renovation, alteration or addition to the premises, unless the landlord otherwise agreed (clause 30.3); and

3. to repair any damage caused by removing the tenant’s fixtures or to compensate the landlord for the reasonable cost of repair (clause 30.6).

8. The parties agreed that the rules of law relating to mitigation of loss or damage on breach of a contract applied to a breach of the tenancy agreement (clause 40).

9. The tenants agreed to pay a break fee in accordance with s 107 of the RT Act if the tenants ended the tenancy agreement before the end of the fixed term (clause 51).

10. The landlord agreed that the tenants may keep two dogs at the premises (clause 53). The tenants agreed to have the carpets professionally cleaned or to pay the cost of having the carpet professionally cleaned at the end of the tenancy if cleaning was required because an animal had been kept on the premises during the tenancy (clause 55).

11. The tenants further agreed:

1. to regularly mow the lawns and keep the grounds and garden tidy and free of weeds and rubbish and maintain them in their condition, fair wear and tear excepted, as at the commencement of the agreement (clause 57.6); and

2. that the tenants’ obligations under the agreement continued until such time as the tenants had provided vacant possession of the premises, left them in the condition required under the agreement and returned to the landlord or the landlord’s agent all keys, access cards, locks and other opening devices and security items (clause 63.2).

21. Also on 30 March 2023, the managing agents gave the tenants access to the premises on the weekend of 1-2 April 2023, to allow the tenants to measure the rooms in the premises in order to establish whether the tenants’ current furniture will fit in the premises, on the condition that the tenants would return the keys when they have completed that task.

22. On 12 April 2023, the managing agents’ William Duncan conducted an ingoing inspection of the premises, at which he took a large number of photographs to record the condition of the premises. He subsequently prepared the ICR that is in evidence, which included 19 pages of written comments and 66 pages containing copies of those photographs. Those photographs were also available for download from a web link that was stated in the ICR. Both the text of the ICR and the photographs included by the agent recorded that the tenants had started cutting holes into the walls and ceiling in various parts of the premises and had started running cables through various parts of the premises, including various internal rooms and the eaves of the house.

23. Notwithstanding the tenants’ objections, I find on the balance of probabilities that the managing agents provided a copy of the ICR to the tenants on or about 15 April 2023. The tenants did not sign the ICR or return it to the managing agents. While the presumption in s 30 of the RT Act does not apply to that report, I note that neither party has made application to the Tribunal to amend or correct that ICR under s 31 of the RT Act.

24. I will return to the condition of the premises at the start of the tenancy agreement below, as it relates to the issues in dispute between the parties.

25. On 25 August 2023, the managing agents conducted a routine inspection at the premises. In the report that they subsequently prepared for the landlord, they described the condition of the premises as “Good”, describing various rooms as “Well-maintained and presented”. The report further noted that the tenants had mounted televisions on the walls in bedroom 1 and the rear living room, that the door handle had been removed and a lock installed on the door to bedroom 4, and that the lawns were needing a mow.

26. On or about 17 April 2024, the managing agents received a complaint from a neighbour of the premises, which asserted that the tenants were feeding cockatoos and lorikeets on the back balcony at the premises. That day (17 April) the managing agents sent a copy of the complaint to the tenants, asking them to please stop feeding the birds as they were “evidently causing serious damage to the timber railings” on the balcony.

27. Mr Badawi responded at 4 PM the same day (17 April), writing:

Is this a joke.

I am putting my notice to move out.
I had enough of this.
I will start looking for a new place immediately.

On 29 May, at about midday, Mr Badawi gave further notice that the tenants would be vacating the premises before or on Friday, 7 June 2024.

28. On 8 June 2024, the managing agents’ Shann Warner conducted an outgoing inspection at the premises, at which he took a large number of photographs to record the condition of the premises at that time. He subsequently prepared the OCR that is in evidence, which he signed and dated 11 June 2024.

29. The managing agents provided a copy of the OCR to the tenants on or about 11 June 2024, under cover of an email sent at 4:41 PM that day. That covering email stated as follows (my underlining):

Hi Sam,

I have attached the report for your reference.

To summarise

1.   There is a lot of rubbish left around the house. Including full bins, pot plants, dog bed, mats, hoses, basketball net etc etc.

2.   All the wiring you installed (i.e. data/camera’s, power to TV wall mounts etc) needs to be removed and repaired.

3.   The door handle to the 4^th bedroom needs to be reinstated.

4.   The filtration system for the fridge needs to be removed and damage made good.

5.   The gardens and grounds (garden beds, paving, lawns etc) are totally neglected and overgrown.

6.   A lot of things left in the garage – straps and cleaning equip. All need to be removed and any additional wiring (for lights) needs to be either removed and/or signed off by an electrician.

7.   There are numerous walls that have been damaged (hooks or bolts) in particular the 4th bedroom (which you change to the door handle, to be re-instated please) and the middle room where you had the shelving units. I also noted holes in the laundry door from where you screwed the vacuum holder…

8.   The property needs a good clean – including profession[al] steam cleaning [of] carpets and fumigation to satisfy condition for keeping pets.

The owner is now losing rent with an empty property and wants these items addressed asap. Can we meet there to get a plan of action.

In the mean time please remove all rubbish and cleanup gardens and grounds asap.

30. The tenants did not sign the OCR return it to the managing agents, with or without any dissenting comments. Accordingly, the presumption in s 30 of the RT Act also does not apply to that report. As with the ICR, neither party has made application to the Tribunal to amend or correct that OCR under s 31 of the RT Act.

31. The tenants met with Mr Warner at the premises on Wednesday, 12 June 2024. The following day (13 June) at 4:40 PM, Mr Warner sent an email to Mr Badawi that enclosed a bundle of copies of nine photographs that had been taken of the grounds at the premises and a further copy of the OCR. The covering email stated (my underlining):

Hi Sam and Marzena

Further to our meeting yesterday, I wanted to make sure we are all clear on moving forward.

Sam you are still in possession of keys and will access the property on Saturday [15 June] to make good the items on the condition report, with reference to below. I have attached the exit condition report again (which is the primary point of reference). Please read it thoroughly as it includes numerous items that require make good – that we may or may not have covered in our walk through yesterday (including screw holes in the laundry cupboard door from your vacuum mount, for example).

In addition to the report and subsequent to the meeting, I note:

1.   The owner would like the chin up bar removed.   
2.   The owner would like all the cables, GPO’s and data plates removed.
3.   The owner would like all the cameras removed.   
4.   The owner would like the water filter removed.   
5.   The condition of allowing a dog on the premises is that you agreed to
   professionally clean all carpets.   
6.   The owner is concerned that the electrics have been changed in the
   house and would need to [see] an invoice from a qualified electrician
   for the work performed, or [a] letter from a licensed (and insured)
   electrician confirming all works were done professionally and are
   compliant.
7.   In addition to the various light globes etc listed on the report, we are
   having trouble getting the fan in the hall way room (where you had
   installed shelves) to work. Please investigate as we suspect the wiring
   may have been compromised by your other electrical work.
8.   In addition to the cleaning listed in the report, there is soot from your
   BBQ on the wall outside the living room (on the deck). Please have this
   washed off.

Of course, any damage caused by removing these items needs to be made good.

In relation to the gardens and grounds, Sam you have been clear in your message that you will not clean them up. For reference, here are some photos of when you moved in – attached. Could you both please confirm your position on cleaning up the gardens as soon as possible.

32. The managing agents and Mr Badawi exchanged further email correspondence over the following days, but that correspondence does not enlighten the issues that the Tribunal has to consider. It is sufficient to note that the tenants did not undertake any of the rubbish removal or repairs that had been raised in the above correspondence, nor did they collect their remaining goods that had been left in the premises, as detailed in the OCR. Instead, they left the keys in a hidden place on the outside the premises on Monday, 17 June 2024 and sent a photograph of the keys in that position to the managing agents, who collected them later that day.

33. I have decided the landlord’s claim based on these findings.

The applicable law

34. Section 33 of the RT Act provides that a tenant must pay the rent under a residential tenancy agreement on or before the day set out in the agreement.

35. Section 51 of the RT Act sets out the general conditions of use of premises by a tenant. Subsection 51(1)(d) provides that a tenant must not intentionally or negligently cause or permit any damage to the residential premises. Section 51(2) provides that a tenant must keep the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy, and must also notify the landlord of any damage to the premises as soon as practicable after becoming aware of that damage.

36. By s 51(3) of the RT Act, the tenants must, on giving vacant possession of the residential premises:

(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.

For these purposes, s 51(4) defines “residential premises” to include everything provided with the residential premises (whether under the residential tenancy agreement or not) for use by the tenant.

37. Section 66(1) prohibits a tenant from installing or causing to be installed a fixture, or making or causing to be made any renovation, alteration or addition to the residential premises, without the landlord’s written consent. By s 66 (4), any fixture installed by or on behalf of the tenant, or any renovation, alteration or addition to the premises by or on behalf of the tenant, is to be at the tenant’s cost unless the landlord agrees otherwise. Section 67 further provides that a tenant must remove any fixture that was installed by the tenants in accordance with the RT Act or the tenancy agreement, at the tenant’s cost and before the tenants give vacant possession of the premises.

38. By s 69(1)(b), the Tribunal is empowered to make an order, on application by a landlord, that the tenants compensate the landlord for the cost of rectifying work done by or on behalf of the tenants on the premises.

39. Lastly, s 107 gives the Tribunal the power to order the tenants to pay a “break fee”, as compensation to the landlord for any loss caused by the abandonment of the premises by the tenant. That section relevantly provides:

107 Landlord’s remedies on abandonment

(1)    The Tribunal may, on application by a landlord, order a tenant to pay compensation to the landlord for any loss (including loss of rent) caused by the abandonment of the residential premises by the tenant.

(2)    …

(3)    The compensation payable by a tenant under this section in respect of a fixed term agreement for a fixed term of not more than 3 years is the amount of the applicable break fee for the tenancy calculated under subsection (4).

(4) The “break fee” for a fixed term agreement for a fixed term of not more than 3 years is--

…

(c)    if 50% or more but less than 75% of the fixed term had expired when the premises were abandoned--an amount equal to 2 weeks rent, …

(5)    The amount of any money paid to a landlord by a tenant on terminating a fixed term agreement before the end of the fixed term or before otherwise abandoning the premises (other than money previously due to the landlord under the residential tenancy agreement) is to be deducted from any amount payable to the landlord under this section.

40. I have applied these provisions in determining the parts of the landlord’s claim that have not been conceded by the tenants.

Consideration – applying the law to the facts as found

(a)   Water usage

41. The tenants have conceded this part of the claim in the amount of $152.19, as claimed by the landlord. I am satisfied on this basis that there should be an order that the tenants pay this amount to the landlord.

(b)   Gardens

42. The tenants have also conceded this part of the claim in the amount of $1,111.00, as claimed by the landlord. I am satisfied on this basis that there should be an order that the tenants pay this amount to the landlord.

(c)   Rent from 1 May to 17 June 2024

43. As set out above, the tenants’ obligations under the tenancy agreement continued until such time as the tenants had (i) provided vacant possession of the premises, (ii) left the premises in the condition required under the tenancy agreement and (iii) returned to the landlord or the landlord’s agent all keys, access cards, locks and other opening devices and security items (clause 63.2).

44. On the facts that I have found, the tenants did not return all of the keys to the landlord or the landlord’s agent until Monday, 17 June 2024, when the managing agent collected the remaining keys from the hiding place they were left in by the tenants earlier that day. Consequently, the tenants are liable to pay rent under clause 63.2 of the tenancy agreement up to and including that date.

45. According to the uncontested tenant payment history report produced by the landlord (exhibit T2), the tenants’ rent was paid up to and including 30 April 2024, with a part payment of $3,500 towards the next month’s rent. Consequently, the tenants are liable to pay the rent for the period from 1 May 2024 to 17 June 2024 (being 1 month and 17/30 days, or 1.567 months), less that part payment of $3,500. That amounts to a total of $7,051.50, which is payable by the tenants to the landlord.

(d)   Lease break fee

46. Clause 51 of the tenancy agreement provided for the payment of a break fee if the tenants ends the tenancy agreement before the end of the fixed term of the agreement. By the terms of the clause, it does not apply if the tenants terminates the residential tenancy agreement early for a reason that is permitted under the RT Act.

47. While the tenants sought to raise several arguments against the payment of the break fee – such as an allegation that the landlord had breached the tenants’ quiet enjoyment of the premises by asking them to stop feeding the birds – none of the arguments raised by the tenants established that the tenants had terminated the tenancy agreement for a reason and in the manner that was permitted to them under the RT Act.

48. Firstly, the tenants have not brought any application in the Tribunal to recover from the landlords the amount they claim to have spent in repairing or improving the premises. On that basis, and as the RT Act does not allow a set-off against the break fee, I am not satisfied that the break fee should be reduced or extinguished because of any amount that the tenants may have spent on the premises.

49. Secondly, contrary to ss 82 and 98 of the RT Act, the tenants did not serve a valid termination notice on the landlord which specified the ground on which the landlord was alleged to have breached the tenancy agreement, or which specified a termination date that was not less than 14 days after the notice was given. The tenants also did not obtain an order of the Tribunal under s 103 of the RT Act, terminating the tenancy agreement after satisfying the Tribunal that the landlord had breached the tenancy agreement.

50. In this regard, Mr Badawi’s termination emails to the managing agents did not specify a termination date that was at least 14 days after the date the respective emails were sent, and did not specify the ground on which the notice was purportedly given. They therefore did not operate as termination notices under the RT Act.

51. I am therefore not satisfied on the evidence that the tenants terminated the tenancy agreement early for a reason that was permitted by the RT Act. To the contrary, the tenants vacated the premises without having a right to do so under the RT Act or the tenancy agreement. Accordingly, I find that the tenants ended the tenancy agreement on 7 June 2024 by abandoning the premises before the end of the fixed term of the agreement. As at that date, 420 days had expired out of the 731-day fixed term, or 57.456% of the fixed term. Consequently, more than 50% but less than 75% of the fixed term had expired, putting the tenants into the third quartile under clause 51 of the tenancy agreement and s 107(4) of the RT Act. On this basis, the landlord is entitled to recover a break fee from the tenants equal to 2 weeks’ rent, which I calculate to be $3,100.00.

52. However that entitlement is subject to clause 107(5) of the RT Act, set out above. That clause requires that the amount of any money paid to a landlord by a tenant on terminating a fixed term agreement before the end of the fixed term or before otherwise abandoning the premises, other than money previously due to the landlord under the residential tenancy agreement, is to be deducted from any break fee payable to the landlord. For the reasons just described, the tenants are liable to pay the landlord an additional amount of rent for retaining some of the keys for 10 days after the date the tenants vacated the premises – or 1/3 of the monthly rent payable for June 2024 – amounting to $2,245. That amount should therefore be deducted from the break fee, reducing the net break fee payable by the tenants to $855.

(e)   Carpet cleaning (dog)

53. As noted above, the landlord agreed that the tenants may keep two dogs at the premises and the tenants agreed to have the carpets professionally cleaned or to pay the cost of having the carpet professionally cleaned at the end of the tenancy, if cleaning was required because an animal had been kept on the premises during the tenancy (clause 55).

54. The tenants had the carpets professionally steam-cleaned on 6 June 2024, only 1 day before the tenants vacated the premises. While the managing agent’s email dated 13 June 2024 noted that the condition of allowing a dog on the premises was that the tenants agreed to professionally clean the carpets, the evidence does not establish that the carpets required further professional cleaning at the end of the tenancy agreement because the tenants had kept dogs on the premises. Further, clause 55 of the tenancy agreement did not require the tenants to produce a copy of the carpet cleaning receipt to the landlord or the managing agents; cleaning the carpet at the end of the tenancy agreement was sufficient.

55. I find that the tenants complied with clause 55 sufficiently by having the carpets professionally cleaned on 6 June 2024. This part of the landlord’s claim therefore fails.

(f)   General cleaning

56. A tenant is not strictly liable for any change in the cleanliness of premises during a tenancy. The tenancy agreement and the RT Act only require the tenants to return the premises in a “reasonable” state of cleanliness. A reasonable state of cleanliness is distinct from a “perfect” state: Graham, Caste, Pilonchery v French (Tenancy) [2013] NSWCTTT 15.

57. Whether premises have been left reasonably clean is ultimately a question of objective fact. For a landlord to succeed on a claim for cleaning costs, the evidence needs to be sufficient to persuade the Tribunal, on the balance of probabilities, that:

1. the tenants have not left the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy; and

2. the amount claimed as the cost of returning the premises to the required level of cleanliness required by the tenancy agreement is reasonable.

58. What is reasonable is to be assessed objectively according to contemporary standards: Adoncello v Sazdanoff (Tenancy) [2006] NSWCTTT 577 at [78]. It is not assessed according to the standard of a fastidious and obsessive landlord: Fitzpatrick v Wu NSWRT, 2001, (01/16425). See also Pancio v Crompton & Jennings [2015] NSWCATAP 110.

59. The OCR prepared by the managing agents asserted that various parts of the hallway, the kitchen, the laundry, the bedrooms, the second bathroom and the rear living area were not clean, including various walls, skirting boards, floor coverings, doors/doorways, blinds, cupboards, appliances and fittings, with comments indicating that those areas were marked, dusty, dirty, or the like. Those details, as set out in the OCR, were generally corroborated by the photographs contained in the OCR. That evidence was not contradicted or challenged in any meaningful way. Consequently, I accept that the premises were generally in the state of cleanliness described in the OCR and shown in those photographs when the tenants vacated the premises.

60. The tick-box part of the ICR described the premises as being clean throughout when the premises was inspected on 12 April 2023, three days before the starting date of the tenancy agreement. Those general statements must, however, be read subject to: (i) the specific comments made on the ICR, which were that there were various scuff marks or other marks on walls, ceilings and parts of the floor throughout the premises; and (ii) the state of the premises as shown in the photographs that were included in the ICR, which showed that the premises were less-than pristinely clean, with dirt, dust and debris on various surfaces and mould on surfaces in the bathrooms.

61. Weighing and comparing the photographs that were included in the ICR with the photographs that were taken to record the state of cleanliness of the premises at the end of the tenancy agreement, and allowing for the standards described in Adoncello v Sazdanoff and Fitzpatrick v Wu (above), I am satisfied that the premises were returned to the landlord in a broadly similar condition compared to the condition that they were in at the start of the tenancy agreement. To the extent that there is a difference between the two states, it is a small difference and is within the scope of reasonableness contemplated by the authorities described above.

62. I am therefore satisfied on the material before the Tribunal that the tenants have complied with the obligation in clause 18.3, to return the premises reasonably clean compared to the state they were in at the start of the tenancy agreement. Consequently, I find that the tenants are not liable to the landlord on this part of the claim.

(g)   Repairing the damaged balustrade

63. For a landlord to succeed on a claim for repair costs, the evidence needs to be sufficient to persuade the Tribunal, on the balance of probabilities, that:

1. the tenants have not left the residential premises as nearly as possible in the same condition, fair wear and tear excepted, as when the original tenancy agreement was entered into:  Kjoller v Tailford [2016] NSWCATAP 4 at [34]; and

2. the amount claimed as the cost of returning the premises to the required condition required by the tenancy agreement is reasonable. 

The first of those issues require the landlord to prove, on the balance of probabilities, the condition of the premises on two dates, being the start of the tenancy agreement and after the tenants have vacated the premises at the end of the tenancy agreement.  It is then an objective question of fact whether condition of the premises on the latter date complies with the terms of the tenancy agreement having regard to the earlier condition of the premises.

64. There is a presumption in s 30 of the RT Act that a completed condition report signed by both parties accurately states the condition of the premises on the date concerned. Where the presumption does not apply the Tribunal adopts the approach suggested by the Appeal Panel in Kjoller v Tailford [2016] NSWCATAP 4 at [30]-[34] -- namely that it will give weight to an inspection report not signed by either party as evidence amongst any other statements, photographs, quotations and the invoices that were in evidence in determining the condition of the premises on each relevant date. See also Hall v Hawkins [2015] NSWCATAP 197, at [61]-[64].

64. A tenant is not strictly liable for any change in the condition of premises during a tenancy. Any wear and tear that is associated with reasonable use, or which arises as a result of natural forces (such as the ageing of an asset) is ‘fair’ and cannot constitute a breach of the tenant’s obligation: Elhassen v Ayoub [2018] NSWCATAP 34 at [6]. Again, what is ‘fair’ wear and tear is assessed objectively according to contemporary standards.

65. The ICR described the balcony of the premises (which included the balustrade) as clean and undamaged. The photographs included in the ICR, which were taken on 12 April 2023, showed that the balcony rail was clean, painted and in good condition, but a lattice panel between the balcony rail and the house was showing obvious signs of damage and decay.

66. I was informed during the hearing that the balcony rail is now about 10 years old. The text of the OCR asserted that the balcony/porch/deck was damaged. The photographs included in the OCR showed significant further deterioration in the lattice panel, as well as damage to the top of the balcony rail in the left-hand corner of the balcony, a part of the rail that was undamaged at the start of the tenancy agreement. Both parties acknowledge that the tenants’ family fed birds from the balcony. The evidence also includes photographs of birds feeding on and around the balcony rail during the tenancy agreement.

67. I am satisfied from the evidence that the additional damage to the lattice panel during the course of the tenancy agreement was the further deterioration of an already-deteriorated part of the premises and that it constitutes fair wear and tear under the tenancy agreement, for which the tenants are not responsible.

68. The damage to the corner of the balcony rail is different. The photographic evidence shows that this part of the balcony was not rotted, but was instead cut or hacked at, exposing and cutting into the timber inside the railing. I am satisfied from this evidence that the damage to the railing has not been caused through natural deterioration or normal use and does not amount to fair wear and tear, even if it may have been caused by birds who congregated on or fed on the balcony.

69. As the tenants did not return that part of the balcony rail to the landlord in the condition that it was in at the start of the tenancy agreement, as was required under clause 18.2 of the tenancy agreement, the tenants are liable to compensate the landlord for the reasonable cost of restoring the rail to the condition required by the tenancy agreement. I will again return to this below.

(h)   Removal of fixtures and alterations (chin up bar, power points, data cables, etc)

71. As recorded in clause 30 of the tenancy agreement, the tenants were not permitted to install any fixture or renovate, alter or add to the premises without the landlord’s written permission. Further, the tenants were required to remove their fixtures at the end of the tenancy agreement, repairing any damage caused by removing the tenant’s fixtures, or to compensate the landlord for the reasonable cost of repair.

72. Both before and during the course of the tenancy agreement, the tenants installed a large number of fixtures and renovated/altered/added to the premises in significant ways. For example, the tenants installed:

1. television mounting brackets in various rooms in the premises;

2. security cameras and power points in various parts of the premises;

3. electricity and data cables in the walls and roof space of the premises to support or operate those fixtures or fittings;

4. a chin-up bar that was welded to the I-beam in the garage ceiling;

5. water filters under the kitchen sink;

6. a water supply pipe to the fridge space in the kitchen; and

7. a deadlock on the bedroom door.

Clause 30 of the tenancy agreement was in effect between the parties when the tenants undertook those works. While the tenants assert that they had various conversations with the landlord or the managing agents about conducting these works, the tenants have not produced any written authority from the landlord which allowed the tenants to install those fixtures or to conduct those renovations, alterations or additions.

73. On vacating the premises, the tenants removed some of their fixtures and additions (such as the television brackets) but they left others in-situ, including the tenants’ chin-up bar, cabling for their various electrical devices, the fridge pipeline and the lock in the bedroom door. On the evidence before the Tribunal, the landlord has not consented to the tenants leaving those fixtures and renovations/alterations/additions in place at the end of the tenancy agreement. The landlord asserts that none of the alterations conducted by the tenants have any value to the landlord, and that all of them should be removed following the end of the tenancy. This was communicated to the tenants in the managing agents’ email dated 13 June 2024, set out above.

74. Because the tenants had started making alterations to the premises before the term of the tenancy agreement began, including cutting holes in walls and ceilings and running cables as shown in the ICR, it is not possible to conclude that the premises were returned to the landlord in a poorer state than they were in at the start of the tenancy agreement. Consequently, the landlord does not succeed on this part of the claim under clause 18.2 of the tenancy agreement. However, the landlord is still entitled to succeed under clause 30 of the tenancy agreement, as the tenants have not either (i) removed their fixtures and alterations and repaired the damage that they have left to the premises as a result of their removal; or (ii) paid the landlord the costs of removing the tenants’ fixtures and improvements and repairing the premises after their removal. Consequently, I find that the landlord is entitled to claim from the tenants the reasonable cost of removing the tenants’ fixtures and alterations, and repairing the damage caused by their removal.

75. The landlord has produced invoices and quotes which seek to establish the cost of removing those fixtures and additions, and repairing any damage caused by the removal of those fixtures. As those invoices also include other items claimed by the landlord, I will return to those costs below.

1. Quantifying the value of the landlord’s claims on the repair items

76. The landlord produces invoices and quotes that cover the following items:

1. $1,895 for a handyman for four items: removing and disposing of the chin-up bar, removing and replacing the laundry cabinet, removing and replacing the deadlock on the bedroom door; and removing the water supply pipe and patching a broken tile.

2. $299.02, for a painter for 1 item: repairing the damage to the timber balustrade caused by birds and repainting the same.

3. $1,320 for a painter for 4 items: removing television brackets and painting; painting 3 walls in the small bedroom; patching and painting 2 walls in the sitting room; and removing all cameras and painting those areas.

4. $486.42 for an electrician for “attended to all electrical issues as required on work order #869 discussed requirements with Shann”, which included $72.42 for replacement light globes and $429 for 3 hours’ labour.

77. The tenants have asserted that these amounts are all excessive, however the tenants have not produced any competing quotes or estimates that demonstrate that part of their defence.

78. The charges appearing on the face of the handyman and painting invoices and quotes appear reasonable for the work that is covered by those invoices. In the absence of evidence to the contrary, I accept those invoices as evidence of the reasonable cost of carrying out that work. Work order #869 has not been produced to the Tribunal, which makes assessing the electrician’s charges more difficult. I will return to this below.

79. Turning first to the handyman’s invoice, the only claim that was made in the proceeding in respect of the laundry cabinet was that it had two holes in it from where the tenants had mounted the charging unit for a cordless vacuum cleaner. The landlord has not provided evidence to demonstrate that the cabinet needed replacement, either because of that issue or more generally. I therefore consider it reasonable to exclude the replacement of the laundry cabinet from the handyman’s invoice. Doing the best I can on the available evidence, I think it is reasonable to deduct $600 from the handyman’s invoice in respect of that cupboard, covering both labour and materials, but also allowing an amount in the landlord’s favour for the damage that was caused to the cupboard. That reduces the landlord’s claim on this invoice to $1,295, which I consider fair and reasonable compensation to the landlord for the items covered by that invoice that are the tenants’ responsibility.

80. I am satisfied that the painter’s invoice for $1,320 covers the cost of patching and painting walls which were damaged by the tenants’ fixtures and/or the renovations and alterations made by the tenants. However the landlord has not satisfied me that it was necessary to paint the whole of each affected wall in order to return the premises to the standard required by the tenancy agreement. In my estimation, the reasonable cost of returning these parts of the premises to the standard required by the tenancy agreement, and without benefiting the landlord unfairly by repainting parts of walls that did not need repainting, is probably between 40% and 50% of the amount that the landlord has claimed. Because of this, I have decided that the tenants should pay the landlord $600 towards the cost of that painting and repair work.

81. Turning to the balcony railing, there is no evidence to suggest that the work invoiced by the painter to the managing agents for “Repair[ing] damage [to] the timber balustrade caused by birds, and repaint” either included, or would have included any amount for repairing the lattice panel that was on top of the balustrade, near the house. In the absence of evidence to the contrary, I consider the amount invoiced to the managing agents ($299.02) to be a reasonable price for patching, filling and painting the gap in the balcony rail. On this basis, I find that the tenants are liable to compensate the landlord $299.02 for returning that part of the premises to the standard required by the tenancy agreement.

82. This leaves me with the electrician’s quote. As noted above, the scope of works identified in the electrician’s quote was not provided to the Tribunal. Nevertheless, no evidence has been produced to demonstrate that the reasonable cost of removing the tenants’ electrical works and returning the premises to the condition required by the tenancy agreement – including by replacing the light globes that the OCR records as not working – would be any less than this electrician has quoted. In these circumstances, I am satisfied on the available evidence that the amount of $486.42 claimed by the landlord, including 3 hours’ labour and replacement light globes is fair and reasonable. I therefore find that the tenants are liable to compensate the landlord that amount.

Conclusion and orders

83. For the above reasons, the landlord has been successful on its claim in the total sum of $5,650.13, as follows:

Water usage (as conceded by the tenants)	$152.19
Gardens (as conceded by the tenants)	$1,111.00
Rent from 1 May to 17 June 2024	$7,051.50
Lease break fee	$855.00
Carpet cleaning (dog)	$0.00
General cleaning	$0.00
Painting (repair the damaged balustrade and repaint)	$299.02
Handyman repairs (remove chin up bar etc)	$1,295.00
Painting (walls after electrical, holes in walls & cameras)	$600.00
Electrical repairs (remove GPO’s & data)	$486.42
Total allowed	$11,850.13
Bond	$-6,200.00
Balance	$5,650.13

84. I am satisfied pursuant to s 187(1)(c) and (d) of the RT Act that there should be an order that the respondent tenants pay the landlord the total sum of $5,650.13. The balance of the landlord’s claim should be dismissed.

85. The Tribunal therefore makes the following orders:

1. The respondents, Sam Badawi and Marzena Karellas must pay the applicant, Nevin Vladica the sum of $5,650.13 immediately.

2. The balance of the applicant, Nevin Vladica’s claim is dismissed as the Tribunal is not satisfied to the civil standard (being the balance of probabilities) on the material put before the Tribunal that there are grounds to make the orders sought.

**********

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: 26 May 2025