Windera East Pty Ltd v Ward

[2025] NSWCATCD 53

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Windera East Pty Ltd v Ward [2025] NSWCATCD 53

Hearing dates:

6 June 2025

Date of orders:

20 June 2025

Decision date:

20 June 2025

Jurisdiction:

Consumer and Commercial Division

Before:

JA Rose, Senior Member

Decision:

(1)      The Tribunal directs the Rental Bond Board to pay the applicant landlord, Windera East Pty Ltd the sum of $950 from rental bond number XXX. Any remaining balance, plus any accrued interest, is to be paid to the respondent tenants, Anna Ward and Mark Jackson.

(2)      The remainder of the applicant landlord’s claim is dismissed after hearing, on the ground that the Tribunal is not satisfied to the civil standard (being the balance of probabilities) on the material before it that there are grounds for the Tribunal to make the remaining orders sought by the applicant.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rights and obligations of landlords and tenants — tenant’s obligations on vacating the residential premises, including the obligations to leave the premises in the condition required by the tenancy agreement

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rental bonds — Payment and release

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Residential Tenancies Regulation 2019 (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:

Windera East Pty Limited (Applicant)
Anna Ward and Mark Jackson (Respondents)

Representation:

Ms S Fogarty, managing agent (Applicant)
Ms S Stapleton, property agent (Respondent)

File Number(s):

2025/0045984

Publication restriction:

Nil

REASONS FOR DECISION

Introduction and procedural history

1. This proceeding arises out of a series of two residential tenancy agreements between the applicant as the landlord (the “landlord”) and the respondents as the tenants (the “tenants”) dated 28 October 2022 and 1 November 2023 (the “tenancy agreements”), in respect of a residential house at Orange NSW (the “premises”), which has now ended. By an application form that was lodged with the Tribunal on 5 February 2025, the landlord seeks to recover money out of the tenants’ rental bond pursuant to s 175 of the Residential Tenancies Act 2010 (NSW) (the “RT Act”). In the “Reasons for the Order(s)” panel on the application form, the landlord described the basis of its application, as follows:

“The landlord is seeking NCAT orders for cleaning and damage rectification costs, asserting that the property’s condition at the end of the tenancy does not align with the ingoing condition report. Claimed damages exceed what would be considered general wear and tear, indicating that the tenant has not met their obligations under the lease agreement. The landlord has provided supporting evidence, including the ingoing and outgoing condition reports photographs and quotes on necessary repairs, to demonstrate that the required cleaning and rectifications are beyond what would reasonably occur through normal use of the property.”

The bond is held by the Rental Bond Board and is frozen pending the determination of this proceeding.

2. The application came before the Tribunal for conciliation and an initial (group list) hearing on 6 March 2025. Conciliation was not successful, so the Tribunal 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 that both parties lodge with the Tribunal and give to the other party the documents they intend to rely on, ahead of the hearing.

3. The proceeding came back for hearing by me on 6 June 2025. For the reasons set out below, I find that the landlord is entitled to recover $950 from the tenants’ bond, and that the remainder of the bond should be refunded to the tenants.

The hearing

4. the hearing was conducted by audio-video link, with the Tribunal sitting in Liverpool. The landlord was represented by Ms Fogarty from One Agency Orange real estate, its managing agents (the “managing agents”). The tenants were represented by Ms Stapleton from Verto Tenancy Services, their property agents.

5. The hearing proceeded in the usual manner for a rental bond dispute under s 175 of the RT Act with the landlord having the burden of proving its claims to the civil standard, being the balance of probabilities. After each party made opening statements describing their respective positions, the parties presented the evidence that they had lodged in accordance with the Tribunal’s earlier directions. Both parties were given opportunities to question the other party’s witnesses on the evidence, to make their arguments to the Tribunal and to respond to the arguments made by the other party. I am satisfied that both parties received adequate procedural fairness in the conduct of the hearing.

6. At the start of the hearing, Ms Fogarty informed the Tribunal that the landlord claimed $2374.80 from the tenants’ rental bond, covering:

1. post-tenancy cleaning costs of $1265.00;

2. post-tenancy carpet cleaning costs of $481.80; and

3. glass repair costs of $628.00.

Ms Stapleton informed the Tribunal that none of the items claimed by the landlord were agreed, with the tenants arguing that they had left the premises reasonably clean and that the broken windows covered by the glass repair claim were caused by external factors for which the tenants were not responsible under the tenancy agreements. She also asserted that the amounts claimed by the landlord were excessive. The hearing was conducted on the basis that these were the only issues in dispute between the parties.

Jurisdiction

7. Section 175 of the RT Act gives the Tribunal jurisdiction to make an order as to the payment of a tenant’s rental bond, on application by a landlord, a tenant or any other person who has an interest in the payment of the bond.

8. I am satisfied on the evidence produced by both parties that there were two residential tenancy agreements between the parties and that the Tribunal has jurisdiction to hear and determine the landlord’s claim. I am also satisfied that the amount claimed by the landlord is within the limits of the Tribunal’s monetary jurisdiction.

The evidence

9. The landlord relied on the bundle of documents that it had lodged with the Tribunal on 8 May 2025 (exhibit L1). Those documents included:

1. a bundle of quotes for the cleaning and repair costs claimed in the proceedings;

2. The managing agents’ agency agreement for the premises;

3. the tenancy agreement;

4. a rental increase notice;

5. a rental ledger for the tenancy;

6. the managing agents’ ingoing condition report for the tenancy (the “ICR”);

7. the managing agents’ outgoing condition report for the tenancy (the “OCR”);

8. a bundle of email and SMS text messages; and

9. a bundle of side-by-side comparisons of photographs extracted from the ICR and the OCR.

10. The tenants relied on the bundle that they had lodged with the Tribunal on 1 April 2025 (exhibit T1). Those documents included:

1. written submissions in response to the landlord’s claim; and

2. a bundle of photographs that were taken on a smart phone at about the start of the tenancy agreement.

11. Neither party sought to cross examine the other party or their witnesses on the evidence.

The applicable law

12. Section 157 of the RT Act defines a rental bond to be:

“an amount of money paid or payable by the tenant or another person as security against any failure by a tenant to comply with the terms of a residential tenancy agreement.”

Accordingly a rental bond is money that belongs to the tenant. It is only paid into Rental Bond Services as a security for any obligation that may arise on the tenants’ part. Absent any breach of the tenancy agreement or another obligation by the tenants, the bond is to be repaid to the tenants at the end of the tenancy.

13. Subsection 51(3) of the RT Act sets out a tenant’s obligations upon vacating residential premises. The subsection provides as follows:

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

(a)    …

(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)-(e)    …

14. That provision is a term of every residential tenancy agreement: s 51(5). It is replicated in the standard form residential tenancy agreement.

15. Section 166(1) sets out amounts that a landlord is expressly entitled to claim from a tenant’s rental bond, including:

(a)    the reasonable cost of repairs to, or the restoration of, the residential premises or goods leased with the premises, as a result of damage (other than fair wear and tear) caused by the tenant, an occupant or an invitee of the tenant,

(b)    …

(c)    the reasonable cost of cleaning any part of the premises not left reasonably clean by the tenant, having regard to the condition of the premises at the commencement of the tenancy,

(d)-(e)    …

As set out in subsection 166(2), that list does not limit the matters for which the landlord may claim from the rental bond.

16. As noted above, s 175 gives the Tribunal jurisdiction to make an order as to the payment of the rental bond. Section 187(1) also gives the Tribunal power to make orders for (amongst other things) the payment of money.

17. I have determined the dispute between the parties in accordance with these provisions.

Findings of fact

18. Having weighed and considered the competing evidence produced by the parties, I find on the balance of probabilities that the background facts of the matter are as follows.

19. The premises comprised a residential house and some sheds on broader grounds. It includes, amongst other features, an entrance/hallway, a lounge room, a dining room, a kitchen, four bedrooms, three bathrooms including two ensuite bathrooms, and a laundry. The walls throughout the premises were painted in a light colour. The floors in the entrance, the bathrooms and the laundry were tiled, while the floors in the hallway, the lounge room, the dining room and the bedrooms were covered in an aged carpet that was threadbare (that is, it had large patches where the carpet fibre had gone and only the backing material remained) and was peeling and pulling in several places. The evidence does not establish the age of the house with any accuracy. Nevertheless, the parties agree that the house is “older”, as demonstrated by the condition of those carpets. From my inspection of the photographs produced by the parties, I agree with the tenants’ assessment that the house was probably constructed in about 1990.

20. The managing agents have managed the premises for the landlord since September 2022. On about 25 October 2022, the tenants were introduced to the premises. They inspected the premises that afternoon, taking a bundle of photographs during the inspection, copies of which are in exhibit T1.

21. On the morning of 28 October 2022, Ms Fogarty from the managing agents conducted an ingoing inspection of the premises, taking a large number of photographs to record the condition of the premises at that time. Ms Fogarty subsequently prepared the ICR that is in exhibit L1, which incorporated her comments on the condition of the premises at that time and copies of those photographs. I will return to the contents of that report below, when addressing the condition of the premises.

22. On 28 October 2022, the landlord and the tenants entered into the first residential tenancy agreement. While no copy of that agreement has been produced in evidence before the Tribunal, I am satisfied that the first residential tenancy agreement was generally in accordance with the standard form residential tenancy agreement prescribed under the RT Act. At that time the tenants paid a rental bond of $3,000 (the “bond”), which was lodged with NSW Rental Bonds.

23. The tenants entered into possession of the premises on 28 or 29 October 2022. The tenants admit in their submissions that they received the ICR at the start of the first tenancy agreement and that they did not provide the managing agents with any comments on that report – either within the required seven days or at any other time – which they attributed to a trip to Sydney for a few weeks, until 19 November, also asserting that they thought they could no longer submit the ICR with their own comments when they returned. Nevertheless, they took a further bundle of photographs on 29 October to record the condition of the premises on that date, copies of which are also contained in exhibit T1. I will return to those photographs, below.

24. On 1 November 2023, the landlord and the tenants entered into the second residential tenancy agreement. That agreement was also generally in accordance with the standard form residential tenancy agreement prescribed under the RT Act. It also contained additional terms and special conditions as shown on the copy of the agreement in exhibit L1. Relevantly, the second tenancy agreement permitted the tenants to occupy the premises for a further period of five months and four days starting on 28 October 2023 and ending on 31 March 2024, at a rental of $750 per week. Clause 18 of the second tenancy agreement set out the tenants’ obligations when the agreement ended and before giving vacant possession of the premises to the landlord, consistently with s 51(3), referred to above. Clause 66 of the tenancy agreement contained an additional term that adopted the ICR for the purposes of the second tenancy agreement. That term provided:

The parties agree that the condition report dated 28 October 2022 and carried out to record the state of repair and condition of the residential premises under a previous residential tenancy agreement between the landlord and the tenant, forms part of this agreement.

25. The fixed term of the second tenancy agreement ended on 31 March 2024. From that date onwards the tenants occupied the premises on a periodic tenancy, but otherwise on the terms set out in the second tenancy agreement.

26. On 27 May 2024, the rent payable under the second tenancy agreement increased to $775 per week, pursuant to the rent increase notice dated 27 March 2024.

27. On 14 January 2025, the tenants sent the managing agents an email, informing them that a bird had flown into a bedroom window, breaking the glass. The email further asserted that the tenants were not responsible for the repair cost, as the damage was caused by an external factor outside the tenants’ control.

28. Towards the end of the tenancy, there was also a dispute between the parties about electricity consumption at the premises, as shown in correspondence that was included in exhibit L1. That correspondence bears no relevance to the issues in dispute in the proceedings. Accordingly, I have given that material and that issue no weight in coming to my decision on the dispute between the parties.

29. The tenants vacated the premises on 28 January 2025, bringing their tenancy to an end on that date. The tenants sought to claim the bond the same day. By an email that afternoon, Ms Fogarty confirm receipt of the keys for the premises and informed the tenants that the final inspection had not yet been completed. The evidence suggests that rent was outstanding at that time, however that has been rectified and no outstanding rent is claimed in these proceedings.

30. The tenants assert that they had some cleaning done by a relative at the end of their tenancy, describing the relative as a professional cleaner. The assertion was made only in the tenants’ submissions. No evidence was produced to demonstrate that this was the case. In the absence of evidence supporting the submission, I do not accept that this occurred.

31. Ms Amy Provost, a property officer with the managing agents, conducted an outgoing inspection of the premises two days later, on 30 January 2025, at which she also took a large number of photographs to record the condition of the premises on that date. Ms Provost then subsequently prepared the OCR that is in exhibit L1, in which she recorded her comments against the comments that Ms Fogarty had made on the ICR, about 39 months earlier. She also included copies of those photographs in that report. I will return to the contents of that OCR below, when considering the condition of the premises.

32. On 3 February 2025, Ms Fogarty sought quotes from a cleaning service to clean the carpets in the premises, and from a glass repair service to repair broken glass at the premises.

Consideration – applying the law to the facts as found

The condition reports

33. Section 29 of the RT Act sets out a regime for the preparation of condition reports at the start and end of the tenancy agreement to record the condition of the premises on each of those dates. Section 30 then governs the use of a condition report as evidence of the condition of rented premises. It provides that 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.

34. Where the presumption in s 30 does not arise, the Tribunal normally assesses and gives weight to any inspection report that is not signed by either party as evidence of the condition of the premises on the relevant date, 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 Kjoller v Tailford [2016] NSWCATAP 4 at [30]-[34] and Hall v Hawkins [2015] NSWCATAP 197 at [61]-[64].

35. In cases such as this, where the parties have entered into a second or subsequent tenancy agreement for the same premises, regulation 32 of the Residential Tenancies Regulation 2019 (NSW) permits the parties to agree that a previous condition report for the residential premises is to apply for the purposes of the tenancy created by the new residential tenancy agreement. In that case, the parties are exempt from the requirement to prepare a fresh ingoing condition report and the agreed ingoing condition report stands for the purposes of the subsequent tenancy agreement. The second tenancy agreement contained such an agreement.

36. As a result of the parties agreement in clause 66 of the tenancy agreement to adopt the ICR as part of the second tenancy agreement for the purpose of establishing the initial condition of the premises, I accept the ICR as an accurate record of the condition of the premises at the start of the tenancy agreement. As the ICR records the condition of the premises after the date of the tenants’ initial bundle of photographs (25 October 2022), I prefer the ICR over those photographs. Nevertheless I accept the tenant’s photographs dated 29 October 2022 as evidence of the condition of the parts of the premises so photographed on that date.

37. Ms Provost’s outgoing condition inspection was conducted in the absence of the tenants. As the OCR was prepared in the absence of the tenants, there is a risk that the comments made in the OCR might tend to favour the landlord as the managing agents’ principal. Consequently I give the comments in the OCR lower weight than the photographs in establishing the condition of the premises at the end of the tenancy agreement where there is a difference between them. That notwithstanding, because the tenants have not submitted their own evidence to demonstrate the condition of the premises at the end of the tenancy, I accept the landlord’s evidence of the condition of the premises at the end of the tenancy agreement on the basis that it is uncontested.

The general cleaning claim

38. The tenancy agreement and the RT Act only require the tenant to return the premises in a “reasonable” state of cleanliness. A reasonable state of cleanliness is to be distinguished from a “perfect” state: Graham, Caste, Pilonchery v French (Tenancy) [2013] NSWCTTT 15, so a tenant is not strictly liable just because the premises are not in precisely the same state of cleanliness of premises that they were in at the start of the tenancy.

39. 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 tenant has 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 also reasonable.

40. 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.

41. As recorded in the ICR and as shown in the photographs included in the ICR, the premises were generally clean and tidy at the start of the first tenancy agreement. There were several exceptions to this, including some differences between the comments and the photographs, some particular comments made by Ms Fogarty in the ICR about particular issues and the condition of the premises as shown in the tenants’ photographs dated 29 October 2022.

42. The photographs in the ICR showed significantly dirty floors in the garages and/or sheds included with the premises, as well as various items being stored in those spaces. They also showed discolouration on various fixtures in the bathroom, indicating that some of those fixtures had not been fully clean. Ms Fogarty’s particular comments noted various minor cleaning issues in all parts of the premises, such as minor marks or scuffs on walls, doors, door frames and skirting boards, and dusty tracks in some windows. The tenants’ photographs and some of the photographs in the ICR also showed insect bodies in the crevices between carpet and the skirting boards in some rooms, together with dirt or other detritus on shelves in one or two cupboards. I conclude from this that the premises were not completely clean at the start of the first tenancy agreement and I have taken this into account in considering the condition of the premises at the end of the tenancy.

43. The photographs and comments in the OCR showed that the premises were not left as clean at the end of the tenancy as they were at the start of the first tenancy agreement. For example, the evidence establishes that various walls, cupboards, wardrobes, door tracks, kitchen fixtures (such as the dishwasher, oven and the range hood), bathroom fixtures and the floors on the various sheds were not left in an objectively clean state. Similarly, there were cobwebs on walls and around windows. There was also a baby gate left attached to one wall. I will deal with the carpets separately, below.

44. On comparing the difference between the state of cleanliness of the premises at the start of the first tenancy agreement and the state of cleanliness of the premises at the end of the tenants’ tenancy, I am satisfied that the premises were not left by the tenants as clean as they were at the start of the first tenancy agreement. I am also satisfied that the difference in the state of cleanliness of the premises between those two dates is not reasonable according to contemporary community standards. Consequently, I find that the tenants did breach the second tenancy agreement by failing to leave the premises in a reasonable state of cleanliness, having regard to the condition that the premises were in at the start of the first tenancy agreement, as set out in the ICR that was adopted for the purposes of the second tenancy agreement.

45. Pursuant to s 166 of the RT Act, the landlord is entitled to recover an amount equal to the reasonable cost of cleaning the premises to the level of cleanliness required by the second tenancy agreement. The landlord claims $1265, as set out in the undated lump-sum quote from “Keep N It Klean Cleaning Services” in exhibit L1. The scope of cleaning work covered by that quote included:

Wash walls and remove dirty marks and kids hand prints. All light fittings with bugs and spider webs to be removed. Garage and shared needing cobwebs removed and sweeping. Window sills and window ledges to be wiped. Top up clean main bathroom, ensuite and second ensuite. Rangehood needing deeper clean. Inside kitchen cupboards need deeper clean. Food and utensil left in bottom of dishwasher, needs cleaning. Remove Baby gate attached to entrance of the kitchen.

46. The tenants rightly assert that several areas described in that quote were not provided to them in a clean state. They also assert that the total price quoted by the cleaner is a high amount for a cleaning invoice, and would cover several hours of cleaning. They submit that the landlord has not established that the amount claimed is reasonable. In the hearing, Ms Stapleton suggested that the true amount should possibly be somewhere in the middle to account for the state that the premises were let in and an objective consideration of what is reasonable. I agree with those submissions.

47. Doing the best that I can on the available evidence, and adjusting the amount claimed for the matters rightly raised by the tenants, I have decided that a nominal sum of $700 is a reasonable amount for the landlord to receive to cover the reasonable cost of cleaning the parts of the premises that were not left reasonably clean by the tenants, having regard to the condition of the premises at the start of the first tenancy agreement.

The carpet cleaning claim

48. The principles set out above in respect of the general cleaning claim also apply to the claim for carpet cleaning. As section 19 of the RT Act makes clear, a residential tenancy agreement must not require the tenant to have the carpet professionally cleaned or to pay for professional cleaning as a matter of course. The issue again is whether the carpet was left reasonably clean at the end of the tenancy compared to its condition at the start of the tenants’ tenancy.

49. The ICR and the photographs included in that report both record that the carpets in the premises were aged, with “some peeling and pulling especially around the edges” in some rooms, and minor stains. This is particularly the case in the lounge room, bedroom 1 and bedroom 3. Save for the bugs shown in the photographs produced by the tenants, which I am also satisfied of, I am satisfied on the evidence that this is an accurate record of the condition of the carpet at the start of the first tenancy agreement.

50. By comparison, the OCR and the photographs included in that report both record that the carpet in the premises was objectively less clean when the tenants vacated the premises. For example, there is reference in the OCR to the carpet having new stains in various rooms, including the hallway, the lounge room, the dining room and bedrooms 1, 2 and 4. There is also reference to the carpet being vacuumed in some rooms but not in others. Those references are supported by the photographs included in the OCR.

51. On comparing the difference between the state of cleanliness of the carpet at the start of the first tenancy agreement and the poorer state of cleanliness of the carpet at the end of the tenants’ tenancy, I am satisfied that the carpets in the premises were not left by the tenants as clean as they were at the start of the first tenancy agreement. I am also satisfied that the difference in the state of cleanliness of the carpet between those two dates is not reasonable according to contemporary community standards. This was also rightly acknowledged by the tenants at the hearing, who accepted that there was additional staining to the carpets and that some cleaning may be required.

52. In these events, I also find that the tenants breached the second tenancy agreement by failing to leave the carpet at the premises in a reasonable state of cleanliness, having regard to the condition that the carpet was in at the start of the first tenancy agreement, as set out in the ICR that was adopted for the purposes of the second tenancy agreement. Pursuant to s 166 of the RT Act, the landlord is again entitled to recover an amount equal to the reasonable cost of cleaning the carpet to the level of cleanliness required by the second tenancy agreement.

53. The landlord claims $481.80, as set out in the quote from “Aiden’s Excellent Carpet Cleaning” included in exhibit L1. The scope of cleaning work covered by that quote included:

Carpet Steam Cleaning (hot water extraction) of all carpeted areas

for six rooms and a hallway.

54. There are several matters that ameliorate the landlord’s claim for carpet cleaning. Firstly, the carpet was heavily threadbare and damaged in several rooms at the start of the first tenancy agreement. Carpet in this condition will deteriorate more rapidly than carpet in good condition, contributing to the dirtiness of the carpet (which is a different issue to fair wear and tear). Secondly, there were stains and bug bodies on the carpet at the start of the first tenancy agreement, for which the tenants were not responsible. Thirdly, not all the carpet required cleaning at the end of the tenancy. The carpet in several rooms was left in a reasonably clean state, as shown in the OCR. It is unreasonable for the tenants to be required to pay the whole cleaning cost in the circumstances.

55. In the absence of evidence to the contrary, the amount claimed for cleaning the whole of the carpet at the premises appears reasonable. Nevertheless, the tenants are entitled to a discount on that claim, for the reasons just outlined. The tenants submitted that a reasonable discount would be to reduce the amount payable by the tenants to 40% or 50% of the amount claimed. I agree with that submission.

56. Doing the best that I can on the available evidence, and adjusting the amount claimed for those matters, I have decided that a nominal sum of $250 is a reasonable amount for the landlord to receive to cover the reasonable cost of cleaning the parts of the carpet at the premises that were not left reasonably clean by the tenants, having regard to the condition of the carpet at the start of the first tenancy agreement.

The glass repair claim

57. Section 51(3) of the RT Act and the tenancy agreement both required the tenant to:

… 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 …

58. As noted there, the condition of the premises when the tenancy agreement was entered into is a relevant factor in determining the tenant’s liability. Further, the tenant is again not strictly liable for any change in the condition of premises during a tenancy: damage that was not caused by the tenants, or 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) will not constitute a breach of the tenant’s obligation: Elhassen v Ayoub [2018] NSWCATAP 34 at [6]. What is ‘fair’ wear and tear is again assessed objectively according to contemporary standards, and not according to the standard of a fastidious and obsessive landlord: Fitzpatrick v Wu NSWRT, 2001, (01/16425).

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

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

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

The first of those issues again requires the landlord to prove on the balance of probabilities the condition of the premises at the start of the tenancy agreement and after the tenant has vacated the premises at the end of the tenancy agreement. It also requires the landlord to demonstrate that the condition in which the premises was left was outside the scope of what would normally be considered fair wear and tear, including having regard to the original condition in which the premises was let. 

60. It is then an objective question of fact whether the 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 and the scope of the change in condition. Where the damage exceeds the scope of what would normally be considered fair wear and tear, the burden then falls on the tenant to demonstrate that the damage was either fair wear and tear or not caused by them, for which they should not be held responsible.

61. The parties agreed at the hearing that the glass windows in bedroom 1 and in the dining room were not broken at the start of the first tenancy agreement. That agreement is consistent with the evidence in the ICR.

62. By contrast, the OCR recorded that there was a crack in the dining room window and that the bottom of the window in bedroom 1 had been smashed into with a series of radiating cracks in the glass, near the bottom of the window frame. In the circumstances, it is clear that the glass in those windows was not left in the same condition as it was in at the start of the first tenancy agreement.

63. As noted above, the tenants reported the damage to the bedroom window by email on 14 January 2025, asserting that it had been caused by a bird flying into the glass. The landlord had not repaired that damage in the two weeks between that report and the date the tenants vacated the premises. The tenants’ report of the damage to the bedroom window being caused by a bird strike is plausible, given the shape of the damage, and has not been contradicted. I am satisfied on the balance of probabilities that the damage was caused by a bird, as the tenants suggest. Consequently, in my assessment, the damage has either been caused by fair wear and tear or is damage for which the tenants should not be held liable.

64. The tenants assert that they were not aware of the damage to the dining room window until they received the OCR from the landlord, a significant time after the end of the tenancy agreement. They also assert that the building is an older one, estimating that it was built in or around 1990. On this basis, they assert that the damage was likely caused by either fair wear and tear or external factors.

65. Looking at the shape of the crack in the dining room window glass, and noting that pane glass becomes brittle as it ages, especially as it expands and contracts in varying weather, and taking into consideration the apparent age of the house I consider it likely on the balance of probabilities that the glass in the dining room window cracked through the application of natural factors over time. Consequently, I also consider this damage to be within the scope of fair wear and tear under the tenancy agreements.

66. The landlord has therefore failed to persuade the Tribunal that the tenants are responsible under the tenancy agreements for leaving those windows in a cracked state at the end of the tenancy agreements. Accordingly, this part of the landlord’s claim fails.

Payment of the bond

67. I am satisfied on the evidence that the amounts that I have awarded to the landlord in respect of the general cleaning claim and the carpet cleaning claim are covered by s 166 of the RT Act. Consequently, the landlord is entitled to claim those amounts – which total $950 – from the tenants’ bond under that section.

Conclusion and orders

68. For the above reasons, I find that the landlord is entitled to recover $950 from the tenants’ bond. The remainder of the bond should be refunded to the tenants. The Tribunal therefore makes the following orders:

1. The Tribunal directs the Rental Bond Board to pay the applicant landlord, Windera East Pty Ltd the sum of $950 from rental bond number XXX. Any remaining balance, plus any accrued interest, is to be paid to the respondent tenants, Anna Ward and Mark Jackson.

2. The remainder of the applicant landlord’s claim is dismissed after hearing, on the ground that the Tribunal is not satisfied to the civil standard (being the balance of probabilities) on the material before it that there are grounds for the Tribunal to make the remaining orders sought by the applicant.

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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: 14 August 2025