ZUBER & GIBSON (Residential Tenancies) - [2010] ACAT 34

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

FIONA, SOPHIE AND PRUE ZUBER & VIKKI JANE GIBSON (Residential Tenancies) [2010] ACAT 34
AA 1 of 2010
Catchwords: Residential tenancy agreement - damages – fresh evidence – Weight given to evidence

Legislation: ACT Civil and Administrative Tribunal Act 2008, s.82

Tribunal: Mr C G Chenoweth, Acting Presidential Member

Date of Orders: 4 June 1010

Date of Reasons for Decision: 4 June 2010

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 1 of 2010

BETWEEN: FIONA, SOPHIE AND PRUE ZUBER
Appellant

AND: VIKKI JANE GIBSON

Respondent

TRIBUNAL: Mr C G Chenoweth, Acting Presidential Member

DATE: 4 June 2010

ORDER

The proceedings be amended to remove Sophie Zuber and Prue Zuber as
parties.
The order of 23 November 2009 be set aside, and in substitution the appellant
Ms. Fiona Zuber be ordered to pay to the respondent to sum of $3,481.00 within 14 days.

………………………………..

Mr C G Chenoweth
Acting Presidential Member

REASONS FOR DECISION

This is an appeal by the three appellants Ms Fiona Zuber (“FZ”) and her daughters Prue Zuber (“PZ”) and Sophie Zuber (“SZ”) against an order made by the Tribunal on 23 November 2009. The order directed the payment of certain monies by the appellants to the respondent. The appellants were represented by Mr. Macpherson, solicitor, and the respondent appeared personally.
1. The respondent Ms Vikki Gibson (“VG”) had leased a property to the appellants, or at least to FZ. In hearing the appeal, I decided that pursuant to section 82 of the ACT Civil and Administrative Tribunal Act (“ACAT Act”) the matter should be heard as a new application on the question of damages payable by the appellants to the landlord, following termination of the tenancy. Accordingly, fresh evidence by both parties to the appeal was admitted.

Background

The matter arose out of a tenancy agreement of the property at 10 Wambool Street Narrabundah ACT (“Property”) owned by the respondent. A residential tenancy agreement was entered into between the respondent as landlord and was signed by FZ as tenant. The lease was dated 24 November 2008. The tenancy agreement was terminated by order of the Tribunal on 23 October 2009. This order required the tenant to leave the Property by 27 October 2009 and by 10.00 am on that date to have removed all of the tenant’s goods out of the Property, and to have the Property cleaned. All of FZ, PZ and SZ left the Property on or before that date.

On 23 November 2009, the Tribunal made an order that the appellants pay to the respondent sum of $5,013.21 in respect of damages done to the Property. It ordered that the appellants were to be jointly and severally liable, and made provision for service of the order on Ms Denise Flint on behalf of the appellants. Ms. Flint is a licensed real estate agent who had been assisting and acting for FZ. The appellants did not appear at the hearing. They claimed that they had not been given notice of the hearing. On the same day Ms Flint on behalf of the appellants sought a re-hearing of the matter.

On 14 December 2009, the Tribunal considered the application for re-hearing. It ordered that the appellants have leave to appeal the substantive decision made on 23 November 2009, with time to run from 14 December 2009. The Tribunal also gave leave to the appellants to file in proper form material alleged to constitute a "counterclaim" as a claim. No such formal counterclaim has been filed.

On 11 January 2010, the appellants filed an appeal against the decision of the Tribunal of 23 November 2009. On the 16th February 2010, the appellant’s solicitor filed submissions and evidence in the appeal. Those submissions and the argument before me did not make any claim for overpayment of rent in relation to the Property or any other counter claim. The hearing before me was limited to the question of damages allegedly suffered by the respondent as a result of the Property being left in a dirty condition and damaged beyond what could be regarded as fair wear and tear.

While the tenancy has been of a reasonably short term, relations between FZ and VG have been bad. Various claims and counterclaims have been made, including the taking out of an interim personal protection order by FZ against VG. Without expressing a view on the correctness of these claims, the tension between the parties (obvious at the hearing before me) has added to the difficulty of determining the truth between two quite different accounts of the state of the Property when the tenant left.

A conference was held in this matter on 27th January 2010 before Appeals President Stefaniak. In addition to directions concerning the supply of documents, the Appeal President also ordered:

"The issue of whether Prue and Sophie Zuber should have been joined, is to be dealt with at 10.00 am on the day of the hearing prior to the substantive hearing commencing on that day.”

Parties to the Residential Lease

The issue of who should have been joined in the proceedings arose from the terms of the original lease itself. The lease document provided that it was between "Vikki Jane Gibson" as lessor, and “Fiona Zuber and Prue Zuber" as tenants. The lease document was signed by VG and by FZ, but was not signed by PZ or SZ. Both of PZ and SZ were underage at the time that the lease was entered into. They are the children of FZ, and it appears that they resided at the Property for some periods during the term of the tenancy.

VG submitted that the three members of the Zuber family should be jointly and severally liable because the renting of the house had provided an essential service for all three, and that she understood from the inclusion of the name of PZ (and possibly from discussions with FZ) that all three would be liable.

The appellants disputed this and pointed to the lack of tenant’s signature by anybody other than FZ.

Where a landlord is engaged in the business of renting property, it is the landlord's responsibility to ensure that the lease document sets out in clear terms who are the proper parties, and from that who is liable to pay the rent. As the lease document was not signed by either PZ or SZ, the only person against whom a claim in contract as tenants could be made, was FZ. This ground is sufficient to allow me to conclude that there could not be any liability on PZ and SZ as lessors, without having to consider whether if they had signed when they were under age, the lease could have been enforced against them. Accordingly, I determined that the appeal should proceed in the name of FZ only. There can be no liability imposed on PZ and SZ under the lease simply because they occupied the premises from time to time with the consent of their mother.

Damages to the Property

The appeal proceeded on the issue of whether there had been damage by the tenant to the Property beyond reasonable wear and tear, and if so the extent to which the tenant was liable for payment of such damage. In the appellant’s submissions the claims of the respondent which were upheld in the decision under appeal were set out in the schedule. It is convenient to refer to these to summarise the particular amounts claimed.

In those submissions, the appellants conceded that damages for repainting of the front door, a lampshade and a new lamp bulb, together with the replacement of a curtain, were the responsibility of the appellants. The sum of $521.10 was conceded as owing to the respondent. The appellants denied the balance of the respondent’s claim amounting to $4,672.11.

The sum of $521.10 will be included in the amount which I find is payable by to FZ to VG.

Appellant’s evidence

When the Property was let to FZ, a condition report dated 24 November 2008 was signed by VG and FZ. That condition report indicates that generally the landlord and tenant agreed that the Property was clean, although there were no screens on the windows in the various rooms. There were some illegible words written in relation to the garden at the front and back, but both the landlord and tenant appeared to concede that the rooms were "clean." There was also a note under "further comments": “Property newly renovated and in pristine condition."

Following the various orders of the Tribunal for the vacation of premises, FZ left on 27 October 2009.

FZ acknowledge that there had been a cat in the premises. The cat had belonged to her daughter.

FZ had also given evidence that prior to leaving the property, she had cleaned it thoroughly inside, and that apart from a few small black spots on the carpet, the property was clean and tidy. The lawns had been mown, although the drought conditions in Canberra had made it difficult to keep them green and there were dry patches on them. She produced photographs which she said were taken at about the time she left, showing the garden growing. The carpets had been cleaned by a commercial carpet cleaning company. FZ did concede that there had been a discussion or proposal for microbial treatment of the carpets which may have overcome particular smells in them, but she maintained that VG deed not require this treatment.

FZ did acknowledge that she had used Pine – O - Clean on the toilet seat, which had caused some staining of it, but denied that she had seen a sign indicating that the seat should only be cleaned with water and soap.

FZ also maintained that the lawns had been mown about two weeks before she left, by or at the direction of the partner of VG, but had not been mown again. FZ denied that there were any animal stains on the carpet or on any of the furniture or blinds in the house. She agreed that there had been rubbish placed in the recycling bin, including used cat litter, but she maintained that as this was recyclable this was appropriate.

In relation to the smell in the house, FZ said that there was a "clean smell” in the house after she had completed the cleaning, and that in addition she or
Ms Flint had lit some vanilla flavoured candles in order to give a "pleasant smell" to the house.

FZ acknowledged that VG had attended at the house in the morning of the day the occupation ceased and was not happy with some aspects of the cleaning. VG had given FZ more time to complete the cleaning.

Ms. Denise Flint was called as a witness for FZ. Ms Flint is a licensed real estate agent of 25 years, and she was familiar with the property at the time that SZ left because she had assisted FZ in the final cleanup. She acknowledged that the first time she had been at the premises was on 26 October 2009, having been asked to attend at the house to check the cleaning.

In relation to the garden, Ms Flint gave evidence that Mr Warren had requested the right to enter the property on 8 October for the purpose of cleaning up the property. This was agreed, on the basis that the costs of this clean up were not to be charged to FZ because VG wanted to have the property ready for quick reletting. The gardening work by or at the direction of Mr Warren was undertaken on 10 October 2009.

Ms Flint maintained that on 26 October 2009 when she went at about 10 AM, the property looked in "pretty good" condition but there were a few things that needed to be done. Ms Flint stayed to help FZ complete the cleaning, and ultimately left property in the early hours of 27 October. She returned at
10 AM on that day, when VG and others including police officers acting under a warrant for termination were present.

Ms Flint gave evidence that there had been no animal odour in the house when she had left the property, but at the meeting on 27 October VG said that there was an animal over in the house, and that there were still dust, cobwebs and marks on the walls which needed to be rectified.

In relation to the garden, Ms Flint gave evidence that Mr Warren who was present at the meeting on 27 October had inspected the garden and did not raise any particular issues. Rubbish which he pointed to was removed during the course of that day.

Under cross examination by VG, Ms Flint denied that there was an odour in the house but acknowledged that the question of microbial treatment of the carpets was mentioned. Ms Flint maintained that FZ was not prepared to pay for this because she did not think it was necessary and there was no request from VG to have it done.

Ms Flint sought to tender a statutory declaration from a carpet cleaner, the essence of which was to disagree with the reports of the condition of the carpet obtained by VG. Having considered the document I determined to exclude it on the basis that it did not comply with the Appeal President's directions concerning exchange of documents, and that in circumstances where the person who had made the statutory declaration was not present, it would be unfair to the respondent to admit it.

Respondent's evidence

VG gave evidence in person. She said that on recovering possession the house was dirty and that the carpets have a strong smell of urine which had permeated the house. There was evidence of urine on the cupboards and on the blinds, and the blinds had been chewed, as evidenced by tooth marks. She said that the state of the Property on initial inspection was quite unsatisfactory. After she had drawn a number of matters to the attention of FZ and Ms Flint, VG had expected that they would be dealt with during the day.

BG produced carpet samples which she said were taken from the house. She also produced a wooden venetian blind with what were said to be tooth marks of the cat on the end of them.

Both parties had taken photographs of the property.

Evidence was given in support of VG by Mr Michael Harper of Crookwell New South Wales. He is a work colleague of VG, and went to the property with VG two days after PZ had left. He and VG called in to see the property after a social occasion when they have been in the area. Mr Harper gave evidence that he owns several cats, and because of this was familiar with the smell of cat urine and particularly when this was inside a property. He gave evidence that the house had a strong smell of urine, that there was evidence of urine on blinds and cupboards and that in his experience this was an unmistakable and persistent smell. Mr Harper also gave evidence that the recycling bin was full of cat litter and other rubbish, and had been left by the side of the house.

It was put to Mr Harper that it was unlikely that cats would have urinated on the blinds and on high cupboards. He maintained that the agility of the cats meant that in his experience they could climb and then urinate on this furniture.

Mr Anthony Johns of Narrabundah also gave evidence in support of VG. He had been at the property two days after FZ had left. He stayed at the property for about 15 minutes.

He gave evidence that there was a strong smell in the house, and that it appeared to come from the carpets. While he did not go into the house, he could see that the condition of the carpet included tufting or loosening of fibres which appeared to come from cats scratching. He gave evidence that in the property the grass was growing long, and it appeared that nothing had been done in the garden. Mr Johns also gave evidence that as he lived near the house he had driven past it from time to time and had seen a cat on the bedroom window sill.

In the proceedings under appeal, VG had produced a report and quotation dated 29 October 2009 from " Nu-Lay Flooring Services", in which the report included the following:

"Dear Mrs Gibson
We have to inform you that the carpets are in a terrible condition. There are black marks in the bedrooms and a terrible smell of urine all through the house which will not clean out. We recommend that you replace the carpet and underlay.”

There was then a quotation for the removal of the existing carpet and a supply of new carpet and underlay.

VG also tendered at the last hearing a letter from "Attention to Detail Cleaning" of 12 November 2009. This letter to VG referred to their cleaning of the Property, and contained the following:

"The house was in a very dirty condition and worst of all there was cat urine sprayed in many areas of the house, including on top of cupboards, along the skirting boards, on the windows and blinds, inside the cupboards and on the walls and doors. All the walls had to be washed to remove the cat urine and various marks and cobwebs. The bathroom had been left in a very unsanitary condition and [sic] particular attention to get it clean. The blinds and windows were not only covered in urine but they also had cat hair and thick dust on them. Our invoice number 10924 to cover the cost of cleaning service. Best regards (managing director)”.

It appears from the evidence of VG that the person who signed this letter had not seen the property herself but had relied on reports from her cleaners.

Consideration of the evidence

The Tribunal is placed in a difficult position when there is such a major conflict of evidence between the landlord and tenant. The evidence given by the two of them would lead one to think they were talking about completely different properties.

Urine was sprayed in many areas of the house, including on top of cupboards, along the skirting boards, on the windows and blinds, inside the cupboards and on the walls and doors. All the walls had to be washed to remove the urine and various marks and cobwebs. The bathroom had been left in a very unsanitary condition and particular attention to get it clean. The blinds and windows were not only covered in urine but they also had cat hair and thick dust on them. Our invoice number 10924 to cover the cost of cleaning service. Best regards (managing director). It appears from the evidence of VG that the person who signed this letter had not seen the property herself but had relied on reports from her cleaners.

The terms of clause 63 (C) of the lease obliged the tenant to "take reasonable care of the premises and their contents, and keep them reasonably clean, having regard to their condition at the time of the commencement of the tenancy and the normal incidence of living."

In coming to a decision as to whether the appellants have complied with this obligation, I have placed particular weight upon the evidence from tradespeople and others with no obvious interest in the dispute between the landlord and tenant. To the extent that there is a conflict between the witnesses who appeared in the proceeding and gave evidence for one side or the other, decisions about credibility and the strength of their evidence must be made.

It seems inherently unlikely that if the carpets had not been significantly damaged beyond repair, VG would go to the cost of replacing them rather than having some further treatment which would bring them to an acceptable standard for letting. The report from the carpet service referred to earlier, which is dated two days after the tenant left the property, is, in my view credible and strengthens the argument of VG that the Property needed to have new carpets, specifically because of a smell of urine. It is reasonable to expect that a carpet replacement service would have some knowledge of particular household stains and smells. Further, the report by the house cleaning service again supports the argument of VG and is given by a body that can be expected to have experience in these matters.

In assessing the witnesses who appeared before the Tribunal, regard must be had to their friendship and/or relationship with the parties. Regard also must be had to the experience of Ms Flint as a licensed real estate agent of many years’ standing, who presumably is familiar with the standards for end of lease cleaning that apply generally in the industry.

I find that the evidence of Mr Harper is credible and supports the condition as described by the written reports referred to earlier. Similarly, I find that the evidence of Mr Johns is also credible although he acknowledges that he did not enter the property but observed it from the doorway. I am satisfied that the Property was not left in a condition that complied with the lease.

Consideration of particular claims

In making a decision about the claim by VG for damages to the Property, it is convenient to refer to the appellant’s submissions and evidence document dated 16th February 2010, and in particular the schedule contained in item 3.3. As indicated earlier in these reasons, I have determined that the amounts set out in clause 3.2 of the appellant’s submissions are payable to the respondent, and are acknowledged by the appellant.

In relation to the items in clause 3.3 of the schedule, I determine as follows:

(a) Garden work
The respondent claimed $250 for gardening services undertaken on
10 October 2009, a fortnight before the tenant left the premises. In the absence of any written commitment by the tenant to pay this amount, the charges are payable by the landlord. The photographic evidence between the parties does not satisfy me that the Property had deteriorated in the following two weeks to the extent that a further charge should be imposed on the tenant.

(b) Lawn seed, weedkiller and new shrubs
I do not consider that these amounts should be recovered from the tenant.

(c) Garden hoses
The tenant has an obligation to keep the garden hoses secure, and as they were missing from the premises at hand over, the cost of them should be allowed to the landlord. I allow $99.00 for these.

(d) Replacement of carpets
In relation to the major cost of the replacement of the carpet, l allow the amount claimed of $2,101 for the reasons set out previously in this decision.

(e) Toilet seat
There is a claim for $100.85 for replacing the toilet seat because it had been discoloured after being cleaned with ordinary household cleaner. FZ denies that there was a label on the toilet seat indicating that only soap and water could be used. In my opinion, it is not reasonable in a rental property to install toilet equipment that cannot be cleaned with ordinary household cleaners, and I do not allow this claim.

(f) Damage to blinds
The landlord has claimed for replacement costs for blinds alleged to have been damaged by a cat chewing on the end of them. The blind produced at the hearing did show small puncture marks consistent with teeth, but these were not major. Bearing in mind that these are depreciable items in a rental property, I am prepared to allow the sum of $200 for damage to the blinds.

(g) Cleaning of the house
I allow the sum of $540 being the costs of cleaning the Property as evidenced by the invoice from “Attention to Detail Cleaning.” I do not allow any further sum on the basis that if the property required further cleaning then this reflects on the original cleaning by Attention to Detail.

(h) Tip fees
FZ acknowledged that cat litter had been placed in the recycling bin, and that this was not acceptable to the recycling system. It is common knowledge that the recycling bin is for other items, and accordingly I allow the tip fees of $20.

(i) Court costs and legal fees
The general principle in relation to legal fees as set out in section 48 of the ACAT Act is that each party pays their own costs of the hearing. I am not satisfied that there are exceptional circumstances in the case to warrant a departure from this. Similarly, I do not see any grounds for the granting of the costs of application for termination of the leases.

The decision of the Tribunal is that the order of 23 November 2009 be set aside, and that in substitution the appellant Ms. Fiona Zuber be ordered to pay to the respondent to sum of $3,481.00 within 14 days.

...............................................
C G Chenoweth
Acting Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A FILE NO: AA 1 of 2010

APPELLANT: FIONA, SOPHIE AND PRUE ZUBER

RESPONDENT: VIKKI JANE GIBSON

COUNSEL APPEARING: APPLICANT: Mr John McPherson

RESPONDENT:

SOLICITORS: APPLICANT: Minter Ellison Lawyers
RESPONDENT: Self

OTHER: APPLICANT:

RESPONDENT:
TRIBUNAL MEMBER/S: Mr C G Chenoweth, Acting Presidential Member

DATE/S OF HEARING: 15 January 2010 and PLACE: CANBERRA

13 April 2010

DATE/S OF DECISION: 4 June 2010 PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS:

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Citations

ZUBER & GIBSON (Residential Tenancies) [2010] ACAT 34

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