Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Welch v Luke; Luke v Welch [2019] NSWCATCD 72 Hearing dates: 27 June 2019 Date of orders: 23 July 2019 – Amended 8 August 2019 Decision date: 23 July 2019 Jurisdiction: Consumer and Commercial Division Before: Member S Corley Decision: The orders sent to you on 23 July 2019 have been amended under Section 63 of the NSW Civil and Administrative Tribunal Act 2013 and should read as follows: 1. The Tenants, Matthew Welch and Elin Rainoni are to pay the Landlord, Kathryn Luke and Simon Williams the sum of $1270 immediately. 2. This amount of $1270 is to be paid from the Rental Bond S131958-8. The remainder of the bond is to be paid to the Tenants, Matthew Welch and Elin Rainoni. 3. The Landlord's claim for compensation is otherwise dismissed. Catchwords: RESIDENTIAL TENANCY- compensation- bond Legislation Cited: Residential Tenancies Act 2010 (NSW) Category: Principal judgment Parties: Mr Matthew Welch and Ms Elin Rainoni (Tenants) Ms Kathryn Luke and Mr Simon Williams (Landlord) Representation: Mr Welch and Ms Rainoni (in person) Ms Luke and Mr Williams (in person) File Number(s): RT 19/09535, RT 19/11438 Publication restriction: unrestricted Reasons for decision APPLICATION AND JURISDICTION 1. In application RT19/09535 filed 25 February 2019, Mr Welch and Ms Rainoni ('the Tenants') seek orders for the payment of the rental bond. 2. In application RT19/11438 filed 7 March 2019, Ms Kathryn Luke and Mr Simon Williams ('the Landlord') seek orders for the payment of compensation and the payment of the rental bond from the Tenants. The Landlord seeks payment of an amount in excess of $15,000 but has agreed to accept the jurisdictional limit of the Tribunal. 3. The Landlord and Tenants were party to a residential tenancy agreement governed by the Residential Tenancies Act 2010 (RTA). The Tenants paid a bond at the commencement of the tenancy agreement. The tenancy has now terminated. 4. NCAT has jurisdiction to hear these applications pursuant to ss 175 and 187 of the RTA. HEARING 1. Both Mr Welch and Ms Rainoni attended in person. 2. The Landlord Ms Luke and Mr Williams also attended in person. In addition, they were accompanied by their managing agent Ms Whithear and Mr Chetan of Novak Properties ('the Agent'). 3. Both parties had filed documents prior to the hearing in accordance with earlier directions. The parties had access to each other's documents prior to the hearing. The Landlord's documents ran to 818 pages, the Tenants' documents to 166 pages. 4. All present took an affirmation or oath prior to giving evidence. In the course of giving evidence the parties referred to relevant documents which had previously been filed in this matter. 5. The Landlord called three witnesses to give evidence, Mr Trent Fraser who installed the new timber floor, Mr Mitchell Facey who attended the property to carry out electrical work and Mr Peter Luke, the father of the Kathryn Luke, who fixed the kitchen sink. 6. The parties demonstrated significant animosity towards each other and regularly interjected when the other side was speaking despite warnings to moderate their behaviour. 7. The behaviour of the parties, the volume of material, and the calling of witnesses made it challenging to complete the hearing of this matter in the three hours allocated. The possibility of an adjournment was raised with the parties towards the end of the allocated time however they were understandably keen to have the matter concluded on the day. BACKGROUND 1. The rental property is a new two bedroom apartment in a strata plan at Dee Why. On 30 November 2016 the Landlord purchased this property off the plan through the agent Tim Smith of Novak Properties. Settlement occurred on 6 July 2017. 2. The apartment was constructed with engineered timber flooring in the kitchen, lounge and hallway, that is, all the internal living areas. The two bedrooms and study nook are carpeted. The bedrooms lead out through glass sliding doors to a paved patio and grassed backyard. 3. The Landlord says they could not afford to move into the new property immediately. Accordingly, tenants were sought through Novak Properties. 4. Mr Welch and Ms Rainoni were accepted as tenants. They entered into a residential tenancy agreement and then took up occupation of the property on 23 August 2017. 5. Approximately six months into the tenancy Ms Rainoni and Mr Welch had their first child. The young couple, their baby and their approved pet dog "Cooper" were the only approved occupants of the rental property. 6. The Landlord gave the Tenants an end of fixed term Notice of Termination pursuant to which the Tenants vacated the property on Friday 22 February 2019. 7. The Landlord moved back to the property in April 2019 after carrying out certain works. The Landlord continues to reside in this apartment. Ingoing and Outgoing Inspection reports 1. The Landlord presented an ingoing inspection report prepared by the Agent. The Tenants presented an alternative report which had their comments written onto the document. They say they hand delivered this document to Novak Properties in the week after moving into the property. The Agent did not admit receiving the document from the Tenants. 2. The Landlord and Agent conducted an outgoing inspection on Saturday 23 February 2019, the day after the Tenants had vacated. The Tenants were not in attendance and had not been advised of or invited to attend the outgoing inspection. 3. The Landlord's documents include an outgoing inspection report with handwritten comments made by the Agent. The Tenants say they were not provided with a copy of the outgoing inspection report until 11 April 2019, some six weeks after they had vacated the property and when these proceedings were well advanced. The Tenants allege the Landlord's outgoing inspection report was prepared much later than the time of the final inspection and is inconsistent with an email from the Agent received immediately after the inspection on Saturday 23 February 2019. 4. On the day of the outgoing inspection the Agent immediately made a claim for the rental bond. There was no prior discussion with the Tenants. The Tenants received an email from the Rental Bonds Service on Saturday morning 23 February 2019 advising them of the claim on the bond. 5. Following the end of the tenancy the Landlord carried out various works at the property including the replacement of the entire timber flooring. These works were completed prior to the Landlord moving back into the property. ISSUES IN DISPUTE 1. The issues to be determined in this matter are whether the Tenants have complied with their obligations as set out in the RTA or are responsible for compensating the Landlord for damages to the property. 2. The Landlord claims a very substantial amount for works carried out at the property, itemised as follows. 1. Floorboard replacement $13,470.60 2. Wall repairs/painting $2508 3. Carpet replacement $2110 4. Bench top Cleaning/repairs $600 5. Cleaning $470.25 6. Blind cleaning $187 1. The Tenants believe they have complied with their obligations and that the Landlord's claim is exaggerated and unfair in that the Landlord has carried out improvements to the property and now expects the Tenants to pay for these improvements. Furthermore, the Tenants were the first occupants of the property and have thus been the first to experience flaws and problems with the initial fitout of the unit. The Tenants submit that the Landlord has not taken account of fair wear and tear and pre-existing flaws in making their claims. THE LAW 1. At the end of a tenancy the tenant must comply with the requirements of s 51(3) RTA. Briefly, the tenant is to remove their goods, return the keys to the landlord and leave the premises as nearly as possible in the same condition, fair wear and tear excepted and in a reasonable state of cleanliness. Section 51(3) refers to the ingoing condition report as a point of reference. 2. The landlord and tenant must comply with ss 29 and 30 RTA in relation to the preparation of ingoing and outgoing condition reports. The purpose of condition reports is to record the condition of the property at the beginning and end of the tenancy in a similar manner and degree of detail. 3. If a landlord makes a claim on the bond they must comply with Section 165 RTA which provides, in summarised form, that a landlord who makes a claim for payment of a rental bond without the consent of the tenant must give the tenant (a) a copy of the completed condition report about the residential premises at the end of the residential tenancy agreement, and (b) copies of any estimates, quotes, invoices or receipts for work for which the rental bond is claimed. Section 165(2) provides that the documents must be provided within 7 days of the claim being brought. 4. Matters that may be the subject of a rental bond claim are set out in s 166 RTA and include 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 and 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. 5. The concept of fair wear and tear was considered by the Appeal Panel in the matters of Elhassen v Ayoub [2018] NSWCATAP 34 and Patricia Panico v Carolyn Crompton and Rodney Jennings [2015] NSWCATAP 110. In both cases the Appeal Panel cited Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWCA 224, in which the Court of Appeal referred to Haskell v Marlow [1928] 2 KB 45 "[R]easonable wear and tear means the reasonable use of the house by the tenant and the ordinary operation of natural forces". The Appeal Panel noted that it follows that both natural forces and the actions of tenants can constitute wear and tear. 6. In the Panico case the Appeal Panel also noted that the Tribunal must consider whether at the time vacant possession is given by the tenants the condition of the residential premises and the need for repair arises from the failure of the landlord to carry out necessary repairs; or the tenants' use of the premises and/or any breach of the tenants' obligations under Section 51(1) and (2) of the RT Act. 7. If the tenants have intentionally or negligently caused damage or the wear and tear is not "fair", the tenants are liable to compensate the landlord for the cost of repairs. 8. Fair wear and tear is to be assessed objectively (Adoncello v Sazdanoff [2006] NSWCTTT 577, Fitzpatrick v Wu (RTT01/16425) and means damage or deterioration that arises from the reasonable use of the premises by the tenant for its intended purpose and/or the ordinary operation of natural forces, with 'fair' being an objective standard based on prevailing community standards. 9. The Landlord has the onus of establishing a claim to part or whole of the rental bond. Any such claim will generally be supported by invoices which show the actual damage sustained by the landlord. Further, any such claim must take depreciation into account. A landlord may be compensated for the actual loss suffered but will not receive an additional benefit, that is they are not entitled to a "new for old" assessment of damage. DETERMINATION 1. The Tribunal must consider whether the tenants have acted in a careless or negligent manner or whether damage has come about through normal use of the property and should be classified as fair wear and tear. If the Tribunal finds that the Tenants are responsible for damage then the Tribunal must determine the quantum of damage. In doing so the Tribunal will consider whether the Landlord has mitigated their damages, whether the damages claimed are proportionate and what depreciation is to be taken into account. 2. At the outset, I find that the Tenants were not given an opportunity to be present when the final inspection was done. The Landlord has not complied with s 29 RTA in that the Tenants were not given a reasonable opportunity to attend a final inspection. A final Outgoing Condition Report was prepared by the Agent, however, questions have been raised regarding the timing of when this was prepared. The Tenants believe it may have been done quite some time after the end of the Tenancy. They were not provided with a copy until 11 April 2019, some six weeks after they had vacated the property, contrary to the requirements of s 165 RTA. I find that the Landlord and Agent have not met their obligations under s 29 or s 165 of the RTA regarding the final inspection and preparation of the outgoing condition report. I therefore give less weight to the Landlord's outgoing condition report than would normally be appropriate. 3. I will now deal with each item of the Landlord's claim. I will not mention all documents reviewed, however, in some instances I will refer to specific documents, using the notation "T" for Tenants documents and "LL" for Landlord's documents followed by the page number from their submitted bundles of documents. Timber flooring 1. The Landlord claims the Tenant has damaged the timber flooring and seeks the full cost of installing new timber flooring from the Tenants. 2. The Landlord's complaints in relation to the timber flooring can be considered under four heads 1. Damage arising from the placement of the dog's water bowl on a mat on the timber floor in the kitchen 2. Damage flowing from a sink leak / black circular marks next to breakfast bar 3. General discolouration and deterioration of the timber flooring 4. Scratches along the hallway Dogs water bowl 1. The first issue with the Tenants' use of the flooring arose from the placement of the dog's water bowl on a mat on the timber floor in the kitchen. It appears that water splashed from the bowl, wet through the mat and resulted in a damp patch on the wood flooring. This issue was noted on 22 September 2018 at a routine property inspection attended by the Agent and the Landlord (T128.) 2. Following identification of the damp patch on 22 September 2018 the Tenants were advised by the Agent to allow the patch to dry and then determine if there was any damage. The Tenants say they moved the dog's bowl and the wet area "dried with minimal visual mark". 3. The Tenants statement is consistent with the findings of Joshua Watts of Maincom Services who inspected the property following the Landlord lodging a claim against their insurer NRMA in relation to alleged damage from the dog's water bowl. 4. This Landlord's insurance claim was rejected by NRMA on the basis that it did not constitute accidental damage. The following comments were made by Joshua Watts, following the inspection conducted on 2 January 2019: "I found there to be a slight discolouration where the tenant advised the dogs water bowls was situated, floor looks to be in need of a steam clean to remove the stain but there was no cupping or visible water damage requiring replacement of any flooring… it is my opinion the damage is due to general wear and tear and no water damaged was visible at time of inspection" (LL175). 5. The Tenants therefore assert that any damage is minimal and should be treated as fair wear and tear. Further, they submit that the floor was not properly treated to make if fit for purpose and use as a kitchen floor. It is uncontested that the Tenant was given no instructions regarding the use or care of the floor. 6. The Tenants submit that the Agent advised the Landlord in 2017 that the floors did not appear to be appropriately sealed. In particular, following a routine inspection by the Agent on 28 November 2017 an email dated 7 December 2017 was sent by Mr Chenan of the Agent to the Landlord which included the following statement "The only thing that caught my eye was the floor boards. I am afraid that even a single drop of water will stain the floor. They are in need of laminate and may be polished afterwards." 7. The Landlord appears to have taken no heed of the Agent's observation. At the hearing the comment was made that Mr Chenan was not an expert in such matters and that his view was misinformed. 8. In preparation for this hearing the Tenants contacted the original installer of the timber flooring, Austland Building Materials Group Pty Ltd and were advised the original flooring was "Engineered Timber flooring, Size 1220*166*15 mm, Not waterproof. The timber is 3mm thick and can be gently sanded and re-sealed" (T47). 9. In the third quarter of 2018 more general concerns had come to light regarding the timber flooring throughout the strata plan. In August 2018 the Committee of the Strata Plan commenced investigating issues with the timber floors in various apartments. The Strata Committee wrote to all owners noting complaints in relation to the flooring in the complex and requesting they advise of flooring problems. 10. Issues referred to in memorandum from Strata Committee to owners and residents were: (1) If walking on the floor some of the timbers move with an up and down motion (2) In some places wood is splitting or splintering or breaking (3) Wood floor makes a cracking, creaking, cracking or squeaking noise when walked upon (4) Colour of the wood varies or has changed colour in some areas (5) Some parts of the floor form a bubble that flattens when walked upon (6) Some owners have reported that the builder or sub-contractors have pinned their floors to the concrete below (T5). 11. On 19 September 2018 the Tenants emailed the Agent in response to the memorandum from the Strata Committee advising that they "have issues with 1,3 and 4 definitely" and that the "6th point could also be true" (T19). 12. On 21 September 2018 an inspection of the timber floors in the rental premises was performed by the Agent. The Agent noted floor boards rising and areas of discolouring (T24). 13. On 5 October 2018 the Landlord arranged for a consultant, Landlay Consulting Group to inspect the timber floors. The Landlay report includes the following statement "I have sighted the floor boards do not have any expansion joints. The installation of expansion joints in my opinion is very important for any flooring systems..…I expect the system present is not laminated or an engineered system but does contain a timber veneer which can be sanded and re-sealed". (LL168). The Landlay inspector's Recommended Scope of Works is to "Allow to remove sufficient flooring and install an expansion joint mid span of the respective unit and reinstate flooring". Damage flowing from a sink leak / black circular marks next to breakfast bar 1. The second issue relates to circular marks at the base of the breakfast bar (LL282). This issue came to light later in the tenancy. The tenant believes this is related to a flooding incident which occurred in the sink (positioned in the island breakfast bar) on 25 – 26 December 2018. 2. The Tenants say that after their Christmas dinner on 25 December 2018 they left dishes to soak in the sink overnight. The next morning they found that the sink had come away from its attachments and dropped down some inches, causing water to overflow down into the cupboard underneath the sink and then onto the surrounding wooden floor. The Tenants say they called Mr Chetan of the Agent and left a message on his mobile phone. This was Boxing Day, a public holiday. Mr Chetan returned to work on 31 December 2018 and made contact with the Tenants. He asked for photographs showing the problem. The Tenants sent a photograph of the sink on the same day (T39). 3. In the meantime, the Tenants say they had emptied the dishes out of the sink and had a towel under the sink and on the floor. They say they did not use the sink and that there was no continuing leak as the water had already escaped the sink. 4. The Landlord was also away on vacation at this time. Ms Luke says that when she was informed of the problem she asked her father Mr Paul Luke to attend to the problem immediately. Mr Luke is is a qualified vehicle builder not a licensed plumber but he does have experience installing sinks into mobile homes and the like. Mr Luke attended the residence at approximately 8 am on 3 January 2019. He says the sink still contained crockery and pans. He says the sink had come away from its attachments. He did not believe the piping from the waste was affected. He says the water would have drained from the sink very quickly when the sink came away from its moorings. Mr Luke repaired the sink. 5. Mr Luke rendered an invoice in the amount of $500 to his daughter and son-in-law. In that document he describes the damage as follows: "The under bench sink had collapsed and was being supported purely by the PVC "S" Bend. There had been substantial water flow over the interior of the cupboard, the centre shelf had been impacted by water damage and the water flow had encroached onto the floor in the kitchen and the breakfast bar/lounge area. There was minimal bead of silicon approximate 1/8" in diameter that was holding the sink in place which (sic) inadequate to support a sink of this size". 6. The Tenants claim that the water flowing from the sink onto the wooden floor reacted with the metal bar stool to leave black circular marks next to the breakfast bar. 7. The Tenants submit that Mr Luke's invoice contains some inaccuracies. They deny that pans and dishes were left in the sink and point to a photograph sent to the Agent on 31 December 2018. This shows a completely clean sink. Although this is a double sink a close inspection of the photograph reveals that it is a photograph of the larger sink. It seems most unlikely that the small rinsing sink would be used for storing dishes. This contemporaneous evidence supports the Tenants version of events. 8. The Landlord claims that the Tenants are responsible for water damage from the sink incident as they did not take the initiative to contact an emergency plumber after they discovered the problem on 26 December 2018. However, there is no evidence that there was a continuing leak, and Mr Luke's evidence is that the water would have escaped the sink quickly. I find that the Tenants took prompt action in reporting the matter to the Agent on 26 December 2018. This was in the midst of a primary holiday period and it took some days until the issue was resolved from the Agent/Landlord's side. 9. Although the problem with the sink would have been a continuing inconvenience to the Tenants the evidence does not indicate that it was a source of continuing or exacerbating damage to the Landlord or that the Tenants failed to act in a responsible manner. General wear and discolouring of floorboards 1. Several photographs have been taken by the Landlord and the Tenants showing the general condition of the floorboards I have looked at several photographs of the flooring including photographs taken by the Tenant just prior to vacating, on the evening of Thursday 21 February 2019 after their furniture had been removed from the premises. 2. The Landlord's and Tenants photographs show areas of colour differentiation (LL337, T8). In my view these photos show the effect of sunlight and the placement of furniture on the aging of the floor. It is to be expected that the floorboards will change in colour over time. This is a reason given by Mr Fraser for recommending complete replacement rather than repair following his first attendance on 29 January 2019. There are areas of different colouring including a darker area adjacent to the oven (LL220), an area I expect would be hotter than other parts of the floor. Overall, there is colour variation in the boards and although this is to be expected in this style of flooring it is difficult to say whether the degree of change over this time period is within usual limits or whether this may be due to defects in the original product (noting that discolouration is one of the issues of concern to the Strata Committee) and was confirmed by both the Tenants and the Agent in response to the Strata Committee's investigation. 3. The Landlord claims the Tenants are responsible for discolouration of the floorboards due to a lack of cleanliness and dog and cat urine. 4. At some point late in the tenancy or at the end of the tenancy the Landlord came to believe that the Tenants had several animals on the property. This was categorically denied by the Tenants who say they only had one dog "Cooper" and they had the Landlord's prior permission for that dog. 5. A neighbour has given a statutory declaration for the purpose of this hearing, at the request of the Landlord, stating that the Tenants had one dog and one cat. The neighbour does not say how they knew this. They say the cat walked along the fence separating the properties. It is common knowledge that cats wander and in my view the presence of a cat on the dividing fence is not proof that it belonged to the Tenants. The Landlord also produced a photograph of a cat from a 2015 post on Ms Rainoni's facebook page. Ms Rainoni says the photograph is of her sister's cat. There is no commentary in relation to the photograph of the cat which indicates it belonged to Ms Rainoni. In any event this is well before the tenancy commenced. 6. The only person who claims to have seen several animals on the property is "Rob" of Trend Constructions, who inspected the flooring in the property. His observation is set out in a brief email to the strata manager dated 26 February 2019 (LL172). Rob's surname is not provided and no sworn statement is given. Furthermore, the inspection report prepared by Trend Constructions was not made available for this hearing. 7. In answer to a question at the hearing Mr Fraser said he only saw the one dog on his visit to the property. No other animals were observed by Mr Facey or Mr Luke or the Agent when inspections were carried out. 8. Mr Facey was called by the Landlord to give evidence regarding the state of the rental property when he attended to carry out electrical repairs. Mr Facey simply stated that the property was "untidy". In answer to a question regarding pets he denied seeing any pets in addition to the dog, Cooper. Scratches in hallway 1. The Landlord has submitted photographs showing scratches and drag marks in the hallway. 2. The Tenants have submitted alternative photographs date stamped Thursday 21 February 2019 which do not show scratches or drag marks. At this point in time it appears that the Tenant's furniture had already been removed from the premises and the end of lease clean had been done. 3. The Landlord submits that the Tenants had a refrigerator in the back of the property and that this may have been moved after the photographs were taken. There is no additional evidence in support of this statement. Replacement of the Floors 1. By the commencement of 2019 the timber flooring was clearly an issue of concern to the Landlord. They had sought compensation from their insurer initially. This was rejected. They were then informed that the floors did not have the required expansion joints but that this would be rectified by the builder. Then there was an incident of flooding from the kitchen sink over Christmas which could also be expected to affect the timber floor. 2. The Landlord requested Mr Fraser of Bespoke Flooring to attend and inspect the floor and make recommendations. He attended on 29 January 2019. He sent the following message on Wednesday 6 February 2019. "I notice upon entry that the floor was making excess noise as there was no acoustic underlay. Also there was some black under the large chairs on the breakfast bar. Tenant told me that was from water leak. Also damaged boards in kitchen with heavy wear and water damage." Mr Fraser recommends replacement of the floors. 3. The Landlord accepted Mr Fraser's recommendation and decided on a course to replace the timber flooring. The documents indicate that the Landlord had formed the intention to have the timber flooring replaced before the end of the tenancy (T30). Replacement of the flooring was booked with Mr Fraser to commence on Monday 25 February 2019, immediately after the Tenants had vacated. 4. The timber floors were indeed replaced by Mr Fraser of Modern Design Flooring / Bespoke Timber Flooring Pty Ltd. He provided an invoice dated 2 March 2019 for the supply of 38 m2 of acoustic underlay and raw oak floating flooring and the replacement of skirting boards, at a total cost of $13,470.60. 5. The Tenants were told by the strata manager that the original cost of the flooring including installation was $132 m2 (T44). This would come to a total of $5016. 6. Mr Fraser was called to give evidence regarding the timber flooring on the basis that he replaced the flooring. He acknowledges having a longstanding friendship with the landlord Mr Simon Williams. He was not called as an independent expert witness but as a person who has inspected the floor and carried out work at the premises. 7. Mr Fraser explained that the original flooring consisted of two laminated layers, (i) a rubber underlay and (ii) a compressed board, with a UV oiled finish. 8. His primary thesis is that the floorboards needed to be replaced as a result of the penetration of cat and dog urine under the boards. He also noted heavily used tracts and greasy areas. 9. Whilst Mr Fraser's advice to the landlord of 6 February 2019 regarding the circular marks at the breakfast bar is limited to saying "Also there was some black under the large chairs on the breakfast bar. Tenant told me that was from water leak", at the hearing Mr Fraser put the view that the Tenants' dog may have been urinating against the barstool. 10. Mr Fraser acknowledged that the replacement flooring is an upgrade from the original flooring. 11. In answer to a question he agreed that it would have been sensible to provide the Tenants with cleaning instructions for the original flooring. Determination of Flooring Claim 1. In summary, we have a situation where engineered wooden floors were installed in the kitchen, a humid and potentially wet area as well as the living area and hallway. The Tenants were given no instructions regarding the use or cleaning of these floors. There were problems with the flooring in other units and the Strata Committee had commenced investigating these issues. It appears that expansion joints had not been installed. This omission calls into questions other aspects of the flooring such as the adequacy of the surface covering and its ability to withstand some degree of moisture. 2. The tenants are a young family with an approved pet dog. They categorically deny having any other pets. They say the dog "Cooper" is toilet trained and has an outside grassed area which it can access. 3. None of the Landlord's witnesses who attended the premises, that is, Mr Fraser, Mr Facey, Mr Luke or the Agent report seeing a cat or any pet other than the one dog which was approved. The statutory declaration from a neighbour does not say why they believe the Tenants had a cat other than that they have sited a cat on the adjoining fence. The statement in an email from Rob of Trend Constructions whose surname is not provided and whose evidence is unsworn can be given little weight. In my view the weight of the evidence is against there being any animal other than the approved dog, residing at the rental premises. 4. This does call into question Mr Fraser's opinion that cat urine is responsible for damage to the floors and carpet. 5. The Agent carried out routine inspections of the property in November 2017 and September 2018 neither of these inspections raised concern regarding the general cleanliness of the property or the Tenants treatment of the flooring. The only expressed concern related to spillage from the dog's water bowl. 6. The inspections of the flooring by Landlay and of Maincom Services provides no suggestion that the floors have been mistreated by the Tenants. 7. Little information is available regarding the actual construction of the original timber flooring, for example the number of coats of oil applied and its suitability for normal use in a humid, potentially wet area such as a kitchen. However, the information which is available indicates there were problems with the original construction and does call into question the overall suitability of the product in a rental property such as this. 8. Overall, it appears that the Tenants made normal use of the kitchen. A kitchen is a heavily used area and the flooring chosen should be suitable for that purpose. The Tenants cannot be held responsible for tracts of normal 'heavy use'. Having a dog's water bowl on a mat in the kitchen is also a normal use. Any damage from this circumstance appears to be minor surface staining not structural damage and according to Mr Watts would not require replacement of floor boards. 9. On the evidence presented I do not find that the Tenants contributed to any water damage caused by the sink coming away from its attachments. This appears to be the result of poor workmanship and as Mr Luke says, insufficient silicon bead for the size of the sink. Furthermore, I accept the Tenants evidence that there was no continuing leak as the water had escaped the sink during the night. This is supported by Mr Luke's evidence at the hearing. 10. There is contrasting evidence regarding the presence of scratching on the hallway floor. If an outgoing inspection had been conducted in the presence of the Tenants at the time when the property was returned to the Landlord, as required by the law, the responsibility for such scratching might be clear. In this case the Agent and Landlord ignored the requirements of the RTA and conducted the outgoing inspection without giving the Tenants an opportunity to attend. Their evidence regarding the state of the hallway floor is therefore weakened in light of the opposing photographs presented by the Tenants. 11. However, even if the hallway scratches were caused by the Tenants on Friday 22 February 2019, this would not have significantly contributed to the damages sustained by the Landlord as the Landlord had already determined to have the floors completely replaced by this time. Mr Fraser was booked to commence the work on the following Monday (25 February 2019). 12. The flooring had structural problems and has now been replaced with a superior quality product. 13. On the basis of my consideration of the evidence as set out above I have come to the view that the Tenants made normal use of the flooring and that any damage which they might be responsible for, such as the original damp patch from the dog's bowl is minor and should be considered fair wear and tear. There were problems with the original flooring and the Landlord decided to replace it with a superior product. This was their decision and one for which the Tenant is not financially responsible. Carpet replacement $2110 1. The Landlord has claimed the full cost of replacing the carpet in both bedrooms and the study nook. 2. I note that the carpeted bedrooms have direct access to the patio and grassed area. It appears to be necessary to walk through the bedrooms to access the patio and backyard. This is an unusual design and one which I expect would lead to more wear and tear on the carpets than would normally be seen in bedrooms. 3. The carpet in the study nook was stained and when lifted was revealed to have mould growth on the underside. The Tenants say the study nook was used as a baby change area and that on occasions the baby had urinated or vomited on the carpet. They accept responsibility for replacing the carpet in this area. 4. According to correspondence from the strata manager the original carpet was laid at a cost of $50 m2 (T45). 5. It appears the new carpet is a significant upgrade on the original carpet (T67-68). 6. The Tenants submit the area of the study nook is 3.16 m2 and they are prepared to pay $50/ m2 (the original supply cost) with 1.5 years depreciation, coming to a total of $135. 7. In addition to damage to the carpet in the study nook there is a black stain in the main bedroom. The Tenants say this was caused by their young child spilling black paint. The size of the stain is shown in the Tenants photographs (T54). The Tenants take responsibility for repairing the carpet. They have produced a quotation for repair from Chapmans carpets in the amount of $330. The Tenants indicate that some of the original carpet was available and could have been used for repair. 8. The Tenants have also produced a quotation from Carpet Court which they say is for replacement of all carpet with similar quality carpet to the original. The quotation does not set out the measurements the quote is based upon. The quote is in the amount of $948.60. 9. Despite providing the above quotation the Tenants submit there was no damage to the carpet in the second bedroom and accordingly they should not be responsible for this entire cost. 10. I find that the Tenants have caused damage to the carpets which goes beyond fair wear and tear. They are thus liable to compensate the Landlord for the actual damage. The original cost of laying the carpet was $50 m2, however, as this would have been a bulk job I expect the cost would be a little less than the current market value. 11. The Landlord does have an obligation to mitigate their damages and to take a proportionate approach. The Landlord has replaced the carpet with a superior product. 12. Taking all of the above into consideration I find that the Tenants are responsible for damage to the carpet in the study nook and the main bedroom. In my view fair recompense for this is to order the Tenants to pay the Landlord a contribution of $800 towards the cost of carpet replacement. Wall repairs/painting $2508 1. Photographs show one dent (p 285) and minor imperfections or wear on the skirting boards and architraves and flaking paint in the laundry. 2. The Tenants ingoing condition report notes various chips in the paintwork on doors and skirting board the comment is made "poor painting job" (T150-155). 3. The Tenants admit that they are responsible for the one dent in the lounge room wall which was caused by the removalist who was moving their lounge at the end of the tenancy (T82). The Tenants have obtained a quotation to repair this dent from Palace Painting & Decorating Pty Ltd for the sum of $100 + GST (T83). 4. Paint is flaking in the laundry. In my view this goes to the quality of the original paint job and the effectiveness of the vent installed in the laundry. I would not hold the Tenants responsible for this. 5. The various marks and small flaws in the paint work as shown in the Landlord's photographs are consistent with the comments made by the Tenants on their ingoing condition report. 6. The Landlord's quotation for the work provided by Classic Colour Painting Pty Ltd in the amount of $2508 includes "Ceiling in lounge room and hallway have marks to be repainted". It is difficult to see how the Tenants could have created marks on the ceilings. In my view this is evidence of a poor original paint job. 7. The Landlord has not established that the minor flaws in the paint on the woodwork are the responsibility of the Tenants rather than the result of a poor original paint job. 8. These are not issues which would significantly affect the value of the property or its rentability and would not normally require the entire repainting of internal walls. I expect the landlord decided that they wished to have the property painted to their taste prior to taking up occupation. 9. Taking the above into account I will order that the Tenants pay a contribution of $300 towards repainting and repair of the dent in the lounge room. Bench top Cleaning/repairs $600 1. The landlord claims the stone kitchen island benchtop was stained and a couple of small chips appear on the edge of the bench next to the sink. 2. The Landlord has described the benchtop as "Cesarstone", however, no evidence was provided regarding the exact specifications or quality of the benchtop. There are of course many 'stone' type finishes. 3. The claimed staining is almost imperceptible from long view photographs (LL263). There are no clearly defined blatant stains but rather there appears to be a generalised unevenness in the colour of the surface. 4. The first email from the Agent to the Tenants following the outgoing inspection (February 23/2/19 at 12.49 pm) which lists alleged damages only refers to a "chip in benchtop". There is no mention of staining to the benchtop or multiple chips (T91). 5. The Landlord has supplied a photograph taken during the industrial cleaning process undertaken at the end of the tenancy which show part of the bench "after" and part "before" the cleaning. These photographs are consistent with the benchtop having undergone a generalised change in colour through use. An alternative interpretation of the photograph is that the cleaning process has removed the top layer of the benchtop thus altering its colour. 6. The chips are very minor (LL212, LL274) and in my view amount to normal wear and tear. 7. I am not convinced the Tenants have mistreated the benchtop or should be responsible for any discolouration. The small chips amount to no more than wear and tear. I am not prepared to order any compensation in respect to the benchtop. 8. The Landlord has produced a building inspection report which was prepared well after the renovations were completed. The consultant had access to the Landlord's photographs but it would appear they did not have the Tenants submissions and photographs. Given the time at which this report was prepared it was not particularly helpful in determining the issues before the Tribunal. Cleaning $470.25 1. The Landlord claims the property was not cleaned to a high enough standard. 2. The Tenants submit they engaged the business Simply Spotless Cleaning Pty Ltd to perform a thorough end of lease clean. They paid $360 for the work, with the invoice produced. 3. A statutory declaration has been provided by Dean Mann a director of Simply Spotless Cleaning Pty Ltd dated 21 May 2019. Mr Mann declares that 8 hours cleaning was performed at the premises. He also says that as the Agent was not satisfied he was prepared to send the cleaner back but they were refused entry by the Agent (T116). 4. The Tenants have submitted photographs taken by the cleaner on 21February 2019 (T101 -106). These show the property to be in a clean state. 5. Photographs are produced by the Landlord which depict some minor areas in which the property is not perfectly clean, for example one of the oven trays is not clean or stained although the rest of the oven appears to be clean. 6. The cleaning claimed by the landlord was performed on or about 4 March 2019 after the flooring had been replaced. 7. I note the Tenants were not given the opportunity to rectify any issue with the assistance of the professional cleaner, Simply Spotless which had performed the work and had a contractual obligation to do the work to an acceptable quality. 8. The Tenants were obliged to leave the property "reasonably clean". They do not have to meet a higher standard of perfection. The photographs show the property to be in good state of cleanliness as might be expected after a professional clean. There were some minor issues which could have been remedied if required and the Tenants' professional cleaner was willing to address these small issues but they were not given access. 9. The Tenants obligation is to return the property to the Landlord in an appropriate condition on the vacate date. At the same time the Landlord must mitigate their damages and in this situation it would seem that any small shortcomings could have been remedied at no cost to either the Landlord or Tenant if the cleaner had been given access. 10. It is obvious that following the Tenant vacating the property the Landlord wished to immediately undertake major internal renovations, including replacement of all the floor coverings (timber and carpet) and a complete internal repaint. In the circumstances they may have well concluded there was little point in having the cleaner return to address minor issues. However, in these circumstances it is clearly unwarranted to expect the Tenant to pay the cost of a complete professional clean prior to the Landlords moving back into the premises and following all the internal works. 11. Taking all the above into account I am prepared to order the Tenant to pay $70 compensation towards minor touch up cleaning of areas not affected by the renovations such as the oven tray and second toilet. Blinds cleaning $187 1. The Landlord claims there are some small marks on the roller blinds. Photographs are produced. 2. The Tenants submit firstly that the marks were not there at the time they vacated. Nevertheless, they say that the marks are minor and if they had been responsible for the marks should be treated as fair wear and tear. 3. I note that the email sent by the Agent on 23 February 2019 notes "blinds stained" (T91). 4. There is no evidence that the Tenants had the blinds cleaned. 5. The Landlord has not had the blinds cleaned. Given that the other works have been done and the time which has now elapsed it is reasonable to have some doubts about the necessity for this and whether the Landlord will have this work done. 6. Taking all these matters into consideration I am prepared to allow a contribution of $100 towards the cleaning of the blinds. 7. Overall I am prepared to order that the Tenants pay the Landlord the sum of $1270 ($800 -carpet contribution, $300- painting and wall repair contribution, $70 - general cleaning, $100 - blind cleaning contribution). This should be paid from the rental bond with the remainder of the bond being paid to the Tenants, Matthew Welch and Elin Rainoni. The remainder of the Landlord's claims are dismissed. 8. Orders are made accordingly. ********* 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 November 2020