Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bakeer v Hariri; Hariri v Bakeer [2021] NSWCATAP 196 Hearing dates: 15 June 2021 Date of orders: 29 June 2021 Decision date: 29 June 2021 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member S Goodman SC, Senior Member Decision: We make the following orders in both appeals: 1. Appeal upheld. 2. Order 1 made by the Tribunal on 3 March 2021 is varied to substitute the sum of $5,278.00 for the sum of $7,278.00 referred to in that Order. 3. Order 2 made by the Tribunal on 3 March 2021 is confirmed. In the Landlord's appeal proceedings 2021/00091560 we make one additional order: 1. Time to file the Notice of Appeal is extended up to and including 6 April 2021. Catchwords: LEASES AND TENANCIES – obligation to leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted as existed at the commencement of the tenancy - obligation to leave the residential premises in a reasonable state of cleanliness - damage to premises – lack of evidence of cause of damage – overlooking of evidence as to cleanliness – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b), Sch 4 cl 12 Residential Tenancies Act 2010 (NSW), ss 51(3)(b), 51(3)(c) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Texts Cited: Nil Category: Principal judgment Parties: Proceedings 2021/00075358: Sereen Bakeer (First Appellant) Mohammad Amro (Second Appellant) Ali Hariri (Respondent) Proceedings 2021/00091560: Ali Hariri (Appellant) Sereen Bakeer (First Respondent) Mohammad Amro (Second Respondent) Representation: Proceedings 2021/00075358: First Appellant (Self-Represented) Second Appellant (Self-Represented) Respondent (Self-Represented) Proceedings 2021/00091560: Appellant (Self-Represented) First Respondent (Self-Represented) Second Respondent (Self-Represented) File Number(s): 2021/00075358; 2021/00091560 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 03 March 2021 Before: S Thode, Senior Member File Number(s): RT 20/44331; RT 20/46686 REASONS FOR DECISION 1. Mrs Bakeer and Mr Amro (the "Tenants") were tenants of a residential property at Prestons, NSW, owned by Mr Hariri (the "Landlord"). The tenancy agreement began sometime in 2018 and was terminated on 9 October 2020. 2. After the termination of the tenancy the Tenants commenced proceedings in the Tribunal (RT 20/44331) seeking orders that the bond lodged for the property be paid to them. 3. The Landlord commenced proceedings in the Tribunal shortly thereafter (RT 20/46686) seeking orders for the payment of money (including the bond) to him for arrears of rent, damage to the property, cleaning of the property and removal of rubbish from the property. 4. The two proceedings were heard together and determined by the Tribunal on 3 March 2021. 5. The Tribunal accepted some of the claims made by the Landlord and rejected others. 6. Both parties appealed. 7. The Tenants' appeal (2021/75358) was filed within time, but the Landlord's appeal (2021/91560) was filed approximately 15 days out of time. 8. Both appeals were heard together. The Tenants' Appeal 1. The Tenants' appeal had two grounds. They were that: 1. The Tribunal erred in finding they caused the crack in the kitchen stone benchtop. 2. The Tribunal erred in finding they were liable to pay the Landlord $1,000 for rubbish removal. Ground 1 1. The reasons of the Tribunal in relation to the benchtop were: "The landlord claims damages in the sum of $2,500 for a cracked stone bench top. The tenants do not deny that the photographs show a crack in the bench top. They say they never noticed it during their tenancy. In the alternative, they say "a pot must have dropped on it" and that this could be considered fair wear and tear. I disagree. Dropping a heavy metal pot or other object onto a stone bench top is, in my view, negligent misuse. I find that the crack in the stone bench top is caused by the tenants, on the balance of probabilities. I accept the landlord's claim for a replacement cost as reasonable under the circumstances and on the low side, and in the absence of any quote from the tenants to the contrary, I award $2500 for this head of damage." 1. The Tribunal was in error in that passage in saying that the Tenants said that a "pot must have dropped" on the benchtop. There is no evidence that the Tenants said this, in the transcript of the hearing before the Tribunal or otherwise. In fact, it was the Landlord who said it in his submissions to the Tribunal. At p.59 of the transcript the Landlord is recorded as saying: "There is a massive crack now along that (sic) it must have been that someone dropped a pot or something and it broke." 1. There was no evidence that the Landlord had any expertise in stone benchtops, and there were no facts or reasoning process disclosed in the transcript or elsewhere as to how he came to that conclusion, and so no weight could be given to that assertion. It was merely speculation as to one theoretically possible cause of the cracking. 2. Cracks may develop in stone benchtops for a number of reasons. Dropping something heavy on a stone benchtop may cause a crack, as may standing on it. A sudden increase in temperature (for example, by placing something hot on the benchtop) may cause a benchtop to crack, as may building settlement. L-shaped benchtops contain weak points, as do thin strips of benchtop between two sink bowls and benchtops installed directly over under-bench appliances such as dishwashers and bar fridges. Inadequate support may also create weak points. 3. There was no other evidence as to the cause of the crack, other than that what may be gleaned from the fact it was not present at the commencement of the tenancy but was there some two years later when the tenancy was terminated. 4. The problem in this case was that the Landlord did not provide any evidence to the Tribunal as to the probable cause of the crack in the benchtop. Was it the dropping of something heavy or was it building settlement, faulty installation or some other cause which was not the responsibility of the Tenants? 5. In their submissions the Tenants suggested the crack was caused by a defect which pre-existed their tenancy and which was noted on the incoming condition report as "side of sink needs repair". As with the Landlord's case on this point, that was mere speculation unsupported by any evidence. 6. We do not think that the mere fact the crack appeared at some time during the Tenants' tenancy is sufficient evidence that the Tenants probably dropped a pot on it (causing it to crack). There was no evidence that a pot was dropped on the benchtop. There was no expert evidence that a pot, if dropped, would probably be heavy enough to cause this crack. There was no expert evidence to the effect that the mere fact the crack appeared during the tenancy pointed to the Tenants as the cause of the crack. 7. On the appeal the Landlord attempted to adduce new evidence from an expert on this issue but we did not allow that evidence. That was because whilst cl 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act") relevantly says that an Appeal Panel may grant leave under section 80(2)(b) of the NCAT Act to appeal on a ground other than an error of law if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with), that is not the present case. 8. It has been held in the Tribunal that the test of whether evidence is "reasonably available" is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence - Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. That test has been consistently followed by Appeal Panels subsequent to that decision and we follow it here. The Landlord accepted on this appeal that he could not meet that test and, accordingly, the new evidence was rejected. 9. It follows from what we have said above that the Tribunal erred in finding that the crack was caused by the Tenants dropping a pot on the benchtop. That statement, obviously treated by the Tribunal as an admission, was not made by the Tenants. Rather, it was speculation by the Landlord who had no qualifications to express such an opinion, and the assertion was unsupported by any facts or reasoning process. There being no expert evidence on the issue, the mere fact that the crack appeared during the tenancy does not persuade us, on the balance of probabilities, that the Tenants caused the crack. 10. For those reasons we uphold Ground 1. Ground 2 1. The reasons of the Tribunal in relation to rubbish removal were: "The landlord claims $1,000 for rubbish removal. The outgoing inspection report claims that rubbish and broken play equipment was left on the premises. The builder stated that 'rubbish was left in a heap outside the property, including large bags of expired fridge items". I accept the evidence of the landlord that he paid H&M tip trucks $1000 to remove the rubbish, including the tipping fee. The tenants did not deny leaving rubbish on the nature strip and appeared to think that this would take care of itself. In the absence of any quote to the contrary I accept the evidence of the builder and Mr Hariri that large amounts of rubbish were left and that a tip truck was required to remove it. I accept the uncontested sworn evidence of the landlord that he paid $1,000 and award the amount." 1. In their Notice of Appeal, the Tenants said that they did not own the play equipment (it was, the parties agreed, owned by the Landlord), nor certain garden equipment which was also part of the rubbish. 2. That may be so, but there was no evidence that the cost to remove the balance of the rubbish would have been any less had those items not been included particularly when considering the other items included in that charge for rubbish removal (about which we say more commencing at [28] below). 3. For example, tipping fees may have been charged per truckload and whether the truck was partly or fully loaded. Thus, tipping fees charged may have been exactly the same even if the play and garden equipment was excluded. 4. There was no evidence that the fee charged to collect the rubbish would have been any less had these items been excluded. For example, there was no evidence as to the size, number or weight of the play and garden equipment. It is possible that their size, number and weight may have been insignificant compared to the balance of the rubbish which needed to be removed and so their presence or absence may have been insignificant to the charge. 5. In the absence of such evidence, we cannot say that the Tribunal's finding of liability for rubbish removal for the amount charged would have been any different had the items owned by the Landlord have been excluded. 6. In their oral submissions the Tenants submitted that the Tribunal erred in awarding any amount for rubbish removal. They submitted that the only rubbish they left behind was that contained in three (or four) waste bins seen in a photograph on p.16 of what was called on appeal "Document 10" (it being part of Document 7 before the Tribunal) which the local council would have emptied in the usual way. 7. But that was not the totality of the evidence about rubbish left behind, and the Tribunal found that more was involved. 8. The Tribunal found that rubbish (in addition to play and garden equipment) was left on the premises. The Tribunal accepted evidence from a builder that rubbish was left in a heap outside the property, including large bags of expired fridge items. The Tribunal said that the Tenants did not deny leaving rubbish on the nature strip. The Tribunal accepted the evidence of the builder and the Landlord that large amounts of rubbish were left and that a tip truck was required to remove it. 9. Document 10 was some 16 pages of photographs, with each page containing eight photographs. Next to many of the photographs were typewritten responses by the Tenants. Several of those photographs refer to rubbish with no typewritten denial or other exculpatory response from the Tenants. This is in contrast to many other photographs where such denials or other exculpatory responses were given. Accordingly, that amounts to some admission as to what the photographs show. 10. Further, during the hearing, when the Tribunal was asking about particular items of rubbish being left on the premises, the Tenants did not dispute those items had been left behind. Instead, they responded to the questions by disputing the size of the charge for rubbish removal. This lack of a direct denial might also reasonably be seen as an admission that those items had been left behind. 11. For those reasons we reject the Tenant's' submission that the Tribunal erred in awarding $1,000 for rubbish removal on the basis that there were only three or four waste bins which the local council would have emptied. The Tribunal had evidence available to it, which it evidently accepted, that the Tenants left behind more rubbish than they submitted they did. We dismiss Ground 2. The Landlord's Appeal 1. The Landlord's appeal had four grounds. They were that: 1. The Tribunal erred in failing to award the sum of $3,500 for repair of damage to the premises. 2. The Tribunal erred in failing to award the sum of $500 for cleaning of the property. 3. The Tribunal erred in failing to award a sum for the repair and repainting of the driveway retaining wall. 4. The Tribunal erred in saying that the Landlord tendered one building quote when he tendered two. 1. We shall first deal with the issue of an extension of time for the Landlord's appeal. Extension of Time 1. The Landlord filed his Notice of Appeal approximately 15 days out of time. 2. He says he suffered a significant knee injury on 13 March 2021, some eight days after having received a copy of the Tribunal's decision. The suffering and extent of the injury is described in a report on an MRI scan conducted on 23 March 2021, and a medical certificate dated 16 April 2021. 3. The Landlord said that the suffering of the injury, and its sequalae, delayed him in filing his appeal. 4. The Landlord does not have a strong case for an extension of time, but on balance we consider that the justice of the case requires an extension of time to be granted. 5. The delay was not long, there is no prejudice to the Tenants, and we granted the Tenants a number of indulgences during the hearing of the appeal to raise matters which were not included in their Notice of Appeal. Granting those indulgences, and this extension of time, means that all parties were granted the opportunity to have all of their arguments heard and determined on their merits. Ground 1 1. Ground 1 has three sub-grounds. They were: 1. The Tribunal failed to take into account that the premises were being used as a commercial children's day-care facility. 2. The Landlord was not given the opportunity to give evidence to the Tribunal that the premises were being used as a commercial children's day-care facility. 3. The Tribunal failed to take into account certain evidence. 1. Those grounds all reference the question whether the damage which was observed at the end of the tenancy resulted from fair wear and tear, something for which the Tenants were not liable. Whether the wear and tear was fair involves consideration of a number of matters including the use to which the premises was put. 2. As to fair wear and tear the Tribunal said (with some spelling and grammatical changes by us to aid understanding): "The authority refers to 'fair wear and tear' as meaning by natural causes or unintentionally or as a normal incident of a tenant's occupation in the course of fair use of the premises for any purposes for which they were let. 'Fair' refers to the nature of the use and 'wear and tear' refers to the effect and how substantial is the damage concerned. Having regard to the authorities and in particular the discussion on the question of fair wear and tear contained on page 120 of the 5th Edition of Anforth on Residential Tenancies, Law and Practice, New South Wales I have considered the following factors in determining the issue of fair wear and tear concerning the state of the painting to the walls and door frames. (a) age, quality and condition at the beginning of the lease; (b) the average useful lifespan of the item; (c) reasonable expected use and (d) number and type of tenants. The tenant submitted that ordinary use of the house by a family with children has resulted in minor scratches on walls and doorframes, in the heavily trafficked areas of the house. Every day use has caused minor scuffs to door frames and walls. The photographs are not particularly clear and show barely any marks. On balance, I accept these to be within reasonable accepted use, and I find that the tenant has established that the scuff marks are 'fair wear and tear'." (Our emphasis) 1. As to the first of those sub-grounds, the Tribunal referred to the "ordinary use of the house by a family with children" in the quote above but was never told that the Tenants were also utilising the premises as a part-time commercial children's day-care facility. As the Tribunal was never told of this part-time commercial use it could not have erred in failing to take that consideration into account. 2. When that was pointed out to the Landlord during the hearing of the appeal, he submitted that he was never given the opportunity to lead that evidence. As noted above at [41], this is the second sub-ground. The Landlord submitted that the issue of wear and tear was first raised by the Tenants (who gave evidence after the Landlord), the Landlord had limited time to give evidence in reply and the Tribunal had rushed the Landlord to finish the case so much so that he did not have a fair opportunity to give evidence of this part-time commercial use. 3. We do not accept this submission 4. A tenant's obligation under s 51(3)(b) of the Residential Tenancies Act 2010 (NSW) ("RTA") is to leave the residential premises as nearly as possible in the same condition as they were in at the commencement of the tenancy, fair wear and tear excepted. Therefore, if the Landlord wished to say that the premises were not in the same condition as they were in when the tenancy commenced, and the Tenants should pay to have that result achieved, then the Landlord had to prove that the damage sued for was not fair wear and tear. Therefore, in the Landlord's case in chief (and not in reply), he was obliged to prove the damage was not fair wear and tear. 5. That is important in this case because the Landlord gave evidence first, and he had the opportunity at that time to give evidence that the premises were being used part-time as a commercial children's day-care facility if he considered that fact to be relevant to his claim. 6. Indeed, at p.14 of the transcript the Landlord referred to "normal wear and tear" in his evidence but did not take that opportunity to give evidence that the premises were being used part-time as a commercial children's day-care facility and thus the wear and tear observed was not "normal". 7. In his evidence in reply the Landlord also had an opportunity to give evidence that the premises were being used part-time as a commercial children's day-care facility. He submitted he did not have that opportunity, but the transcript reveals that whilst the Tribunal did say that it needed to bring the case to a close, the Tribunal also said that he could say anything in reply as long as it was short. 8. Therefore, we do not agree that the Landlord was prevented from giving evidence that the premises were being used part-time as a commercial children's day-care facility. 9. The third sub-ground was that the Landlord said the Tribunal failed to take into account some of the evidence of damage because the Tribunal failed to refer to that evidence in its reasons. That evidence concerned alleged excessive scraping of door frames, furniture marks on walls, ink/paint markings on walls/ceilings and like matters which are referred to in the Landlord's Application Form. 10. It is correct to say those matters are not specifically referred to in the Tribunal's reasons, but the law does not require every piece of evidence to be specifically referred to in a decision - Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 per McColl JA, with whom Ipp JA and Bryson AJA agreed, at [61]-[62] - and the fact that some evidence is not specifically referred to does not automatically mean that it was not considered. 11. In any event, a reading of the transcript reveals that the evidence was considered. At p.14 of the transcript the Tribunal said to the Landlord that the Tribunal would proceed to go through each of the heads of damage (meaning each of the items which were alleged to be damaged in the Application Form) with him, starting with the patching and painting. There then followed a number of pages of the transcript where the Landlord was taken to each item claimed and asked questions about it with cross-references to documents or photos provided. 12. A reading of the transcript also reveals the Tribunal was careful in addressing each item claimed by the Landlord. 13. In our opinion the Tribunal did consider all of the evidence and we do not accept the third sub-ground. 14. For the reasons set out above, we dismiss Ground 1. Ground 2 1. Ground 2 alleges that the Tribunal erred in not awarding the Landlord $500 for cleaning the premises after the Tenants departed. In relation to this claim the Tribunal said: "The landlord claims $500 for professional cleaning costs. I accept the landlord's evidence that he paid a cleaner $500 in cash. However, I also accept the tenant's sworn evidence that they paid for a professional exit clean in the sum of $650. I considered the evidence of the landlord that they found some greasy substance on the walls after the tenants vacated. However, I must consider the admissible contemporaneous evidence tendered by the landlord. I have had regard to the photographs in the 'document 7 damages report'. There are two photographs on the 24 page report that are described 'dirty sink' and 'dirty rails'. In the absence of any further evidence from the landlord I do not find a breach of the residential tenancy agreement established." 1. What was called Document 10 on the appeal was agreed by the parties to be 16 of the 24 pages making up Document 7 which was given to the Tribunal at the hearing. The pagination appears to be the same with the exception of the missing 8 pages. 2. It is implicit in the Tribunal's finding that there were two photographs in Document 7 that had captions saying "dirty sink" and "dirty rails", together with the Tribunal saying that in the absence of any further evidence from the Landlord it could not find a breach of the residential tenancy agreement, that the Tribunal considered there was no evidence of any further items requiring cleaning. That statement was wrong, there was "further evidence". 3. Further evidence of other items requiring cleaning was contained in other photos (to the two mentioned above) on other pages of Document 10 (before the Tribunal as Document 7), together with captions referring to the item in question being dirty and with no contradictory statement from the Tenants. Examples appear on page 1 of Document 10 (captioned: "alarm controller left uncleaned and packed with dust"), page 2 (captioned: "kitchen appliances cupboard left dirty…"), page 3 (captioned: "bin cabinet left dirty…"), page 4 (captioned: "sink left dirty…") and page 5 (captioned: "kitchen stacker door left dirty…" – with the additional comment from the Tenants that "tenant accept (sic) reasonable cleaning fee for this only"). Other examples appear on other pages of Document 10. 4. These items were not addressed by the Tribunal in the transcript, and, following on from what we have said at [59] above, we infer this evidence was overlooked by the Tribunal. It follows that the Tribunal erred in relation to this item and Ground 2 must be upheld. 5. The Tenants denied that the premises were insufficiently clean, and their evidence that they had paid a cleaner to do an exit clean was accepted by the Tribunal. Nevertheless, the Tribunal also accepted that the Landlord paid a cleaner $500 to also clean the premises, and it is apparent from the Tribunal's reasons (set out at [57] above) that the Tribunal preferred the contemporaneous evidence provided in the Landlord's photos. 6. We also prefer that evidence, and given the lack of contradiction by the Tenants in relation to the majority of those items, and the cleanliness of the premises at the commencement of the tenancy as shown by the incoming condition report, we find that the premises were not left in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy as required by s 51(3)(c) of the RTA. 7. For the above reasons we uphold Ground 2. 8. As the amount paid to the cleaner is a relatively modest amount and was not the subject of serious challenge before the Tribunal, we will accept that as a reasonable amount to be paid by the Tenants to the Landlord. 9. Exercising our power under s 81 of the NCAT Act we will make an order in favour of the Landlord against the Tenants for the $500 claimed for cleaning. Ground 3 1. Ground 3 alleges that the Tribunal erred in failing to award a sum for the repair and repainting of the driveway retaining wall. The Landlord says that the Tribunal erred in overlooking this claim. 2. We do not agree. 3. The driveway retaining wall is not referred to in the Landlord's Application Form filed on 6 November 2020. 4. It is apparent from the transcript (especially at p.8 at a time of 00:07:15) that the Tribunal had that Application Form in front of it and used it as a checklist for the items to be addressed in the evidence and in the Tribunal's decision. 5. Nor was the driveway retaining wall expressly referred to in the Landlord's oral evidence (or at all), nor was it itemised as a separate charge in the evidence in relation to painting. It was only mentioned in three photos on p.16 of Document 10. 6. The Landlord contends that it was sufficiently referred to in the Application Form because of the refence in that Form to photos showing items damaged and unclean. 7. In our opinion the oblique reference in the Application Form to photos of damaged and unclean items to which the Landlord drew our attention was insufficient to bring this item to the attention of the Tribunal, particularly when it was never mentioned in the Landlord's oral evidence and was not the subject of any evidence as to the particular charge for repair and repainting this driveway retaining wall. 8. In our opinion this item was not properly raised as part of the Landlord's case before the Tribunal and should not now be allowed to be raised for the first time on appeal as it is a matter which is contested by the Tenants. We dismiss Ground 3. Ground 4 1. Ground 4 alleged that the Tribunal erred in saying that the Landlord tendered one building quote when he tendered two quotes. Whilst the assertion is correct, the mistake made by the Tribunal would not have changed the result of the case as both quotes were treated as irrelevant by the Tribunal, a fact acknowledged by the Landlord at the hearing of the appeal. Accordingly, this ground may be dismissed. Orders 1. The result of what we have said above is that both appeals have been partly successful. In our opinion the Tenants should not have to pay the $2,500 for the cracked kitchen benchtop but should pay the $500 for the cleaning paid for by the Landlord. The Tribunal's Order 1 made on 3 March 2021 will be varied accordingly. 2. As the result of the two appeals means that the Tenants are liable to the Landlord for $5,278.00, and the amount of the bond was $2,750.00, Order 2 made by the Tribunal directing the Rental Bond Services to pay the bond to the Landlord together with any interest will be confirmed. 3. We make the following orders in both appeals: 1. Appeal upheld. 2. Order 1 made by the Tribunal on 3 March 2021 is varied to substitute the sum of $5,278.00 for the sum of $7,278.00 referred to in that Order. 3. Order 2 made by the Tribunal on 3 March 2021 is confirmed. 1. In the Landlord's appeal proceedings 2021/00091560 we make one additional order: 1. Time to file the Notice of Appeal is extended up to and including 6 April 2021. ********** 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: 29 June 2021