Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Goldstein v Whaley; Whaley v Goldstein [2021] NSWCATCD 134 Hearing dates: 7 September 2021 Date of orders: 16 November 2021 Decision date: 16 November 2021 Jurisdiction: Consumer and Commercial Division Before: J Searson – General Member Decision: 1. The tenants Tom Goldstein and Asaf Dressler are to pay the landlord Heath Whaley the sum of $4746.48 within 28 days of the date of these orders. 2. Renting Services is to pay the landlord the whole of the bond plus interest of rental bond number S190984-8 any amount received is to be credited against the money order. 3. The respondent / landlord's name is amended in matters RT21/23938 and RT21/36238 to Heath Whaley. Catchwords: RESIDENTIAL TENANCY — Compensation — Bond Legislation Cited: Residential Tenancies Act 2010 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Pearson v Clark [2016] NSWCATAP 134 Elhassen v Ayoub [2018] NSWCATAP 34 Patricia Panico v Carolyn Crompton and Rodney Jennings [2015] NSWCATAP 110 Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWCA 224 Haskell v Marlow [1928] 2 KB 45 Adoncello v Sazdanoff [2006] NSWCTTT 577 Fitzpatrick v Wu (RTT01/16425) Texts Cited: Nil Category: Principal judgment Parties: In RT 21/23938: Tom Goldstein (Applicant) Asaf Dressler (Applicant) Heath Whaley (Respondent) In RT21/36238: Heath Whaley (Applicant) Tom Goldstein (Respondent) Asaf Dressler (Respondent) Representation: In RT 21/23938: Applicants (Self-represented) E James (Agent) (Respondent) In RT21/36238: E James (Agent) (Applicant) Respondents (Self-represented) File Number(s): RT21/23938 RT21/36238 Publication restriction: Nil REASONS FOR DECISION background 1. The tenant made an application under section 175 of the Residential Tenancies Act 2010 (NSW)("RT Act") on 1 June 2021 ("the tenant's application"). 2. The landlord made an application under sections 175, and 187 of the RT Act on 25 August 2021 ("the landlord's application"). 3. The tenant's application (RT21/23938) sought orders with respect to payment of the bond of $3800. 4. The landlord's application (RT 21/36238) sought payment of compensation in the total amount of $18494.30 or $14694.30 after payment of the bond. 5. As these matters relied on the same facts they were heard together in a virtual hearing room at Gosford on 7 September 2021. 6. The following reasons for decision relate to both matters. Jurisdiction 1. The Tribunal has jurisdiction to hear and determine this matter. The applicant are both a tenant and a landlord respectively and the dispute relates to a residential tenancy within the meaning of the Residential Tenancies Act 2010 ("RT Act"). 2. The Tribunal is a statutory body, established on 1 January 2014 by the Civil and Administrative Tribunal Act 2013 (NSW) section 7(2)(a) ('NCAT Act'). 3. Under Schedule 4 section 3 of the NCAT Act, the Tribunal's Consumer and Commercial Division has jurisdiction in relation to matters arising under the Residential Tenancies Act 2010 ("RT Act"). 4. The parties entered into a fixed term agreement which commenced on 30 May 2020 and ended on 29 May 2021 to lease the premises situated at XXX Belongi Crescent Byron Bay NSW ("the premises") for $950 per week. 5. The residential tenancy agreement continued after 29 May 2021 on a periodic basis. 6. A bond of $3800 was paid by the tenants. 7. Vacant possession of the premises was given on or about 31 May 2021 when the tenants returned the keys. 8. The applications have been brought within the required time period. Evidence and submissions 1. The landlords relied upon a number of bundles of documents which were marked as "exhibit 1" and entered into evidence. 2. The landlord's agent Ms James gave oral evidence in support of the landlord at the hearing. 3. The tenants relied upon a number of bundles of documents which were marked as "exhibit 2" and entered into evidence. 4. The tenants both gave oral evidence at the hearing. 5. The parties were given the opportunity to cross examine each other. 6. Both parties were given the opportunity to provide the Tribunal with written submissions after the hearing. The Tribunal has received written submissions from both parties. 7. The Tribunal has read and considered all of the documentary evidence of the parties including the written submissions. Bond & compensation 1. It is for the landlord to establish a valid claim on the bond (see Pearson v Clark [2016] NSWCATAP 134 at 71). 2. In the current matter the landlord is seeking to claim compensation and the bond as follows: 1. Damage to downstairs flooring $9270 2. Blind cleaning $180 3. Damage to kitchen bench top $4420 4. Landscaping $2963.65 5. Damage to fridge $280.50 6. Carpet cleaning $165 7. Painting $1080 8. Rent arrears $135.15 9. TOTAL $18,494.30 10. LESS BOND $3800 11. TOTAL $14,694.30 1. In order for the landlord to succeed in their compensation and bond claim they must prove on the balance of probabilities and with evidence a breach by the tenant of either a term the tenancy agreement or the RT Act 2. Section 51(3) of the RT Act provides the obligations of a tenant when giving vacant possession back to the landlord. The obligations include removing all personal items from the premises, leaving the premises as nearly as possible in the same condition as at the beginning of the tenancy (fair wear and tear excepted), leaving the premises reasonably clean, removing all rubbish and returning all keys. 3. Section 33 of the RT Act provides the obligations of a tenant with respect to the payment of rent. 4. Based on the evidence of the landlord including the ingoing and outgoing condition reports, the photographs at the commencement and end of the tenancy, the invoices and quotes, the ledger and other documents the Tribunal finds that there has been a breach by the tenant of their obligations under s 51(3) and s 33 of the RT Act. 5. Having found a breach of the obligations under s 51(3) and s 33 of the RT Act the Tribunal then needs to consider what amount of compensation is fair and reasonable in the circumstances. Compensation should only place the landlord in the position they would have been in but for the breach. As noted in the matter of Welch v Luke; Luke v Welch [2019] NSWCATCD 72 ("Welch") at 36 "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. 6. Each of the items claimed above will be addressed separately below in relation to the issue of compensation. 7. As noted in Welch at 31-35: 1. "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. 2. 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. 3. 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. 4. 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. 5. 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." 1. With respect to the claim of $9270 the Tribunal considers that this claim by the landlord is excessive in the circumstances. The landlord is not entitled to have the tenants pay for new hard flooring in circumstances where the flooring was approximately 4 years old. Also the amount claimed does not make any allowance for fair wear and tear by the tenants over a tenancy of almost 4 years. Additionally, not all of the flooring was damaged and there was some damage to the flooring noted on the ingoing condition report, that is it was not in pristine condition when the tenants moved in. The ingoing report notes that the floor coverings in the lounge room were "timber – some light scuffs and one large scratch". The flooring in the dining room is noted on the ingoing report as having "light scuffs". Therefore the Tribunal has calculated an amount of $1535.83 as a fair and reasonable amount of compensation for the tenant's breach with respect to the damage to the flooring. This amount is calculated by depreciating the "start price" of $7730 over 4 years by 10% each year giving a figure of $5071.65 and then dividing this figure in half to allow for the condition of the flooring on the ingoing report, fair wear and tear and to account for the fact that not every floor board was damaged and required replacement. Further this amount is reduced by a further $1000 to allow for the fact that there was no evidence that the tenants had damaged the scotia / quad an transition strips so an allowance has been made for these items. 2. In relation to the claim of $180 for blind cleaning the Tribunal considers that this amount is fair and reasonable in the circumstances and based on a comparison of the ingoing and outgoing condition reports and the quotation of The Blind Doctor dated 25 June 2021. 3. With respect to the claim of $4420 in relation to the kitchen bench top the Tribunal also considers that this claim is excessive in the circumstances. This is because the claim does not take into consideration any allowance for depreciation over the 4 years. The tenants are not responsible for the landlord having a new bench top at the end of the tenancy, but an approximately 4 year old undamaged bench top. The Tribunal is not satisfied on the evidence that the bench top is beyond repair and requires a full replacement. Both the applicant and the respondent's evidence was that repair of the bench top could be undertaken to remove the scorch mark (see the Applicant's quote of The Stone Restoration Company dated 16 June 2021 and the Respondent's quote of The Marble Man dated 27 July 2021). In those circumstances the Tribunal considers that the amount of $1485 as per the quote of The Marble Man dated 27 July 2021 is a fair and reasonable amount of compensation for the tenant's breach. 4. In relation to the landlord's claim for landscaping of $2963.65 the Tribunal also considers that this claim is excessive in the circumstances. Firstly the quote of On 2 It Maintenance & Landscapes dated 12 June 2021 gives a total with two options in relation to the replacement of the grass namely "option 1 Buffalo $1209.30" and "option 2 Nullarbor Couch $359.35" the total quoted of $2963.65 includes both of these options not one or the other, so the amount is over quoted. Secondly, there is no evidence in the ingoing report to suggest that there was new mulch and lawn when the tenants moved into the property. It does appear that the gardens were in good but not pristine condition at the start of the tenancy. In addition, it appears that some of the issues with the garden arose in circumstances where a watering system was to be installed but was delayed somewhat. In those circumstances the Tribunal considers that a fair and reasonable amount in relation to the tenant's breach would be $425. This amount is calculated as being the cost of replacing 7 plants at $375 and $50 for labour, totalling the amount of $425. 5. With respect to the claim for $280.50 in relation to the damage to the refrigerator the Tribunal finds that this amount is a fair and reasonable amount of compensation based on the quote of Byron Shire Appliances dated 25 June 2021. 6. In relation to the claim of $165 for carpet cleaning the Tribunal finds that this amount is a fair and reasonable amount of compensation based on the quote from Chemdry dated 22 June 2021 noting that the quote states that "minimum charge applies". 7. With respect to the claim by the landlord for $1080 for painting and other repair works the Tribunal considers that this claim is excessive. This is because the paintwork would have been approximately 4 years old at the time that the tenants vacated. Additionally, there were some issues noted in relation to the walls on the ingoing condition report. In particular, the ingoing report notes that in the dining room "walls / picture hooks – mark near desk on wall". Further the ingoing report notes in the entrance / hall "walls / picture hooks – light mark on wall near entrance to stairs". In those circumstances the Tribunal considers that a fair and reasonable amount for the tenant's breach is $540. 8. In relation to the claim for rent arrears of one day totalling $135.15 the Tribunal finds that this is a fair and reasonable amount for the tenant's breach based on the ledger document. 9. In summary then the Tribunal will order the following amounts in relation to the tenants breaches of sections 51(3) and 33 of the RT Act: 1. Damage to downstairs flooring $1535.83 2. Blind cleaning $180 3. Damage to kitchen bench top $1485 4. Landscaping $425 5. Damage to fridge $280.50 6. Carpet cleaning $165 7. Painting $540 8. Rent arrears $135.15 9. TOTAL $4746.48 10. LESS BOND $3800 11. TOTAL $946.48 1. Therefore the Tribunal will order that the tenants are to pay the landlord the sum of $4746.48 within 28 days of the date of these orders. Renting services are to release the whole of the bond plus interest to the landlord and any amount received is to credit against the above amount owed by the tenants in the money order. 2. Finally, the landlord / respondent's names are amended in matter RT21/23938 from Heath Wailly and Michelle Wailly to Heath Whaley. This is because the spelling is incorrect and not in accordance with the spelling on the Residential Tenancy Agreement. The Residential Tenancy Agreement records the spelling of the landlord's names as "Heath Whaley". Michelle Whaley is not included as a landlord on the Residential Tenancy Agreement so that name is removed from both applications. ********** 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: 14 February 2022