Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ajayan v Zhu [2022] NSWCATCD 34 Hearing dates: 25 March 2022 Date of orders: 29 March 2022 Decision date: 29 March 2022 Jurisdiction: Consumer and Commercial Division Before: D Moujalli, Senior Member Decision: 1. The Tribunal directs the Rental Bond Board to pay $1,005 from rental bond No. S918568-8 to the respondent/landlord. 2. The Tribunal directs the Rental Bond Board to pay the balance of the rental bond of $595 to the applicant/tenant. Catchwords: LEASES AND TENANCIES – Tenant's obligation not to damage residential premises - Rental bond - Payment and release Legislation Cited: Residential Tenancies Act 2010 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Mukesh Pulikkapparambil Ajayan (Applicant) J Zhu (Respondents) Representation: Applicant (Self-represented) Respondent (Self-represented) File Number(s): RT22/03954 Publication restriction: Nil REASONS FOR DECISION Introduction 1. On 29 January 2022 the applicant, as the former tenant of residential premises, lodged an application with the Tribunal against the respondent as the landlord of the premises (the Application). The applicant seeks an order in relation to the payment of the rental bond under s 175 of the Residential Tenancies Act 2010 (NSW) (RTA). 2. The applicant and the respondent are agreed that $1,005 of the rental bond should be paid to the respondent landlord. This is to compensate the landlord for repair to the light bulbs in the premises ($200 plus GST), cleaning of the premises ($350 plus GST) and for the early termination by the applicant tenant of the residential tenancy agreement ($400). 3. There remains a dispute as to the payment of the balance of the rental bond. The respondent claims an amount of either $550 or $495 for repair to the vanity in the bathroom of the premises. 4. The rental bond provided by the applicant has not been released by the Rental Bond Board pending determination of the dispute between the parties. 5. At the hearing on 25 March 2022, the applicant was self-represented and the respondent was represented by his property manager, Mr Gu. 6. The hearing on 25 March 2022 proceeded by telephone. 7. At the hearing each party was given an opportunity to present their evidence, ask questions of the other party and make submissions. 8. Both the applicant and Mr Gu participated in the hearing in a respectful manner and the Tribunal is grateful for their assistance and co-operation in the conduct of the hearing. Jurisdiction 1. The dispute between the applicant and respondent arises from their relationship as the tenant and landlord respectively under a residential tenancy agreement governed by the RTA. 2. It was common ground at the hearing that a residential tenancy agreement had existed between the parties and had come to an end. Section 190(2) permits an application to be made to the Tribunal after a residential tenancy agreement has come to an end. 3. The Tribunal also specifically has power to make an order in relation to the payment of rental bond pursuant to s 175 of the RTA. 4. The premises are not of a type specified in s 7 of the RTA as being excluded from the operation of the RTA. 5. The Tribunal therefore has jurisdiction to hear and determine the matter pursuant to the powers granted to it under the RTA in respect of residential tenancy agreements. Evidence 1. In determining the Application, the Tribunal has had regard to the following: 1. The material filed by the respondent on or about 16 February 2022 which in total comprises 75 pages of documents. This was marked Exhibit R1 at the hearing on 25 March 2022. 2. The oral evidence and submissions of the parties at the hearing on 25 March 2022. 1. The findings made by the Tribunal on the basis of the above evidence is set out below. Assessment of the Evidence and Findings of Fact 1. The applicant and respondent entered into a residential tenancy agreement on about 6 February 2021. The residential premises the subject of the agreement comprise an apartment located in Homebush, NSW. 2. The residential tenancy agreement was for a period of 12 months. However, the tenant vacated the premises early on or about 19 January 2022. As has already been noted, the tenant has agreed to pay a fee of $400 to the landlord for the early termination of the tenancy. 3. The applicant lodged a rental bond in the sum of $1,600 on 22 January 2021 (rental bod number S918568-8). 4. The dispute between the parties is now confined to the vanity in the bathroom of the premises. 5. The respondent landlord claims that during the tenant's occupation of the premises, water damage occurred to the drawers of the vanity. There is photographic evidence of this: see pages 65 and 66 of Ex R1. 6. Mr Gu gave evidence that his firm has been the property manager for the premises for just over 2 years. That covers the almost 12 months that the applicant was in occupation and about 12 months preceding the tenant's occupation of the premises. He gave evidence that there was no water leakage or damage during the 12 months preceding the applicant's occupation of the premises. He therefore contends that the damage was caused by the applicant's failure to prevent water from accumulating on the surface of the vanity and then flowing down to the drawers of the vanity. 7. Mr Gu also gave evidence that he had obtained two quotes to repair the damage to the vanity. One was for $550 for a full replacement of the vanity. The other was for $495 which involved repair without a full replacement of the vanity. Mr Gu said that either method would be effective to repair the damage. 8. Mr Ajayan accepted that the vanity was in good condition at the start of the tenancy. Mr Ajayan gave evidence that the top of the vanity had a flat surface. He said that water accumulated on the surface. Because of the design of the top of the vanity, the accumulated water did not naturally and easily flow down into the basin of the vanity. This meant that some of the water leaked down to the drawers of the vanity. 9. Mr Ajayan gave evidence that when he and his partner noticed that water was leaking down to the drawers, they sought to minimise the amount of water leakage. They wiped down the vanity each and every time they used the tap of the vanity. However, he gave evidence that even with these measures, they were unable to prevent all water leakage. 10. Mr Ajayan also gave evidence that he only noticed the water damage to the drawers shortly before the premises were vacated in about January 2022. Applicable Law 1. Section 51 of the RTA provides relevantly: 51 Use of premises by tenant (1) A tenant must not do any of the following— …. (d) intentionally or negligently cause or permit any damage to the residential premises, … (2) A tenant must do the following— (a) keep the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy, (b) notify the landlord of any damage to the residential premises as soon as practicable after becoming aware of the damage. (3) On giving vacant possession of the residential premises, the tenant must do the following— (a) remove all the tenant's goods from the residential premises, (b) leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and, if there is a condition report, as set out in the condition report applicable to the premises when the agreement was entered into, (c) leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy, (d) remove or arrange for the removal from the residential premises of all rubbish, having regard to the condition of the premises at the commencement of the tenancy, (e) return to the landlord all keys, and other opening devices or similar devices, provided by the landlord to the tenant. 1. By virtue of s 51(5) of the RTA, the obligations pursuant to s 51 of the RTA are terms of the residential tenancy agreement. 2. Section 175 of the RTA provides relevantly: 175 Powers of Tribunal (1) The Tribunal may, on application by a landlord or tenant or any other person (including a former co-tenant) who has an interest in the payment of a rental bond, make an order as to the payment of the amount of the rental bond. Consideration and Decision 1. I accept Mr Ajayan's evidence. It appeared to me that he was a credible witness, took seriously his affirmation to tell the truth and was doing his best to assist the Tribunal in its fact-finding function. I do not intend to suggest by these observations that Mr Gu was not a credible witness. However, Mr Gu was not in position to have direct knowledge of the use made of the vanity and his evidence therefore necessarily involved speculation as to how the water damage to the vanity was caused. 2. Based on Mr Ajayan's evidence, I consider that he and his partner took the only reasonable steps available to them to deal with the accumulation of water on the surface of the vanity, that is, wiping it down each time they used the vanity. It would not have been reasonable to expect them to cease all use of the vanity. 3. I am unable to identify any other steps which the applicant and his partner could have taken to prevent water run off from the top of the vanity, especially having regard to its design which consists of a flat surface. 4. There is no basis in the evidence for a finding that the damage to the vanity was intentionally or negligently caused by the applicant. 5. The Tribunal therefore rejects the respondent's argument that the applicant is liable for the damage to the vanity. Orders 1. For the above reasons, the Tribunal does not consider that the applicant has any liability to the respondent arising from the condition of the vanity at the end of the tenancy. The Tribunal therefore directs the Rental Bond Board to pay $1,005 of rental bond No. S918568-8 to the respondent/landlord as agreed by the parties. The balance of the rental bond, ie, $595, is to be paid to the applicant/tenant. ********** 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 April 2022