Civil and Administrative Tribunal New South Wales Medium Neutral Citation: James v Stuart [2022] NSWCATCD 35 Hearing dates: 21 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 the whole of rental bond No. B009964-9 to the applicant/tenant. Catchwords: LEASES AND TENANCIES – tenant's obligation not to damage premises – fair wear and tear – tenant's obligation to leave premises in reasonable state of cleanliness - rental bond - payment and release Legislation Cited: Residential Tenancies Act 2010 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Orlaith James (Applicant) Michael Stuart and Dena Murdoch (Respondents) Representation: Applicant (Self-represented) C Henriques (Property Manager) (Respondent) File Number(s): RT22/05450 Publication restriction: Nil REASONS FOR DECISION Introduction 1. On 8 February 2022 the applicant, as the former tenant of residential premises, lodged an application with the Tribunal against the respondents as the landlords of the premises (the Application). The applicant seeks an order for the payment of a rental bond under s 175 of the Residential Tenancies Act 2010 (NSW) (RTA). 2. The respondents oppose the Application on the basis that the applicant and her co-tenant: 1. caused damage to the floor boards in the premises; 2. caused damage to a kitchen granite bench top in the premises; and 3. did not leave the premises in a satisfactory state of cleanliness on vacating the premises. 1. The rental bond provided by the applicant and her co-tenant has not been released by the Rental Bond Board pending determination of the dispute between the parties. 2. At the hearing on 21 March 2022, the applicant was self-represented and the respondents were represented by their property manager, Ms Henriques. 3. The hearing proceeded by telephone. At the hearing each party was given an opportunity to present their evidence, ask questions of the other party and make submissions. 4. Both the applicant and Ms Henriques 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 respondents arises from their relationship as the tenant and landlords 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 applicant on or about 22 February 2022 which in total comprises 45 pages of documents. This was marked Exhibit A1 at the hearing on 21 March 2022. 2. Various photographs of the premises taken by the applicant when the premises were vacated. These were marked Exhibit A2 at the hearing on 21 March 2022. 3. Various photographs which had been provided to the applicant by the respondents' then property manager at the commencement of the tenancy. These were marked Exhibit A3 at the hearing on 21 March 2022. 4. The material filed by the respondents on 7 March 2022 which in total comprises 129 pages of documents. This was marked Exhibit R1 at the hearing on 21 March 2022. 5. The oral evidence and submissions of the parties at the hearing on 21 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 a co-tenant and the respondents entered into a residential tenancy agreement on 6 December 2019. The residential premises the subject of the agreement comprise an apartment located in Coogee, NSW. 2. The residential tenancy agreement originally specified an end date of 6 February 2021. However, the tenancy was extended on two subsequent occasions. During negotiations prior to the first extension of the tenancy, the respondents' then property manager conveyed to the applicant that she and her co-tenant were "excellent tenants" (page 37 of Ex A1). 3. The tenants vacated the premises on 7 February 2022 meaning that their occupation of the premises was for a period of 2 years and 2 months. 4. As required by the residential tenancy agreement, the applicant and her co-tenant lodged a rental bond in the sum of $2,900 on 11 December 2019 (rental bod number B009964-9). 5. At the start of the tenancy, a condition report of the premises was prepared on behalf of the respondent landlords and provided to the tenants (the First Condition Report). The First Condition Report is scant on detail. It records that the floor boards in the lounge room were "undamaged" and "polished. It also records that the floor covering in the kitchen was "floor boards" and "undamaged". It records that the bench top in the kitchen was "undamaged" and had "no cracks". There are 22 photographs attached to the First Condition Report. The copies of the photographs in evidence (pages 83 to 94 of Ex R1) are of very poor quality and have been of limited assistance to the Tribunal in determining the condition of the premises at the commencement of the tenancy. 6. Ms James gave evidence that prior to vacating the premises, she, her co-tenant and her partner cleaned the premises from "top to bottom" and "gave it a really good clean". After this cleaning and prior to vacating the premises, Ms James took 80 photographs showing the condition of the premises after they had been cleaned by the tenants (pages 8 to 28 of Ex A1). 7. After the premises were vacated, ie, on or about 7 February 2022, Ms Henriques prepared a condition report of the premises (the Second Condition Report). Various photographs are attached to the Second Condition Report. 8. The respondents rely on the Second Condition Report specifically in the following respects: 1. they say there are scratches on the floor boards in the lounge room which did not exist at the start of the tenancy: Ms Henriques pointed to photographs 7 and 8 on page 107 of Ex R1; 2. they say there is damage to the floor boards in the kitchen just outside the laundry door which did not exist at the start of the tenancy: Ms Henriques pointed to photographs 3 and 4 on page 109 of Ex R1; 3. they say there are chips to the bench top in the kitchen which did not exist at the start of the tenancy: Ms Henriques pointed to photographs 12, 13, 14 and 15 on page 110 of Ex R1; and 4. they say that the premises were not in the same state of cleanliness at the end of the tenancy as they were in at the start of the tenancy. 1. Ms James gave evidence that the matters identified by the respondents in relation to the floor boards and the bench top existed at the start of the tenancy and, in any event, were of a minor nature and the result of fair wear and tear. Her evidence in relation to the cleaning of the premises has already been noted. 2. In particular, Ms James referred to photographs of the premises at the start of the tenancy which were provided to her by the respondents' then property manager. These photographs show the condition of the floor boards in the kitchen just outside the laundry door which the respondents say was damaged by the tenants: the relevant photographs are identified as 5A, 6A and 7A on page 32 of Ex A1. I consider this evidence further below. 3. In relation to the cost of rectifying the matters complained of, the respondents rely on the following invoices: 1. an invoice for $1,580 to "sand & polish existing floating floors" (page 127 of Ex R1); 2. an invoice for $1,650 to "repair chips… remove stains… repolish" bench top (page 128 of Ex R1); and 3. an invoice for $550 to clean the premises. Applicable Law 1. Section 30 of the RTA relevantly provides: 30 Condition report evidence of condition of premises (1) A condition report that is signed by both the landlord and the tenant is presumed to be a correct statement, in the absence of evidence to the contrary, of the state of repair or general condition of the residential premises on the day specified in the report. 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. Section 54 of the RTA provides relevantly: 54 Liability of tenant for actions of others (1) A tenant is vicariously responsible to the landlord for any act or omission by any other person who is lawfully on the residential premises (other than a person who has a right of entry without the tenant's consent) that would have been a breach of the residential tenancy agreement if it had been an act or omission by the tenant. 1. By virtue of ss 51(5) and 54(2) of the RTA, the obligations and/or liability pursuant to ss 51 and 54 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 The condition of the floorboards in the kitchen 1. The respondents argue that the damage shown to the floor boards in the kitchen in the Second Condition Report is not shown or referred to in the First Condition Report. A condition report only provides a presumption as to the condition of the premises "in the absence of evidence to the contrary": s 30 of the RTA. Here there is evidence to the contrary. Ms James gives evidence that the identified damage existed prior to the occupation of the premises by her and the co-tenant. 2. I accept Ms James' evidence. It appeared to me that she was credible, took seriously her affirmation to tell the truth and was doing her best to assist the Tribunal in its fact-finding function. I do not intend to suggest by these observations that Ms Henriques was not a credible witness. The difficulty with Ms Henriques' evidence is that she did not make any direct observations of the premises at the start of the tenancy as at that time another property agent was responsible for the premises. 3. I also consider that Ms James' evidence is corroborated by the photographs of the condition of the floor boards at the start of the tenancy referred to in paragraph 23 above. While the copies of the photographs in evidence are not of the best quality, they do appear to show pre-exiting damage to the floor boards in the areas identified by Ms Henriques. 4. Based on the above evidence, the Tribunal rejects the argument that any damage to the floor boards in the kitchen was caused by the applicant or her co-tenant. 5. Even if the Tribunal were wrong in the above conclusion, the available evidence does not permit the Tribunal to determine a reasonable amount for rectifying the damage to the floor boards in the kitchen. The respondents rely upon an invoice for sanding and polishing the whole of the floors in the hall, kitchen and lounge. There is no evidence to indicate that this was the only practicable way to rectify any damage to a very localised area of the floor boards in the kitchen. Ms Henriques suggested that the Tribunal could determine that a portion of the amount paid to sand and polish the floor boards was attributable to the damage in the kitchen. However, it does not appear to the Tribunal how any such apportionment could be made in a principled or rational manner. The condition of the floorboards in the lounge room 1. The Tribunal has been unable to discern any damage to the floor boards in the lounge room in the relevant photographs identified by Ms Henriques (see paragraph 21(1) above). 2. If there has been any change in the condition of the floor boards in the lounge between the start and end of the tenancy, the Tribunal considers that this is attributable to fair wear and tear. There is certainly no evidence that the tenants intentionally or negligently caused or permitted any damage to the floor boards in the lounge room. Floor boards are intended to be subject to human foot traffic. It is to be expected that they will be subject to fair wear and tear as a result of this. 3. The Tribunal therefore rejects the respondents' argument that the tenants are liable for any change in the condition of the floor boards in the lounge room, if there was in fact any change during the tenancy. Even if the Tribunal were wrong in this conclusion, the evidence would not permit a determination as to a reasonable amount for rectifying any change in the condition of the floor boards because of the matters noted in paragraph 34 above. The condition of the bench top in the kitchen 1. Based on the photographs identified by Ms Henriques (see paragraph 21(3) above), the chips to the kitchen bench top are very minor. It is unlikely that they would be noticeable other than upon a very close-up inspection. 2. I accept the applicant's evidence that these chips existed at the start of the tenancy even though they are not noted in the First Condition Report. I refer to to my comments in paragraph 31 above. 3. Even if the Tribunal is wrong in this conclusion, the chips in the bench top are the result of fair wear and tear. There is no evidence that the tenants intentionally or negligently caused or permitted the chips to the bench top. It was common ground that the bench top was a granite product of over 10 years old. There is no evidence as to the ability of the relevant product to withstand minor chips with normal everyday usage. The available evidence does not permit a conclusion that the chips to the bench top, if they were not pre-existing, were other than the result of fair wear and tear. 4. Even if the Tribunal were wrong in its conclusion that the tenants cannot be liable for any damage to the bench top, the evidence would not permit a determination as to a reasonable amount for rectifying the relatively minor chips to the bench top. The invoice relied upon by the respondents appears to cover work to the whole of the bench top and which was more extensive than simply repairing the chips. There is no evidence to indicate that this was the only practicable way of repairing the chips. The landlord's claim for cleaning 1. I accept the evidence of Ms James in relation to the cleaning of the premises prior to vacating the premises. I have also reviewed the extensive photographic evidence provided by both the applicant and respondents in relation to the condition of the premises at the end of the tenancy. I have also considered the state of the premises as shown in the First Condition Report but also noting the limitations referred to in paragraph 18 above with the First Condition Report in ascertaining the state of the premises at the start of the tenancy. 2. My inspection of the photographs indicates that all areas of the premises were adequately cleaned by the tenants prior to them vacating the premises. 3. Based on the available evidence, I consider that the tenants left the premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy. The Tribunal therefore rejects the respondents' argument that the tenants did not leave the premises in the state of cleanliness required by s 51(3) of the RTA. Orders 1. For the above reasons, the Tribunal does not consider that the applicant has any liability to the respondents arising from the condition of the premises at the end of the tenancy. The Tribunal therefore directs the Rental Bond Board to pay the whole of rental bond No. B009964-9 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. 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