Civil and Administrative Tribunal New South Wales Medium Neutral Citation: INT Property Group Pty Ltd v Kaur [2022] NSWCATCD 142 Hearing dates: 18 July 2022 Date of orders: 27 July 2022 Decision date: 27 July 2022 Jurisdiction: Consumer and Commercial Division Before: P French, Senior Member Decision: (1) The tenants, Daljeet Kaur and Jaswinder Singh, must pay the landlord, INT Property Group Pty Ltd, $2,485.00 immediately. (2) The application is otherwise dismissed. Catchwords: LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – rights and obligations of landlords and tenants Legislation Cited: Residential Tenancies Act 2010 (NSW) – ss 51, 63, 187, 190 Cases Cited: Adoncello v Sazdanoff (Tenancy) [2006] NSWCTTT 577 Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) P/L [2006] NSWCA 224 Bell & Bell v Boccola, Campbell & Lawrence (Residential Tenancies) [2009] ACAT 26 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 Cure v Bridge Housing Ltd [2014] NSWCATAP 80 Elhassen v Ayoub [2018] NSWCATAP 34 Fitzpatrick v Wu NSWRT, 2001, (01/16425) Kaur v INT Property Group Ltd [2022] NSWCATAP 178 Lindsay v NSW Land and Housing Corporation [2016] NSWCATAP 128 Marcourt v Clark [2012] NSWCA 367 O'Brien v Twynam [2016] NSWCATAP 125 Sunray Investments P/l v Cruwys [1992] NSWRT 95 Westpac General Insurance v Cooper [2006] ACTSC 91 Category: Principal judgment Parties: INT Property Group Pty Ltd (Applicant) Daljeet Kaur (First Respondent) Jaswinder Singh (Second Respondent) Representation: C Root, Raine and Horne Baulkham Hills (Applicant) First Respondent (self-represented) No appearance by Second Respondent File Number(s): RT 22/24493 Publication restriction: Nil REASONS FOR DECISION Introduction 1. This is an application by INT Property Group Pty Ltd (the landlord) for an order pursuant to ss 51(1)(d), 3(b) and (c), 187(1)(d), and 190 of the Residential Tenancies Act 2010 (RT Act) that would require Jaswinder Singh and Daljeet Kaur (the tenants) to pay it a total of $7,195.50 in compensation for damage and loss it contends it incurred due to negligent damage caused or permitted to the premises in the course of the tenancy, and by the tenants failure at the end of the tenancy to leave the premises reasonably clean, and in a condition as close as possible to the condition it was in at the start of the tenancy. This application was made on 23 November 2021 (the application). 2. For the reasons set out in greater detail following, the Tribunal is comfortably satisfied that the landlord has established a breach of the tenants' obligations under the residential tenancy agreement in relation to four items of the claim, and an entitlement to compensation for damage and loss suffered because of those breaches in the total amount of $2,485.00. The application is otherwise dismissed. Procedural History 1. The application was first listed before the Tribunal, differently constituted, for final hearing on 1 March 2022. The Tribunal entered final orders in the application on 4 March 2022 (which were subject of a slip-rule amendment on 17 March 2022), finding substantially in favour of the landlord. This first instance decision was the subject of a successful Appeal by the tenants, which has resulted in the matter being remitted to the Division for redetermination. 2. The remitted matter first came before the Tribunal, differently constituted, on 2 June 2022 for directions. The dispute could not be resolved cooperatively which resulted in the matter being adjourned for a further Special Fixture hearing. The parties were directed to refile and serve the documentary material they had relied upon in the original proceedings. They were expressly refused leave to file on any new evidence. 3. The Tribunal also made the following notations, which circumscribed the scope of the dispute: 7. The Tribunal notes as follows: (a) the landlord does not press the claim for window repairs, front flyscreen door damage or Foxtel rectification; (b) the tenant concedes the claim for cleaning ($385.00) and damaged garage door ($865.00); (c) the tenant disputes the claim for: (i) Lawn repairs - $1,540.00 (ii) Kitchen cupboard replacement - $1,930.00 (iii) Remove and repair stars from ceiling, spot repairs and internal door repairs - $2,475. (d) the bond has been paid to the tenant. Evidence and Hearing 1. The landlord relied upon a bundle of documents which had been filed in the original proceedings. It was marked Exhibit A1. The tenants sought to rely upon a bundle of documents filed in the original proceedings and some additional documents related to the Appeal. The documents filed originally were marked Exhibit R1. 2. The Appeal Application and related documents are not evidence in these proceedings. The Tribunal is however able to take notice of the published Appeal decision insofar as it is relevant to the consideration of the application: Kaur v INT Property Group Ltd [2022] NSWCATAP 178. 3. The Special Fixture Hearing was conducted by VMR and in person. Mr Callan Root, Property Manager, (by VMR) represented the landlord at the hearing and gave oral evidence under a solemn promise to tell the truth. Ms Kaur attended the hearing in person on behalf of the tenants. She also gave evidence under a solemn promise to tell the truth. The parties had the opportunity to present their respective cases, to ask each other questions, and to make final submissions to the Tribunal. Material Facts 1. The dispute arises from a residential tenancy agreement that was made on or about 18 February 2019. That agreement is not in evidence. However, after the lapse of that agreement a further fixed term agreement dated 30 September 2020 was made in respect of the period 6 October 2020 to 6 October 2021. The tenants signed and dated this agreement on 5 October 2020. The tenants returned possession of the premises to the landlord on or about the end of that fixed term. 2. The premises is a two-level home on a residential block located in Glenmore Park. It has four bedrooms, one of which has an en-suite bathroom, a main bathroom, kitchen, laundry, an open plan lounge/dining room, lock-up garage, gardens and grassed front and back yards. 3. On 18 February 2019, the landlord's agent completed a Start-of-Tenancy Condition Report for the premises and provided the tenants with copies. It does not appear that any copy was completed by the tenants and returned to the landlord's agent. The copy of the report that is in evidence is a unilateral report signed and dated by the landlord's agent, but not the tenants. The tenants have not included any other report in their evidence. 4. After the tenants vacated the premises on or about 6 October 2021, on or about 8 October 2021, the landlord's agent carried out a final inspection, which the tenants did not attend. The agent completed an End-of-Tenancy Condition Report, which is in evidence. It is also a unilateral report. 5. The condition reports are thus not Condition Report to which the presumption contained in s 30 of the Act (that they are a correct statement of the condition on the date they are signed) applies, because neither is signed and dated by the landlord. It thus falls to the landlord to prove the condition described in those reports with evidence in the usual way. 6. At the start of the agreement the tenants provided the landlord with a rental bond of $2,240.00 which was deposited with Rental Bond Services. It was paid in full to the tenants on 13 December 2021. Jurisdiction 1. There is no issue that the Tribunal has jurisdiction to hear and determine this application according to the provisions of the RT Act. The claim concerns alleged breaches of the tenants' end of tenancy obligations to the landlord, and it has been made within three-month period permitted for such an application by s 190(1) of the Act and Regulation 39(9) of the Residential Tenancies Regulation 2019 (NSW). The landlord's claims 1. As noted above, there are 5 items in the landlord's compensation claim, which are set out following: No Description Amount claimed 1 Cleaning $385.00 2 Lawn and garden maintenance and repair $1,540.00 3 Garage door repair $865.00 4 Kitchen cupboard replacement $1,930.00 5 Wall, door and ceiling repair and repainting $2,475.00 TOTAL $7,475.00 1. As also noted above, the tenants concede items 1 and 3. These amounts will therefore be awarded to the landlord by consent and are not the subject of determination. Consideration Lawn and garden maintenance and repair 1. The residential tenancy agreement made on 30 September 2020 includes the following clause which the landlord relies upon in relation to this element of the claim: ADDITIONAL TERM – TENANT'S CARE AND USE OF THE RESIDENTIAL PREMISES 57. Further to clauses 16 and 17 and subject to any applicable by-law, the tenant agrees: … 57.6 to regularly mow the lawns and keep the grounds and garden tidy and free of weeds and rubbish and maintain them in their condition, fair wear and tear excepted, as at the commencement of the agreement. 1. In their oral evidence, Mr Root and Ms Kaur explained that this clause was not a term of the first fixed term agreement. According to the terms of the first agreement (which is not in evidence), the landlord had accepted an obligation to maintain the lawns and gardens. However, this arrangement ceased under the lease dated 30 September 2020. Mr Root gave evidence that the change was explained to the tenants before they signed the lease. He also gave evidence that the landlord offered to continue to maintain the lawns and gardens if the tenants paid a fee for this service which he contends they refused to do. 2. The tenants have included in their documentary evidence the following email to the landlord's agent, dated 5 November 2020, which bears on this issue. It relevantly states: Re: Lawn mantaince (sic) Hi I tried to call in your office so many times and left message as well but no one bother to call us back and no bother to email me outcome of issue I raised. So fists when we signed lease it was clearly mentioned lawn maintenance is included free of cost. All of a sudden they ask money for that which is not possible for us to pay as due to COVID my husband work is already low we are managing half our rent from overseas as you know its always late two or three days because we paid according to our payment cleared from overseas. Now we have no option left so in this case we will mange grass cutting but we don't care about the plants flowers in front. In last if there is any issue regarding this and you guys clam my bond only because of this then I will go through with fair trade. So now onwards mentioned to owner please we don't have enough money to mange plants because it wasn't mentioned before that we have to pay this extra amount. This is harassment when we are in trouble due to COVID first thing you guys said no you can't help in rent and now for extra unexpected expenses you wants us to pay. (errors in original) 1. The landlord's Start-of-Tenancy Condition Report records the in the "General" section that the "grounds/garden" and "lawns/edges are in clean and undamaged condition. In the comments section the landlord states that they are in "immaculate order". The condition of the front lawns and gardens is illustrated on page 15 of the landlord's bundle, photograph 4. The condition of the back lawns and gardens is illustrated on page 16, photograph 2. These photographs provide limited views, but both support the condition stated in the report. 2. The landlord's End-of-Tenancy Condition Report states: "garden beds are not maintained, rubbish present" and "large section rear yard lawn deceased, edges not done, untidy and unkempt". In an email sent to the tenants on 8 October 2021 after the final inspection the landlord's Property Manager states: "[t]he concerns we have identified are as follows … lawns, edges and garden beds have not been attended to, and a sizeable area of lawn in the back yard has died and requires replacement". 3. The landlord relies upon several photographs of the lawns and gardens taken at the end of the tenancy. Two photographs on pages 22 and 23 of the landlord's bundle depict the nature strip at the front of the property which has overgrown edges. The other photographs on those pages show the lawn on either side of the path leading to the front door. The lawn is not overgrown but the edges are not done, and there is grass growing between the path brickwork and into the gardens. The photographs on page 24 of the bundle show another area of the front garden with extensive weeds and litter (rubbish) strewn though the hedge and garden bed. The hedge is not clipped. The photographs on page 25 depict areas of the back lawn. These areas are green and dense, but the edges of the lawn around the fence and building perimeter are not clipped. A photograph on page 26 incidentally depicts an area of the back lawn near the building. Some of the lawn depicted in that photograph is sparse and there is an area of bare earth approximately 200cm long and 100cm wide near the back patio/porch. A photograph on page 27 depicts an area of lawn, most of which is in good, tidy condition, with an area to one side which is sparse. A photograph on page 28 depicts an area of the side yard which has a gravel surface with some weeds and leaf litter and other rubbish. The other photograph on page 28 depicts a hedge which has not been clipped, and one hedge plant has died leaving bare earth which is littered. A similar condition is depicted in another photograph of the hedge on page 30. The photographs on pages 31 and 32 depict areas of the back lawn with sparse lawn and overgrown edges. 4. As evidence of its loss the landlord relies upon a gardening contractor's quotation which itemises the following work at a cost of $484.00: Garden clean-up due to tenant neglect: * Hand weed all grass runners from garden beds and between plants * Poison all garden beds and edges afterwards * Supply and replace dead or removed (by tenants) plants * Hedge/trim all plants * Re-edge all lawn areas, mow and blow clean * Remove waste from site It also itemises the following work at a cost of $1,056.00: Replace rear lawn due to it being killed with trampoline, traffic & no watering/maintenance * Remove small areas of remaining grass * Supply & install underlay soil and prepare for turf laying * Supply, deliver & install 40m2 of Sir Walter Buffalo Turf to match existing turf areas. 1. The landlord contends that the tenants breached clause 57.6 of the residential tenancy agreement by failing to maintain the edges of the lawn, weed the garden beds, and keep the lawns and gardens free of litter. The landlord also contends that the tenants failed to clip the hedge plants and allowed several hedge plants and large areas of the lawn to die due to a lack of care. It further alleges that the tenants kept a trampoline on an area of the lawn which caused it to die due to a lack of light. 2. The tenants contend that it was the landlord's responsibility to maintain the lawns and gardens, and that when this changed under the last fixed term agreement, they put the landlord on notice that they did not have time or funds to care for the whole of the garden. They deny causing parts of the hedge and lawn to die through neglect. They admit to having a trampoline on the back lawn for a period during the tenancy but contend they removed it well before the end of the tenancy after being warned by one of the landlord's Property Managers that it was causing the lawn to die. 3. I am satisfied on the evidence that the residential tenancy agreement was varied under the fixed term agreement dated 30 September 2020 to impose an obligation on the tenants to maintain the lawns and gardens at their own expense (clause 57.6). The tenants signed that agreement on 5 October 2020 and in doing so became bound by that obligation. They were not entitled to later withdraw from that obligation without the landlord's agreement. The tenants' email of 5 November 2021 therefore does not have the legal effect of further varying the agreement to limit the tenants' obligations, because the landlord did not agree to this. 4. I am satisfied on the evidence that the tenants breached clause 57.6 by failing to maintain the gardens and paths free of weeds, to clip the lawn edges, to remove vegetative and other litter (rubbish) from the front and back lawns, and to clip the hedges. All of this is compellingly illustrated in the landlord's end of tenancy photographs, and I did not understand Ms Kaur to deny that this was the condition in which the tenants left the lawns and gardens. 5. I am also persuaded on the evidence that the tenants breached their obligation to maintain the lawns by causing or allowing sections of the back lawn to die by neglect. However, the breach that has been proved is far from as serious as that asserted by the landlord. Most of the back lawn is robust and green. There are areas where the lawn is sparse and there is one area where it is missing. The area of missing lawn is consistent with it being deprived of light. The tenants admit having had a trampoline in this area at some point in the tenancy, which they say they later removed, but this does not mean that they took any action to re-establish the lawn after its removal. This area, and areas of sparse lawn, could have been replenished with reasonable care (seeding, fertilising, and watering (if necessary). 6. I cannot be satisfied that the tenants caused parts of the hedge to die due to neglect. In this respect it is not explained by the landlord how one hedge plant could die due to neglect, but another immediately beside it could be overgrown. It appears that the primary area of concern to the landlord is an area of dead hedge beside the house. That is not illustrated in the landlord's photographs. It is thus not possible to know what the environment is in that area, such as whether it has exposure to light and rain. The evidence is therefore insufficient for me to determine the likely cause of the death of these plants. 7. I note that some of the landlord's photographs amount to a complaint about the condition of the edges on the nature strip in front of the rented premises. This is land that this administered by the local government authority. It is not land that is incorporated into the residential tenancy agreement. Any failure by the tenants to maintain these edges is thus not capable of constituting a breach of the agreement. 8. An award of damages arising from a breach of a residential tenancy agreement is compensatory, just as it is with other types of contracts. Its' objective is to put the injured party in the position they would have been in had there been no breach, so far as money can. The injured party is not entitled to any amount of compensation that would result in them being put in a better position than they would have been if there had been no breach: Marcourt v Clark [2012] NSWCA 367 at [98-99]. The Tribunal must do the best that it can to assess the landlord's loss on the evidence before it: Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54. 9. Having regard to the extent of the breach that has been found, the damage and loss claimed by the landlord in relation to this element of the claim is manifestly excessive. There is no reasonable basis upon which the whole back lawn requires removal and the supply of new topsoil and turf. I am satisfied that it will be a sufficient treatment of the areas of sparse and bare lawn for these to be seeded, fertilised, and watered (if necessary). I will therefore allow the landlord 2/3 ($323.00) of the first item on the contractor's quotation (subtracting an allowance for the nature strip and supply of new plants) and $250.00 for labour and materials in relation to reinstatement of the lawn where this is necessary. This element of the claim is otherwise dismissed. Kitchen cabinetry 1. To succeed in relation to this element of the claim the landlord must prove that the tenants breached the residential tenancy agreement by causing or permitting negligent or intentional damage to the kitchen cabinetry with the result that it was not returned to the landlord at the end of the tenancy in a condition as close as possible to the condition it was in at the start of the tenancy, fair wear and tear excepted. 2. For conduct to be "intentional" it must be "pre-meditated": Lindsay v NSW Land and Housing Corporation [2016] NSWCATAP 128 at [45]. This requires proof that the tenants had "determine[d] on [a particular] result or such result must be that person's aim or purpose." Intention will not be present if the result was unforeseen": Cure v Bridge Housing Ltd [2014] NSWCATAP 80 at [43]. For conduct to be negligent there must be evidence of a lack of reasonable care and attention, or of a non-performance of a duty, or of neglect-full-ness of, thoughtlessness in relation to, or inattentiveness to, an obligation or duty by the tenant: cf Sunray Investments P/l v Cruwys [1992] NSWRT 95. This is an objective test. The onus of proving negligent or intentional damage rests with the landlord: Westpac General Insurance v Cooper [2006] ACTSC 91 [at 14]. If a landlord seeks to prove that a tenant has caused or permitted intentional or negligent damage, they must establish a credible hypothesis as to how this damage was caused: (Fitzpatrick v Wu unreported, NSWRT, 2001, 01/16425). 3. Fair wear and tear does not include deterioration in the premises that could be prevented by reasonable conduct on the tenant's part: Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) P/L [2006] NSWCA 224. What is 'fair' wear and tear is assessed objectively according to contemporary standards: Adoncello v Sazdanoff (Tenancy) [2006] NSWCTTT 577 at [78]. It is not assessed according to the standard of a fastidious and obsessive landlord: Fitzpatrick v Wu NSWRT, 2001, (01/16425). The onus of establishing fair wear and tear rests on the tenant: Westpac General Insurance v Cooper [2006] ACTSC 91 [at 14]. 4. In the landlord's Start-of-Tenancy Condition Report the kitchen cupboards and drawers are recorded as being in clean, undamaged condition and in working order. In the comments section it is stated that they are in "great order". There are photographs of the cabinetry at that time at pages 13. These photographs (1 and 3 on that page) depict the bench cabinetry under the cooktop and sink. The cabinets appear in clean and undamaged condition as the report states. There is no photograph of the cabinets over and beside the cooktop and rangehood. 5. The landlord's End-of-Tenancy Condition Report records that the "cupboards above rangehood dirty and stained". The landlord relies upon three photographs in relation to this element of the claim which are found on pages 41 and 42 of its' bundle. These photographs depict a discoloured base edge on the cupboard above the rangehood, and some discolouration to three door surfaces above and beside the rangehood. In an email sent to the tenants after completion of the final inspection the landlord's agent states: "[t]he concerns we have identified are as follows … fronts of the kitchen cupboards above cooktop are dirty and internals/stained". 6. As evidence of its loss the landlord relies upon a contractor's quotation for the replacement of the stained doors at a cost of $1,930.00, which is itemised as follows: QUOTATION - Replacement of stained doors to kitchen … This quote allows for the following: * Site visit to measure up as required * Supply of new doors and panels as required to make good in Gloss * White Melamine to match existing as close as possible. * Supply of new hinges etc as required * Delivery to site * Installation of above doors and panels (1man – 1 day) 1. Although the cleaning compensation element of the claim is not in dispute, it is relevant to note what is stated in the cleaning contractor's invoice in relation to this element of the claim. The description of work itemises "[c]lean kitchen cabinets inside and out and stains around hinges ….". 2. The landlord contends that the tenants have fatally damaged the kitchen cabinetry doors above and beside the rangehood. It is contended that the cause of the damage is the tenants allowing the cupboards to be exposed cooking fumes and heat and failing to carry out regular cleaning of the cupboard surfaces. The tenants deny any misuse of the cooktop and rangehood and they deny that they failed to carry out regular cleaning. 3. The landlord's evidence of breach in relation to this element of the claim is not persuasive. It consists of three photographs depicting some discolouration to cupboard surfaces. Those photographs were taken before the cupboards were cleaned by the cleaning contractor. There is no objective evidence of the condition of the cabinets after cleaning. It is difficult to see how a tenant could cause intentional or negligent damage to kitchen cabinetry by using a cooktop for cooking. That is the ordinary use of a cooktop and kitchen to which a tenant is entitled. Any deterioration in the condition of the cabinetry that results from such ordinary use is fair wear and tear. I accept that if a rangehood is not used during cooking, fumes will escape and potentially rest on cupboard surfaces. That may be carelessness leading to compensable damage and loss. However, the tenants deny not using, or misusing, the rangehood, and there is no witness evidence to the contrary. Nor is there any expert evidence as to causation of the discolouration that could provide the basis for such a conclusion to be drawn despite the tenants' denial. The landlord's case rests on a bare, and "lay", assertion of causation. 4. For these reasons this element of the claim must be dismissed on the basis that no breach has been proved. 5. Even if a breach had been proved, the landlord's evidence of damage and loss is not satisfactory. There is insufficient evidence to justify the replacement of the cupboard doors. No damage to them is alleged other than the discolouration. It is therefore difficult to see why they would have to be removed and replaced, as opposed to being sanded and repainted in situ. On this basis I would only have allowed nominal damages, not the amount of the contractor's quotation. Walls, ceilings, and doors 1. To succeed in relation to this element of the claim the landlord must prove that the tenants caused or permitted negligent or intentional damage to the walls, ceilings, and doors with the result that they failed to return them at the end of the tenancy in a condition as close as possible to the condition they were in at the start of the tenancy, fair wear and tear excepted. If breach of these obligations is proved the landlord will be entitled to be compensated its reasonable cost of repair of the actual damage and the residual value of the existing paintwork. 2. The landlord's Start-of-Tenancy Condition Report records the walls, ceilings, and doors in each room to be in clean and undamaged condition with the exception that some damage is noted to the lock frame on the front door and some "minor marks" are noted to the walls of bedroom 2. The photograph of the damage to the lock reveals that it is a chip on the door frame near the lock. There are 4 photographs of the bedroom 2 walls. A small paint tear and possible dent is apparent in one photograph. No damage is apparent in the other three. The Start-of-Tenancy Condition Report does not record the age of the interior paintwork at the start of the tenancy. In his oral evidence Mr Root stated that he believed it was about 6 years old at the end of the tenancy. 3. The landlord's End-of-Tenancy Condition Report records that there are approximately 40 plastic stars stuck to the ceiling of bedroom 1, and another approximately 40 stars stuck to the ceiling of bedroom 3. No other damage to walls, ceilings, or doors is noted in the written section of the report. After completing the final inspection, the landlord's agent wrote to the tenants by email to raise various concerns about the condition of the property. That email relevantly states: "[t]he concerns we have identified are as follows: … there are quite a number of stick-on decorative "stars" in two bedrooms upstairs … marks on walls kitchen area requiring paint touch up…" 4. In relation to damage other than the blue stars, the landlord principally relies upon its end-of-tenancy photographs to establish breach. These photographs are in colour and of reasonable size and resolution. However, they are not captioned to indicate the location. 5. Two photographs depict small paint tears on three different walls (pages 32, and 50 of the bundle). Another depicts a rough hole repair on a wall apparently where there was a picture hook, and what appears to be light mould or water staining to a ceiling and architrave (both on page 33 of the bundle). There is another wall depicted on page 36 of the bundle that depicts a paint scrape and shallow dent. The damage appears to be about 30cm in length and 1cm wide. There are two picture hooks depicted on walls on page 42 and 50 of the bundle. There are two small dark marks depicted on a wall on page 55, and another small dark mark and what appear to be other small drip marks are depicted in a photograph on page 58. A photograph on page 59 depicts a small hole in a wall, apparently the result of the removal of a picture hook. There are other photographs which directly or incidentally depict wall surfaces, but no damage is visible in them. 6. The blue stars on the ceilings of bedrooms 1 and 3 are depicted in photographs on pages 45, 46 and 51 of the landlord's bundle. They are about 5cm in diameter, numerous, and spread across both ceilings. 7. A photograph on page 55 also depicts substantial damage to a door. A section of the door surface approximately 20cm long and 10cm wide has been sliced off to reveal the particle board beneath. On page 60 of the bundle there is a photograph of the back of a door which has two broken adhesive plastic clothes hooks. 8. The landlord contends that this evidence establishes that the tenants caused or permitted substantial damage to the walls, ceilings, and doors. That is denied by the tenants. They contend, generally, that the damage is wear and tear to which they were entitled. With respect to the stars on the ceilings of bedrooms 1 and 3, the tenants admit that they placed these stars on the ceilings but say they should have been permitted to return to the property to remove them. 9. As evidence of its loss the landlord relies upon a quotation from a painting contractor which itemises the following work at a cost of $2,475.00 including GST: Repair ceilings and walls. Hand remove self-adhesive stars from 3 bedrooms including master bedroom ceiling. Patch and then sand where stars removed then spot prime and apply 2 coats of ceiling paint. Patch/repair 4 internal doors followed by sanding dusting then spot priming followed by one coat of undercoat followed by 1 coat of gloss enamel. Walls had at least 20 damaged areas that needed repairing before sanding, spot priming and applying 2 coats of low sheen. 1. I am satisfied on the evidence that the tenants breached their obligation not to cause or permit intentional or negligent damage to the walls depicted in the photographs on page 36 (the 30cm paint scrape), 33, 42, 50 and 59 (rough picture hook hole repair, picture hooks, and a picture hook hole). I am not satisfied of any breach beyond this. 2. Minor marks and tears to interior paint work is wear and tear to which the tenants were entitled. Bedroom 2 already had a small paint tear (and apparently other marks which cannot be seen in the photographs) at the start of the tenancy. Some of the marks complained about appear capable of being cleaned (and the tenants have conceded the landlord's cleaning claim). In this respect it is relevant to note what is stated in the cleaning contractor's invoice in relation to this element of the claim. The description of work itemises "[c]lean marked walls around home in over 20 locations both up and downstairs". The light mould and water staining on one ceiling and architrave is, on the balance of probabilities, the result of some structural defect above the ceiling that had led to water ingress. That is a general maintenance issue for which the landlord is responsible, not the tenants. I am thus satisfied that the landlord has established that five walls required repair due to the tenants' breach, not twenty (which is what the contractor quotation refers to). 3. I am satisfied on the evidence that the tenants breached their obligation not to cause or permit intentional or negligent damage to the ceilings of bedrooms 1 and 3 by placing adhesive plastic stars on them. No damage of this nature has been proved in relation to bedroom 2. The evidence therefore does not support the claim for compensation for the repair and repainting of the ceilings of three bedrooms (which is what the contractor quotation refers to). 4. I am also satisfied on the evidence that the tenants breached their obligation not to cause or permit intentional or negligent damage to two doors. One door had a piece broken away and the other had two broken adhesive clothes hooks attached to it. The condition of these doors clearly exceeds fair wear and tear. No damage has been proved in relation to any other door. The evidence therefore does not support the claim for compensation for the repair and repainting of four doors (which is what the contractor quotation refers to). 5. The tenants' contention that the landlord ought to have permitted them to return to the property to remove the stars from the ceiling and carry out any other necessary repairs to the interior paintwork cannot be accepted. A tenant's obligation to return the premises in a condition as close as possible to the condition it was in at the start of the tenancy crystalises when possession is returned. After that time a landlord may, as a matter of discretion, allow the tenant to return to the property to perform an end of tenancy obligation but is not obliged by the law to do so. The usual remedy for breach of contract (a residential tenancy agreement is a statutory form of contract) is damages, and a landlord is entitled at law to elect this remedy. 6. As I have explained above, the landlord is entitled to be compensated the cost of repairs and the residual value of the existing paintwork, or to put it another way, for the loss of future use of the existing paintwork it has suffered: O'Brien v Twynam [2016] NSWCATAP 125 at [80 to 85]. In this respect, I will allow that interior paintwork in rented properties has an expected life of seven years. As the existing paintwork was approximately six years old, the landlord's loss is the use of the paintwork for approximately one further year. 7. Having regard to the damage and loss I have found I will allow the landlord $662.00 for the repair and repainting of five walls, two ceilings and two doors. This assessment is based on seven hours labour at $66.00 per hour inclusive of GST and $200.00 in materials. Orders 1. For the foregoing reasons I make the following orders: 1. The tenants, Daljeet Kaur and Jaswinder Singh, must pay the landlord, INT Property Group Pty Ltd, $2,485.00 immediately. 2. The application is otherwise dismissed. ********** 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 Amendments 27 September 2023 - Formatting amendments. 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: 27 September 2023