Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dibb v Ferenc-Stojic; Ferenc-Stojic v Dibb [2022] NSWCATCD 212 Hearing dates: 1 November 2022 Date of orders: 22 December 2022 Decision date: 22 December 2022 Jurisdiction: Consumer and Commercial Division Before: G Bassett, General Member Decision: (1) The tenant is to pay the landlord the sum of $607.85 immediately. (2) Rental Bond Services is directed to pay the landlord the sum of $607.85 of rental bond number P344916-9. Any amount received is to be credited against any money order for payment of money made by the tribunal. Any balance of the bond is to be paid to the tenant. (3) The balance of the cross-application of the tenant is dismissed. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rental bonds — Breach of quiet enjoyment — Compensation Legislation Cited: Residential Tenancies Act 2010 Category: Principal judgment Parties: Applicant / Cross-Respondent: Robert Dib, landlord Respondent / Cross- Applicant: Ivanna Ferenc-Stojic, tenant Representation: Applicant / Cross-Respondent: Mr Arrowsmith, management agent Respondent / Cross- Applicant: self-represented File Number(s): RT 22/17410; RT 22/22136 Publication restriction: unrestricted REASONS FOR DECISION Applications and procedural history 1. On 21 August 2022, in matter RT 22/17410 the landlord applied for an order to be paid the rental bond. In the written reasons supporting the application the landlord sought compensation for a garage remote, damage to lawns, blinds, walls, floors, and three doors as well as rubbish removal. 2. In matter 22/22136, on 19 May 2022, the tenant cross-applied for the following orders: 1. payment of money for $600 (overpaid rent) plus $2400.00 (breach of quiet enjoyment) 2. amend a condition report under section 31 of the Residential Tenancies Act 2010 ("the Act") 3. order for the payment of the rental bond. 1. In her reasons supporting the application the tenant said the landlord came to the premises multiple times without her knowledge or consent. She sought $2400 or one month rent for breach of her quiet enjoyment. 2. RT 22/17410 came before the Tribunal on 24 May 2022. At that hearing it became apparent the tenant had lodged the cross-application in RT 22/22136. The member presiding stated the two matters ought to be heard together. The landlord itemised the claim at the 24 May hearing as follows: 1. garage remote $180.00 2. glass repair $215.00 3. blinds $770.00 4. tipping fee $86.00 5. water usage $97.00 6. electrical charges $330.00 7. clean external windows $715.00 8. lawn repair $413.00. 1. Both matters came before the Tribunal again on 3 August 2022. The matters had not been listed together. The tenant's claim had been set for hearing at 10:45 AM that morning. The landlord's claim had been set for hearing at 1:15 PM on the same day. Neither party appeared on the tenant's claim. At the 1:15 hearing of the landlord's claims the tenant relied on an affidavit of evidence served only on the 2nd of August 2022, one day before the hearing date. The Tribunal adjourned matters and set a longer contested hearing time. Evidence of the parties 1. The landlord relied on a bundle of documents with nine tabs that were lodged on 31 October 2022. Landlord's representative indicated these were the only documents to be relied on despite other documents having been provided in July and June. The tenant relied on an affidavit sworn 5 July 2022 and on a further affidavit sworn 2 August 2022. Oral evidence was taken from the parties at hearing. Oral evidence was also taken on each of the alleged items claimed against the bond. 2. There was a residential tenancy agreement between the parties which began on 15 December 2017 and vacant possession was given on 17 March 2022. This is a reasonably lengthy tenancy of over four years. The total bond was $2400.00. 3. The evidence showed that the tenant was provided no section 165 certificate at the end of the tenant's occupation. Section 165 of the Act obligates a landlord to give a tenant notice of any bond claim without the tenant's consent. Within 7 days of making the claim the landlord or agent must give the tenant a copy of the exit condition report and any copies of any estimates, quotes, invoices or receipts for work for which the rental bond is claimed. That was not done. Instead, at page 126 of the landlord's documents there is an email of 12 April 2022 from the landlord to his agent but not to the tenant. This email stated premises were not clean. It claimed an invoice would be provided. It said the pressure washing was not done to clean moss. It said eaves and ceiling remained cluttered with cobwebs. It stated the windows and skylights, as well as laundry had excessive dust. It stated the water bill was still outstanding. It further stated the patio was not cleaned. Lawns were not slashed. It said the tenant had damaged blinds and flyscreens due to having pets at the premises. It also alleged she had left rubbish at the site as well as a refrigerator which needed to be removed. The Tribunal is satisfied that the landlord made these claims some 4 weeks after the tenancy had ended. The landlord wrote written comments on the exit in respect of these claims. Those comments were not a reflection of the condition of the property when the tenant vacated on, or about 17 March. The best evidence of the condition as at 17 March were the photos attached to the exit report. At page 130 of the landlord's documents is a part email written by the tenant replying to the landlord's email to his agent indicating she would make a claim on the bond. In her reply the tenant said the landlord had retained rent money for broken glass repair and a garage remote replacement. She agreed to the landlords taking $380.00 from that money for the broken glass repair and $300.00 for the garage remote. Otherwise, she expected to receive her a bonding full. She said she was not asked to the outgoing inspection. If she had been asked, she could have reinstalled the door on the lounge room. She stated blinds were loose and damaged when she moved in and were very old. She said she had paid for professional cleaners in the sun of $550.00. She said any scratches on the floor were fair wear and tear. Fly screens on a door disintegrated on being touched due to exposure of this to the sun and their age. She said she pressure washed the backyard and the front porch the day before she left. She said she left no greenery anywhere. 4. Furthermore, the agent conceded that the list of items sought at the claim and as set out in his written documents was only put together prior to the hearing but with the assistance of the landlord. At hearing the landlord sought the following against the bond: 1. damage to doors $638.00 2. repairs / cleaning $715.00 3. rubbish left, being fridge $85.56 4. garage remotes $190.00 (agreed between the parties) 5. new turf $443.00 6. paint $87.05 7. blinds $770.00 new lines missing light globes $330 8. windows $423.50. 1. This determination is based on the items and amounts sought at hearing as indicated in paragraph 6 above. Findings in relation to bond claim 1. Under section 51(3) of the Act, on vacating the premises, the tenant must remove their goods and leave the property as nearly as possible in the same condition as set out in the entry condition report if one exists, fair wear and tear excepted. They must leave the premises clean having regard to the condition of the premises at the commencement of the tenancy. 2. Regarding the cost to windows the tenant said that she wanted a refund of $485.37 that she had paid to have windows repaired. The landlord said that when he was in the home he saw a broken window. His representative said that 3 days before the tenancy ended he wanted a glazier to repair the windows. He paid the glazier to do so and asked the tenant for half of that cost. He referred to the tenant's email of about 12 April 2022 she agreed to pay $380.00 for the glass repairs. There was no evidence from her supporting the claim she had paid $485.30 for window repairs. The Tribunal finds that the tenant agreed just towards the end of the tenancy to make these repairs. She is to play the sum of $380.00. 3. In relation to electrical lights the landlord sought to supply and install 6 standard globes and supply and install 1 * 1.2 metre fluro tube in the garage in the sum of $330.00. Written comments in the exit report only mention 2 missing globes It is more probable and not that the work in the garage was an upgrade. the invoice for globes was not itemised. Only a nominal amount of $50.00 would have been allowed for missing globes. However, the tenant gave evidence supported by an invoice (page 28 of tenant documents) that she had paid $495.00 for repair to the landlord's lead lights in March 0222. The Tribunal accepts that in respect of lights the parties had come to an agreement during the tenancy for the tenant to pay some monies for lights. No allowance is made for the landlord to refund that amount. Nor is the landlord's claim for lights allowed. 4. The landlord sought to replace blinds said to be four years old. The photos at page 72 of the landlords document showed missing verticals. The Tribunal accepts the evidence of the tenant that the blinds were damaged when the tenant moved in. There was an appointment made in January 2018 to repair /replace blinds, but this never occurred. If the blinds had been only four years old, they would have been acquired shortly before the tenancy tenant moved in. There was no evidence to show they had been newly purchased. The Tribunal does not allow this claim. 5. The landlord sought compensation for paint in the sum of $87.05 for repainting an area in a lounge room. The tenant said they were given permission to repaint this area during the tenancy. There was no evidence to show the tenant not being allowed to repaint the wall or that she was required to repaint on exiting the premises. This claim is not allowed. 6. In relation to the lawns the landlord relied on various communications to the tenant to maintain lawn during the tenancy to support the claim for $443.00. The exit condition report raised the issue of removal of a tree and consequent damage to the lawn. The tenant said the landlord removed trees they had put in and, in doing this, a stump had to be removed and this caused damage to the lawn. The tenant gave sworn evidence she attended the premises on 20 April 2022, about one month after she had vacated. She supplied 2 photos she took showing the gate leading to the backyard had been removed and the entire backyard was well in the process of being excavated. She alleged the landlord was seeking to unjustly enrich himself at her expense by carrying out extensive renovation of the property rather than repairing the items allegedly caused by her failure to comply with section 51 of the Act. The evidence in relation to this claim was finely balanced. The invoice for the work shows it was done at least 5 weeks after the tenancy ended. The Tribunal accepts that the photos of the tenant and the lateness of the work being done show that the landlord was renovating the premises and lawn and suffered no loss compensable by the tenant for repair even though the contemporaneous evidence showed the issue of lawn maintenance was contested throughout the tenancy. The claim is not allowed. 7. The landlord seeks $85.56 to remove a fridge left at the premises. It was not disputed by the tenant that the fridge had been left. She said she expected a neighbour to take possession of it. She said that the invoice for cost of removal only referred to green waste, not removal of a refrigerator. The Tribunal allows this claim. It does not accept an invoice for removal of items where the dominant amount was green waste ought to have separately mentioned the refrigerator. The tenant is to pay the landlord $85.56 from the bond. 8. The landlord claimed $715.00 for repairs and cleaning. Repairs were in relation to alleged hooks in walls. Cleaning was for a kitchen cook top. The exit condition written comments stated there were marks and hooks and items were not cleaned. However, none of the exit photos reflect such a condition. Contrary to this evidence was that of the tenant who had paid to have the premises cleaned and provided photos of the condition of the rangehood that was taken by the tenant's cleaner on 17 March. This too was a difficult matter to resolve by the Tribunal. The problem for the landlord is the exit condition photos do not show extensive marks walls or an unclean the range hood, stove, or other items. Nor do the photos support the claim that there were large areas of cobwebs having been left at the premises. At worst, there may have been some dust in areas such as cornices. Over a lengthy tenancy of over 4 years this is fair wear tear. The claim is not allowed. 9. The landlord sought to repair damage to an entrance hall door and a laundry door. Landlord said that even though it was agreed the tenant could remove the living area door early in the tenancy it was always understood that she would have to rehang it before leaving the premises. Tenant said if she had been given an opportunity to inspect the premises at the end of the tenancy, she would have reinstalled the door. She said she was not asked to re install the door. She said that in March 2022 she paid $385.00 to replace three panels of stained glass two doors which had been correct due to a strong gust of wind. She said that these cracks were caused due to the wind fair wear and tear. The invoice relied on by the landlord refers to repairs in the living area for reinstalling the door to its original condition. The Tribunal is satisfied that the tenant ought to pay the landlord $638.00 for the living area door replacement only. 10. A rental ledger was shown. The claim for water usage in the sum of $128.52 was included on the register. No claim for water use was pressed during the hearing. Findings and determination – Tenant cross-application 1. In her affidavit the tenant stated that when she vacated the premises she overpaid rent in the sum of $685.71. She sought refund of this. The Tribunal accepts this claim. It is supported by a written concession from the agent at the end of the tenancy (page 28 tenant documents) that the tenant had paid rent to 24 March 2022 and rent owing to the tenant was in this sum. 2. Tenant said she was unable to use a swimming pool for most of the tenancy due to a faulty filter and faulty creepy-crawler. She sought a rent rebate of $50.00 a week for 156 weeks for inability to use the pool. The landlord provided an entry condition report. This showed the swimming pool to be working and in good order and indicated a pool pump and cleaning tools were provided with the tenancy. A letter written to the tenant on 8 February 2000 was in relation to the pool and general maintenance. It indicated the landlord had attended to maintain the pool and it was functional at that time. It set out the role of the landlord and the tenant in maintaining the pool under the tenancy. Text messages and other communications in 2019 and in 2020 were provided in relation to the pool. On 27 November 2019, an email stated the tenant had been given a $500.00 credit in respect of the pool. 3. The Tribunal does not allow the claim for rent reduction. Any claim for compensation in the form of back-dated rent reduction must be made before a tenancy has ended pursuant to section 44 of the Act. The tenant lodged this application after the tenancy had ended. Any application for withdrawal of facilities ought to have been made much earlier in the tenancy. More probably than not it was lodged in retaliation for the landlord not having paid out of her bond in full. In addition, rent reduction can only be granted when there is a withdrawal or reduction of services. In addition, when a claim is made for compensation, it ought to be made within three months of becoming aware of the breach. The tenant alleged she had not had use of the pool since early in the tenancy. In any event, the extensive documents of the landlord relating to the pool showed that the landlord did maintain and repair the pool throughout the course of the tenancy and made it functional again. The tenant had also failed to comply with her obligations under the agreement in maintaining the pool. 4. With respect to the alleged breach of quiet enjoyment the tenant referred to events well outside the 3-month period of becoming aware of the alleged breach. The tenant provided a text message of 14 March 2020 complaining of the landlord cleaning the garden without requesting access. She stated that during the tenancy the landlord or contractors would appear unannounced. She provided correspondence with the agent regarding this (page 32-37 tenant documents). On 8 February 2022 the landlord sent the tenant a letter requiring her to keep the grounds and garden tidy. On 16 February 2022 the tenant replied to that letter stating the landlord had inspected the property without requesting access. In respect of more recent breaches of quite enjoyment, the tenant gave oral real evidence that in about January 2022 she woke at about 8am to the sound of wood being chipped in her yard. She said the landlord was in the front yard removing garden items. In oral evidence the landlord admitted that in February 2022 he attended to the garden at the front of the premises with no access permitted in response to complaints of neighbours with respect to the condition of the garden and its impact on community amenity. The parties agreed there had been another granny flat tenant at the rear of the premises during the tenancy and the landlord used to access this by a side path to the tenant's premises. The tenant particularised a second breach of her quiet enjoyment in the last week of occupation. She said the landlord attended unannounced and cut down trees hanging from a neighbour's yard, disconnected a pool and threw the cuttings in the pool. She also said the landlord worked in the yard. She had no documents supporting these allegations such as photos of the bins or pool. 5. The Tribunal dismisses the claim for breach of quiet enjoyment in the sum of $2400.00. The contemporaneous documents show that the landlord did access the premises during the tenancy to access another rental property at the rear. The complaints about unauthorised access prior to 2022 are very old and well outside the three-month period in which the tenant ought to have lodged any claim for compensation after having become aware of the breach. Correspondence with the agent showed the landlord simply sent the tenant a letter requiring her to keep the grounds and garden tidy. This letter was adequate notice that access might be sought in respect of the garden. When the landlord did appear, it was to attend to a garden area at the front of the premises and in response to a community request. There was no evidence supporting the breach claims in the last week of the tenancy. 6. As the tenancy is long over there is no utility in making any order in relation to amendment open entry condition report and this matter was not pursued at hearing. Order(s) 1. It follows that the monies payable from the bond are as follows: Window repair $380.00 Remove fridge $85.56 Door $638.00 Garage remote $190.00 less overpaid rent -$685.71 Total $607.85 1. The following orders are made: 1. The tenant is to pay the landlord the sum of $607.85 immediately. 2. Rental Bond Services is directed to pay the landlord the sum of $607.85 of rental bond number P344916-9. Any amount received is to be credited against any money order for payment of money made by the Tribunal. Any balance of the bond is to be paid to the tenant. 3. The balance of the cross-application of the tenant is 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 30 August 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: 30 August 2023