Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rathore v Fraietta; Fraietta v Rathore [2023] NSWCATCD 51 Hearing dates: 17 February 2022 Date of orders: 06 April 2023 Decision date: 06 April 2023 Jurisdiction: Consumer and Commercial Division Before: G Bassett, General Member Decision: (1) The tenants, Lui Fraietta and Tracey Fraietta, are to pay the landlords, Amer Rathore and Nazish Rathore, the sum of $3,369.71 immediately. (2) The Rental Bond Services is directed to pay the landlords, Amer Rathore and Nazish Rathore, the whole bond plus interest of Rental Bond number S723367-2. Any amount received is to be credited against the money order. (3) The tenants' cross-application is dismissed. Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Rental bonds — compensation Legislation Cited: Residential Tenancies Act 2010 - Section 47, 175, 187 Category: Principal judgment Parties: First Applicant / Cross-respondent: Amer Rathore (landlord) Second Applicant / Cross-respondent: Nazish Rathore First Respondent / Cross-applicant: Lui Fraietta Second Respondent / Cross-applicant: Tracey Fraietta Representation: Applicants: Mr Goktas, real estate agent Respondents: Tracey Fraietta File Number(s): RT 22/45391; RT 22/50670 Publication restriction: unrestricted REASONS FOR DECISION Applications and procedural history 1. On 12 October 2022, the landlords applied for an order to be paid the sum of $3,979.00 under sections 187(c) and 187(d) of the Residential Tenancies Act 2010 ("the Act"). They also sought an order regarding the payment of a rental bond under section 175. 2. At the conciliation of that matter on 2 November 2022, the member presiding allowed the tenants to lodge a cross-application on or before 9 November 2022. 3. On 14 November 2022, the tenants applied for an order under section 47 of the Act for a payment of rent or other payments made by the tenants under the residential tenancy agreement. In their written reasons for the application, the tenants alleged the landlord had refused to maintain the property and ensure the premises were safe and secure. They sought: 1. $1,460.00 for refund of rent paid between 1 January 2021 and 21 May 2021 for alleged failure to repair a side gate 2. $4,643.25 for rent paid between 21 May 2021 to 4 March 2022, side gate not repaired and smoke alarms not tested or batteries replaced 3. $1,359 for rent paid between 4 March 2022 and 24 May 2022 as property not secured (back sliding windows, smoke alarms. Not tested and dangerous spider infestation 4. $2,133.00 for rent between 25 May 2022 and 29 September 2022, the property not secured, smoke alarms not tested and dangerous spider infestations. Law relating to the matter 1. The landlords applied under sections 187(c) and 187(d) of the Act which state: 187 Orders that may be made by Tribunal (1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders— … (c) an order for the payment of an amount of money, (d) an order as to compensation., … 1. Section 175 also allows either party to make an application for an order on the bond. 2. The tenants cross-applied under section 47 of the Act which states: 47 Tenant's remedies for repayment of rent and excess charges (1) Requests to landlord A tenant may make a written request to the landlord that the landlord repay to the tenant any rent, or other amounts, paid by the tenant that are not required to be paid under this Act or the residential tenancy agreement. (3) A landlord must, within 14 days of a written request by a tenant, repay to the tenant the amount of any rent or other amount paid in excess of the amount payable by the tenant under this Act or the residential tenancy agreement. (4) Tribunal orders A tenant may apply to the Tribunal for an order for the repayment of rent or any other amount paid by the tenant if a written request by the tenant for payment is not complied with by the landlord within 14 days. (5) The Tribunal may order that rent or any other amount be repaid to the tenant if it finds that the rent or amount was not required to be paid by the tenant under this Act or the residential tenancy agreement. 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. Evidence of the parties on the landlords' claim and findings of fact 1. There was a residential tenancy agreement between the parties that began on 22 May 2020. Rent was $790.00 per week. The bond of $2,920.00 had been frozen at the time of hearing. There was disputed evidence about the date of vacant possession but more probably than not it occurred about 3 October 2022. The exit condition report was done on 4 October 2022. Tenants were present. 2. The agent for the landlords sent the tenants a section 165 notice indicating the following items needed attention at the premises: 1. cleaning, steam clean of carpet and pest control 2. rubbish removal from outside and inside premises 3. wall patching paint 4. compensation for dishwasher 5. final water usage bill 6. outstanding rent arrears. 1. Photos were attached to the exit report showing the alleged deficiencies. The tenants also gave evidence that they returned to the premises to make good some items. The agent reattended the premises on 10 October 2022 and many of the items had not been properly rectified. 2. In relation to the claim for the dishwasher, the landlords' agent said a tenant admitted during the exit condition report meeting that they damaged the dishwasher by using their foot to open and close it. Tenants said they had reported the broken dishwasher during the tenancy. It had not been repaired. They could only open / close it by applying a foot. The invoice for repairs stated a door was damaged. The Tribunal accepts that the dishwasher became damaged during the tenancy due to wear and tear. It was not repaired. If any further damage did occur to it that was due to the tenants taking reasonable steps to continue using it. The claim is not allowed. 3. Tenants conceded they were allowed to return to the property to carry our further works. The rent ledger showed rent had only been paid to 19 September 2022. The claim for rent arrears is reasonable and supported by the evidence. Tenants are to pay $2,455.71 in rent arrears. 4. No claim for water arrears was pressed at hearing. 5. Rubbish removal photos showed goods had been left at the premises even after tenants had been allowed to return to make good the property. Tenants alleged this rubbish was on council land but that was not supported by the photos. The tenants have not left the property in the same condition as found and it required removal of rubbish and the $129.00 is allowed. 6. An exit photo showed damage to a power point. Tenants did not refute this claim and are to pay $150.00. 7. In relation to the claim for spot cleaning and carpet cleaning the tenants said they had had the carpet professionally cleaned when they vacated. However, they had no evidence of payment for such a claim. Photos of the landlord clearly indicated carpet was not clean and not in the same condition as found save as to fair wear and tear. Tenants are pay the landlords $240.00. 8. Landlords claimed the tenants had installed an unapproved vegetable patch in the garden and this remained at the end of the tenancy. Landlords incurred costs to have the area restored to its original condition before the tenancy began. The claim of $395.00 is allowed. 9. Photos in the exit report showed a need to paint patch various walls repaired by the tenants. The Tribunal is satisfied that any need for painting arose during the tenancy due to wear and tear and the tenants that attempted to rectify on behalf of the landlord. This amount is not payable. Evidence of the parties on the tenants' cross-application and findings 1. From the outset of their evidence at hearing, the presiding member asked the tenants to address certain issues with their case. A claim under section 47 is normally a claim for overpayment of rent. For example, a tenant may have paid rent beyond the vacant possession date. But that was not their claim. Other claims under section 47 may include reimbursement of charges paid for utilities that were not separately metered. Nor was that their claim. 2. Tenants conceded that they had intended to make a claim for rent reduction under section 44(1)(b) of the Act that would be backdated due to the landlord having allegedly failed to carry out repairs and having withdrawn goods, services or facilities. 3. The problem for the tenants is that their cross-application was lodged after the tenancy had ended. Section 44(1)(b) claim must be lodged before the end of a tenancy [Tribunal's emphasis]. The Tribunal is satisfied the matter cannot be amended to become a claim under section 44 as it was lodged after the tenancy had ended. 4. In addition, the originating cross-application of the tenants under section 47 had considerable difficulties as a large proportion of the claim was out of time. When asked why they had not lodged an application for compensation within time during the tenancy, tenants said they did not know the law. The Act and the regulations require that any order for compensation or payment of money, such as an order that was backdated for allegedly overpaid rent, must be made under section 87 for alleged breach of the agreement by the landlord. Applications for compensation for alleged breach by the landlord must be applied for within 3 months of becoming aware of the breach. Any claim for compensation for breach ought to have been lodged at least three months before the end of the tenancy on 3 October 2022. On the most generous application of time limits, the only application that is within time under the section 47 claim is at the earliest the order for rent from 25 May 2022 as set out in paragraph 4(d) above in this determination. 5. The claim that was within time referred to a failure by the landlord to replace and check the smoke alarms. Tenants alleged the landlords also failed to give attention to a spider infestation. In addition, a sliding device on a door was allegedly dysfunctional. 6. The Tribunal does not allow this claim. The tenants had suffered no loss for which they should be compensated under section 47. There was no evidence of them having paid for treatments to remove the spider problem. No rent reduction order had been made so there was no overpaid rent. The landlords also gave a detailed timeline for the period within time in relation to smoke alarms being checked which the Tribunal accepts. Landlords inspected the smoke alarms on 25 February 2022 and 2 October 2022. They were found to be working. In any event, the tenants provided no evidence of having paid any money themselves to have smoke alarms made functional. In relation to the claim for the sliding door, the landlord stated that this problem was never reported during the tenancy. When repairs were done, it was apparent that tenants had removed screws from the window. Finally, even if the claim had been allowed under section 44, a tenant must inform a landlord of the need for repairs and ask for a rent decrease during the tenancy. That was not done. Under section 47(2), a request ought to be made to a landlord for overpayments during, or after the termination of a residential tenancy agreement. The only request made by the tenants in this matter was when they filed their cross-application to the Tribunal. Orders 1. Tenants are to pay the landlords compensation for the following: 1. rent arrears – $2,455.71 2. remove rubbish – $129.00 3. power point - $150.00 4. spot / clean and carpets - $240.00 5. gardening $395.00 1. Tenants are to pay a total of $3,369.71. 2. The following orders are made: 1. The tenants, Lui Fraietta and Tracey Fraietta, are to pay the landlords, Amer Rathore and Nazish Rathore, the sum of $3,369.71 immediately. 2. The Rental Bond Services is directed to pay the landlords, Amer Rathore and Nazish Rathore, the whole bond plus interest of Rental Bond number S723367-2. Any amount received is to be credited against the money order. 3. The tenants' cross-application 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 15 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: 15 August 2023