Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Elysia Sanders v Marvarela Pty Ltd t/as Elders Real Estate [2014] NSWCATCD 14 Hearing dates: 22 November 2013 Decision date: 16 January 2014 Jurisdiction: Consumer and Commercial Division Before: K Holwell, General Member Decision: The respondent is to pay the applicant the sum of $294.00 immediately. Legislation Cited: Property Stock and Business Agents Act 2002 Consumer Claims Act 1998 Category: Principal judgment Parties: Elysia Sanders (Applicant) Marvarela Pty Ltd t/as Elders Real Estate (Respondent) Representation: The applicant in person Mr M Howlett and Ms S Jones (respondent) File Number(s): COM 13/44106 and GEN 13/39574 reasons for decision APPLICATIONS 1The applicant made two applications - one for re-payment of the fees the applicant paid to the respondent for the management of her Pottsville house and one for compensation for alleged breach of the management agreement by the respondent. JURISDICTION 2The Tribunal has jurisdiction to hear and determine these applications pursuant to the legislation referred to above. The applicant is a consumer. The respondent is a supplier of management services. There was a supply to the applicant in New South Wales and the claim is brought within the time limit in the legislation. PROCEEDINGS 3A directions hearing was held in respect of both matters on 30 August 2013. The cases could not be settled on that day and they were set down for hearing on 20 November 2013. The cases were heard on that day and thereafter the decision was reserved pending the giving of these reasons. The hearing was sound recorded. EVIDENCE 4Oral evidence was given by Ms Sanders, Mr Howlett and Ms Jones. A considerable number of documents and photographs were tendered. 5It is not practical to recount all the oral evidence and the contents of the documents. In making findings I shall endeavour to refer to the main features of the evidence. Findings are made on the balance of probabilities. The applicant has the onus of proof. FINDINGS 6There was an agreement between the parties for the respondent to manage the rental of the applicant's Pottsville house between May 2012 and June 2013. Some problems arose in respect of a tenancy. The respondent performed an inspection and became aware that there was an unauthorised dog inside the premises. The tenant had evidently asked for permission for a cat but had a dog at the premises instead. The matter was further complicated in that a second lease to this tenant had a reference to a cat in one clause and a dog in another. The applicant was not prepared to allow a dog at the premises, the tenancy was terminated and the tenant vacated. 7For there to be compensation payable to the applicant the respondent has to be in breach of the management agreement or negligent. Whilst there was a mistake made in the preparation of the lease it does not result in the payment of damages because the applicant decided to terminate the tenancy and the tenant vacated. The end of this tenancy was brought about by the applicant's decision not to continue with the tenancy with there being a dog at the house. 8The applicant alleges that the respondent erred in not pursuing the tenant on her behalf in respect of issues concerning lack of cleanliness, improper painting performed by the tenant and the bond moneys. The respondent required the tenant to return to the premises to perform further cleaning work. The respondent was of the opinion that the painting issue was wear and tear and that the tenant could have the tenant's bond moneys. The tenant made a claim for the bond. Renting services wrote to the respondent informing it of the tenant's claim. The respondent did not dispute the claim and accordingly the bond moneys were paid to the tenant. 9I find that the applicant cannot succeed in respect of the claim that the respondent was in breach of contract or negligent in regard to the respondent's acceptance of the cleanliness of the premises. A tenant is required to leave premises reasonably clean not perfectly clean. Also there is no requirement that a tenant has to have premises professionally cleaned at the end of a tenancy. I am satisfied that the respondent acted correctly in regard to the cleanliness issue and that the premises were left reasonably but not necessarily perfectly clean. 10I find that the applicant can succeed in respect of the claim that the respondent was in breach in regard to a failure to pursue the tenant on the applicant's behalf re the improper painting at the premises and a failure to put a hold on the bond moneys. 11There are no degrees of negligence. The applicant only has to establish some negligence however slight. The photographs show that the tenant patched up holes in walls and painted over them. The paint work is sub-standard and the paints do not match. The respondent's claim that this issue is fair wear and tear cannot be accepted. 12Whilst it is arguable that the applicant could have brought proceedings in the Tribunal there is no guarantee that the applicant would have recovered moneys from the tenant in circumstances where the bond moneys had already been released. I am satisfied that the respondent has to compensate the applicant for her losses sustained in having to have the premises repainted. The applicant has two quotes. The applicant has an obligation to mitigate loss and accordingly the lower quote of $920.00 is the relevant amount. 13The respondent is entitled to set off from this amount the sum of $626.00 which it did not charge the applicant for obtaining a replacement tenant, advertising the premises for rental and preparing a fresh lease. These moneys are payable by the applicant because it was her decision to terminate the tenancy of the first tenant. After deducting the set-off amount from the painting cost the net amount payable by the respondent to the applicant is $294.00. 14The applicant cannot recover as damages three weeks loss of rental between tenant one and tenant two because it was her decision to terminate the tenancy of tenant one, one of the applicants to be the replacement tenant was rejected by the applicant and three weeks is considered a reasonable time to secure a replacement. 15The applicant cannot recover a re-payment of all the management fees she paid between May 2012 and June 2013. For that to occur there would have to be a finding that the respondent was in breach of the management agreement for the entire period. I do not accept the applicant's claim that the respondent was incompetent throughout the management period. Apart from the mistake I consider the respondent made when tenant one was vacating the respondent performed the agreement by collecting rent, accounting to the applicant for moneys received, carrying out inspections, preparing condition reports etc. The applicant has to pay for these services pursuant to the agreement. I am satisfied that the fees have been charged at the appropriate rates. 16There will be an order that the respondent pay the applicant $294.00. ORDER 17The respondent is to pay the applicant the sum of $294.00 immediately. Kim Holwell General Member Civil & Administrative Tribunal of New South Wales 16 January 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 16 May 2014