Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Harris v Hill; Hill v Harris; [2015] NSWCATCD 84 Hearing dates: 10 June 2015 Decision date: 13 July 2015 Jurisdiction: Consumer and Commercial Division Before: A P Coleman SC, Senior Member Decision: 1. The Landlord to be paid the sum of $1,130.00 with the balance of the bond, together with interest thereon to be paid to the tenant. 2. I make the following orders: (1)The tenant, Amelia Harris is to pay the landlady, Margaret Hill, the sum of $1,130.00 immediately. (2)The Rental Bond Services is directed to pay the landlady, Margaret Hill, $1,130.00 of the bond of Rental Bond number A626588-5. Any amount received is to be credited against the money order. (3)The Rental Bond Services is directed to pay the tenant, Amelia Harris, the balance of the bond of Rental Bond number A626588-5. NOTE: If the other party does not comply with the order to pay money, a certified copy of the above money order may be obtained from the Tribunal for the purpose of enforcement action through the Local Court. Catchwords: RESIDENTIAL TENANCY - Claim for bond - claim for compensation by landlord Legislation Cited: Residential Tenancies Act (NSW) 2010 Cases Cited: Westpac General Insurance Ltd v Cooper [2006] ACTSC 91 Texts Cited: Anforth on Residential Tenancies, Law and Practice, New South Wales, 5th Ed. Category: Principal judgment Parties: Amelia Harris (Applicant) RT 15/29556; (Respondent) RT 15/35547 Margaret Hill (Respondent) RT 15/29556; (Applicant) RT 15/35547 File Number(s): RT 15/29556 and RT 15/35547 Publication restriction: Nil reasons for decision Background 1. Before the Tribunal are two applications. The first, in proceedings RT 15/29556 is a claim pursuant to s 175 of the Residential Tenancies Act 2010 (the Act) by the tenant, Ms Harris, for the return of the bond lodged by her under a residential tenancy agreement she entered into with Mrs Hill, the landlady. The amount of the bond lodged is $1,280.00. 2. The second application, in proceedings RT 15/35547, is an application pursuant to sections 175 and 181(1)(c) and (d) of the Act by the landlady, Mrs Hill for compensation from the tenant, Ms Harris, arising from the occupation by Ms Harris of the residential property. The amount claimed is $2,932.30. 3. Because the release of the bond, being the tenant's money, is resisted by Mrs Harris she has the onus of establishing why it is that the tenant should not receive a full refund of the bond. Likewise, in respect to the compensation claim, Mrs Harris carries the onus of proving that she is entitled to compensation from the tenant. 4. Ms Harris appeared in person. Mrs Hill was granted leave pursuant to s 45(1)(b) of the Civil and Administrative Tribunal Act, 2013, to be represented by her daughter Ms Sandra Hill. Ms Harris did not object to Ms Hill representing her mother. The Material Before the Tribunal 1. The Tribunal had the benefit of evidence from each party. The matters were heard together and evidence in one was evidence in the other. 2. The material tendered by the landlady, marked Ex A, comprised a folder of documentary material and photographs in support of her claim. The material included the ingoing and outgoing condition report. The condition report was signed by the tenant when she moved in, but was not signed by her when she moved out. The landlady's resistance to the return of the bond and for compensation was advanced under the following heads : 1. Unpaid rent; 2. Replacement of the carpet; 3. A sum to allow for the walls of the premises to be washed; 4. A sum for replacement of the mirror tiles in the entrance hall; and 5. Stove repairs. 1. The tenant relied on a facsimile of 27 pages of documents, including character references and some photocopies of text messages. That material, marked Ex 1, was used in submissions to respond to each of the heads of the landlady's claim. 2. I will deal with each head of claim separately. I have had regard to all of the evidence in Ex A and Ex 1. Unpaid rent 1. The landlady claims that the tenant owes $640.00 for unpaid rent. The rent under the lease was $320.00 per week. The landlady has manually compiled a schedule of rent payments (Tab 6 of Ex A). It shows that rent was paid from the first payment of rent on 13 April 2012 up to 9 April 2015. It is common ground that the tenancy ended on 16 April 2015. As such, prima facie, the tenant is one week behind in rent. Rent was paid weekly until November 2012 when it then was paid on a fortnightly basis. The Schedule shows total rent due for the period of the tenancy (13 April 2012 to 16 April 2015) as $50,240.00 (157 weeks @ $320.00 per week). It shows total rent received as $49,920.00. 2. The landlady also claims that an additional weeks rent is owed. That is because on 24 April 2015 she received a phone call from the tenant's father stating that the tenant was owed a weeks rent. He demanded that it be paid into the tenant's bank account by the end of that day. The landlady said that the tenant's father also said in that conversation that the tenant would pay 40% of the cost of the replacement of the carpet. The landlady said that the father threatened to go to a solicitor if the payment of the rent allegedly owed to his daughter was not made. The landlady made the payment into the tenant's bank account thinking she may have owed the money and because she felt intimidated by the tenant's father. 3. The tenant accepts that her father made the telephone call as set out by the landlord, at least in respect to the rent. She says the call was made because at the time, she believed she was owed a weeks rent. That was because she thought she had paid a weeks rent in advance, the bond and then two weeks rent. She then paid rent one week later. 4. She now accepts that she was not entitled to the $320.00 paid into her account following the phone call from her father. She accepts she has only paid rent up to 9 April 2015. She too compiled a schedule of rent payments in Ex 1. It was different to the landlady's. It totalled the amount of rent paid by her for the period of the tenancy as $49,600.00. She maintained, although it was not clear why, that she was still owed one weeks rent. 5. I prefer the evidence of the landlady. She has carefully compiled the rental owed and compared it with the rental due. The tenant's evidence was confused. As I have noted she accepts that she was not entitled to the amount of $320.00 paid into her account. To that amount of $320.00, I find that another weeks rent was owed. I will award the landlord $640.00 under this head. Carpet Replacement 1. The landlady claims $998.00 for replacement of the carpet in the premises. This is 50% of the quote received and tendered by the landlady from Sparks Carpet dated 29 April 2015 (Tab 7 Ex A) 2. The evidence discloses that the carpet has many cigarette burns in the bedroom and lounge and dining room. The ingoing condition report shows that the carpet in the bedroom was clean and undamaged. It now has, according to the landlady, 34 burn marks. There are photos of the carpet which certainly show numerous burn marks. 3. The landlady says there were 8 burn marks in the carpet in the lounge/ dining room. The condition report states that there were "some" burn marks in the carpet in that room. The landlady now asserts that there are 290 burn marks in that area. There is photographic evidence to support a finding that there are a significant number of burn marks in that area. 4. The carpet is 12 years old. It was installed new in May 2003. 5. The tenant accepts that the carpet is in a worse condition than when she moved in. She accepts there are more cigarette burns in the lounge/dining room area but not in the bedroom. She says if the damage is more than fair wear and tear, she would have been prepared to contribute towards the cost of the carpet being replaced. She did have the carpet cleaned when she left the premises at a cost of $99.00 (p 16 Ex 1). She notes that she has read on the Rental Bond website that the lifespan of carpet in rented premises is 10 years. 6. In relation to the issue of wear and tear, I have had particular regard to the authority of Westpac General Insurance Ltd v Cooper [2006] ACTSC 91 which stated the onus of establishing that damage was fair wear and tear rests on the tenant. 7. The authority refers to "fair wear and tear" meaning by natural causes or unintentionally or as a normal incident of a tenant's occupation in the course of fair use of the premises for any purposes for which they were let. "Fair" refers to the nature of the use and "wear and tear" refers to the effect and how substantial is the damage concerned. 8. Having regard to the authorities and in particular the discussion on the question of fair wear and tear contained on p 120 of the 5th Edition of Anforth on Residential Tenancies, Law and Practice, New South Wales, I have considered the following factors in determining the issue of fair wear and tear concerning the carpet (and other relevant heads below): 1. The age, quality and condition at the beginning of the lease; 2. The average useful lifespan of the item; 3. Reasonable expected use; and 4. Number and type of tenants. 1. The reference by the tenant to the expected lifespan of the carpet being ten years is a reference to the depreciation scale as set out by the Australian Taxation Office based on Tax Ruling TR 2012/2 (as amended from time to time) which sets out the effective life of depreciating assets including fixtures and fittings in leased premises. Carpets, Linoleum and vinyl are afforded a life span of 10 years. 2. In her application the tenant states that she did offer to pay 40% of the cost of replacing the carpet as quoted by 0420 Carpet (p 17 Ex 1) but that this offer was not accepted. She now does not wish to contribute to the cost of replacing the carpet as she has since learned of the 10 year lifespan of carpet as referred to above. 3. In the circumstances, having regard to the above matters, in particular the age of the carpet I do not propose to allow any amount to be paid by the tenant towards the cost of the carpet. The carpet is 12 years old. Whilst it is accepted that it was in worse condition than when the tenant moved in, I do not think she should have to bear half of the cost of replacing 12 year old carpet in a rented premises. Cost of Washing the Walls 1. The landlady claims $580.00 to pay for a cleaner to wash the walls of the unit. This amount is supported by a quote from John's Painting Group Pty Ltd (Tab 9 Ex A). She supports he claim by photos of the walls which show significant cigarette smoke stains. The photos also show cobwebs on parts of the walls and cornices. 2. The tenant says that she cleaned the windows and the walls before she moved out. She says that some of the photos were taken before she had cleaned. She also says some of the photos indicate that the walls had been cleaned. 3. I do not accept that the photos were taken before the tenant moved out. Whilst she may have done some cleaning, the photos do indicate that there are significant stains on the walls and ceilings. If she cleaned, she did not do so very well. I do not think, however, that the sum of $580.00 is a reasonable amount to allow. There must be some wear and tear allowed for. I note that smoking was not prohibited under the tenancy agreement. 4. In the circumstances I propose to allow 50% of the amount claimed, being $290.00 as being a reasonable amount for the tenant to contribute. Stove Repairs 1. The landlady claims $214.30 under this head. This is made up of $58.30 for parts to replace and affix the kick plate at the bottom of the stove, $22.00 for a new ignition switch and $134.00 for the service fee. The stove was purchased new in July 2010. It is therefore 5 years old. 2. The landlady has already paid the amount of $214.30 to have the stove fixed. 3. The tenant says that the ignition switch has been broken for about a year. She says she told the landlady it was broken. She notes the stove still works. As to the kick plate, she says it is still at the premises but the clips are broken and she could not reaffix it before she left. She says she should not be liable for this head as it is wear and tear and, if she is, she should only have to pay for the ignition switch ($22.00). 4. I accept the tenant's submission that she should not have to pay for this head. I do not know why the ignition switch failed. I cannot find that it was because of any actions of the tenant other than ordinary use. There is no evidence of her intentionally or negligently breaking it or causing it to fail. I do not know the lifespan of such switches but it was four years old when, on the tenant's evidence, it failed. I will not allow any amount for this item. 5. As for the kickboard, I find that being 5 years old, this amounts to fair wear and tear within the meaning of the principles referred to above. Again, I do not know why the clips broke. I cannot find it was because of any intentional act by the tenant. I cannot find they broke because of anything other than ordinary use and perhaps incidental contact over the 5 years the stove has been at the premises. 6. In the circumstances, I reject the landlady's claim under this head. Mirror Tiles 1. The landlady claims $500.00 under this head. This is for the removal of the mirror tiles on the wall in the entry/loungeroom area. The claim is supported by a photo (Tab 10 Ex A) which shows two of the mirror tiles are missing and two are cracked or chipped. The amount claimed is to remove the tiles there as the landlady says they are no longer available and cannot be replaced. The amount claimed is an estimate only. 2. The tenant denies she is liable to pay for this head. She notes that the two tiles missing from the wall as shown in the photo are still at the premises. She accepts that the two tiles in the photo were cracked and chipped whilst she was in the premises. However, she says she shouldn't have to pay for the rest of the tiles to be removed. 3. I agree with the tenant that she should not have to pay an amount to have all of the tiles removed. It is not her fault that the tiles are no longer made (if that is right). However, having regard to her acceptance that she was responsible for breaking the two tiles shown in the photos, I do think she should contribute some amount under this head. As the other two tiles are still at the premises, I find that it is reasonable that she contribute to the cost of refitting them to the wall. Perhaps something can be done to fix the two which are cracked or chipped or replacements can be found. I think the estimate of the landlady is too high. I propose, doing the best I can, to allow $200.00 for this head. Conclusion 1. For the reasons given above, I find that the landlady is entitled to the sum of $1,130.00. 2. I make the following orders: 1. The tenant, Amelia Harris, is to pay the landlady, Margaret Hill, the sum of $1,130.00 immediately. 2. The Rental Bond Services is directed to pay the landlady, Margaret Hill, $1,130.00 of the bond of Rental Bond number A626588-5. Any amount received is to be credited against the money order. 3. The Rental Bond Services is directed to pay the tenant, Amelia Harris, the balance of the bond of Rental Bond number A626588-5. 4. NOTE: If the other party does not comply with the order to pay money, a certified copy of the above money order may be obtained from the Tribunal for the purpose of enforcement action through the Local Court. A P Coleman SC Senior Member Civil and Administrative Tribunal of New South Wales 13 July 2015 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: 04 September 2015