Rodriquez Martin v Web & Down [2015] NSWCATCD 103

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rodriquez Martin v Web & Down [2015] NSWCATCD 103 Hearing dates: 28 July 2015 Decision date: 26 August 2015 Jurisdiction: Consumer and Commercial Division Before: L Williams, General Member Decision: 1. Tenants to pay landlord $6,384.75 on or before 18 September 2015.

2. Rental Bond Services pay the whole of rental bond No. A635281-8 to the landlord, and that this amount be credited against the money order. Catchwords: Compensation to landlord Rental bond Alterations by tenant Legislation Cited: Residential Tenancies Act 2010 Category: Principal judgment Parties: Raquel E Rodriquez Martin – landlord/ applicant Wolfgang Jaimez Web and Gregory D'Elbert Down – tenants/respondents File Number(s): RT 15/35862 Publication restriction: Unrestricted

REASONS FOR DECISION 1. The landlord has filed an application on 27 May 2015, seeking orders against the tenants for damages to the premises. 2. The landlord claims $1,830.00 for the replacement of an oven and stove top unit, and $720.00 for the cost of installation. The landlord also claims $3,212.00 for painting, $1,112.75 for repairs and $540.00 for replacement of 2 ceiling fans. 3. The landlord also seeks an order that the rental bond be paid to her. 4. Both parties have filed and served documents in support, in accordance with the Tribunal's previous directions.

Evidence 1. The parties entered into a residential tenancy agreement ("RTA") on 22 May 2012 for a 12 month period until 21 May 2013 in respect of premises at Marrickville. Rent was payable under the RTA in the amount of $2,389.88 per month, and a bond of $2,200.00 was also paid. An inspection was carried out and an ingoing condition report completed on 22 May 2012. 2. At the end of the fixed term, the tenancy continued on a periodic basis until 25 April 2015. 3. The landlord appeared with her husband and both gave evidence under oath. Both tenants appeared and gave evidence under affirmation. The parties filed and served evidence in accordance with previous Tribunal directions. 4. The landlord stated that, approximately 2 months after the commencement of the tenancy, she received a call from the real estate agent who advised her that the tenants had painted the interior of the house. She had not given them permission to do so. 5. When the landlord inspected the premises, she stated that she was shocked that everything had been painted white, including door frames. The agent advised her that the tenants were seeking reimbursement in the amount of $450.00 for the cost of the paint, and she agreed to pay this. 6. The landlord's evidence was that the premises had been previously painted just before the commencement of the RTA. 7. The landlord gave evidence that she received a call from the agent advising her that the tenants had replaced the oven and cooktop with an upright oven. The pre-existing oven was described as an elevated cooker, resting on a cabinet. The tenants disposed of the oven and cooktop and the cabinet on which it rested, and replaced it with an old upright cooker. 8. The landlord stated that she did not give the tenants permission to change the oven and stovetop. She also stated that the previous stove was not that old and worked perfectly and was clean inside at the beginning of the tenancy. When she heard about the oven, she reported it missing to the police. 9. As a result of these incidents, the landlord asked the agent to give the tenants a notice of termination. The tenants did not move for some time as they could not find other premises, but finally gave vacant possession on 25 April 2015. 10. On 28 April 2015, the landlord's agent carried out an outgoing inspection with the tenants. At this time, it was found that certain items were missing or damaged. 11. At the outgoing inspection, the ceiling fans in the lounge room and bedroom 1 were missing, there was a hole in the dining room wall, and various other items which the landlord claims need repair. 12. The landlord relies on the ingoing and outgoing condition reports, photographs and invoices, including an invoice dated 11 June 2015 from Hire A Hubby Canterbury for repair of flyscreens, supply new toilet roll holder, clean paint from laundry tub and remove the lattice covering the window of the garage. 13. The landlord submits the house is currently in a state whereby it unable to be rented as a consequence of the tenants' actions, and that she is suffering financial hardship as she relies on the rent for living expenses. 14. The tenants gave evidence that they obtained permission from the landlord's agent to paint the premises prior to entering into the RTA. They state that they considered it a condition of entering into the RTA that they be allowed to paint, although this is not expressed in writing. 15. The tenants state that the landlord inspected the property in November 2012 and commended them on the painting and reimbursed them for the paint. They deny the landlord's claim that the premises were freshly painted prior to the tenancy, and refer to photographs included in their evidence. 16. The tenants rely on an email sent to the landlord's agent on 31 October 2012, stating that the landlord had verbally given permission for the tenants to paint the interior of the premises, and seeking reimbursement for cost of materials. The tenants have not provided a copy of any reply. 17. Further, the tenants sent an email to the landlord's agent on 20 September 2013 seeking permission to carry out further works, and again did not produce a reply. 18. The tenants stated that the landlord attended all but one of the inspections, and believed that she was aware of the changes that they had made to the property. 19. In regard to the cooker, the tenants claim that they obtained permission from the landlord's agent to change the oven, and that this was given verbally. They disposed of the cooker in place, and bought an upright cooker for $50.00 from Gumtree, which they installed. 20. The tenants dispute the landlord's statement that the cooker was only 2 years old. They say that the igniters were not working, although they did not request the landlord's agent to arrange for repair. 21. On 28 October 2014, the tenants sent an email to the landlord's husband seeking permission to dispose of the cabinet on which the cooker had rested, and to install a wall cabinet in the kitchen. The landlord replied by email dated 29 October 2014, stating that no permission had been given to the tenants to make any changes to the kitchen or the cooker. 22. The tenants claim that all of the fans in the house were old and noisy and they took it upon themselves to replace them with new fans, albeit in a different style. The old fans were placed in the garage and became water damaged. 23. The tenants dispute items on the invoice from Hire a Hubby. They say that the flyscreens only require minor fixing and were originally made by the landlord's husband. They admit that a hole existed in the dining room, but not in bedroom 2. 24. The tenants say that they have improved the property and assess the cost of materials and labour supplied by them in the sum of $1,363.88.