Johnson v Wilson [2018] NSWCATAP 40

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Johnson v Wilson [2018] NSWCATAP 40 Hearing dates: 23 January 2018 Date of orders: 07 February 2018 Decision date: 07 February 2018 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President Dr J Lucy, Senior Member Decision: Appeal dismissed Catchwords: No question of law – no miscarriage of justice Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Fink v Fink [1946] HCA 54; (1946) 47 CLR 127 at 143 JLW (Vic) Pty Ltd v Tsiloglou [1994] Vic Rp 16 Tzaneros Investments Pty Limited v Walker Group Constructions Pty Limited [2016] NSWSC 50 Yang v NSW Land and Housing Corporation [2016] NSWCATCD 37 Category: Principal judgment Parties: Fraser & Clare Johnson (Appellants) Melissa Wilson (Respondent) Representation: Mr Johnson (Appellants)

Ms Swadling, Real Estate Agent (Respondent) File Number(s): AP 17/49063 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 2 November 2017 Before: P Boyce, Senior Member File Number(s): RT 17/24882

reasons for decision

Background 1. This is an appeal from a decision made in the Consumer and Commercial Division of the Tribunal published on 2 November 2017 (which we will refer to as the Decision). The Decision arose out of a dispute between the appellants and respondent concerning obligations under a residential tenancy agreement. The appellants were the tenants and the respondent was the landlord. We will refer to the appellants as the tenants and to the respondent as the landlord. 2. The Decision records an order that the tenants are to pay to the landlord an amount of compensation of $2,195.00. 3. The tenants filed a Notice of Appeal by which they dispute two aspects of the Decision resulting in the order which is the subject of this appeal. It is helpful to summarise the relevant aspects of the Decision, so as to understand this appeal. That summary is as follows: 1. The tenants occupied residential premises pursuant to a residential tenancy agreement entered into with the landlord, and they vacated the premises in May 2017. The landlord brought a claim for compensation for damages in the amount of $29,480.15 in respect of damage allegedly caused by the tenants during the term of the residential tenancy; 2. The landlord amended her claim for compensation to the sum of $15,000.00 made up of 11 separate claims; 3. The Decision dealt with each of the claims and recorded the evidence tendered by the parties and considered by the Tribunal. That evidence included an ingoing condition report (dated 14 May 2013) and photographs taken at the time of the commencement of the tenancy and an outgoing inspection report (dated 1 May 2017) and photographs, recording the condition of the premises at the end of the tenancy; 4. In respect of the landlord's claim for compensation totalling $2,090.00 for damage to kitchen cabinetry, the Tribunal recorded that the landlord's claim constituted one half of the quote to resurface the kitchen doors and drawers to repair damage allegedly caused by the tenants. The Tribunal found that the ingoing condition report did not record damage to the doors and drawers in the kitchen, but that the outgoing report recorded scratches to panels and nails into cabinetry; 5. The Tribunal found that the scratches and chips were greater than would be expected for fair wear and tear, and the Tribunal concluded that the only inference the Tribunal could make was that the extent of the damage has been caused by the tenants' use of the premises. The Tribunal went on to say that the amount claimed should be discounted by 50% to take into account that the renovation will give to the landlord an improvement in quality of the painted surfaces and extend the economic life of the cabinetry. The Tribunal allowed the sum of $1,045.00 as compensation to the landlord; 6. With respect to the landlord's claim for compensation for the cost of painting doorframes and damaged walls, the Tribunal noted that the amount claimed was $1,900.00 being one half of the cost of painting the doors and damaged walls; 7. The Tribunal recorded its satisfaction that the damage to the paintwork on the doorjambs was caused by the tenants' use of the property. The Tribunal recorded that it was not satisfied that the landlord had proven that the damage to the walls was greater than fair wear and tear. In the absence of any separation of the cost of painting the doorjambs, doors and walls, the Tribunal discounted the claim by 50% to take into account that the repainting of the premises will give to the landlord an improvement in quality of the painted services and extend the economic life of the paintwork; 8. Accordingly, the Tribunal decided that the tenants should pay compensation in the amount of $950.00 as the tenants' contribution to the cost of rectification of the paintwork; 9. Another claim resulted in the Tribunal awarding $200.00 compensation to the landlord. That award is not appealed; and 10. The Tribunal made the order for the tenants to pay to the landlord the sum of $2,195.00.