Baker c/ Nvre Agents v Baker & Anor [2018] QCAT 203

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Baker c/ Nvre Agents v Baker & Anor [2018] QCAT 203 PARTIES: PETA BAKER C/ NVRE AGENTS (applicant) v CASEY BAKER (first respondent) ALEX ROSELT (second respondent) APPLICATION NO/S: MCDT469/17; MCDT435/17 MATTER TYPE: Residential tenancy matters DELIVERED ON: 21 June 2018 HEARING DATE: 9 November 2017 HEARD AT: Caboolture DECISION OF: Member Favell ORDERS: 1. The Residential Tenancies Authority pay to the applicants the sum of $1,528.56 from the bond held by the Residential Tenancies Authority (bond number 5697767-x) with the remainder of the bond to be paid to the respondents. 2. Application 435/17 is dismissed. CATCHWORDS: MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – RETAIL BOND – claim for rent and water supplied – where obligation to leave premises in same condition – fair wear and tear excepted Tenancies and Rooming Accommodation Act 2008, s 83, s 85, s 111, s 116 and s 166 APPEARANCES & REPRESENTATION: Applicant: Jamie Florensen of Nvre Agents First Respondent: No appearance Second Respondent: Self-represented -- 1 of 5 -- 2 REASONS FOR DECISION [1] This is an application for a residential tenancy dispute. [2] Under a Residential Tenancy Agreement dated 21 March 2016 the Respondents were tenants of premises at 22 Grainger Circuit, Burpengary Qld 4504. The General Tenancy Agreement was a fixed term agreement starting on 24 March 2016 and ending on 21 September 2016. [3] The tenants under the General Tenancy Agreement were required to provide a bond of $1,640.00. The rent of $410.00 was to be paid weekly on each Thursday. The Tenancy Agreement was expressed in the General Form 18a. [4] During the hearing I was informed that Alex Roselt vacated the premises on 9 July 2017 and Casey Baker vacated the premises on 10 October 2017. [5] By an email dated 27 September 2017 Casey Baker gave two weeks’ notice to the agent for the owner and undertook to give a following email advising when the house was empty. [6] The material filed in support of the application shows that the agents for the owner gave a Notice to Leave to both tenants on 31 August 2017 by email. That notice to leave was to expire on 6 November 2017. [7] Also on 31 August 2017 the agents for the owner advised the tenants of their obligation to complete an Exit Condition Report and to provide all of the keys to the property to the agency along with a carpet cleaning receipt by a professional reputable company, along with a pest control receipt for fleas. At that time they were advised of their option to vacate the property earlier after the giving of 14 days written notice of the proposed vacate date. [8] The Form 12 Notice to Leave was dated 31 August 2017 and was issued by email. There is no dispute as to the matters above. [9] The rental bond of $1,640.00 was held by the Residential Tenancies Authority (“RTA”) under Bond Number 5697767-X. By a letter dated 10 October 2017 the RTA advised that the bond of $1,640.00 was “paid in error to the tenant Alex Roselt” on 5 October 2017. [10] In that letter the RTA advised the agent for the owners that the matter would be decided by QCAT as to how the bond of $1,640.00 was to be paid out and said: We will then pay out and/or recover bond money as directed by the QCAT order. If QCAT orders the parties to pay each other directly, the RTA will not be able to pay out or recover bond money. You should ask the adjudicator to ensure the order states the amount owed is to be paid from the bond – i.e. “RTA to pay”. [11] The claim was the subject of a conciliation at the RTA however the matter was unresolved and the RTA issued a Notice of Unresolved Dispute M419839. [12] By an application as a minor civil dispute the Applicant seeks an order that the Respondents pay the Applicant $2,854.56. -- 2 of 5 -- 3 [13] That claim was broken down and supported by written material as follows: Rent arrears $820.00 Water usage charges $372.16 Repairs/cleaning/pest $1,546.00 Filing fee $116.14 [14] The rent arrears were supported by a leger and oral submissions. The water usage charges was supported by three invoices which had been filed and the repairs/cleaning/pest was supported by filed invoices and quotes. [15] The obligation to pay rent is clear from the Tenancy Agreement. There was no challenge to the claim made in that regard. Division 3 of the Agreement and in particular clause 8, which reflects sections 83 and 85 of the Residential Tenancies and Rooming Accommodation Act 2008 (“RTRAA”), makes it clear when, how and when rent must be paid. The tenancy details have set out the amounts and the timing. [16] Division 4 of the Agreement and in particular clause 13, which reflects sections 111 and 116 of the RTRAA requires the rental bond. [17] Clause 17 requires the tenant to pay an amount for water consumption if certain conditions expressed therein are met including the condition that the premises are individually metered for the supply of water. The tenant does not have to pay an amount for a reasonable quantity of water supplied to the premises for a period if during the period the premises are not water efficient for section 166 of the RTRAA. In deciding what is a reasonable quantity of water, regard must be had to the matters mentioned in section 169(4)(a)(2)(e). In the Tenancy Agreement item 13 engages if the premises are not individually metered for the service under item 12.2. In this instance the item is not engaged, item 12.2 is engaged, which requires the tenant to pay for water supplied to the premises. [18] In the Application filed with QCAT under the heading “What are your reasons for seeking the above orders?” the Applicant said: Alex vacated first, however his name was not removed from the tenancy as Alex and Casey couldn’t agree on the bond. Alex made a claim on the bond with the RTA which we opposed under claim 435/17 which is adjourned. Since lodging, Casey has now vacated the premises. There is two weeks rent owing ($820), three water usage invoices totalling $372.16, repairs required to the property totalling $556, cleaning/yard maintenance required quoted at $770, a flea treatment of $220. We are also seeking reimbursement of the filing fee for $116.40. The RTA has incorrectly paid out the entire bond to Alex Roselt so no bond is being held by the RTA. [19] Part of the material filed on behalf of the Applicant includes an Entry Condition Report which although it contains comments under the column “Lessor/Agent”, does not include any comments by the tenants and is not signed by either party. [20] An Exit Condition Report with the column under the heading “Lessor/Agent” filled in has been filed, although it contains no signatures by the tenants or comments by the tenants, it purports to contain an initial of the Lessor/Agent. -- 3 of 5 -- 4 [21] The General Tenancy Agreement Applicable requires the tenants to leave the premises as far as possible in the same condition they were at the start of the tenancy, fair wear and tear excepted (clause 37). The examples of what may be fair wear and tear include “where that happens during normal use” and “changes that happen with aging”. [22] A comparison of the comments which appear in the Entry Condition Report with the comments which appear in the Exit Condition Report reveals that often the same descriptions have been incorporated into both documents. The Exit Condition Report however does have some comments as to what could be regarded as a state of general cleanliness. The Exit Condition Report contains comments under headings that do not appear in the Entry Condition Report. That being so, a comparison cannot be made on the material available to me between the condition of the property at the time the tenancy was entered into and the condition when the property was vacated. [23] In addition to the general obligation to hand over the premises in the same condition as at the start of the tenancy (fair wear and tear excepted), the special terms in the Tenancy Agreement in clause 46 provide for the care of the premises by the tenant. In particular that clause deals with general maintenance, the keeping of pets, the keeping of the garden and the liability for any loss or damage to locks, keys and remote controls. [24] Apart from the material that was filed the Applicant or the Applicant’s Agent have not sought to provide any further evidence of damage done to the premises which requires compensation or damage which requires remediation work. In particular there has been no attempt to make good any claim that wall in bedrooms, doors, letterbox or doorstops needed remediation work. I note the claim for that work is in the sum of $556.00 as detailed in an invoice dated 20 October 2017. [25] A claim is also made for flea treatment based on a general price list. [26] I am satisfied that there were rent arrears in the sum claimed. That claim was not challenged. [27] The water usage charges was also not challenged. That claim was backed up by appropriate documentation. [28] The Special Conditions of the Tenancy Agreement require the tenants to have the carpets professionally cleaned and if a pet has been kept, have a pest control treatment done. The Special Conditions require receipts to be presented with an Exit Condition Report. [29] Despite the claim asserting that there were attached invoices and quotes for repairs, cleaning and pest, I am unable to find any invoices or quotes for cleaning. There is no invoice for pest treatment but there is a general list of quotes, if which internal and external are done, the cost would be $220.00. The invoice for repairs seems in the main to be for replacement of a letterbox, the replacement of a door stop and painting totalling the sum of $556.00. I am unable to find any material which supports a total claim for repairs/cleaning/pest in the sum of $1,546.00. [30] At the hearing Mr Roselt provided an affidavit in which he swore that he had left the residence on 16 May 2017 and when he did so there was “no damage to the house or the lawn and gardens and it was clean and tidy”. -- 4 of 5 -- 5 [31] He said that he had applied to have his name taken off the lease a number of times and he had no choice but to apply for the bond through the RTA. That affidavit is Exhibit 1. [32] In an affidavit which became Exhibit 2 in the Applicant, Helen Francis Roselt swore that Alex Roselt had not been living at the premises at 22 Grainger Circuit after 16 May 2017. She swore that his dog was still at the premises until 6 July 2017. She swore that on 9 July 2017 she in company with two others helped Alex Roselt move the larger items from 22 Grainger Circuit and at that time the house was clean with no visible damage and in a good sate of repair. David Roselt swore in an affidavit which became Exhibit 3 that on 9 July 2017 there was no visible damage to the premises and the property was in a good state of repair. Taking into account all of the material and all that has been presented I can be satisfied that the tenants should be liable for the outstanding rent of $820.00 and the water liability of $372.16. The tenants are liable equally for the outstanding amounts. [33] I am satisfied that there were animals kept at the premises and no receipts for treatment for fleas have been presented and accordingly in my view the tenants are liable for the cost of combined treatment of $220.00. [34] I am not satisfied that there was any damage done to the property or that the property was left in any state other than the way it was received at the commencement of the tenancy, fair wear and tear excepted. [35] In my view it is appropriate and fair that the filing fee be allowed. [36] In all that means that on my finding the Respondents are liable to pay the Applicant $1,528.56. Had it not been for the fact that the RTA has paid the bond of $1,640.00 out to the Respondent Alex Roselt, the order would have been that the Applicants be paid $1,528.56 from the bond held in respect of the premises, rental Bond Number 5697767-X. [37] Accordingly in accord with the request from the RTA in their letter dated 20 October 2017 to Narangba Valley Real Estate, the order will state that the amount of $1,528.56 is to be paid from the bond with the RTA to pay. Any remainder left over after that payment can be paid to the Respondents. [38] In an application made to QCAT in its minor Civil Dispute Jurisdiction lodged in the Caboolture Registry as T435/17 the Applicant Peta Baker made a claim under section 137 of the RTRAA with respect to payment of the bond sought by the Respondent Alex Roselt. That matter came before the Tribunal on 17 October 2017 and at that time the Applicant was given leave to amend the Application and the Application was adjourned to a date and time to be fixed by the Registry. That hearing was heard at the same time as Caboolture claim T469/17 was heard. Since the payments sought to be stopped by the Applicant were made to the Respondent Alex Roselt and because of the orders made today, that Application is dismissed. -- 5 of 5 --