Asghary v Grant H. Berry - Oxford Park Villas [2015] QCAT 47

CITATION: Asghary v Grant H. Berry – Oxford Park Villas [2015] QCAT 47 PARTIES: Ashmy Asghary and Sheama Asghary (Applicant/Appellant) v Grant H. Berry – Oxford Park Villas (Respondent) APPLICATION NUMBER: MCDT5-15 MATTER TYPE: Residential tenancy matters HEARING DATE: 6 February 2015 HEARD AT: Pine Rivers DECISION OF: Member Favell DELIVERED ON: 16 February 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The Residential Tenancy Authority pay to the applicant the sum of $1,197.25 in respect of RTA bond no. 4110318-1 for premises at Unit 7, 75 Murphy Road, Zillmere, Queensland 4034 and to the respondent $182.75. CATCHWORDS: Application for return of bond – claim for compensation Residential Tenancies and Rooming Accommodation Act 2008 APPEARANCES and REPRESENTATION (if any): APPLICANT: J. Vazirzadeh (interpreter) and Murtaza Asghary RESPONDENT: Grant Berry REASONS FOR DECISION [1] The applicants were tenants at Unit 7, Oxford Park Villas, 75 Murphy Road, Zillmere between 4 February 2010 and 5 August 2010. They vacated the property on 14 July 2014. -- 1 of 4 -- 2 [2] The rental bond held by the Residential Tenancy Authority was $1,400 pursuant to the General Tenancy Agreement signed on 8 February 2010. [3] The Residential Tenancy Authority has advised that it holds $1,380 bond under Rental Bond No. 4110318-1. [4] The applicants seek an order for the return of that bond. [5] The respondent opposes that application and at the hearing claimed $182.75 being for damage to the back patio surface requiring re-painting and $1,520 being in respect of damage done to the living room carpet and the back bedroom carpet. [6] During the hearing I was informed by the respondent’s representative that he was instructed to claim no less than 68% of the depreciated value of the carpet as at December 2014. If that was so that would mean the claim is 68% of $1,900 being $1,292. [7] I was provided with Exhibit 4 which in part has a depreciation table showing the value as a December 2014 of $1,690. The projection through to 2019 has the value of the carpet as $0. [8] It is claimed that the damage to the living room carpet is such that it has numerous stains in it. It is apparent from the photographic evidence that there are indeed stains to the carpet in the living room in four areas. The photographs Exhibit 4 include a photograph of the whole of the living area. Although the stains are apparent close up (perhaps a meter away) they are not as evident in the photograph depicting the whole of the living area. [9] There is also a claim for deep abrasion patches in the back bedroom. Those abrasion patches are not as evident as the stains and the photographs of the patches were taken much closer to be able show them. [10] The claim in respect of the back patio surface is $182.75 said to be made up of $94.75 for concrete paving and paint and $88 for labour. There was no quote or hardly any other evidence to support the claim. The respondents however do not oppose that claim and agree to pay it. [11] The respondents however do oppose the claim for the carpet indicating that they may have been minded to pay for damage to 50% of the living room carpet. [12] There is no evidence of the cost of replacing the carpet, or the cost of repairing it or the area of the living room and the bedroom. [13] I was informed that the carpet has not been replaced and that the premises have been re-let. -- 2 of 4 -- 3 [14] The Tenancy Agreement entered into for the period commencing on 4 February 2010 and ending on 5 August 2010 (apparently the only agreement entered into) noted in the Special Terms as follows: Carpets are brand new; tenants are required to vacuum carpets with suction only type vacuum cleaner (not rotating brush or vibrating head type). Any spilling/staining is to be specially attended to immediately. [15] The standard conditions with the Tenancy Agreement and s 106 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) requires the tenant to keep the premises clean having regard to their condition at the start of the tenancy. It also required the tenant to not intentionally, maliciously or negligently damage or allow someone else to intentionally, maliciously or negligently damage the premises. [16] The standard terms also required the preparation and giving of an entry- condition report. That was not done but the respondent contends that the notation on the Tenancy Agreement shows that the carpets were brand new. I had been provided with tax invoice dated 7 December 2009 showing a payment of $3,072.73 for the supply and installation of floor coverings as per quotation. It does not provide any other information. [17] Clause 37 of the Special Conditions in accordance with s 106 requires the tenant to leave the premises, as far as possible, in the same condition they were in at the start of the tenancy, fair wear and tear accepted. Examples of fair wear and tear include wear that happens during normal use and changes that happen with ageing. [18] Clause 40 required an Exit Condition Report. That was not done. [19] This was an application for minor civil dispute/residential tenancy dispute. It was said to be made under s 429 of the Residential Tenancies and Rooming Accommodation Act – General Disputes Between Landlord and Tenant. [20] Pursuant to s 12 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has under the QCAT Act applied to the Tribunal to deal with the dispute. [21] The application made by the applicants was for the return of the bond money. Section 12 relevantly defines a relevant person to include ‘for a tenancy matter – a person who, under the Residential Tenancies and Rooming Accommodation Act 2008, may apply to the Tribunal for a decision in relation to the matter’. [22] Section 429 of the Residential Tenancies and Rooming Accommodation Act 2008 provides that ‘if there is a dispute between the lessor and tenant, or provider and resident, about an agreement, either party may apply to a tribunal for an order, and the tribunal may make an order it considers appropriate to resolve the dispute’. -- 3 of 4 -- 4 [23] In circumstances where the carpet has not been replaced and there is no indicated intention to do so it is difficult to see where the lessor has suffered damage because of some stains on the carpet. Its usefulness obviously remains intact and it is serving the purpose for which it was designed and used for the last five years. On the respondent’s version of events it is depreciated at the rate of 10% ($338) per annum. On the respondent’s table will be fully depreciated by December 2019. [24] I am not satisfied that the respondent has suffered any damage as a result of the stains on the carpet such as to require any order for compensation. [25] In my view it is fair and equitable to the parties to make no such order. Further the extent of the staining in the living area in my view may well be fair wear and tear. Further in my view the abrasive mark in the bedroom is fair wear and tear and it would not be fair and equitable to make any order in respect of it. [26] I note the stain on the patio and the attempt to fix it. [27] Because the applicant agrees to a payment of $182.75 I will order that the RTA (Residential Tenancy Authority) pay to the applicant the sum of $1,380 less $182.75 namely $1,197.25 in respect of RTA bond no. 4110318-1 for premises at Unit 7, 75 Murphy Road, Zillmere, Queensland 4034 and to the respondent $182.75. -- 4 of 4 --