Amos v Andrews [2014] QCAT 147

CITATION: Amos v Andrews [2014] QCAT 147 PARTIES: Benjamin Amos (Applicant) v Graham Andrews (Respondent) APPLICATION NUMBER: MCDT2860-13 MATTER TYPE: Residential tenancy matters HEARING DATE: 28 January 2014 HEARD AT: Brisbane DECISION OF: Member McMahon DELIVERED ON: 27 March 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Application to correct, amend or reopen a decision is refused. CATCHWORDS: Payment of bond under Tribunal Order Residential Tenancies and Rooming Accommodation Act (Qld) 2008 ss 66(2)(c), 137 APPEARANCES and REPRESENTATION (if any): APPLICANT: Benjamin Amos RESPONDENT: Graham Andrews This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] This was a decision made pursuant to s137 of the Residential Tenancies and Rooming Accommodation Act 2008 concerning the payment of a rental bond under tribunal orders. At the hearing, the owner of the rental property at 4 Westminster Boulevard, Elanora, Mr Graham Andrews, -- 1 of 4 -- 2 chose to appear instead of LJ Hooker Nerang, the agency which had managed the property at the time of the tenancy. [2] The Applicant, Mr Benjamin Amos, brought the application to claim the remainder of the bond held by the RTA in the sum of $1262.44. Mr Andrews disputed this claim and provided a response to the application. [3] The Respondent’s claims consisted of: a) Carpet cleaning to remove a stain in a bedroom (4 trips) $440 b) Master bedroom window repair (varnish) $110 c) Outside window cleaning $80 d) Unpaid water bills of $195.60 and $436.84. [4] At the hearing, specific orders were made and full reasons given for the decision in relation to the last two claims and are therefore not duplicated here. The following reasons relate only to the decision against allowing the first two claims. [5] Mr Amos testified that his tenancy lasted slightly over 12 months and during this period he and Mr Andrews had a good relationship. He stated that he often assisted Mr Andrews by allowing him informal access for work on or inspection of particular parts of the house. He said there were a number of inspections during the tenancy by LJ Hooker without any problems to rectify. He said that Mr Andrews considered him a good tenant at the time. [6] Mr Amos identified a number of issues that arose during the tenancy including over a period of about 3 months where a probable leak near the ensuite caused constant mould on walls and eventually lead to wet carpets throughout the house. He sought no compensation for this. [7] Another issue that arose was a high water bill of $436.84 in a billing period when the family of 2 adults and one child were absent on holidays for almost 8 weeks. It became apparent that either a leak in the house or the automatic irrigation in the garden may have been responsible for this as the system ran off a small tank which would top up with town water when the tank ran dry. During this quarter there was little rainfall on the coast. The premises were about 20 years old and had no water efficiency certificate. [8] Mr Amos testified he wished to pay a fair amount for water used, and had made a previous offer to Mr Andrews of $390 in full settlement of the water bill. This offer was refused. He also testified that he had later made an offer to pay for the varnish peeling off a window frame, however this offer was also refused. [9] Mr Amos testified that he and his family vacated the premises on 21 September 2013, after paying more than $500 for a full bond clean which included carpets. On 23 September, he and an agent from LJ Hooker Nerang met Mr Andrews at the house for an exit inspection. Mr Andrews had arrived earlier and had been inspecting the property whilst waiting. At this inspection, Mr Andrews complained about some dust on a fluorescent -- 2 of 4 -- 3 tube which Mr Amos immediately cleaned to Mr Andrews’ satisfaction. No other issues were raised. At the hearing it was agreed between the parties that when the agent had asked Mr Andrews at the end of the inspection if he was happy with the condition of the house he had responded “Yes”. [10] Mr Amos did not receive a copy of the exit report from the LJ Hooker Nerang within 3 business days of the exit inspection as required under s66(2)(c) of the Act. Thus he was justified in assuming that there were no issues to rectify and therefore had no information relating to any stain on a carpet or damage to, or dirt around any window. [11] On 2 October 2013, some 10 days later, Mr Andrews claimed that the premises required a further clean. He testified at the hearing that at the exit inspection he had failed to notice a number of things, including a stain on a carpet, dirt around one doorway and damage to the varnish on a window. He organised cleaning and repairs and gave Mr Amos no chance to inspect or rectify any of these claims. [12] The tribunal paid careful attention to testimony relating to the stain on the carpet. Mr Amos disputed that it existed at the time of the exit inspection because: a) None of the three people conducting the exit inspection saw any stain; b) the bond clearers a few day’s previously did not report the existence of any stain to the tenant when cleaning the carpets; c) at the time of the inspection Mr Andrews agreed that he was happy with the state of the house; this naturally must include the cleaning and the state of the fixtures, fittings, windows and carpets; d) furthermore, Mr Andrews had had the opportunity to inspect the house prior to the arrival of Mr Amos, as well as during the formal exit inspection with the agent; he found no faults with carpets or windows; e) the owner’s agent at the time, LJ Hooker Nerang, has made no claim against Mr Amos relating to the exit condition of the property; f) the real estate agency failed to return a copy of the exit report to Mr Amos within 3 business days as required under legislation; g) the two claims were first made about 10 days later, ie almost two weeks after the exit inspection, and after the state of the house had been agreed; during these 10 days other people, possibly including tradespeople, had access to the house; and h) Mr Andrews proceeded to commission both the window repair and the carpet cleaning without notifying Mr Amos or allowing him any chance to rectify. -- 3 of 4 -- 4 [13] It was apparent from this detailed testimony during the hearing that Mr Andrews was unable to prove to the tribunal’s satisfaction that the carpet stain resulted from the tenancy. [14] Evidence from both parties at the hearing was that both LJ Hooker and Mr Andrews agreed that they were satisfied with the condition of the property at the end of the tenancy. An owner cannot then reasonably hold a tenant liable for damage discovered almost two weeks’ after the end of that tenancy, particularly when others have had access to the house in the meantime and he has indicated his acceptance of the condition of the property on the tenant’s exit. [15] In addition, if some rectification is required after an exit inspection – which was not the case here - then the owner or agent has an obligation to allow the tenant an opportunity to rectify; Mr Amos was not given any opportunity to do this. [16] The tribunal therefore decided that neither of these claims by the Respondent could be upheld against Mr Amos. While a further explanation of these reasons during the judgment may have been preferable to make that clearer, the tribunal clearly found the claims without merit. They were considered carefully and at length, but ultimately dismissed. [17] Consequently, as the intention of the tribunal was not to allow either claim, the current application to correct or amend or reopen the decision is refused. -- 4 of 4 --