Duryea and Anor v Hiles [2012] QCAT 661

CITATION: Duryea and Anor v Hiles [2012] QCAT 661 PARTIES: Carolyn Duryea Douglas Duryea (Applicants) v Norma Hiles (Respondent) APPLICATION NUMBER: MCDT91-12 (Wynnum) MATTER TYPE: Residential tenancy matters HEARING DATE: 27 September 2012 HEARD AT: Wynnum DECISION OF: J Bertelsen, Adjudicator DELIVERED ON: 23 November 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The applicants pay to the respondent the sum of $21,928.38. 2. The Residential Tenancies Authority payout to the respondent (lessor) the sum of $2,000.00 rental bond in part satisfaction of that order. CATCHWORDS: Minor civil dispute – tenancy dispute – state of premises at commencement and expiration of tenancy – premises subject of the tenancy – inclusions – cleaning, damage, repairs and replacements APPEARANCES and REPRESENTATION (if any): APPLICANT: Carolyn and Douglas Duryea, Tracey Lewis – Bayside Tenancy Services RESPONDENT: Norma Hiles and Jodie Ashton, Raine & Horne REASONS FOR DECISION Applications -- 1 of 9 -- 2 [1] The applicants seek the return to them of the $2,000.00 bond paid by them in about July 2007 when they first entered into a general tenancy agreement with the respondent for the rental of premises 413 Kianawah Road, Wynnum West. [2] The respondent has counter claimed in the sum of $65,382.33 for cleaning, damage, repairs, replacements and water bills far in excess of the bond. Background, evidence and findings [3] The premises was originally advertised as a 2 acre property comprising of a 2 bedroom house, large shed with stables, paddocks and a dressage arena perfect for ponies, water troughs and a small dam. The applicants observed the premises whilst driving past on occasions and thought it suitable for themselves and their race horses. A general tenancy agreement was entered into through the respondent's then real estate agent James Dean Real Estate initially for 6 months commencing 28 July 2007. An entry condition report was completed at the time. It appears there were some 3 tenancy agreements during the course of the tenancy the last expiring 27 January 2012. Thereafter the tenancy was periodic. Rent remained constant at $500.00 per week from 28 July 2007 to vacate on 16 July 2012. Management of the tenancy was conducted by James Dean Real Estate from 28 July 2007 to 27 January 2012 thereafter by the respondent for a short time and from 31 May 2012 by Raine and Horne Wynnum/Manly. [4] The respondent's complaints are addressed as follows: Blind and window cleaning $100.00 [5] The respondent claimed $100.00 for the cleaning of dirty blinds and windows. The invoice from Grahames Home & Cleaning Care dated 8 August 2012 refers to “blinds and windows…messy or dirty”. The applicants asserted that cleaning was carried out some 6 weeks after vacate and that the blinds and windows were clean as at the date of vacate. The cleaners invoice indicates cleaning some 3 weeks post vacate. Photographs are inconclusive. The state of blinds and windows is supported by the cleaner's invoice. The sum of $100.00 is allowed. Septic tank $265.00 [6] The respondent claimed $265.00 for cleaning of the septic system overflowing with sanitary items and referred to comments by one Gavin of “All Liquid Waste”. It was not disputed that it was the respondent's obligation to maintain ie clean and service the septic system. Rather the respondent asserted that a proliferation of sanitary items required the cleaning of the septic. The respondent further asserted “instructions and extra conditions” requiring sanitary items and bleach to be kept out of the septic system formed part of the tenancy agreement/s. The applicants denied the existence of any such instructions or extra conditions none of -- 2 of 9 -- 3 which were produced. The person Gavin did not provide a statement nor was he called as a witness. The septic system was never cleaned or serviced during the course of the 5 year tenancy. [7] It was always the respondent's obligation to maintain the septic system. There is no reason to impose any liability for maintenance or servicing on the applicants where there is insufficient evidence of usage of the septic system outside the norm. This claim is disallowed. Locksmith $280.00 [8] The respondent claimed $280.00 for replacement of broken deadlock, 2 screen door cylinders and back screen door lock. The invoices from Sylverkey Locksmithing Services and Remesh are dated 21 July 2012 and 1 August 2012 respectively. The applicants asserted that the broken deadlock was reported to James Dean Real Estate in 2008. There is no mention of this in James Dean Real Estate’s tenancy history. If what the applicant’s say is true they laboured under a malfunctioning deadlock for some 4 years, never pursuing repair or replacement in that time. Household security no doubt would have been compromised in the same period. No notice to remedy breach was ever issued by the applicants asserting the respondent's liability to repair or replace the deadlock in particular. [9] The major invoice for $220.00 is dated 21 July 2012 some 5 days after vacate. There is no evidence of forced entry or break in or other occurrence that might lead one to the conclusion that the damage to locks was inflicted in this short window of time. The Tribunal is satisfied on balance that the damage to the locks occurred during the course of the tenancy; that there was a failure to report and that the explanation as to damage is inadequate. This claim is allowed at $280.00. Electrical $280.00 [10] The respondent asserted that when an exit condition report was done “it was noted that the fluoro light in the barn had been smashed”. The invoice from MC Electric dated 21 August 2012 refers to “replace smashed fluoro in barn” and charges for a single diffused fluoro. There is no evidence that anything other than the fluoro light (tube) itself was smashed. That did not require an electrician to replace. The applicants stated the fluoro light was operational at time of vacate and produced a photo. There is insufficient evidence to impose this cost on the applicants. Water bills $1,429.35 [11] The respondent claimed reimbursement in respect of water usage for the period 24/11/09 to 24/02/12. [12] The first tenancy agreement provided that the applicants must pay for water “excessive only”, the second the same and the third, 28/07/11 to -- 3 of 9 -- 4 27/01/12, that the applicants must pay for water usage over 55 kilolitres per quarter. Whilst there was some dispute about disconnection of water systems, water leaks and plumbers' attendance in the context of this claim during the course of the tenancy water invoices were only first put in issue in the respondent's counterclaim. Water invoices had neither been presented to nor payment sought from the applicants prior to the respondent's counterclaim. Water charges against a tenant are an adjunct to rent. Whether the tenant separately contributes to water consumed depends on the tenancy agreement, water compliance and the volume consumed. No water invoices came to the notice of the applicants during the course of the tenancy. There was no evidence produced to convince the Tribunal the premises was water compliant and it was only after vacate that volume begun to be disputed. Additionally section 419 of RTA legislation provides that such invoices must be pursued within 6 months of the lessor becoming aware of the breach ie non payment by the applicants in this instance of their “share” of water consumption. The only 2 water invoices that could fall within the 6 month time limit are the last 2 listed by the respondent for $238.89 and $240.14 (total $479.03). The applicants stated at hearing that they were willing to pay these 2 sums. Whilst liability to pay even these 2 sums is perhaps dubious the Tribunal accepts the applicants' statement and allows water invoices at $479.03. Floor sanding $1,320.00 [13] The respondent claimed $1,320.00 for floor sanding. The invoice of All Right Floor Sanding (Michael Croft) dated 1 August 2012 refers to repairing scratches in lounge room floor, repair office floor where polish worn off, sand and recoat deep scratches and dents in kitchen and laundry and recoat whole house. Michael Croft in his declaration made 12 September 2012 generally confirms his work carried out but adds “bedroom floors were in ok condition”. Photos produced by the applicants confirm Mr Croft’s statement. [14] Additional photos depict the kitchen and lounge to be in reasonable condition. The respondent suggested the applicant’s photos to be misleading but produced nothing to support her contention that the state of the floors was unacceptable given 5 years use. The house had polished floors throughout. The applicants were there for 5 years. Scratches, dents and worn polish are reasonably to be expected after 5 years continuous use. Recoating is an ongoing requirement for polished floors subject to such use. There is nothing identifiable about the state of the polished floors that could not reasonably be put down to fair wear and tear. This claim is disallowed. Labour – clean gardens, paddocks and stables $1,481.65 [15] This claim is constituted by 4 invoices from Bradley Williams. Mr Williams has also made a declaration dated 12 September 2012. The first invoice number 46 is for $495.00. It refers to whipper snipping property but does not nominate where; covering horse manure with 25 square metres of -- 4 of 9 -- 5 garden mulch but does not nominate where; pruning overgrown vegetation but does not nominate where. The entry condition report apart from the house and immediate yard includes “numerous sheds and equipment”. There is no mention of any paddock or dressage arena. Neither do they feature in the tenancy agreements. However given that the applicants were stabling up to 11 race horses it is logical that the paddock area would necessarily be utilised. [16] The original tenancy agreement provided at special condition 5 “the tenants are to keep lawns mowed and gardens weeded on a regular basis and all grass clippings are to be removed from the premises, as to the condition of the lawns and gardens upon taking possession of the property”. Photos produced by the respondent indicate the lawns and gardens immediate to the house to be in excellent condition and in a much superior state at tenancy commencement to that depicted in end of tenancy photos produced by the applicants. [17] There is no basis for imposing on the applicants the expense of removing mango leaves from the shed roofs. Finally the applicants asserted the collection of PVC pipes, logs, cement, besser blocks and scrap fencing wire were all on top of the stable roof and feed room roof. This is not borne out by the Google maps produced by the respondent. [18] Invoice number 47 is for $456.75. It refers to sanding of fencing in the front paddock. That is clearly a maintenance issue, the responsibility of the respondent. Having to have shade cloth cut down post vacate is a legitimate expense in having the premises returned to substantial pre tenancy configuration. Having to shovel excess horse manure and dumping it was an unavoidable expense that the respondent ought not to have been put too. [19] Invoice number 48 is for $180.00. It refers to stacking scattered timber and besser blocks. The applicants suggested that because Mr Williams had previously delivered fence palings and soil to the property it was not their responsibility to clean, replace or restack elsewhere. That is not suggested in this invoice. Mr Williams had previously delivered fence palings and soil to the property and these were deposited outside of the house back fence. That was never denied. The invoice refers to repairing a cracked fibro wall in bedroom and small hole in laundry. The entry condition report does not identify any such damage. [20] Invoice number 54 from Barry Borland is for $350.00. It refers to cutting down dead trees infested with termites. This is clearly a maintenance issue the responsibility of the respondent. The paddock was utilised for the benefit of the applicants' race horses. It was a reasonable expectation that it be left substantially as found ie not overgrown with nettles and weeds. Hedges required trimming. That is clear from the before and after photos referred to previously. Only the removal of green waste from the immediate yard and garden is chargeable to the applicants. -- 5 of 9 -- 6 [21] Taking all 4 invoices into consideration (none of which record specific item charges), the supporting photographic evidence in particular and bearing in mind that some work carried out ought not be charged to the applicants the Tribunal concludes the portion fairly chargeable to the applicants ought be 60% i.e. $889.00. Rubbish removal $382.35 [22] This claim is an accumulation of dump fees charged to the respondent for disposal of horse manure and rubbish. The applicants stabled up to 11 race horses at the premises over a period of 5 years. It was the applicants' obligation to return the premises in substantially the same condition as at commencement of the tenancy not with an accumulation of horse manure over 5 years. There was no evidence to convince the Tribunal that the applicants ever removed horse manure from the premises in the entire 5 years. It is little wonder that some 23 trips to the dump were required to rid the premises of accumulated horse manure let alone any other sundry rubbish. This claim is allowed. Arena – $39,449.30 [23] The respondent claims damage to the dressage arena such that it requires replacement in its entirety. [24] The entry condition report dated 26 July 2007 reports on the house and refers under the heading “general” to “numerous sheds and equipment”. It does not refer to or include the dressage arena. Nor was the dressage arena ever listed as an inclusion in any of the 3 tenancy agreements produced to the Tribunal. The applicants only ever stabled race horses at the premises. Dressage eventing and horse racing are entirely different and mutually exclusive equestrian pursuits. A dressage arena was of no particular interest or use to the applicants. [25] The applicants however did state that race horses were allowed to graze for short periods in the arena area and that an electric fence was constructed at the back of the arena. The respondent asserted that the arena was uneven with rocks exposed and dug up by race horses. The end of tenancy photos produced by the applicants do not support this contention. The arena appears run down and weathered. The respondent referred to a declaration by Alison Rose Morris dated 12 September 2012 attesting to the good condition of the dressage arena in 2007 and to a statement by Kerry Hocking attesting to the well kept nature of the premises. It is not contentious that the dressage arena was probably in good condition at the time of commencement of the tenancy although the applicants asserted it was only a pony club arena. [26] No maintenance was conducted on the arena during the 5 year tenancy. Nor does it appear the respondent ever viewed the arena until March 2012. Nor does it appear the former agent James Dean Real Estate, which regularly conducted inspections, ever reported on the state of the arena. -- 6 of 9 -- 7 [27] The respondent referred to correspondence from Equestrian Land Developments dated August 2012. Mr Cunningham, director of that entity, stated it was “evident that this arena has been dug up by some means”. He surmised that this could have been caused by: 1. Extended periods of no maintenance and riding on the same track all the time. There was no evidence of any riding on the same track all the time. 2. By stabling/confining horses in the arena for long periods. There was no evidence that this ever occurred. 3. Being dug up for use elsewhere on the property. Whilst this was suggested by the respondent no evidence of actual removal was produced. [28] It was not disputed that the arena had flooded on occasions. The flood wise property report obtained by the respondent is consistent with a propensity for water retention if not actual flooding. [29] The Tribunal concludes the applicants' very limited activity on the arena does not amount to such interference as to place it as the cause of deterioration which occurred over a 5 year, maintenance absent, period. That, in any event, it was never the applicants' responsibility in terms of the tenancy agreements to maintain the arena. This claim is disallowed. Structural damage $19,798.00 [30] The respondent claims structural damage of $19,798.00 as per the quote dated 10 September 2012 by Mr Finlay of Amalgamated Property Services. Mr Finlay gave evidence at hearing. He is a handyman with 20 years' construction experience. He gave clear and concise evidence of works to be undertaken by him to repair and replace structures. [31] The quote firstly is to replace rails and posts chewed beyond repair, broken or removed. The respondent has provided compelling evidence particularly photographic evidence of rails and posts chewed to destruction and/or broken and fences in place at tenancy commencement now non existent. This state of affairs was not disputed in any meaningful way by the applicants. [32] Some posts had been replaced with square metal tubing which had to be removed and timber posts reinstalled. [33] Some wooden rails had metal beams bolted across which had to be removed and replaced with original style timber. The quote further provided at item 7 for “additional shed structure – on the stables to be removed and the old fencing replaced where necessary”. The stables and additional temporary stables were points of contention. The applicants asserted that before signing “the lease” they said they would have to lift the height (raise the roof) of the stables, add to the stables and move the -- 7 of 9 -- 8 water tank; that the stables at the time of tenancy commencement were really only made for pony club horses. [34] The respondent stated she did give permission to raise the stables roof height but not to extend the stables or interfere with the water tank. [35] The additional stables were temporary in nature according to the applicants simply bolted on to the existing stables structure. The respondent and Mr Finlay stated that the temporary stables had been attached by cutting into support beams and welding steel sections to the existing stables structure. Either way the temporary structure is required to be removed to return the stables to original configuration. [36] The Tribunal accepts the respondent's evidence that she gave permission to raise the stables roof. The Tribunal does not accept the applicants' assertion that permission extended to stables extension or moving the water tank. There was no evidence that the respondent ever agreed to structural changes other than above. There is nothing to convince the Tribunal that permission was ever sought to make structural changes. [37] Removal of timber placed along the edge of the stables as walling and ply material lining the stables was also quoted for. These additions were made to make the stables more suitably safe for the applicants' race horses. There is no evidence of permission given nor any agreement to affix this timber and ply. [38] Items 12, 13, 14 and 15 of the quote were not contested. [39] The applicants' general statement was that they did not agree with Mr Finlay’s quote and that there had been flooding at the premises. There was no evidence that flooding had anything to do with the numerous changes to structures made by the applicants to suit themselves. The respondent on the other hand asserted the repairs and replacements were all necessary to bring the premises substantially back to its tenancy commencement condition and configuration. The Tribunal finds Mr Finlay’s quote has not been disputed or found to be wanting or indeed unreasonable in terms of costs in any substantive manner. The Tribunal accepts that the work listed in Mr Finlay’s quote is necessary and allows the claim at $19,798.00. Mr Noble evidence [40] The applicants called Mr John Noble as a witness. He stated that he sprayed the dressage arena for weeds and generally helped the applicants clean up over a 3 day period at tenancy end. That is consistent with the very limited use of the dressage arena by the applicants. Conclusions [41] The claims allowed by the Tribunal are as follows: -- 8 of 9 -- 9 Blind and window cleaning $ 100.00 Locksmith $ 280.00 Water bills $ 479.03 Labour cost – gardens, paddocks & stables $ 889.00 Rubbish removal $ 382.35 Structural damage $19,798.00 Total $21,928.38 Orders [42] The applicants pay to the respondent the sum of $21,928.38. [43] The Residential Tenancies Authority payout to the respondent (lessor) the sum of $2,000.00 rental bond in part satisfaction of that order. -- 9 of 9 --