Belle Property Paddington v Goodwin & Scells [2011] QCAT 317

CITATION: Belle Property Paddington v Goodwin and Anor [2011] QCAT 317 PARTIES: Belle Property Paddington v Ryan Goodwin Emmaleen Scells APPLICATION NUMBER: MCDT3058-10 MATTER TYPE: Residential tenancy matters HEARING DATE: 17 January 2011 HEARD AT: Brisbane DECISION OF: Tammy Williams, Adjudicator DELIVERED ON: 1 June 2011 DELIVERED AT: Brisbane ORDERS MADE: [1] Respondents pays to the applicant $121.00 forthwith; [2] The Residential Tenancy Authority releases from the $1,200 bond, in full satisfaction of this order the sum of: a. $121.00 to the applicant; and b. $1,079.00 to the respondents. CATCHWORDS: Compensation – cleaning, keys and locks, pest control – unsigned exit condition report Residential Tenancies and Rooming Accommodation Act 2009, ss 362(3)(b), 421(1) APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION Introduction -- 1 of 6 -- 2 [1] The issue in dispute is whether the applicant is entitled to $473 compensation from the respondents. [2] Belle Property Paddington filed an application with the Queensland Civil and Administrative Tribunal (QCAT), naming Mr Ryan Goodwin and Ms Emmaleen Scells as the respondents. Hearing [3] The Tribunal held a hearing at the Queensland Civil and Administrative Tribunal‟s hearing rooms in Brisbane. Both parties were present, however the first respondent, Mr Ryan did not attend. The matter proceeded in his absence with Ms Scells making submissions and giving evidence to the Tribunal on behalf of both respondents. [4] The respondents entered into a tenancy agreement and leased the property for a short period of time; vacating approximately three months later in October 2010. [5] The applicant claims the respondents failed to leave the property in a similar condition as it was at the commencement of the tenancy. As such additional cleaning, repairs and other works were said to be required before the applicants could take possession of the property. [6] At hearing Belle Property Paddington argued it was entitled to compensation for the following items:  Pest Control – $66.00;  Cleaning costs – $55.00;  Cost of repairs – $148.50;  Keys/Locks – $203.50 [7] From the outset (and to their credit) the respondents accepted liability for the cost of the flea treatment; leaving the three remaining issues to be disputed at hearing. [8] At the core of this dispute is whether such cleaning and repairs costs were reasonably required. Although the parties were provided with an opportunity to adjourn the matter to obtain additional evidence, they elected to proceed with the hearing. Therefore the matter was determined based on the evidence before the Tribunal at date of hearing and certain findings have been made as to the sufficiency of this evidence. Relevant Legislation [9] The Tribunal has jurisdiction to hear and decide this matter pursuant to sections 11 and 12 of the Queensland Civil and Administrative Tribunal Act 2009 (the „QCAT Act‟). This was a claim by the applicant against the respondents for relief under the Residential Tenancies and Rooming Accommodation Act 2009 („the Act‟) for a residential agreement over the property located at the address identified in the claim. -- 2 of 6 -- 3 [10] Because the applicant is seeking a compensation order to be made in its favour the Tribunal must have regard to the matters listed in s 421(1) of the Act, including whether the lessor has taken all reasonable steps to mitigate the loss or expense suffered. If this cannot be shown, pursuant to section 362(3)(b) the lessor is not entitled to receive compensation for any loss or expense that could have been avoided by taking the steps. Relevant Facts The General Condition of the Property [11] Ms Thompson, the applicant‟s agent completed an exit inspection on 25 October 2010 without the tenants present and noted various items requiring cleaning and repair. The Tribunal notes the report was not signed or dated by either party. [12] A copy of the report was emailed to the respondents advising that the property was found to be “fairly clean and in good (sic). However, you will need to return to the property to tend to further cleaning and fixing (sic) a dent in the wall.” The respondents were asked to rectify the issues listed in the Exit Condition report and return the keys within twenty-four hours by 12pm Tuesday 26th October 2010. [13] Ms Scells refuted the findings of the exit inspection, arguing “I had a professional clean of the place done so none of that can be true and I suspect you are just being pedantic.” The respondents provided the applicant with a receipt from Magic Wand Services as proof of such work and did not make any further arrangements to re-engage the cleaner. [14] Nonetheless, Ms Thompson argued the respondents still failed to return the property in a similar condition to what it was at the start of the tenancy. Therefore Belle Property Paddington sought compensation, for the costs it says, were incurred by engaging a cleaner to undertake an additional clean of the property. [15] The Tribunal heard evidence of when the tenants first moved into the property, they complete and sign the Entry Condition Report. All of the items listed in the report were inspected by the then property manager (not Ms Thompson) and were said to be “clean, undamaged and working.” [16] There is a general statutory requirement for tenants to leave the premises, as far as possible, in the same condition at the start of the tenancy fair wear and tear expected. [17] The Act does not define “fair wear and tear”. However it would be unreasonable for a lessor to expect a property be left in a perfect condition as it was at the commencement of the tenancy without taking into consideration something which happens during the normal use or changes that happen with aging. -- 3 of 6 -- 4 [18] The Tribunal notes at the commencement of the tenancy agreement, the property contained “odd bits and pieces” not listed on the Entry Condition report as inclusions. The objects appear to have been left over from the previous tenants. Shortly after the respondents took possession of the property, a series of emails were exchanged between Ms Scells and Ms Melanie Field, the previous property manager responsible for managing the unit about the removal or destruction of these items. [19] This raises questions as to the cleanliness of the property after the previous tenants vacated the premises. The Tribunal accepts the evidence from “Lisa” from Magic Wand Services, who was engaged by the respondents to undertake the exit inspection (merely three months after Ms Scells and Mr Ryan took possession): “…we did see evidence of the previous clean not being a professional clean. I did a final check sheet I use and I can assure you that the toilet was clean, the basin was clean and if there were any marks it would basically be because we simply could not remove them.” [20] The Tribunal particularly notes the evidentiary issues associated with the applicant‟s position. The Exit Condition report was not signed or dated by either party; therefore it is unclear when the final inspection took place – although Ms Thompson maintains it was performed on 25 October 2010. [21] There were no photographs or other similar evidence which could have assisted the Tribunal in determining the condition of the property at the final inspection. It is further noted, Ms Thompson who completed the Exit Condition report did not have the benefit of conducting the Entry Condition report. Therefore she was unable to provide specific evidence to the Tribunal, comparing the condition of the property before and after respondents took possession. [22] In consideration of all the evidence, the Tribunal is not satisfied the applicant has established the grounds to be compensated for cleaning costs. The Wooden Bath Mat [23] The applicant sought compensation for the replacement of a wooden bath mat which was removed from the premises before the final inspection. [24] In reply, the respondents argued inter alia they were not liable for the replacement cost as Ms Scells had authority from the applicant to dispose of the “random things” left on the property from the previous tenants which “I don’t need like a bin, broom etc.” [25] Evidence from the applicant, was that the wooden bath mat belonged to the lessor and was an inclusion of the property. -- 4 of 6 -- 5 [26] The Tribunal accepts this view, as the wooden bath mat can be distinguished from all of the other “random things” or “odd bits and pieces” left of the property by the previous tenant because it was listed in the Entry Condition report (which Ms Scells signed and dated). [27] Therefore the Tribunal is satisfied the applicant has established the grounds to be compensation for the replacement costs. Damage to wall [28] After vacating the premises the applicant notified the respondents of the outstanding issues to be attended to. [29] In relation to the dent in the wall, Ms Scells‟ email response to the applicant was “I have no idea how to fix a dent. In previous tenancies, the realtor has arranged for this to be done and I have paid for it. Do you not have a handyman?” [30] It is the Tribunal‟s view that these comment‟s made by Ms Scells‟ amount to an authorisation for the applicant to engage a contractor to repair the damaged wall. Therefore in the circumstances, it is reasonable for the applicant to engage a contractor to repair the damage and seek reimbursement from the respondents. [31] The Tribunal finds in favour of the applicant to recover this cost from the respondents. Extra Keys [32] An issue raised during the phone conciliation related to an additional copy of the key allegedly made for the premises. At hearing Ms Scells denied the existence of an additional key, other then the sets used by Mr Ryan and herself. [33] Section 413(1) of the Residential Tenancies and Rooming Accommodation Act makes it inadmissible at the hearing of a matter for which a conciliation process relates to, evidence of anything said or an admission made. [34] The applicant was unable to produce any further evidence to support its claim that an unauthorised copy of the keys was made. Therefore the Tribunal is not satisfied the applicant has established the grounds to be reimbursed the cost of engaging a locksmith. Conclusion [35] In consideration of the matters mentioned above, the Queensland Civil and Administrative Tribunal is satisfied Belle Property Paddington has established the grounds for only part of its claim. For the reasons discussed herein, the Tribunal dismisses the applicant‟s claim of compensation for cleaning and costs associated with the keys/locks. The -- 5 of 6 -- 6 Tribunal finds in favour of the applicant for the cost of pest treatment and replacement of the wooden bath mat, totalling an amount of $121.00. This is to be deducted from the rental bond monies currently held by the Residential Tenancy Authority. -- 6 of 6 --