Dormehl v Brown and Anor [2012] QCAT 522

CITATION: Dormehl v Brown and Anor [2012] QCAT 522 PARTIES: Angela Jane Dormehl v Zoe Brown Cameron Whittaker APPLICATION NUMBER: MCDT1100-12 (Brisbane) MATTER TYPE: Residential tenancy matters HEARING DATE: 29 August 2012 HEARD AT: Brisbane DECISION OF: Paul Favell, Member DELIVERED ON: 11 September 2012 DELIVERED AT: Brisbane ORDERS MADE: The respondents pay the applicant $1,718.95 forthwith. CATCHWORDS: Minor Civil Dispute – Whether premises was left in substantially the same condition – Whether compensation payable APPEARANCES and REPRESENTATION (if any): APPLICANT: Angela Dormehl RESPONDENT: Zoe Brown. No appearance by Cameron Whittaker REASONS FOR DECISION [1] In an application for a minor civil dispute residential tenancy dispute, the Applicant seeks an order that the Respondents pay her $4,992.95. The claim is broken down to be a claim for $280 for cleaners to clean the inside of her house, $85 for flea treatment of the internal areas, $85 for flea treatment of the external areas, $1,940 to replant and replace damaged plants and lawn, $105 to replace a wooden towel ladder, $1,250 for repair services to be carried out by her husband, $60 for the repair of a fly screen, $484 to service 11 dirty blinds, $299.95 to replace a missing wardrobe, $306 to replace a security door handle and $98 in respect of a missing roman blind. -- 1 of 5 -- 2 [2] The tenants entered into a general tenancy agreement for a fixed term commencing on 14 January 2012 in respect of premises at 95 North Road Lower Beechmont Queensland. The rental bond was $1,540 and the rent was $385 per week. The tenancy was to end on 14 January 2012 however the tenants moved out in December 2011. The Respondents received their bond of $1,540 back from the RTA on 6 January 2012. [3] It was a special term of the tenancy agreement that the lawns and gardens were to be maintained. [4] As part of the application a plan of the garden was provided. It showed a lawn area with four Banksia trees on one perimeter, four shea-oak pines with a question mark on another perimeter, a gum tree, a lavender hedge, a jasmine hedge and various other plants. [5] The claim is backed up by a number of photographs showing the garden area before and after. [6] The claim is also backed up by a very general quote from VIP Cleaning of between $240 to $280. [7] A termite treatment for outside for fleas in the sum of $85 is provided and a quote from Blue Collar Property Services for landscaping, purchasing plants and material and delivering in the sum of $1,940 is provided. [8] A printout from the Bunning’s Warehouse website for $98 for window ware is provided. [9] A quote from Advanced Blind and Curtain Cleaning put the cleaning of 11 blinds in the sum of $484 has been provided. [10] A sales order from Super A-Mart for a three-door robe in the sum of $299.95 is provided as is a print out from the Bunning’s Warehouse website for a screen door of $306. [11] The Applicant is very critical of her real estate agents who have handled the tenancy and in part she alleges that they have conspired with the Respondents to deny her claim. [12] An entry condition report dated 14 January 2011 has been filed in the Tribunal. It has the lessor’s agent’s signature on it and the tenants’ signatures. It records marks on windows, carpets very dirty, small holes in the fly screen, dirty windows and blinds and generally a complaint that the house was in a dirty condition. [13] An exit condition report has also been provided. Generally it shows the house having been left clean and with some exceptions, undamaged. [14] The Applicant contends that the agents have let the tenants vacate the property without holding them responsible for the state they left the property. She says that the agents have completed a false entry report. The Applicant seeks to overcome the contents of the two reports by -- 2 of 5 -- 3 pointing to alleged inconsistencies, a statement by a subsequent tenant, entries in the advertising of the property, and persons who have helped the tenant clean the property before the tenants took possession. [15] The entry report which was attachment 15 to the application does report the premises as being generally in poor condition and dirty. [16] Annexure 2 is a letter from the tenants which encloses a number of photographs showing aspects of the house. The tenants say that from the photographs it can be observed that the house was not in a pristine condition although that is what the applicant expected them to leave it in. [17] I note on the tenancy agreement that in the special conditions it was noted “windows aren’t clean on entry so don’t have to be on exit”. [18] The Respondents say that their exit date was 20 December but due to the new tenants needing to move in on 17 December, the Respondents did not have time to rectify the “main issue”. They point out that there were three inspections conducted of the property whilst they were there. They say that their dogs did not have fleas and they were given permission by the Applicant to have them inside the house at night. They point out that there is no obligation in the tenancy agreement to have flea treatment carried out. They also point out that pets were approved as appears on the tenancy agreement at Item 17. They say that the carpets were not clean when they arrived and supply a picture of dirty carpets on entry. They say that the walls were cleaned to a better standard than the state they were when the owners left and they moved in. [19] Generally, they say they left the property cleaner than it was when they moved in. They say that the blinds were filthy with a thick layer of dust when they moved in. [20] As to the gardens, they say that the gardens were not provided to them in a maintained state. They say that they had to clean up the gardens and work on weekends to maintain the overgrown condition the garden was in. They say that when they moved in, the whole left hand side of the front garden was already missing. They admit to chopping off the top of the pine trees due to pine needles falling on the ground and needing to allow for the grass to grow. They say that the owners had stated that they could chop down trees if needed. They make the point that when they were leaving the trees were already re-spouting and would regrow. They say that the owners informed them that they could do whatever to maintain the gardens and they say that the Applicant said that she already knew the garden was overgrown. They say that the Applicant’s husband complimented them on how much better the garden looked after the pine trees were trimmed and informed them to chop down whatever plants or trees they wanted to to make the house and garden in a not-so-overgrown state. They say that some of the plants along the driveway fence were dying and eventually looked more disgusting than what it is now when it is bare. They say it is not their fault that plants do eventually die. -- 3 of 5 -- 4 [21] They say that the skirting board in the kitchen was missing when they moved in and they produced photos to that effect. [22] They say that their birds may have damaged the fly screen in the lounge room but as they had to be out three days earlier they did not have time to repair the screen. [23] In response to the letter from the tenants setting out their version of things, the Applicant responded in attachment 3. [24] Having reviewed all of the evidence presented by both sides and the contrasting contentions by each side, I am not satisfied that the house was given to the tenants in a state which was better than the state the tenants left the house with the exception of some of the matters that I deal with next. [25] In my view, the entry and exit reports speak for themselves and it may well be that the house was in an unacceptable condition when the new tenant, Mr Faverhoven, was moving in however I am not satisfied that it was not in that state when it was taken by the Respondents. [26] There is no obligation in the material provided to me for the tenant Respondents to pay for flea treatments inside or out and it is not shown to me that it was necessary. [27] The tenants are under an obligation to leave the house in substantially the same condition they found it, fair wear and tear excepted. I am satisfied that there is a roman blind missing which was previously there and an appropriate cost to replace it is $98. [28] It was admitted that the towel ladder claimed was removed because it was mouldy. It was not an entitlement, however, of the tenant to throw it away. I allow its replacement in the sum of $105. I allow the cost of repairing the fly screen in the sum of $60 and I accept that there is a wardrobe which was missing, it having been there previously, and it is appropriate that the cost of its replacement is $299.95. I also accept that a security door needed replacing in the sum of $306. [29] I accept that there is some items which needed repairing such as the windowsill, fly screen and removal of the dog pen however I am not satisfied that it is appropriate that the cost of those be an estimate of the time that the Applicant’s husband may have to take off work and an approximation of $500 for paint and materials. That seems to me to be excessive. Doing the best I can, however, I allow $250 for those repairs. [30] The remaining item is the cost of fixing the garden. In my view it is unlikely that the Applicant or her husband would have given the Respondents permission to remove as much of the garden as has obviously been removed. I do not accept that the garden has deteriorated so badly through natural causes. The tenants had an obligation to maintain the lawns and the gardens as expressed in the tenancy -- 4 of 5 -- 5 agreement. I do accept however that it is likely the tenants were given permission to do some pruning. [31] In my view the quote to fix the garden is excessive. I was told that no banksia trees had been removed, that there were no citrus trees in the garden and it is clear that the pine trees are not part of the quote. [32] To repair the landscaping I allow, doing the best that I can, deducting for banksia trees and citrus trees, and installing edging, planting out and mulch, $600. [33] The order will be the Respondents pay the Applicant $1,718.95 forthwith. -- 5 of 5 --