Burgess and Anor v X Far Prestige [2012] QCAT 304

CITATION: Burgess and Anor v X Far Prestige [2012] QCAT 304 PARTIES: Denis Burgess Sara Welch (Applicants) v X Far Prestige (Respondent) APPLICATION NUMBER: MCDT442-12 (Southport) MATTER TYPE: Residential tenancy matters HEARING DATE: 15 June 2012 HEARD AT: Southport DECISION OF: J Bertelsen, Adjudicator DELIVERED ON: 27 June 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The Residential Tenancies Authority pay out to the parties the rental bond of $4,400 as follows: Owner $4,173.36 Tenants $226.64 CATCHWORDS: Rental bond – oral agreement alleged for tenants to make repairs to premises Residential Tenancies and Rooming Accommodation Act 2008 APPEARANCES and REPRESENTATION (if any): APPLICANT: Denis Burgess and Sara Welch in person RESPONDENT: Yulia Far REASONS FOR DECISION Application [1] By application filed 13 April 2012 the applicants seek $13,538.00 payment for renovations carried out by them at 44 King Charles Drive, Paradise -- 1 of 5 -- 2 Point (the premises) as well as a refund of the rental bond of $4,400.00. By counterclaim filed 11 May 2012 the respondent disputed liability for the alleged renovations and claimed the bond towards outstanding rent. Background and evidence [2] The applicants rented the premises under a general tenancy agreement (the agreement) for the period 14 January 2011 to 13 January 2012 at a rental of $1,100 per week. The bond held by the RTA is $4,400. The applicants vacated the premises on 22 February 2012 at which time rent was paid to 13 January 2012. [3] In the agreement under the heading special terms the applicants agreed and acknowledged that the built in coffee machine and sound system were out of order and not repairable. A wireless doorbell was to be installed at the owner’s expense. The lessor agreed that appliances were in good working order. [4] Under the heading “annexure A special conditions” paragraph 24 it was the tenant’s responsibility to “maintain the pool and filters” and “at the end of the tenancy a professional pool company must attend the property to service and balance the pool – a certificate must be provided to X Far Prestige as proof that this has been done. The certificate must show that the pool has the correct (ph) levels at the move out date. The tenant is responsible for the chemicals used.” [5] Paragraph 24(a) stated, “the tenant is not responsible for the maintenance of the pool machinery (mechanics) and will accept the cost of the filters if proof is given that at the start of the tenancy agreement new filters are in place.” [6] Paragraph 22 provided that the tenant would maintain the garden and lawn at least fortnightly. [7] The agreement made no mention of improvements or renovations and was otherwise unremarkable. [8] The applicants asserted that some 3-4 days before moving in an entirely oral agreement (the oral agreement) was entered into between the applicant Denis Burgess and Yulia Far, Property Manager at the respondent agency. According to the applicants this was “an agreement initialised at the beginning of the lease from the landlord and agent, to fix repair and replace the following”. The applicants, in their application, listed these as (in short form) broken appliances, damaged walls, broken and missing tiles, mould and mildew, drainage of stagnated water, rubbish and junk removal, complete overhaul of overgrown garden, landscaping, high pressure cleaning, pool restoration, air conditioning system leakage, high window cleaning, very heavy sliding doors, warped front door, kitchen sink and bench tops, eradication mice and rats and general maintenance (17 items in all). -- 2 of 5 -- 3 [9] According to the applicant Mr Burgess the oral agreement provided for a 10% administration charge over and above labour cost which might vary from $25-$40 per hour depending on qualifications, material cost and third party contractor charges. It was to be performed as an “open book” showing the respondent the money spent plus 10% to “make it fit for living”. The respondent was to be invoiced during the course of the tenancy, Mr Burgess asserting that it was not possible to give a quote due to all the variables ie was not possible to guarantee what the eventual cost would be. No deposit was required to be paid nor does it appear any sort of progress payment was ever envisaged. [10] The applicants further asserted that “the owner, some 6 months into the lease came to the property for an inspection”. The applicants raised 2 major items of concern to them at the time, firstly the kitchen bench tops which they asserted the owner gave them permission to resurface and fly screens in one of the bedrooms which according to the applicants the owner gave them permission to install. However they were reticent to proceed with those works as “the owners, at that stage, had not compensated us for any of the previous work … and I did not want to spend another dollar on the property until we had been paid for the scope of works”. The scope of works presumably being the 17 items “initialised at the beginning of the lease”. [11] The applicants continued to reside in the premises paying the full weekly rent of $1,100. They asserted they continued to do so even though the tenancy was not due to expire until the following January, some 7 months later. [12] The photographic evidence produced by both parties and evidence at hearing suggested that at the commencement of the tenancy the premises was subject to some structural problems (not such as to make it uninhabitable) and was in a somewhat untidy state. Although only 9-10 years old it was already tired the applicants stating the respondent was “remiss in presentation of the premises”. [13] Mr Burgess admitted to being “stupid taking this house on”, paying rent and not pushing for payment of his invoice. Ms Welch stated she “wanted to move in there and be comfortable”. [14] In June 2011 the applicants issued their invoice with attached receipts, labour charges and third party invoices for $13,535.78 for works performed in the period January-June 2011. [15] The respondent denied that authority was given to proceed with the sort of works invoiced asserting that quotes for any works of any nature were required to be submitted and authorised before proceeding; that no quotes were ever forthcoming; that the only exception was a quote for pool fencing produced by the applicants which in the event was not accepted, the owner preferring a different quote altogether. The applicants admitted that no quotes were provided other than for the pool fence at any stage. -- 3 of 5 -- 4 [16] The respondent asserted that in any event some receipted purchases were not applicable being normal household purchases and pointed to such things as brooms and insecticide; that pool maintenance and gardens were part of the tenancy agreement; that the invoice presented in June 2012 was the first the respondent was aware of such works being carried out. [17] The respondent accepted the cost of a new insinkerator at $440.00, under insinkerator cabinet at $800.00 and reinstatement of timber wall next to the fridge space at $800.00, a total of $2,040.00 (the latter 2 sums being estimates only). These the respondent asserted were items discussed between the parties as requiring prompt attention together with the mould issue. [18] The respondent asserted that rent was paid to 13 January 2012 with vacate taking place on 22 February 2012 ie 40 days rent at $1,100 per week = $6,285.71; that during the course of the tenancy 4 notices to remedy breach were issued on account of rent arrears. Conclusions on evidence [19] The only written document recording the tenancy is the general tenancy agreement dated 14 January 2011. That document does not provide for works of the nature asserted to be carried out by the applicants. [20] The applicants asserted an oral agreement of a very loose nature ie no deposit, no progress payments, no set labour rate, no time for completion, no quotes and no estimate of final cost. It is not until 6 months into the tenancy that the applicants present the respondent with an invoice for $13,535.78 for improvements, maintenance and repairs. [21] There is no evidence that the respondent agreed to the works carried out in the period January-June 2011. The applicants admitted no quotes were given to the respondent in that period, bar 1, the pool quote which ultimately was extraneous to this claim anyway. [22] The premises was tired but the applicants wanted to move in and be comfortable. They in fact did so. [23] It is unlikely the respondent would have agreed to works being carried out where she had no idea of the ultimate cost and in circumstances where she was accountable to the owner as a property manager. The Tribunal accepts her evidence that she in fact did not ever so orally agree. The most that occurred involved discussions that shortcomings in the amenity of the premises would be considered on production of quotes other than those which were immediately apparent namely mould, non functional insinkerator, under insinkerator cabinet and reinstatement of timber wall next to the fridge space. The respondent is prepared to bear the cost of the insinkerator at $440 and the cabinet and wall at $1,600 all up. There is some documentation attached to the applicants’ invoice of June 2011 -- 4 of 5 -- 5 that evidences expenditure on mould control namely “damp rid”. Such expenditure appears to total $72.35. Such sum is allowed. [24] The Tribunal finds that there was never any authority given to the applicants to proceed with the works claimed for other than those 4 items forming part of discussions held at the time of the commencement of the tenancy. There was never any suggestion that any such limited expenditure be deducted from or offset against rent. In fact it was not. The applicants continued to pay rent of $1,100 per week through to 13 January 2012 the date of expiry of the general tenancy agreement. [25] It is not disputed that the applicant’s continued residency through to 22 February 2012 an additional 40 days at $1,100 per week = $6,285.71. [26] The rent owing of $6,285.71 is offset by the sum of $2,112.35 applicant expenses leaving net rent owing of $4,173.36. The bond of $4,400.00 held by the RTA is therefore to be dispersed as to the owner $4,173.36 and to the applicants $226.64. Order [27] The Residential Tenancies Authority pay out to the parties the rental bond of $4,400 as follows: Owner $4,173.36 Tenants $226.64 -- 5 of 5 --