ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ABRAHAMS v MILLAR (Residential Tenancies) [2019] ACAT 31

RT 802/2018

Catchwords: RESIDENTIAL TENANCIES – no ingoing report – no final inspection report – fair wear and tear – opportunity to remedy – actual loss

Legislation cited: Residential Tenancies Act 1997 ss 29, 30, 30A; standard term 64

Cases cited: Bell & Bell v Boccola, Campbell & Lawrence [2009] ACAT 26Selleck v Cassin & Anor [2017] ACAT 7Tankard & Anor v Ogbonna & Anor [2017] ACAT 72

Tribunal: Senior Member J Lennard

Date of Orders: 8 March 2019Date of Reasons for Decision: 8 March 2019

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 802/2018

BETWEEN:

ANNE CATHERINE ABRAHAMSApplicant

AND:

FLEUR MILLARRespondent

TRIBUNAL: Senior Member J Lennard

DATE: 8 March 2019

ORDER

The Tribunal orders that:

1. The tenant is liable to pay to the lessor part of the cost of replacing the

carpets and, the amount of $2,100 (being the amount of the rental bond)

having been released to the lessor, no further order is made.

2. The application is otherwise dismissed.

………………………………..Senior Member J Lennard

REASONS FOR DECISION

Facts

1. The parties entered into a residential tenancy agreement in relation to a premises

in Narrabundah, Australian Capital Territory. The residential tenancy agreement

commenced 12 September 2015, and terminated on 31 July 2017.

In March 2018 the applicant (lessor) sold the property.

2. At the commencement of the tenancy the respondent (tenant) paid to the lessor

a bond of four weeks rent, plus an extra two weeks rent in advance. The bond

was duly lodged with the then Office of Rental Bonds, the two weeks rent in

advance was mingled with the lessor’s personal funds and no ingoing condition

report was ever supplied or completed by the lessor.

3. The tenant vacated the premises on or about 31 July 2017, pursuant to a notice

to terminate based upon the lessor’s intention to sell the premises.

4. On 29 June 2017 the lessor conducted what she described as the ‘final

inspection’. It is noted that the tenant had not vacated the premises at that stage,

and that the lessor did not provide any formal report of that inspection to the

tenant. By agreement between the parties, the whole of the rental bond was

released to the lessor.

5. On 16 October 2018 the lessor filed an application seeking $13,485

compensation from the tenant. The claim was for $15,585, minus the bond

money of $2,100. The items claimed are listed below:

(a) carpet and linoleum — $5,000;

(b) painting — $4,820;

(c) curtains — $5,215; and

(d) professional cleaning — $550.

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6. The lessor first made a demand for payment of compensation upon the tenant in

a letter dated 12 February 2018. The lessor provided the following documents in

support of her claim:

(a) various invoices and bank transfers in relation to internal painting of

the premises for work undertaken in August and September 2017;

(b) a tax invoice for removal and supply of new carpet and vinyl floor

in the amount of $5,000, dated 19 September 2017;

(c) a quote from Regency Knights Window Fashions for new curtains

in the amount of $5,215, dated September 2017; and

(d) a copy of an invoice for general cleaning in the amount of $550,

dated 7 October 2017.

7. The evidence of Richard Davies, selling agent, was as follows:

(a) A letter dated 15 November 2018, stating that “at my first visit to the

home I found it to be in a dirty, smelly and unkempt state. The carpet was

filthy with dark urine stains and the stench on entering the house was

appalling. There were burn marks on the carpet from incense sticks and

also globules of melted wax stuck to it.”

(b) In oral evidence before the Tribunal, and in reference to inspection of the

property after the tenant had vacated, Mr Davies stated that: the carpet had

“very obvious staining throughout,” and was in a very poor condition;

that the walls exhibited “staining” and “discolouration”; and that there

was strong odour throughout the premises. Mr Davies also stated that the

curtains “were in poor condition” and needed to be removed because

“they held odour and smell” (noting that, had there been brand-new

curtains, it would not have added to the sale price). He stated that

“my recommendation to the owner [the lessor] was that it wasn't

presentable for sale, it needed to be rectified.”1

1 Transcript of proceedings 21 January 2019 pages 48-52

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8. The evidence of Catherine Le, daughter of lessor, was as follows:

(a) Ms Le gave evidence that, at the commencement of the tenancy, on or

about September 2015, she had visited the premises and observed that

“the carpets were in excellent condition”, that the walls were “in excellent

condition”, and the curtains were “clean, of good quality and in good

repair”.2 In cross-examination, this witness conceded that she had seen the

premises in April 2014, when the previous tenant moved out, and not

immediately prior to the commencement of the respondent’s tenancy in

September 2015.3

(b) Ms Le also gave evidence that after July 2017 she visited the premises and

saw extensive stains on the carpet and staining on the walls and that the

curtains were “sort of dirty and mildewy”.4 She further stated that she did

not recall a stench coming from the carpet or any other smells in the

house.5

9. The evidence of the lessor was as follows:

(a) The lessor gave evidence that the premises were in good condition and

clean at the commencement of the tenancy.6 She conceded that she had

not prepared an ingoing condition report, but relied on photos that she had

taken on 23 January 2015 for the purposes of the Allhomes.com.au

advertisement for renting the property.7 It is noted that the respondent’s

tenancy commenced in September 2015.

(b) On 29 June 2017, the lessor conducted a final inspection of the premises.

The tenant was still resident in the premises during this inspection.

The lessor gave evidence that: she did see some urine stains on the carpet;

the tenant had undertaken to get the carpet cleaned; the tenant had told the

lessor to keep the rental bond; one of the curtains in the lounge room had

2 Transcript of proceedings 21 January 2019 page 433 Transcript of proceedings 21 January 2019 page 44, lines 30-394 Transcript of proceedings 21 January 2019 page 44, line 65 Transcript of proceedings 21 January 2019 page 43, line 356 Transcript of proceedings 21 January 2019 pages 7-87 Transcript of proceedings 21 January 2019 page 9

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been hanging off the track; and there were stains on the bathroom wall

and the vanity unit. The lessor stated that the tenant had assured her that

everything would be cleaned and the carpets would be professionally

cleaned when she moved out.8

(c) The lessor next visited the premises on 5 August 20179, at which time she

observed that: the carpets were stained in every room and there were

incense burns and globules of wax on the lounge room carpet; the sheer

curtains had some rips; and many of the walls were discoloured and

stained.10 She also observed that: the curtains in the kitchen area were

“stiff with grease”11; the oven and dishwasher were not clean; and the

bathroom and toilets were not clean.12 The lessor provided photographs in

support of this evidence. The Tribunal notes that the photos are not of the

highest quality and some are quite dark and not very clear.

(d) In cross-examination, the lessor agreed that the property, if sold with new

carpet and a fresh paint job, would be likely to achieve a higher price at

sale than if it did not have new carpet and a fresh paint job.13

(e) The premises had belonged to the lessor’s parents and the carpet and the

paintwork was as it had been when they had lived there. The lessor

estimated that: at the time of commencement of this tenancy, the carpet,

which was pure wool carpet, would have been 15 years old; the premises

had last been painted at least 10 years prior to the commencement of this

tenancy; and the oven was probably 15 or 20 years old, but still in good

working order.14

(f) The rental bond was released to the lessor. The Refund of Bond form was

signed by the lessor on 11 August 2017 and by the tenant on 13 August

8 Transcript of proceedings 21 January 2019 page 119 Transcript of proceedings 21 January 2019 page 11 [44]10 Transcript of proceedings 21 January 2019 page 12 11 Transcript of proceedings 21 January 2019 page 15, line 2512 Transcript of proceedings 21 January 2019 pages 15-1613 Transcript of proceedings 21 January 2019 page 22, line 3514 Transcript of proceedings 21 January 2019 pages 28-29

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2017. There was no further correspondence between the parties until the

letter of demand from the lessor dated 12 February 2018.

(g) Between 31 July 2017 when the tenant vacated, and 7 October 2017 when

the final cleaning was done, painters and carpet layers had worked in the

property.

10. The evidence of Brett Walmsley, carpet cleaner, was as follows:

(a) A letter dated 1 December 2018 which stated that he was “shocked by the

state of the carpet throughout the house” and that “[t]he pungent stench of

urine was overwhelming”. The letter noted that every room in the house

was “badly stained”. He also noted that “[t]he general state of the house

was dirty and grubby.” He stated that he “had to use the kitchen sink to fill

my vacuum cleaner with water. The sink was black with grime. I noticed

the oven top was also dirty and uncleaned.”

(b) Mr Walmsley’s oral evidence, given at the hearing, was that: even though

he had done his best to clean the carpets at the end of the tenancy, the

carpet was badly stained with dog urine, which had most likely soaked

into the underlay and possibly the floor surface; the stench of the urine

had been great; and, in his opinion, the carpets could not be cleaned and

properly treated and should be replaced.15 He did, however, note that he

was reasonably pleased with the way the carpets had responded to the

cleaning treatment.16

(c) Mr Walmsley also noted that the tenant and a friend of hers were cleaning

the premises while he was there, but he left before the cleaning had been

completed.17

11. The evidence of John Cooper, painter, was as follows:

(a) Mr Cooper’s witness statement dated 15 November 2018 stated that “the

carpets had been ruined by dog urine and faeces” and that, although

professionally cleaned, “it was still very badly stained and left in a 15 Transcript of proceedings 21 January 2019 pages 54-5616 Transcript of proceedings 21 January 2019 page 57, line 1017 Transcript of proceedings 21 January 2019 page 56

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disgusting state.” Mr Cooper also noted that there was a strong stench of

urine throughout the house. It is noted that Mr Cooper is the painter, not

the carpet cleaner, and that the statement was clearly made at the request

of the lessor.

(b) Mr Cooper’s oral evidence, given at the hearing, was that the internal

painting was by far the largest part of the painting work undertaken.18

12. The evidence of the tenant was as set out in paragraphs 13 and 14 below.

13. Ms Millar filed a written witness statement dated 10 December 2018 in which

she:

(a) described the condition of the property at the commencement of the

residential tenancy agreement as old, but in working condition, noting

particularly as follows:

the carpet was very old and in poor condition with stains;

paint was peeling off some of the walls (except the bathroom and toilet walls which appeared to have been recently painted) and there appeared to be rising damp on the walls, including the walls outside of the bathroom, which was moist;

the water stains on the ceiling in the front sunroom;

the kitchen was old and the oven, although in working condition, was greasy and stained;

the vinyl/lino flooring in the kitchen was old, scratched and worn;

there was cracked skirting boards throughout the house;

the curtains were old and had some stains, although generally in working condition; and

the garden was well maintained.19

(b) noted that painters had appeared at the house, to prepare a quote for

painting, on 12 July 2017, prior to the end of the tenancy agreement;20

(c) asserted that:

18 Transcript of proceedings 21 January 2019 page 62, lines 21-2219 Respondent’s witness statement dated 10 December 2018

(Respondent’s witness statement) page 2 [12]20 Respondent’s witness statement page 4 [29]

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at no time during the Final Inspection did [the lessor] raise any concern with me about the condition of the walls, paint, curtains, dishwasher, kitchen cupboards, kitchen vinyl/lino flooring, toilet seat, or bathroom vanity;21

(d) advised that, on 31 July 2017, she and her friend, Kerry Maguire, cleaned

the house and garage;22

(e) described the property at the time she moved out as follows:

the carpet was stained, being more stained that when I first moved in due to the urine from my dog;

all [my] belongings were out of the Property;

the kitchen floor was in the same condition as when I moved in subject to fair wear and tear;

the walls were in the same condition as when I moved in subject to fair wear and tear; and

the curtains were in the same condition as when I moved in subject to fair wear and tear and subject to a slight tear at the bottom of the underlay of the curtain in the lounge room;23 and

(f) agreed that she had released the rental bond to the lessor as she felt bad

about the condition of the carpet, which had additional stains due to her

dog.24 She believed that the release of the bond to the lessor was in full

resolution of the issues concerning the residential tenancy agreement and

stated that she was “surprised and shocked” to receive letter of demand in

February 2018.25

14. The tenant’s oral evidence before the Tribunal largely confirmed the written

statement referred to in paragraph 13 above. The tenant reiterated that the lessor

had never asked her to return to the premises to undertake further cleaning.

The tenant acknowledged that her dog had ripped one of the sheer curtains;

however, she stated that the lessor had never asked her to replace or repair those

curtains.26 The tenant asserted quite strongly that she had cleaned the house

21 Respondent’s witness statement page 4 [35] 22 Respondent’s witness statement page 5 [39]23 Respondent’s witness statement page 5 [42]24 Respondent’s witness statement page 5 [44]25 Respondent’s witness statement page 6 [48]26 Transcript of proceedings 21 January 2019 page 74

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thoroughly prior to moving out, and that the floors had been swept and

mopped.27 She particularly asserted that she had cleaned the oven.28 The tenant’s

evidence was that she had thoroughly cleaned the premises prior to moving out;

however, she noted that the premises were old and that some areas would not

respond well to cleaning.29 When the Tribunal put to her the carpet cleaner’s

evidence that the sink was black with grime, the tenant responded that at the

time that the carpet cleaner was in the kitchen, she was cleaning the oven and

that the carpet cleaner had left the premises before she had finished cleaning.30

The tenant conceded that the carpet had been damaged by her dog and that the

state of the carpet was such that it would need to be replaced: this was the

reason she forfeited the bond to the lessor.31

15. The evidence of Kerry Maguire, a friend of the tenant, was as follows:

(a) In her written witness statement, dated 10 December 2018, Ms Maguire

said that she had assisted in the cleaning undertaken between 28 and

31 July 2017 and that, while she had mostly cleaned in the garage, she had

assisted with the following areas of the interior of the house: cleaning of

the bathroom, including the glass shelf, the bath tub and the shower;

cleaning of skirting boards, window sills and marks on walls; and a

“general tidy-up inside.”32 She stated that she believed that the premises

had been cleaned “to a reasonable standard.”33

(b) Ms Maguire’s oral evidence, given at the hearing was that, in relation to

the bathroom, she definitely cleaned the bathroom, including the shower

and the sink: there was a “bit of mould left” in the shower that she could

not get out, but “the tiles and everything [else] came up really well”.

27 Transcript of proceedings 21 January 2019 pages 74-81; page 80, lines 8-9

28 Transcript of proceedings 21 January 2019 page 80, line 3529 Transcript of proceedings 21 January 2019 pages 79-8130 Transcript of proceedings 21 January 2019 page 8931 Transcript of proceedings 21 January 2019 page 9032 Witness Statement of Kerry Maguire dated 10 December 2018 [3]-[4]

and [6]33 Witness Statement of Kerry Maguire dated 10 December 2018 [13]

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She could not account for the tampon wrapper shown in a photograph,

taken after the tenant had vacated the premises, on the bathroom floor.34

The relevant law

16. Section 29 of the Residential Tenancies Act (the RT Act) provides:

(1) A  lessor must, not later than the day after the  tenant  takes possession of the premises, give the tenant 2 copies of a report about the state of repair or general condition of the premises, and of any goods leased with the premises, on the day the  tenant  is given the report.

17. Section 30 (3) provides:

If section 29 (1) has not been complied with, evidence by the tenant about the state of repair or general condition of the premises, and of any goods leased with the premises, is evidence of that state of repair or general condition on the day the tenant  took possession of the premises.

18. In the decision of Selleck v Cassin & Another [2017] ACAT 7 it was noted that

the lack of a detailed ingoing condition report made it difficult for the tribunal

to compare the condition of the premises at the beginning of the tenancy with

the condition of the premises at the end of the tenancy. The lessor has an

obligation to provide an ingoing condition report and, where that condition

report has not been provided, the evidence of the tenant is to be preferred to the

evidence of the lessor. I accept the evidence of the tenant as set out in

paragraphs 13 and 14, above.

19. I have taken into account the evidence of the lessor and her daughter, but note

the following:

(a) The lessor has not provided any specific evidence as to the condition of

the premises immediately before, or upon commencement, of the

residential tenancy agreement.

(b) The lessor’s daughter’s evidence is not clear as to when she last observed

the premises prior to this tenancy, but it appears to have been some

months beforehand. Her evidence is therefore accorded little weight.

34 Transcript of proceedings 21 January 2019 page 66

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(c) The premises were the home of the lessor’s parents and the evidence

establishes that the carpet and painting were 10 to 15 years old at the

commencement of the tenancy. The lessor has not conducted regular

inspections of the premises during the tenancy.

(d) The lessor has not complied with section 30A of the RT Act — she has

not conducted a final inspection in the presence of the tenant at the end of

the tenancy, and she has not provided a report of the condition of the

premises to the tenant at the end of the tenancy. It is noted that the lessor

made no claim against the tenant for seven months from the end of the

tenancy.

20. I have also taken into account the lessor’s disregard for the provisions of the

RT Act in relation to rental bonds, and that she readily concedes that she asked

for an extra two weeks rent as ‘an insurance’, in circumstances where she knew

she was not entitled to do so.

21. Nevertheless, the lessor’s claim is based upon a breach of the tenant’s

contractual obligation — set out in clause 64 of the residential tenancy

agreement — to leave the premises in substantially the same state of cleanliness

and in substantially the same condition as the premises were in at the

commencement of the tenancy agreement, fair wear and tear excepted. The onus

of proof is upon the lessor to establish the breach of contract, and to establish an

actual loss in the amount that is claimed. The approach the tribunal should take

to this issue is set out in Bell & Bell v Boccola, Campbell & Lawrence [2009]

ACAT 26 at paragraphs 24 to 25 of that decision: Fair wear and tear generally

relates to damage or deterioration that happens through the ordinary day to day

use of a place by the tenant (for example, carpet is worn down by walking upon

it, plaster cracks as building settles, garden mulch breaks down over time) and

by the operation of natural forces (for example, sunlight fades carpets, and rain

rusts garden furniture). The tenant is not liable to compensate the lessor for any

loss or cost relating to such deterioration or damage. Careless or negligent use

of the premises by the tenant, where that negligence causes deterioration of the

premises, will render the tenant liable for associated cost. In determining

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whether particular deterioration is fair wear and tear, or negligent damage, the

Tribunal must consider, inter alia:

(a) the age, quality and condition of any item at the beginning of the

tenancy;

(b) the average useful lifespan of the item;

(c) the reasonable expected use of such an item;

(d) any special terms of the tenancy agreement relating to that item;

(e) the number and type of tenants; and

(f) the length of the tenant’s occupancy.

22. The final inspection report should be the starting point for any assessment of a

claim for damage arising from a failure by the tenant to leave the premises in

substantially the same condition as at the commencement of the tenancy. It is

reasonable for the lessor to provide to the tenant an opportunity to remedy any

breach, at or near the time of the final inspection.35 I note that the lessor did not

provide a final inspection report to the tenant; nor did the lessor provide to the

tenant any reasonable opportunity to remedy the alleged defects, and by the time

the letter of demand was written in February 2018, the lessor had completed all

remedial work. The lessor carries the onus of proof in relation to each of the

items claimed and I have considered each claim in turn below.

Carpet and linoleum — $5,000

23. The tenant concedes that the carpet was damaged by her dog. The tenant denies

that the kitchen floor covering was subject to any damage beyond fair wear and

tear. The lessor has not discharged the onus in relation to the vinyl floor

covering, and so I turn to consider the carpet only. The invoice from the carpet

factory states that the cost of taking up of carpets and disposing of them, and

supplying and installing new carpets, as $4,100. I take into account that these

carpets are at least 10 years old, that the damaged occasioned by the tenant’s

dog urinating on the carpet left caused extensive staining, and that the odour

remained. I am therefore satisfied that, although the carpets had reached close to

35 Tankard & Anor v Ogbonna & Anor [2017] ACAT 72

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the end of their effective life, the lessor has suffered some loss. The tenant

should pay for part of the cost of replacing the carpets, and the amount of

$2,100, being the amount of the rental bond released to the lessor by agreement,

is sufficient compensation.

Painting — $4,820

24. I have taken into account the evidence of the tenant as to the condition of the

walls and ceilings at the commencement of the tenancy. I also note that painting

work had not been undertaken for at least 10 years prior to the commencement

of the tenancy. The lessor has failed to discharge the onus of proof in relation to

the claim for painting. This part of the claim is dismissed.

Curtains — $5,215

25. The lessor removed the curtains and did not replace them. The curtains may

have been in serviceable condition at the commencement of the tenancy, but

were at least 10 to 15 years old at the commencement of the tenancy. The tenant

has conceded that her dog had caused two small tears in the sheer curtains.

There is not sufficient evidence before the Tribunal as to the cost of replacing

those sheer curtains, nor of the condition of the curtains at the end of the

tenancy. The lessor asserts that she has suffered the loss of the replacement cost

of the old curtains. There is no evidence to support this. Nor is there any

evidence as to what the old curtains were worth. The selling agent gave

evidence that the premises were more likely to sell without the old curtains, but

there is no evidence before the Tribunal as to whether there was any impact

upon the purchase price as a result of the absence of curtains. This part of the

claim is dismissed.

Professional cleaning — $550

26. The lessor has failed to discharge the onus of proof as to the cleanliness of the

premises at the end of the tenancy, has not provided an outgoing condition

report, and has not given the tenant any opportunity to remedy the situation.

I further note that the lessor’s cleaning work was done in October 2018, after

tradesman had completed the work of painting and carpet removal and

replacement. This part of the claim is dismissed.

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Other matters

27. The lessor has, in her calculation of the damages claim, credited against that

claim an amount of $1,050, being the two weeks rent paid in advance to the

lessor at the commencement of the tenancy. The lessor gave evidence that she

had received six weeks rent at the commencement of the tenancy, four weeks of

which she allocated to the bond and two weeks of which she regarded as ‘an

insurance’. There is no evidence before the Tribunal that this extra two weeks

was agreed to be released by the tenant. Therefore, the lessor is liable to refund

two weeks rent in the amount of $1,050 to the tenant. However, the Tribunal

notes that there is no application made by the tenant for a return of the two

weeks rent paid in advance at the commencement of the tenancy, and so no

order is made in relation to this amount.

………………………………..Senior Member J Lennard

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HEARING DETAILS

FILE NUMBER: RT 802/2018

PARTIES, APPLICANT: Anne Catherine Abrahams

PARTIES, RESPONDENT: Fleur Millar

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT N/A

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT N/A

TRIBUNAL MEMBERS: Senior Member J Lennard

DATES OF HEARING: 21 January 2019

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