Liebech v Rent My Property[2015] QCAT 378

APPEARANCES:

REPRESENTATIVES:

REASONS FOR DECISION

Background

1. [1]
   By application filed on 28 November 2014, the applicants sought that the respondents pay compensation in the sum of $4,163.80 as follows:

   2. a)
      keys and garage remotes in the sum of $551.38;

   2. b)
      internal and external bond clean in the sum of $1,200.00;

   2. c)
      repairs and maintenance in the sum of $295.00;

   2. d)
      replacement of front door bell, outside light fittings, light globes and smoke alarm in the sum of $68.86;

   2. e)
      garden cleanup in the sum of $597.50;

   2. f)
      replacement bench and vanity tops in the sum of $1,730.00, and

   2. g)
      rental compensation in the sum of $3,594.00.
2. [2]
   The sum of the above is $8,036.74. The applicants’ insurer, APIA Insurance, has paid them $551.38 for the replacement of keys and garage remotes, leaving a residue of $7,485.36. The Residential Tenancies Authority (“the Authority”) has paid $2,680.00 rental bond to the applicants. This leaves a residue of $4,805.36. It is agreed between the parties that Mr. McDonald has paid the applicants the sum of $641.56. This leaves a residue of $4,163.80.
3. [3]
   The applicants are seeking compensation for those sums listed at [1] b) to [1] g) above. They are also seeking compensation for rent foregone during the period the applicants say the property was uninhabitable (four weeks) and until new tenants were found (a further two weeks).
4. [4]
   The weekly rent was $670.00. Rent was paid up to and including 2 October 2014 at which date the Tenant Ledger shows a rent credit of $213.72.

Evidence

5. [5]
   The evidence of the applicants was that the property was rented on a 12-month lease commencing 3 January 2014. The property was rented in four names: Aaron Lawton, Alexandra Lawton, Matthew Harvey and Connor McDonald. The Lawtons vacated the property in May 2014 having resided there for about six months. Simon Hourigan and Luka Weti, who resided there for about three months, took their places. The remaining two (Mr. Harvey and Mr. McDonald) resided there for about nine months.
6. [6]
   The applicants obtained vacant possession on 8 October 2014 by way of a Warrant of Possession. The applicants’ evidence was that the Warrant was issued on the ground of the unsatisfactory condition of the property.
7. [7]
   The evidence before us is that neither Mr. Hourigan nor Mr. Weti is named on the lease. Nor do they appear on the Tenant Ledger.
8. [8]
   There is no evidence before us that the Lawtons sought early termination of the lease. Nor is there any evidence before us that Messrs. Hourigan and Weti made either an application to be listed on the lease or an application for a sub-lease.

Liability

9. [9]
   Parties have a duty to act in their own best interests. We cannot make assumptions or guess at facts and events. This is an evidence-based Tribunal and we cannot make findings of fact where there is no material to support those findings. These factors are relevant when seeking to determine the liability of any party.
10. [10]
    During the period of the tenancy, four people resided at the property at any one time. The evidence before us is that the following people resided for the stated periods:

    2. a)
       Mr. Harvey – nine months;

    2. b)
       Mr. Hourigan – three months;

    2. c)
       Mr. Lawton – six months;

    2. d)
       Ms. Lawton – six months;

    2. e)
       Mr. McDonald – nine months, and

    2. f)
       Mr. Weti – three months.
11. [11]
    The evidence before us is that, when Mr. and Ms. Lawton vacated the property, Mr. Hourigan and Mr. Weti took their places. It seems that Mr. Weti may have since relocated to New Zealand.
12. [12]
    The applicants provided a written submission, Tax Invoices, receipts, photographs, made oral submissions and gave evidence under oath in support of their application.
13. [13]
    None of the parties present was able to produce an Entry Condition Report or an Exit Condition Report, nor was any party present able to provide a copy of the General Tenancy Agreement. It seems likely that these documents are in the possession of the agent, Rent My Property, which did not appear.
14. [14]
    The tenants present did not dispute the following claims:

    2. a)
       keys and garage remotes in the sum of $551.38, which has been paid to the applicants by their insurer;

    2. b)
       internal and external bond clean in the sum of $1,200.00;

    2. c)
       repairs and maintenance in the sum of $295.00;

    2. d)
       replacement of front door bell, outside light fittings, light globes and smoke alarm in the sum of $68.86, and

    2. e)
       garden cleanup in the sum of $597.50.
15. [15]
    If these claims had been disputed, we are of the view that there is sufficient evidence by way of a written submission from the applicants, Tax Invoices, receipts, photographs and oral testimony to support the claims.
16. [16]
    Additionally, it was not disputed between the parties present that the agent, Rent My Property, had issued several Forms 11, Notice to Remedy Breach, throughout the tenancy. The evidence of the applicants was that the Notices issued because of late payment of rent, noise infringements, the condition of the property and the existence of rubbish both inside and out. The Forms 11 were not available to us.
17. [17]
    Accordingly, we award the sums detailed in paragraph [14], viz: $2,161.36.
18. [18]
    The applicants supplied photographs date-stamped 11 October 2014, which is three days after they obtained vacant possession. They show that the residence was left in a poor state with rubbish both inside and out, a poor state of cleanliness, had been poorly maintained and that some items were missing. Those tenants present at the hearing and residing in the property at the vacation date did not dispute the photographs.
19. [19]
    The Bond. The Authority has paid $2,680.00 rental bond to the applicants. The evidence before us is that the tenants present did not dispute that the payment should have been made.
20. [20]
    Messrs. Hourigan and Weti. The evidence before us is that neither Mr. Hourigan nor Mr. Weti is named on the lease. Therefore, the issue arises as to whether or not they are tenants. There is no evidence before us that they made either an application to be listed on the lease or an application to sub-lease. There is evidence before us that they paid rent, which payment was accepted. There is evidence before us that the letting agent knew, or should have known, that Mr. and Ms. Lawton had vacated the premises and that Messrs. Hourigan and Weti had taken their place. Accordingly, we find that Messrs. Hourigan and Weti are tenants as defined in the Residential Tenancies and Rooming Accommodation Act 2008 (Qld)^[1] (“the Act”).
21. [21]
    Bench and vanity tops. The applicants are seeking compensation in the sum of $1,730.00 for replacement of bench and vanity tops. This sum is supported by a Tax Invoice. The evidence before us is that these items were four to five years old when they were replaced. The evidence before us showed that the bench and vanity tops were damaged, which damage occurred during the tenancy. We examined whether that deterioration/damage could be attributed to “fair wear and tear”. This phrase is usefully defined in an earlier decision of the Appeals Tribunal^[2]:

The phrase “wear and tear” has been common in leases and tenancy agreements for centuries. In general, the ordinary meaning of the phrase is concerned with the consequences of ordinary, not extraordinary, damage. In the case of “wear”, this might mean, for example, fading paintwork on internal and external walls caused by sunlight over time; “tear” refers to disrepair caused by a tenant through unintentional action or through the normal incident of a tenant’s occupation. Depending on the specifics of the obligations outlined in a tenancy agreement, this might include the accidental ripping of an aged, worn fly screen. In summary, fair wear and tear, in the context of a residential tenancy, refers to damage or disrepair caused, or resulting from ordinary use.

The evidence before us is that the damage to the bench and vanity tops is such that it cannot be attributed to fair wear and tear. The bench tops are timber. There is a burn next to the hob in the kitchen. There is damage to the timber near the taps that seems to have been caused by soap stains. There was water damage to the front of the kitchen bar counter. There was similar damage to the vanity tops.

The tenants had a general obligation to return the tenancy in good condition. The evidence before us is sufficient to demonstrate that the tenants failed in that basic obligation.

We find that the bench and vanity tops were about five years old when they were replaced. The tenants should not be responsible for replacing “new for old”.

We are of the view that the proper approach to quantifying betterment is to look at the loss and then determine whether it is appropriate to reduce the damages by any benefit obtained^[3]. We consulted the Australian Tax Office depreciation rates the use of which has been approved by the QCAT Appeal Tribunal as one starting point; we note that the rates are only a guide^[4].

Bench and vanity tops are not mentioned in the document; however, we had regard to assets such as floor coverings and kitchen items that, in our view, could be regarded as comparable assets.

As an arbitrary determination, we are of the view that bench and vanity tops could reasonably be thought to have an effective life of about 10 years. They were about five years old when they were replaced.

The applicants have been forced to pay for new tops about five years before they might otherwise have replaced them. Balancing these considerations, we find that the tenants should pay the applicants 50% of the cost of replacement, viz: $865.00. Accordingly, we will award that sum.

22. [22]
    Rental Arrears. The Tenants Ledger shows that rent was paid up to and including 2 October 2014 at which date there was a credit of $213.72. The applicants took vacant possession on 8 October 2014. The weekly rent was $670.00. We have calculated the daily rent as $95.71. We find that the applicants are owed rent for the six days from 3 October until 8 October 2014, inclusive, less the credit of $213.72, viz: $360.54. Accordingly, we will award that sum.
23. [23]
    Compensation for foregone rent. The evidence before us is that the applicants have suffered a consequential loss because the tenants left the premises in such a condition that cleaning and repairs were required to be carried out before it could be rented. The applicants initially sought compensation in the sum of $6,594.00. Our understanding is that they are seeking compensation for about nine week’s loss of rent. We are of the view that such an amount is excessive. Pursuant to the Act^[5], the Tenancy Agreement ended on 8 October 2015 following the execution of the Warrant of Possession. Therefore, the tenants are not liable for rent after that date.
24. [24]
    However, there is sufficient evidence before us that the tenants were in breach of the Tenancy Agreement. Pursuant to the Act^[6], we may make an order that they pay compensation. The evidence before us is that the residence was not in a fit state to be rented between 8 October 2014 (the vacate date) and 10 November 2014. This latter date is based on the evidence of the applicants regarding when the premises were fit to be rented.
25. [25]
    The applicants’ evidence is that Rent My Property was terminated and Image Properties appointed in its place. That agency held a number of open days (15, 18 and 20 November 2014). The applicants’ evidence is that the property was vacant for six weeks.
26. [26]
    Accordingly, we find that the residence was fit for occupation on or around 10 November 2014, a period of about four weeks. New tenants were found two weeks later.
27. [27]
    The Act^[7] provides that the lessor must take all reasonable steps to mitigate loss or expense. We find that the applicants have fulfilled that duty by:

    2. a)
       acting quickly in bringing the premises up to standard, and

    2. b)
       holding open houses as soon as practicable after the premises were habitable.
28. [28]
    Given that the weekly rent is $670.00, the amount of compensation should be six times that sum, viz: $4,020.00. Accordingly, we will award that sum.
29. [29]
    Therefore, we find that the applicants are entitled to be paid compensation by the tenants as follows:

    2. a)
       internal and external bond clean in the sum of $1,200.00;

    2. b)
       repairs and maintenance in the sum of $295.00;

    2. c)
       replacement of front door bell, outside light fittings, globes and smoke alarm in the sum of $68.86;

    2. d)
       garden cleanup in the sum of $597.50;

    2. e)
       replacement of bench and vanity tops in the sum of $865.00;

    2. f)
       rental arrears in the sum of $360.54, and

    2. g)
       rental compensation in the sum of $4,020.00.
30. [30]
    This amounts to $7,406.90 less the bond of $2,680.00 paid to the applicants by the Authority, leaving a residue of $4,726.90. From this, we have also deducted Mr. McDonald’s contribution of $641.26 because to do otherwise would result in the applicants being enriched unjustly. This leaves a residue of $4,085.34.
31. [31]
    During the hearing, the tenants present seemed to express a view that, if they were to be held liable for compensation, then it should be calculated on an apportionment basis taking into account the periods that each resided at the property.
32. [32]
    In our view and by law, the Tenancy Agreement imposes joint and several obligations on each tenant. This means that, if the terms of the Tenancy Agreement are not met, then the  applicants have the ability to seek a legal remedy from all the tenants involved (joint) or each individual tenant (several).
33. [33]
    Accordingly, we find that the tenants are jointly and severally liable and we will not be adopting the apportionment approach. However, if were to adopt such an approach, then we would likely use the following formula:

    2. a)
       There were four persons in the property at any one time during the nine months tenancy;

    2. b)
       Gross monthly liability: $4,726.90/4 = $1,181.73

    2. c)
       The monthly liability per person per month: $1,181.73/9 = $131.30

    2. d)
       Individual liability: $131.30 x number of months in residence
34. [34]
    This would result in the following:

35. [35]
    Another factor is: at what point during the tenancy did the liability arise? If the liability arose after the Lawtons vacated, then they should not be liable to pay compensation. Similarly, if the liability arose before Messrs. Hourigan and Weti took up residence, then they should not be liable to pay compensation.
36. [36]
    There is no evidence before us as to when:

    2. a)
       the keys and remotes went missing;

    2. b)
       the requirement for repairs and maintenance arose, or

    2. c)
       the front door bell, outside light fittings, globes and smoke alarms needed to be replaced, or the bench and vanity tops were damaged to the extent they needed replacing.
37. [37]
    The only evidence before us is that when the tenancy commenced the property was in good repair and when it ended, it was not.
38. [38]
    There was oral evidence before us that the property was in poor condition at various times during the tenancy. We do not know who was living there at those various times. We do not know who was living there when the damage that needed to be repaired at the end of the tenancy occurred.
39. [39]
    We find that the applicants have suffered a loss for which they should be compensated.
40. [40]
    We are unable to determine at which point during the tenancy the various liabilities arose. We are cognizant of the objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)^[8], which are to deal with matters in a way that is accessible, fair, just, economical, informal and quick. We find it is lawful, just and equitable to apply the principles of joint and several liability to all tenants.
41. [41]
    It should not be left to the applicants to pursue separate sums against each of the tenants. The onus falls on the tenants to resolve between them the amount for which each is liable. The table at paragraph [34] may be of assistance.
42. [42]
    The applicants are entitled to be compensated in the sum of $4,085.34, which sum is to be paid by the tenants.