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- Unreported Judgment
One Door Property Pty Ltd v Hawthorne QCATA 58
One Door Property Pty Ltd v Hawthorne  QCATA 58
One Door Property Pty Ltd
23 April 2015
Senior Member Stilgoe OAM
29 April 2015
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where claim for bond – where counterclaim for cost of repairs – whether fair wear and tear – depreciation rates – whether evidence could support tribunal findings – whether grounds for leave to appeal
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 419(3)
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur  QCA 294
Chambers v Jobling (1986) 7 NSWLR 1
Griffin v Gini  QCATA 325
APPEARANCES and REPRESENTATION (if any):
Ms A Stone, property manager employed by One Door Property Pty Ltd
REASONS FOR DECISION
- In 2009, Tracey Hawthorne moved into a brand new house managed by One Door Property Pty Ltd. When she left in August 2014, Ms Hawthorne applied for return of her bond. One Door applied for compensation for unpaid rent, unpaid water charges and the cost of returning the tenancy to its original condition. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, ordered that all but $283.85 be returned to Ms Hawthorne.
- One Door wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
- Although the application for leave to appeal was framed as a failure to correctly apply the legislation, in fact, One Door took issue with the tribunal’s findings. I will consider each disputed finding in turn.
- One Door claimed one day’s rent. It submitted that Ms Hawthorne’s rent was paid to 17 August 2014 but she returned the keys on 18 August 2014.
- There is no copy of the ledger on file. Ms Stone, for One Door, told the tribunal that the rent was paid until 18 August and Ms Hawthorne vacated on 19 August 2014. Ms Hawthorne told the tribunal that her daughter returned the keys on 18 August 2014. The tribunal was faced with a dispute of fact. The tribunal allowed nothing for that claim because it accepted Ms Hawthorne’s evidence, which was “clear and precise” over One Door’s evidence which was “not being so precise”. The evidence can support the tribunal’s findings and I can find no compelling reason to come to a different view.
- Leave to appeal on this ground is refused.
- The lessor replaced all of the carpets in the tenancy at a cost of $4,000. The tribunal ordered Ms Hawthorne pay only $200 towards that cost. The tribunal noted that the carpet was 5½ years old, that four people lived in the tenancy, and that there were marks on the carpet. The tribunal found that much of the damage was due to wear and tear. It also found that it should consider depreciation when considering any order for compensation.
- A lessor is not entitled to be placed in a better position than it would have been in if the breach had not occurred. Put simply, the lessor is not entitled to a new carpet in exchange for a used carpet. Therefore, the tribunal regularly considers depreciation when assessing loss.
- The Australian Taxation Office Tax Ruling 2013-004 nominates a carpet life in accommodation applications of 7 years. Tax Ruling 2014/4 – for residential accommodation operators – nominates a life of ten years for carpet. The agent who appeared from One Door confirmed that she replaced the carpet in her investment property every seven years. The tribunal’s calculation of 20% was close to the actual depreciated life of the carpet over seven years as 22% (5.5/7).
- Applying 22% to the $4,000 cost of the carpet gives a figure of $880. The tribunal accepted that Ms Hawthorne had damaged the carpet but it was not persuaded that the whole house needed recarpeting.
- One Door accepted that the master bedroom carpet did not need replacing and told the tribunal that Ms Hawthorne was not charged for that area. The invoice from Choices dated 5 September 2014 does not support One Door’s evidence. That document states that $4,000 covered installation of carpet to all bedrooms and the family room.
- One Door also told the tribunal that it did not have a problem with the sun damage in the family room. The means that Ms Hawthorne’s liability was restricted to the patch damaged by her dog and, perhaps, two bedrooms. The evidence can support the tribunal’s finding of a reduced liability for the cost of the replacement carpet and can support the tribunal’s finding that the appropriate compensation is $200. I can find no compelling reason to come to a different view.
- Leave to appeal on this ground is refused.
- One Door claimed $250 for the cost of replacing a broken mirror. The tribunal refused this claim because it accepted Ms Hawthorne’s evidence about the circumstances of the damage.
- Ms Hawthorne suggested that the mirror was damaged on installation. The evidence does not support a finding consistent with Ms Hawthorne’s evidence. The entry condition report, that Ms Hawthorne signed, does not record any damage to the mirror. It is difficult to accept that Ms Hawthorne would not have recorded such a significant defect in a new building.
- Unfortunately, that does not help One Door. The tribunal had no evidence about the cost of the replacement mirror because One Door did not produce an invoice to the tribunal. Ms Stone told the tribunal the cost was $250 but she was a new property manager who had no personal knowledge of that cost. The tribunal was correct in its decision to refuse this claim.
- When Ms Hawthorne left the property, Ms Hawthorne had a professional cleaner clean the tenancy. One Door then provided an exit condition report and seven pages of hand written notes. Ms Hawthorne and her cleaner went back and cleaned again. In an affidavit sworn 24 October 2014, Ms Lum, One Door’s property manager at the time, stated simply that “again items on the list provided were still not of the standard required”. There is no evidence of the extent of the cleaning still required. There is claim for $400 for cleaning but no invoice or receipt addressed to One Door or the lessor. The evidence could not support a claim for cleaning. The tribunal was right to refuse it.
- The handwritten documents with the exit condition report noted that the tenancy required repair. It noted that Ms Hawthorne would take care of some repairs and the lessor would take care of the rest.
- The tribunal took evidence on the cost of repairs but failed to make a finding. That is an error for which leave to appeal should be granted. Because the tribunal’s error was one of mixed fact and law, I can substitute my own decision.
- At the hearing, Ms Hawthorne conceded the cost of a door closer ($79.20). She also conceded that her mowing contractor damaged the exterior hardboard but she did not concede responsibility for the cost of repair ($320.10). I see no reason why Ms Hawthorne should avoid responsibility for the damage caused by her agent.
- One Door has claimed $808.70 for repainting interior walls. That raises, again, the vexed question of “fair wear and tear”. Ms Hawthorne claims that the painting was necessary because of the natural use of the home. One Door claims that there were particular items that were not fair wear and tear.
- The Appeals Tribunal has previously noted that wear and tear includes damage through unintentional action or the normal incident of occupation.
- It seems that both One Door and Ms Hawthorne are correct. Some items, such as dents and chips, would be a natural consequence of living in a house for 5½ years. Damage by the dog, which was required to live outside, is not fair wear and tear. Damage caused by hooks of tape may not be fair wear and tear.
- The description of the work required on the standard walls indicates that there was some damage caused by the dog and some damage from hooks and fixings. Ms Hawthorne should be responsible for half the cost of the standard internal walls (½ of $335.50). I will also allow the claim for the glue blob and nail hole removal ($112.20).
- The description of the work required on the feature walls indicates that it is solely caused by fair wear and tear. I am not persuaded that Ms Hawthorne should pay any of that cost.
- I have a similar view about the cost of repairing dents and chips to internal doors. This appears to be fair wear and tear and I will not allow that part of the claim.
- The description of the work required on the deck indicates that there was significant deterioration in the surface. Open decks require regular treatment. The treatment described by the repairer is consistent with the annual treatment that an open deck should receive. In the absence of a term to the contrary, I would expect this obligation to fall to the lessor. The tenancy agreement was not in evidence. I do not allow this aspect of the claim.
- There is a claim for repair of the internal laundry door and trims. The bottom of the door was swollen. The repairer noted that there was no evidence of a water leak. There was a suggestion that Ms Hawthorne kept her dogs in the laundry but that suggestion was not put to Ms Hawthorne at the hearing. There are a number of reasons why the bottom of a laundry door might swell, many of which could be fair wear and tear. In the absence of positive evidence that Ms Hawthorne’s deliberate actions caused the damage, I will not allow this part of the claim.
- There is a claim for $84.70 for skirting boards. Marks, scuffs and dents are unavoidable on skirting boards if a tenant is to attend to cleaning the floors. I consider it fair wear and tear and will not allow it.
- There is a claim for checking and replacing the light bulbs. I accept the cost of the bulbs ($49.50). I do not see why Ms Hawthorne should pay for a handyman at $55 per hour to check whether light bulbs work. I will allow half the cost claimed, as the time necessary to fit the replacement globes ($55).
- From a claim of $2,128.50, I allow $783.75.
- One Door issued invoices for water charges throughout the tenancy. Ms Hawthorne did not pay them. The tribunal allowed only the most recent invoice, of $83.85.
- A party must make an application for compensation within six months of the breach. There is a Notice of Unresolved Dispute dated 29 September 2014 on the file. That suggests that the dispute resolution request was made some time in August. That is the date from which the six month count back is taken. The parties agree that the amount owing is $141.04, not $83.85, a difference of $59.19. Leave to appeal should be granted and the appeal allowed to correct this error.
- For two limited grounds, leave to appeal is granted and the appeal allowed. The decision of 30 October 2014 is set aside. The appropriate order should have been that the Residential Tenancy Authority pay to Ms Hawthorne $1,895.21 and One Door $1,124.79. Because the bond has been paid, the error must be addressed by an order as between Ms Hawthorne and One Door. I therefore order Ms Hawthorne pay One Door ($783.75 + $59.15) $842.94 by 20 May 2015.
 QCAT Act s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
 Chambers v Jobling (1986) 7 NSWLR 1 at 10.
 Transcript page 1-36, lines 1- 2.
 Transcript page 1-36, lines 8 – 30.
 Transcript page 1-46, lines 21 – 25.
 Transcript page 1-19, lines 5 – 6.
 Transcript page 1-22, lines 24 – 27.
 Transcript page 1-18, line 30.
 Transcript page 1-22, lines 43 – 47.
 Transcript page 1-19, line 41 to page 1-20, line1; page 1-23, line 16.
 Transcript page 1-46, lines 14 – 16.
 Transcript page 1-37, lines 27 – 31.
 Transcript page 1-37, line 9.
 Transcript page 1-8, lines 29 – 30.
 QCAT Act s 147.
 Griffin v Gini  QCATA 325 at .
 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 419(3).
- Published Case Name:
One Door Property Pty Ltd v Tracey Hawthorne
- Shortened Case Name:
One Door Property Pty Ltd v Hawthorne
 QCATA 58
Senior Member Stilgoe
29 Apr 2015