VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
RESIDENTIAL TENANCIES DIVISION
RESIDENTIAL TENANCIES LIST	
vcat reference NoS. R2020/5659 & R2020/8777	
CATCHWORDS	
Residential Tenancies List – Application by landlord for bond in respect of repainting and fumigation under sections 417, 418 and 419 of the Residential Tenancies Act 1997 (Vic) – Counterclaim by tenant for return of bond.	

PROCEEDING R2020/5659		
LANDLORD	Vi Minh Chau	
TENANTs	Sutha Surenddar and Surendhar Loganathan	
PROCEEDING R2020/8777		
TENANTs	Surendhar Loganathan and Sutha Surenddar	
LANDLORD	Vi Minh Chau	
WHERE HELD	Oakleigh (4 March 2020) 
Melbourne (18 March 2020)	
BEFORE	R. Tang AM, Member	
HEARING TYPE	Hearing	
DATES OF HEARING	4 March 2020 and 18 March 2020	
DATE OF ORDERS AND REASONS	27 March 2020	
CITATION	Chau v Surenddar (Residential Tenancies) [2020] VCAT 393	
ORDERS
Proceeding R2020/5659
The Tribunal finds that:
1	The tenants vacated the rented premises on 8 February 2020.
2	There was no rent owed at the end of the tenancy.
3	The claims for compensation in the application have been proved in the amounts shown on the evidence presented and taking into account fair wear and tear and depreciation (all other claims being dismissed):
Damage to ceilings and walls requiring repainting $1,575
4	The tenants have paid a bond of $2,433.
The Tribunal directs that the residential bond authority pay to:
Landlord 	$1,575
Tenants	$858
Proceeding R2020/8777
Refer to orders in relation to the bond in proceeding R2020/5659. The proceeding is otherwise dismissed. 

R. Tang, AM
Member			

APPEARANCES:		
For Landlord	Ms Shannon Carey, Century 21
Mr Seann Rowland, Century 21	
For Tenants	Mr Surendhar Loganathan, in person
Ms Sutha Surenddar, in person	

REASONS
1	By application made on 4 March 2020, Vi Minh Chau (Landlord), represented by Century 21 Noble Park (Agent), seeks compensation of $2,280 from the bond (of $2,433) paid by Sutha Surenddar and Surendhar Loganathan (Tenants) in respect of premises located in Lindeman Street, Berwick (Rented Premises).  The tenancy, to which the bond relates, commenced on 25 January 2019 and ended when the Tenants vacated on 8 February 2020.
2	The Landlord’s claim is in respect of two matters:
•	$1,850 for repainting of the ceilings and walls, which had black marks claimed to be ‘tenant damage due to the tenant[s] burning oil lamps in the property’; and 
•	$430 for fumigation of the premises to get rid of cockroaches, which are claimed to have been present ‘due to tenant uncleanliness’.
3	The Tenants deny that they are responsible for either item.  By separate application, made on 17 February 2020, they seek an order for return of their full bond.
4	The Landlord’s application first came before me for hearing at the Tribunal in Oakleigh on 4 March 2020.  The application was adjourned for further hearing at the Tribunal’s premises in King Street.  This was because the Tenants’ application had not yet been processed and there was a suggestion that the Landlord would call, and the Tenants’ would seek to cross-examine, the tradesmen used by the Landlord to inspect and report on the issues and/or effect the repairs for which compensation was sought.
5	Unfortunately, by the time that the hearing was reconvened on 18 March 2020, the Tribunal had closed its premises to the public as a result of the COVID-19 pandemic and the matter had to proceed by way of a telephone hearing.  Further, neither of the tradesmen relied on by the Landlord were able to attend (by phone), although one provided a statutory declaration.
6	At the end of the hearing, I reserved my decision because it became apparent that I did not have available all of the material that each party had submitted and referred to in the course of the hearing.  I have since been able to obtain access to that material and have considered it in the course of giving these reasons.
Relevant principles
7	The Residential Tenancies Act 1997 (Vic) (RT Act) allows both a tenant and landlord to apply to the Tribunal for some or all of the bond after the end of a tenancy where they are unable to agree on how the bond should be disbursed.
8	A landlord can apply for the bond for unpaid rent or if the landlord believes he or she is entitled to an amount of the bond as compensation for loss or damage suffered by the landlord, including where damage has been caused  by the tenant or loss is suffered by reason of the tenant’s failure to keep the rented premises in a reasonably clean condition (in both cases, excluding fair wear and tear).
9	In order to claim the bond for such amounts, the landlord must establish (on the balance of probabilities) that the tenant has failed to comply with his or her duties under the RT Act.  Assuming that this can be established, the Tribunal will take into account depreciation of the items claimed to be damaged and also, whether the landlord has mitigated his or her loss (eg. by fixing the issue in the most cost-effective manner possible).
Damage to walls and ceilings
10	As previously noted, the tenancy commenced on 25 January 2019.  The Agents conducted a routine inspection on 8 May 2019.  Apart from noting that the kitchen was a ‘little cluttered’, the Agents noted in their report that the property was generally clean and tidy.  There were no issues identified with respect to the walls or ceilings at that time.
11	A further routine inspection was scheduled on 13 November 2019.  The Tenants left a handwritten note for the Agents indicating that there are ‘no maintenance issues except … Ghost stains on the ceiling with patterns on the ceiling & wall. [T]ried to clean in some areas, but made it worse.  So, stopped doing it’.
12	The inspection report from the Agent notes that there were ‘black marks on the ceilings and walls’ throughout the house, including in the kitchen, lounge room, laundry, bedrooms and bathrooms.
13	The Agent arranged for a tradesman, Alex McKenzie, to inspect and report on the issue.  He sent an email to the Agent on 30 November 2019, which I reproduce in whole below (without grammatical or spelling edits):
Hi Shannon
Wow Holy Cow that’s Bad that black stuff is everywhere it’s on the ceiling the walls even on window frames it’s like a fine layer of soot and is that coming from cooking or the ducted heating it’s really weird we had a similar problem at
[other property] and we had the electrician get up in the roof checking wireing had the ducts cleaned no one Ever really knew what it was the only way to get rid of it is to paint the entire property all walls ceiling ect and that’s an expensive task $5-$7k
And does that solve the problem my question is what is it???????
The house I believe when new was painted by spray method rather than The traditional Roller method but We need further investigation if I didn’t know better I’d think there was a fire and if they are burning incense it would need to be hundreds of them so I’m really
Baffled
Kind regards
Alex
14	On 3 December 2019, the Agent sent an email to the Tenants indicating that the damage had been caused by the Tenants and that a breach of duty notice was to be issued requiring the Tenants to clean the black marks within two weeks.  It included a note that the Tenants should not have incense or candles burning in the Rented Premises.
15	The Tenants responded on 4 December 2019 to deny that they had lit any fire, candles or incense and indicate that it was not appropriate to take a temporary measure (ie. to clean the walls and roof) until the ‘root cause of the issue’ was determined.
16	On 9 December 2019, the Agent emailed the Tenants to indicate that the Landlord would be serving a 60 day notice to vacate (NTV) as he needed to ‘have this inspected and fixed and also paint throughout the property’.  A NTV, under section 255 of the RT Act, was subsequently served and lead to the Tenants vacating the rented premises on 8 February 2020.
17	The repainting of the walls and ceilings was undertaken by LVJ Property Solutions on or about 18 February 2020, after the Tenants vacated.
18	LVJ Property Solutions charged $1,850 to ‘patch and paint living room and kitchen ceilings and walls’, consistent with a quote provided on 8 February 2020 (and which had been sent to the Tenants).  
19	On 13 February 2020, Shannon Carey (from the Agent) emailed Guy Chandrasena from LVJ Property Solutions asking ‘[i]n your opinion could something have caused the black marks on the ceiling and walls other than the tenant causing this?’  Mr Chandrasena responded on the same day to indicate that ‘[b]lack marks due to lighting up oil lamps or heavy carbon emitting lamps in the kitchen area’, noting that ‘oil lamps or kerosene lamps got yellow flames that can emit lot of black un-burn carbon’.
20	Ms Carey followed up to ask Mr Chandrasena whether he had checked the ‘ducts and installation to confirm there wasn’t any soot or installation problems’.  He responded that he could not do so as the painters had already removed the ceiling ducts ready for the ceilings to be repainted.
21	On 12 February 2020, Ms Carey advised the Tenants by email that they could have until 19 February 2020 to engage their own tradesmen to assess the issues.  However, on 17 February 2020, the Tenants responded to indicate that they would be applying to VCAT for the return of their bond.
22	Between the first and second day of the hearing, the Agent arranged for Mr McKenzie to provide a statutory declaration which the Landlord seeks to rely on.  The statutory declaration, dated 16 May 2020, states that (grammar and spelling not edited):
On the 30/11/19 I went to [the Rented Premises] to look at unusual Black MARKS to all ceilings & upper wall AREAS Downstairs.  The marks were stencil shaped which can indicate insulation problems.  But that wouldn’t affect the walls.  That would come from a small fire OR can come from property’s that have Daily insence Burn offerings from Home Religeos practices.
23	I do not place any significant weight on this additional evidence from Mr McKenzie for a number of reasons.  First, it is not entirely consistent with his contemporaneous report which was clearly less certain about the cause of the issue and recommended further investigation.  Second, despite the adjournment being granted to enable Mr McKenzie to attend and give evidence, he did not do so and so could not be cross-examined by the Tenants (which is procedurally unfair).  Third, Mr McKenzie goes on to comment about the cleanliness of the property, which was not something he did in the contemporaneous report.  This suggests that his comments regarding insulation are also something that he has been asked to consider, and there is no indication of how he has formed the view he expresses about insulation problems not affecting the walls.
24	It would clearly have been helpful if the Landlord had engaged an expert to further investigate and report on the cause of the black marks on the ceilings and walls, as Mr McKenzie had originally recommended.  However, while the Landlord has to prove his case, he only needs to do so on the balance of probabilities, weighing down the scales ever so slightly in his favour, and assessed on the evidence that he has produced and not on the evidence that he could have presented or witnesses that he could have called.
25	In this case, the evidence given by the Tenants in cross-examination helps to tip the scales in the Landlord’s favour.  
26	In response to questions from the Agents as to why the black marks had not been present at the first inspection and why they had not reported any issues before the second inspection, the Tenants contended that they did not need to use heating (through the ducts) until the winter months (ie. after May) and had not noticed the issue until a couple of days before the inspection, which was why they had left a note.
27	The answers provided by the Tenants lack credibility.  The initial report from Mr McKenzie noted ‘fine soot’ throughout the property and that it was not limited to the ceilings and walls, but was also apparent on the window frames.  If black soot was coming from the ducting, it would presumably need to float in the air in order to fall onto the walls and window frames.   Common sense would suggest that if black soot was floating in the air, it would not only have been noticeable to the Tenants, but would have been raised by them as an immediate health concern if they were unaware of the cause.  
28	I also note that the Agents have provided photos of the walls and ceilings of the adjacent units (all constructed at the same time) which do not exhibit the same issues as the Rented Premises.  This tends to support the view of Mr Chandrasena that it was tenant use that caused the problem.
29	On the balance of probabilities, I find that the Tenants breached their duty to avoid damage to the Rented Premises.
30	Turning to the amount claimed, I consider that the Landlord has taken appropriate steps to mitigate its loss, noting that LVJ Property Solutions undertook a ‘patch and paint’ job at a cost of $1,850, compared to a full repaint (at a cost of $5,000 to $7,000) which had been suggested by Mr McKenzie.
31	However, although the property was new at the time the Tenants moved in, account still needs to be taken of depreciation of the item for which compensation is claimed.  Conventionally, a property needs to be repainted every seven years.  Adjusting for depreciation from 25 January 2019 to 3 February 2020, I will allow the sum of $1,575.                
Fumigation
32	LVJ Property Solutions also charged $430 for fumigation of the kitchen and living room area for cockroaches.  
33	As previously noted, the Agents say that the cockroaches were present because the Tenants did not keep the premises in a reasonably clean condition. In this regard, they point to:
(a)	an email from Mr Chandrasena of 13 February 2020 noting the ‘infestation [was] mainly due to unhygienic practices by previous tenants and lack of cleaning in the kitchen’; 
(b)	the statutory declaration by Mr McKenzie noting that the ‘downstairs kitchen area was extremely messy with half eaten foods, half opened boxed foods [and] spilt food products’;
(c)	the photos from the routine inspections; and
(d)	the photos they took as part of the exit report after the Tenants vacated the Rented Premises.
34	Starting with the last item, a couple of the exit report photos include a cockroach, however, there is nothing to suggest an ‘infestation’.  The kitchen area otherwise looks clean, consistent with it having a proper vacate clean (supported by the emails between the Agent and the Tenants).
35	The photos from the routine inspections do show some clutter in the kitchen.  However, neither the photos nor the accompanying notes are consistent with Mr McKenzie’s observation that the kitchen area was ‘extremely messy’.  In any event, I have indicated that I do not give any significant weight to Mr McKenzie’s statutory declaration.
36	I also do not give much weight to the report from Mr Chandrasena who clearly attended after the Tenants had vacated and cleaned the property.  He would not be in a position to offer any informed view as to whether the Tenants were hygienic during the tenancy.  
37	For these reasons, I am not satisfied on the balance of probabilities that the Tenants failed to maintain the Rented Premises in a reasonably clean condition and dismiss this claim.
38	For completeness, even if I was satisfied that the Tenants had breached their duty, I do not consider that the Landlord mitigated its loss in choosing to undertake a fumigation of the Rented Premises at a cost of $430, rather than first attempting to control any cockroach issue with a pest bomb that can be bought from a supermarket for around $10.

	

R. Tang, AM
Member