Beardsell v Bailey; Bailey v Beardsell

[2023] NSWCATCD 9

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Beardsell v Bailey; Bailey v Beardsell [2023] NSWCATCD 9

Hearing dates:

16 January 2023

Date of orders:

30 January 2023

Decision date:

30 January 2023

Jurisdiction:

Consumer and Commercial Division

Before:

G Bassett, General Member

Decision:

(1) The tenants’ application is dismissed.

(2) The landlord’s cross-application is dismissed.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Termination — By tenant

Legislation Cited:

Residential Tenancies Act 2010

Category:

Principal judgment

Parties:

First Applicant: Belinda Beardsell

Second Applicant: Harley Beardsell

Respondent: Han Bailey

Representation:

Parties self-represented

File Number(s):

RT 22/45331; RT 22/47706

Publication restriction:

unrestricted

REASONS FOR DECISION

Applications and procedural history

1. On 12 October 2022, the applicant tenants applied for an order that they be paid the sum of $7,780.00 by the landlord. They itemised the claim as:

1. removalist costs $1,150.00

2. cleaning $550.00

3. two weeks rent as unable to live at the premises $1,080.00

4. compensation for damaged goods including furniture, clothes and children's toys $5,000.00.

2. The matter came before the Tribunal for conciliation hearing on 26 October 2022. In directions made at that hearing the respondent landlord was given the opportunity to lodge a cross-application. At that conciliation, tenants indicated to the Tribunal that they were seeking compensation for the landlord's failure to repair a mould issue at the property. Tenants alleged the property had become uninhabitable.

3. On 26 October 2022, the landlord lodged the cross-application for compensation. She asserted premises were not uninhabitable or riddled with mould as alleged by the tenants. Consequently, the termination notice issued by the tenants for alleged breach of the agreement by the landlord was invalid and tenants ought to pay compensation for terminating without proper notice.

Issues for determination

4. The issue for determination is whether the premises were rendered uninhabitable due to mould. If so, what loss(es) arose from this mould problem? Does the loss arise from tenants needing to vacate the premises and was there damage to their goods? Finally, if the mould did not render the premises uninhabitable, did the tenants given proper termination notice so they ought not pay any compensation to the landlord for an improper notice period?

Evidence of the parties

5. The tenancy began on 13 August 2021. Rent was $545.00 per week (subject to comments at paragraph 15 below). The tenant gave vacant possession on 15 September 2022.

6. In relation to the substantive claim for alleged mould, tenants sent an email to the landlord dated 5 August 2022 with attached photographs (page 17 to 29 tenant documents). That email stated a mould issue had been found. It said that at that time it was mostly in the back bathroom but there was some also in the bedroom of the tenant's daughter. It also alleged tiles in the back bathroom were coming loose. Attached photos showed three loose tiles. Photos taken at a very close range showed mould on walls and ceiling.

7. Tenants said that friends and family of the landlord attended on 17 August to wipe away mould, which, by that time, was allegedly across the ceiling of the front bedroom, in the child's bedroom and in the back bathroom. No new photographic evidence was supplied of the extent of mould on 17 August. On 26 August a cleaning company attended the premises to assess and clean the mould. The tenant said that once this had been done no further mould was noticed at the premises until early September.

8. On 2 September 2022, tenants wrote to the landlord to indicate further mould had been found between floorboards in the lounge room. They said it was highly toxic and it “could be the reason we are constantly sick”. The email stated they were unable to stay at the property any longer. Photos of the mould were attached. Photos in the tenants’ printed evidence for hearing were black and white and were useless in showing any mould at all. At hearing, a tenant showed a photo of a few floorboards which indicated some minor areas of mould at tongue and groove joints. Tenants said they abandoned premises on the 2 August as the property was uninhabitable.

9. On 3 September 2022, they terminated the tenancy by email. They indicated they would give vacant possession on 15 September 2022, a date being 13 days after the notice was issued. On 3 September, a property manager provided a glowing reference to the tenants in respect of the tenancy. It indicated they had always paid rent well in advance and had taken a good care of the property.

10. The tenants admitted at hearing that they provided no notice of the damaged goods alleged before they vacated the premises. At the exit inspection there was a clash between themselves and the landlord's mother who, tenant’s alleged, stated they were “filthy people”. They said the real estate agent was present at this exit condition meeting. Tenants also conceded the only mould at the premises at the time they gave the termination notice and left was that in the floorboards. Tenants relied on photos of alleged damage to goods they said were taken on 5 September 2022. They also provided evidence of the value of the goods alleged. When asked by the member presiding as to evidence of the disposal of these goods due to them being mould affected, they indicated goods were left out the front of the premises at the end of the tenancy. In respect of such evidence, at Tab 3 Document 9 of the landlord's evidence there were photos of some goods left on the front kerb of the premises. The Tribunal finds that these appeared to be no more than rubbish. There was a mattress on the front veranda of the premises. There was a series of text messages between the landlord and her managing agent. All messages referred to the goods left behind as being a mess and of no value. Messages made no mention of them being goods the tenants asserted should be compensated due to damage from mould. The property manager informed the landlord that the tenants had been instructed to remove the “rubbish and mattress ASAP”, otherwise a rubbish removalist would be organised. The tenants also referred to an email of 23 September 2022 which was not in their documents for hearing. This email was in relation to a council pick up. In the email there was refence to a mattress needing to be removed. The email contained no statement the goods were damaged by mould.

11. While was no claim existed for non-economic loss, from page 94 of their documents tenants provided medical reports about their child. These reports refer to the tenants telling a medical practitioner there was mould in the house. However, other medical evidence such as hospital discharge summaries referred to the child having rhinovirus and that the child’s condition was consistent with viral illness.

12. The landlord provided evidence (document 10 landlord’s evidence) of photos taken at the premises when it was cleaned by a mould cleaner. These showed the premises to be very clean with no mould apparent. After the tenant reported more mould in the floor on 2 September 2022, the landlord arranged for another mould specialist who attend to the premises on 7 September. That mould report found that recent, prolonged heavy rain in the area had significantly increased moisture underneath the premises. The child's bedroom did not exhibit any signs of moisture issues. The master bedroom had been adequately cleaned. There was no visible mould in the living area. Some visible mould growth was on the back of the couch and underside of a large cushion. The Tribunal finds photos of this mould showed it to be minor. The report confirmed there was some mould in living area flooring between planks. The reporter recommended that the drainage at the premises be repaired to reduce moisture underneath. The report made no finding the premises were uninhabitable. The exit report at document 17 of the landlord’s documents made no mention of mould at the premises.

13. To be satisfied the premises were satisfactory for new tenants to take possession after the applicants had vacated, the landlord had another mould report prepared on 1 November 2022. The mould report found that no mould was evident at the property but recommended a misting treatment to eliminate any possible mould spores.

Findings and determination

14. At the final hearing the tenants attempted to attempted to make an additional revised claim not mentioned in the originating application or at the conciliation hearing. They alleged when the lease was first negotiated with the agent the rent was set at $530.0 per week. Tenants paid a holding deposit based on that amount. After having paid the deposit, but prior to the tenant signing the tenancy agreement itself, tenants were advised the rent would be $15.00 per week more. They said this increase was due to the tenants being required to contribute to any water use at the premises even though the water was not separately metered. Tenants said they agreed to this increased rent without being aware of the need for water to be separately metered. Tenants sought compensation for this $15.00 extra they were required to pay per week. The landlord indicated that rent increase was introduced to include additional costs for water use which could not be charged to the tenant as it was not separately metred.

15. The Tribunal does not accept this additional revised claim. First, this claim is hopelessly out of time as tenants ought to have been aware of the breach from the time the tenancy was signed on 13 August 2021. Under the Act, a party is to bring a claim for compensation within three months of becoming aware the alleged breach relied on. Tenants were aware from the outset of the tenancy there was a slightly increased rate as they were not required to pay for water use. The claim needed to be brought within three months of 13 August 2021. It is out of time. More probably than not it was prompted by the angry exchange with the landlord’s mother at the exit meet. Even if the claim had been bought within time it would not be allowed. It is true under section 39 of the Act, a tenant is only required to pay for water use when it is separately metered. It was common ground under the parties agreement that water was not separately metered. The $15.00 per week was not a request for water charges subject of water bills reflecting use received from the water authority based on actual use of the tenants. It was an amount included in the rent by the landlord to recoup the costs for water use she would have to pay on behalf of the tenant. The tenant has enjoyed the benefit of water use throughout the tenancy without that level of use being measured and has suffered no loss to be compensated. The tenants choose to move. They were not obliged to move. The claim for compensation for alleged breach by the landlord is not allowed.

16. Under section 98 of the Act for termination by a tenant for alleged landlord breach of the tenancy agreement, the tenants were obliged to give a termination notice providing 14 days’ notice until vacant possession. The termination notice of the tenants was defective in that it only provided 13 days’ notice.

17. But the Tribunal does not accept the tenants’ case that they had to terminate the tenancy and vacate on 2 September 2023. The Tribunal is not satisfied that the premises were uninhabitable due to mould or any illness to the tenants’ child was caused by mould. The medical reports made no conclusions that health issues were caused by mould. They were just as probably pre-existing viral issues. The Tribunal accepts the landlord did all she could in the circumstances to address the issues of mould. The photos of mould contained in the email of 5 August did not show any substantial mould after it was cleaned on 17 August. Photos show mild surface mould at the premises only prior to 17 August. There was no further evidence of any mould in the premises until 2 September. Even on that date, the mould between a few floorboards in the living area was very minor, particularly considering the enormous rai falls that had occurred in the period. Mould was certainly treatable and capable of rectification as tenants are required to do under the tenancy agreement. As at the time the tenants vacated on 2 September, the premises were not wholly or partly uninhabitable.

18. The evidence does not support a contention that damage to the goods was caused by mould. There was no evidence to show it was disposed of in a damaged condition. In fact, the evidence at the time of disposal being text messages, photos and email referring to rubbish made no mention at all that there was damage to valuable goods. There was no mention of damage to goods from the mould during the tenancy. The only photos of mould are very minor mould on a couch and cushions which would have been very easily cleaned.

19. If a tenant had properly terminated a tenancy outside of the fixed-term, they would have been required to give 21 days’ notice. In this case they only gave 13 days’ notice. However, in the circumstances of the case where the property manager gave the tenants a glowing reference on the same day tenants gave notice, even though the notice period was defective by 1 day, the Tribunal is satisfied the landlord has led the tenants to believe the notice given was accepted due to mould at the premises. The claim for lost rent due to insufficient notice is not allowed.

Orders

20. The following orders are made:

1. The tenants’ application is dismissed.

2. The landlord’s cross-application is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

22 August 2023 - Formatting amendments.

Decision last updated: 22 August 2023