Carter v Divanis

[2023] NSWCATCD 45

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Carter v Divanis [2023] NSWCATCD 45
Hearing dates:	16 February 2023
Date of orders:	04 April 2023
Decision date:	04 April 2023
Jurisdiction:	Consumer and Commercial Division
Before:	C Campbell, General Member
Decision:	1. In accordance with s.187(1)(d) of the Residential Tenancies Act 2010 the landlord is to pay the tenant compensation in the $15,000 within fourteen days from the date of these orders.
Catchwords:	Failure to repair – breach of quiet enjoyment
Category:	Principal judgment
Parties:	Aaron Carter (Applicant) Peter Divanis (Respondent)
Representation:	Counsel: N/A Solicitors: N/A
File Number(s):	RT 22/36130
Publication restriction:	N/A

REASONS FOR DECISION

1. This is an application by the tenant seeking an order for compensation pursuant to s 187 (1)(d) of the Residential Tenancies Act 2010 (“the Act”), on the grounds of breach of the agreement by the landlord for failure to repair the premises and also for breach of the tenant’s right to quiet enjoyment pursuant to s 50(2) of the Act.

2. The tenant appeared in person. Mr Stanton appeared as agent for the landlord.

3. The applicant filed and served a bundle of documents which included:

1. The residential tenancy agreement

2. Schedule of damage

3. Requests for repairs

4. Chronology

5. Expert report from Hazmat Removal Solutions

6. Witness statements

7. Photographs

8. Schedule of loss and current value of damaged goods

9. Receipts and quotations

4. The landlord’s documents consisted of the evidence he relied in an earlier application RT 22/24453 and a copy of the Ingoing Condition report. The documents served in RT 22/24453 are the residential tenancy agreement, the rent ledger and a Notice of Termination.

5. The earlier application was filed by the landlord and the Tribunal ordered the tenant to pay rent arrears owing up to the end of the tenancy and also an order for the rental bond to be paid to the landlord.

6. By way of background the parties entered into a residential tenancy agreement on the 13 August 2021 and in the abovementioned proceedings the tribunal determined the tenancy ended on the 01June 2022. The rent was $400 per week.

7. The tenant’s claim for compensation arises out of the landlord failing to repair after the premises sustained repeated episodes of flooding which resulted in damage to the applicant’s goods and possessions. The applicant is a professional photographer and also works in the music industry and his claim for compensation is for damage to his photographic and music equipment, records, catalogue of his work and reference magazines together with clothing and his bed all of which were damaged by the water ingress.

8. The tenant’s application for compensation was filed on the10 August 2022. The tenant first notified the landlord of water ingress on the 22 February 2022 when the downstairs of the premises was what he described as “severely flooded.”

9. The first question which needed to be determined was whether the tenant needed leave of the Tribunal to extend the time for the bringing of the application.

EXTENTION OF TIME

10. The applicant said that following the water ingress and consequential mould at the property he sought advice from Redfern Legal Service as he had been unable to stay at the property since the 07 April 2022. On the 19 May 2022 he sent an email to the landlord’s agent informing him that he had not been able to stay at the property since the 07 April 2022 and he was waiting for legal advice. He received the response from Redfern Legal Service on 02 June 2022, by which date he had vacated the premises. The advice received was that he had three months within which he could bring his claim for compensation. It was his understanding he had three months from that date.

11. He thought he had to prepare and collate all his documentation in relation to the claim prior to filing the application. Clearly this was erroneous.

12. Although he had reported the ground floor flooding to landlord by SMS on the 23 February 2022 the landlord only undertook one inspection of the on the 26 March 2022, which was some four weeks after the first report of flooding. Thereafter he continued to send SMS messages and emails to the landlord and the landlord’s agent concerning further water ingress. The requests were for repairs to stop the water ingress and mould removal.

13. The landlord never undertook any repairs up to the date the tenancy ended.

14. The respondent’s agent Mr Stanton said the tenant’s claim is statute barred and therefore no extension of time for leave to bring the claim should be granted. The applicant received the legal advice of the 02 June 2022 and then did nothing about it until he filed this application on the 10 August 2022, which was the day after the tribunal made orders for the tenant pay the rent arrears to the landlord in the sum of $1,985.71.

15. I am satisfied on the evidence presented by the tenant that he made numerous requests to both the landlord and the landlord’s managing agents concerning the flooding and the mould growth in the apartment. He contacted Mould Men for assistance with the mould removal, but they would not undertake an inspection without the landlord’s consent. This consent was not forthcoming.

16. I find that in this case there was an ongoing continuous breach by the landlord to undertake repairs in accordance with his obligations under s 63 of the Act up until the end of the tenancy, which the Tribunal accepted in RT 22/24453 was the 01 June 2022. The present application for compensation was filed on the 10 August 2022, and accordingly I find there is no requirement for time to be extended for the bringing of the claim as there was a continuous breach by the landlord from 23 February 2022 to the 01 June 2022 and the application was filed within three months of the end of the tenancy.

COMPENSATION claim

17. The applicant first reported the flooding in the downstairs area of the premises to the landlord on the 23 February 2022 by a text message. He informed the landlord that it “…was pretty badly flooded” the night before and that he had been bailing water out with a mop and bucket. He also reported a major leak in the bathroom. The landlord’s response was that he would have someone take a look at it once the rain stopped.

18. The tenant sent another text to the landlord on the 08 March 2022 telling him that he was doing the best he could to remove the mould, but it was getting “pretty serious”. He again reported the further water ingress in the bathroom. He informed the landlord the light was turning on and off of its own accord, even when switched off at the wall. The tenant felt it was safer to remove the globe. The landlord said he be there around 12.00 “…if the rain holds off.”

19. By the 18 March 2022 neither the landlord or the agent or any tradesperson had attended at the property. The tenant said the mould and water ingress were both serious.

20. He sent a three page letter to the landlord and the agent on the 18 March 2022 setting out in detail the history of the water ingress and mould and the requests that he had made to that date for repairs. All of which he said had been ignored. In that letter he confirmed:

1. The mould was getting worse and spreading throughout the house

2. He had found mould on his photographic equipment, his books, furniture and other possessions. He had removed some of his photographic equipment from the premises, which was a source of inconvenience as it interrupted his professional work.

3. He was having to dry clean his clothes for the mould removal.

4. He had arranged for urgent mould removal cleaning work to be undertaken to his leather goods and designer suiting.

5. The electricals were now unsafe in the bathroom, the downstairs living room and his office.

6. He had incurred costs purchasing cleaning products, detergents and towels.

21. In that same letter he requested the landlord provide him with a de-humidifier and asked for a rent reduction having regard to the current state of the premises. He said the state of the premises had caused him significant stress.

22. On the 21 March 2023 the tenant received an email asking for access by the landlord at 10.30 the following day. The tenant confirmed by email the same day that he would be there to give the access. Neither the landlord or the agent or any tradesperson attended at the appointed time, or at all. The tenant had taken a day off work to allow them access.

23. On the 26 March 2022 the landlord arrived at the property without any prior notice to the tenant. Had a single spray bottle of mould remover. He offered the tenant a $50 per week rent reduction backdated to when the flooding was first reported. This rent reduction was never applied on the tenant’s rent ledger.

24. At that unscheduled access the landlord said the problem was caused by drainage issues underneath the house the repair of which would be a “big job”, it would potentially take weeks and would require the tenant to empty out the office. The tenant sad he had removed what he could from the office.

25. On the 26 March 2022 the tenant arranged for Hazmat Removal Solutions to undertake an inspection and provide him with a report. A copy of that report from Mr Bruce Van Rij is before the Tribunal. The tenant did not receive the report straight away as he was unable to afford to pay Hazmat the report fee.

26. More severe flooding was reported to the landlord on the 29 March 2022 and he responded saying that hopefully it could be repaired within the next few weeks.

27. The tenant contacted a professional mould cleaning company, MouldMen to assist with the mould removal. The company required consent from the landlord to undertake any mould removal. The tenant sent the request to the agent. The landlord never consented to MouldMen entering the premises.

28. The tenant reported further flooding on 07 April 2022. The entire downstairs of the premises was under water and the water was entering at a faster pace than he could mop it up. He purchased a water vacuum from Bunnings. He said the bed was soaked with flood water and he informed the landlord that he and his partner could no longer sleep on it and were forced to sleep elsewhere.

29. On the 14 April 2022 another agent Mr Blenkinsopp called him to get an update on the condition of the property. The tenant confirmed the earlier conversation that he and his partner could no longer sleep at the property as the bed was ruined and the property had a very bad odour from the extensive mould. He said they were taking steps to look for another property.

30. On the 12 May 2022 the landlord served a Notice of Termination on the tenant on the grounds of non-payment of rent. The tenant said he stopped paying the rent after the 07 April 2022, when he and his partner were forced to sleep elsewhere.

31. On the 19 May 2022 the tenant sent an email to the agent confirming in writing again that he and his partner had been unable to sleep at the premises since the flooding on the 07 April 2022. He also confirmed the mould had continued to spread throughout the house.

32. The tenant returned the keys to the landlord on the 01 June 2022.

33. The tenant said that from the commencement of the tenancy the landlord was aware that he was using the downstairs area of the premises as a work area and studio. The tenant relies on photographs which are before the tribunal studio which show mould on clothing and mould damage on walls and skirting boards, electronic equipment, clothing and furniture.

34. In relation to his claim for compensation he relies on a detailed itemised schedule which is before the Tribunal for the costs or repair and replacement of the various categories of items claimed:

a. Music Equipment:                                      $7,270

b. Photographic Equipment:                          $4,062

c. Furniture:                                                   $1,630

d. Clothing                                                     $2075

e. Dry cleaning and laundry                           $1,198

f. Books and Magazines                                $3,220

g. Records                                                     $2,700

h. Artwork                                                       $280

i. Laundry charges                                         $854.35

j. Cleaning products                                       $219

k. Mould Assessment Report from Hazmat   $800

l. Moving costs: van hire                                $398

35. In addition to the above the tenant said that he lost collections of books and magazines, the cost of the individual magazines was inexpensive at the time of purchase of each issue, but the value of the collection was far greater. He has not included any estimate for the value of the collections.

36. In support of the above items in the schedule the applicant has provided quotations, tax invoices and current valuations for most of the items claimed, including the repair of his music equipment, the car hire, laundry and dry cleaning, the Hazmat report, repair of photographic equipment and some of the books and magazines that he claims were destroyed.

37. The tenant also relies on photographs of the which were deteriorating above the skirting boards due to the mould and water damage.

38. The extensive mould and water damage to the premises and his possessions resulted in an interference with his quiet enjoyment of the property. His bed was so badly water damaged and the mould odour became so severe he was unable to sleep at the premises from the 07 April 2022.

39. The tenant’s claim for compensation exceeds the jurisdiction of the tribunal, but tenant consented to the jurisdiction of the tribunal which is $15,000.

LANDLORD’S Evidence

40. As referred to above the landlord’s documentary evidence consists of the following

a. Residential tenancy agreement

b. The rent ledger

c. Notice of termination on the grounds of rent arrears

d. The ingoing condition report dated 12 August 2021

41. The relevance of the a., b., and c. above was not explained. Mr Stanton said the tenant refused to allow access for the repairs. He said the tenant and the landlord had been friendly with each other prior to the water ingress. The tenant would contact the landlord directly if he had any issues at the premises. When they fell foul of each other the tenant would report issues directly to the agent.

42. There was no sign of mould or water damage at the end of the tenancy. The new tenant has made no complaint about water ingress.

43. Mr Stanton said that in his opinion the tenant is “milking” the system He said he thinks the tenant is attempting to profit from the situation and the experience.

44. He also expressed some reservation about the authenticity of the Hazmat report.

DECISION

45. Apart from Mr Stanton’s personal beliefs and opinions the landlord has failed to put before the tribunal any evidence that would controvert the photographic evidence, the emails, the receipts and quotations relied on by the tenant. It is noteworthy that the landlord does not rely on the outgoing condition report which would have provided a contemporaneous record of the premises at the end of the tenancy. I draw an inference the outgoing condition report would not have advanced the respondent’s case that the premises were mould free and did not have any signs of water damage.

46. The landlord queried the veracity of the report from Mr Bruce Van Rijt from Hazmat, but no evidence was provided in support of Mr Stanton’s suspicions. Nor did the landlord serve a summons on Mr Van Rijt to give evidence, to enable the landlord to cross-examine him concerning the report.

47. For these reasons I accept Mr Van Rijt’s report and the photographs taken at the time the report was prepared on the 26 March 2022. Mr van Rijt observed the walls were wet and dripping with water with up to 100% humidity. There was a musky smell. He found extensive mould contamination (black mould) on the walls, ceiling, furniture and the tenant’s personal items such as electronics, books clothes, particularly in the room that was used an office.

48. There is no evidence from the landlord that it undertook any repairs to the premises each time the tenant reported the worsening mould issue and the ongoing water ingress.

49. The landlord attended on one occasion only and informed the tenant of the proposed manner of repair for the water ingress but took no steps to implement the works necessary to stop the ingress. The landlord took no steps to make safe the reported electrical faults. I am satisfied that as a result of the failure to repair the water ingress issue a mould problem developed and it became increasingly severe each time there was further ingress of water into the premises.

50. I accept the tenant’s mattress was water affected and that he and his partner were unable to sleep at the premises from the 07 April 2022 as reported to the agent, and this situation prevailed to the end of the tenancy. I am satisfied this represented an interference with the tenant’s quiet enjoyment of the premises.

51. I am satisfied the landlord was aware the tenant used the downstairs area as a studio and kept his photographic and electronic equipment, research books and magazines in that area, and this equipment was damaged.

52. I accept the tenant’s uncontroverted evidence that the landlord told him the repair would be a “big job”. I am satisfied that each time the tenant reported further ingress the landlord did nothing to undertake any repairs, even of a temporary nature. The landlord failed to provide the tenant with a de-humidifier as requested in his three page letter on the 18 March 2022.

53. I find the landlord was in breach of his obligations to undertake repairs. I find the tenant is entitled to compensation arising out of the breach by landlord in relation to his obligation to undertake any repairs from the date they were first reported by the tenant on the 23 February 2022 to the 01 June 2022

54. The tenant has provided many photographs of the damage items. He has put before the Tribunal receipts for the cleaning and laundry. He has provided evidence of the repair costs for the cameras. He has provided evidence for the costs of the replacement of the items claimed. The tenant was not cross-examined by the landlord in relation to any of the items claimed in the schedule. His evidence in that regard is uncontroverted by the landlord.

55. I find the landlord is not liable for the tenant’s moving costs and van hire as the tenancy was terminated on the grounds of non-payment of rent. I find the landlord is not liable for the costs of Hazmat report as this forms part of the tenant’s costs of this application.

56. I accept the tenant’s claim in relation to the balance of the costs associated with the removal, repair and replacement for the items specified in the schedule at paragraph 34 above. I have made a deduction of 20% for items a, b. c. and d to take into account depreciation. The balance of the items I find are actual costs incurred by the tenant for which the landlord is to pay compensation. The total compensation for which the landlord is liable arising out the breach of the obligation under the Act to undertake repairs is $20,500.95

57. I find the landlord is to pay the tenant compensation for the interference with his quiet peace and enjoyment in the sum of $2,500. I note the total amount of compensation exceeds the jurisdiction of the tribunal and the tenant has consented to the jurisdiction of the Tribunal.

58. For all these reasons I find the landlord is to pay the tenant compensation in the sum of $15,000.

ORders

59. For all of the above reasons the tribunal makes the following orders:

1. In accordance with s. 187(1)(d) of the Residential Tenancies Act 2010 the landlord is to pay the tenant compensation in the $15,000 within fourteen days from the date of these orders.

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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

Decision last updated: 17 July 2023