Cincotta v Chmait

[2022] NSWCATCD 145

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Cincotta v Chmait [2022] NSWCATCD 145
Hearing dates:	14 July 2022
Date of orders:	02 September 2022
Decision date:	02 September 2022
Jurisdiction:	Consumer and Commercial Division
Before:	S Hanstein, General Member
Decision:	The landlord is to pay the tenant the sum of $5,000 within 14 days of the date of this decision.
Catchwords:	RESIDENTIAL TENANCIES – Landlord’s obligation – Reasonable state of repair - Breach – Compensation
Legislation Cited:	Residential Tenancies Act 2010
Category:	Principal judgment
Parties:	Rebecca Cincotta (Applicant) Rina Chmait and Hassan Chmait (Respondents)
Representation:	Applicant (self-represented) Ms Rix (Respondents) Ms Steedman (Respondents)
File Number(s):	RT 22/19980
Publication restriction:	Nil

REASONS FOR DECISION

1. The applicant claims a rent reduction and compensation for the landlord’s failure to maintain the premises in a reasonable state of repair.

2. The applicant and the respondent were, respectively, the tenant and the landlord under a residential tenancy agreement. The tenancy agreement between the parties commenced in July 2020, for a rental was $380 per week. A new tenancy agreement was entered into between the parties commencing July 2021, with a fixed term to 9 July 2022, for a rental of $400 per week. The tenancy terminated when the tenant vacated the premises in April 2022.

Legislation and legal principles

3. Section 63(1) of the Residential Tenancies Act 2010 (“Act”) provides:

63 Landlord’s general obligation

(1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.

4. The Tribunal must not determine that a landlord has breached this obligation unless it is satisfied that the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair, and the landlord failed to act with reasonable diligence to have the repair carried out.

Applicant’s case

5. The tenant’s evidence and submissions included the following.

1. The landlord failed to repair the roof of the premises in March 2021, which caused leaks and ceiling damage in the bedroom, producing black mould and rendering the bedroom uninhabitable. The leak and mould were reported to the agent.

2. The ongoing failure to repair resulted in mould throughout the home, causing damage to, and destruction of, belongings.

3. The landlord forced the tenant out of the premises by issuing a termination notice on the ground that the tenancy agreement was frustrated. That was not a course open to the landlord because the state of the premises was as a result of a breach by the landlord of their obligations under the tenancy agreement.

4. The tenant seeks compensation for costs involved in having to relocate from the premises; compensation for damage to belongings; rent reduction; and compensation for exposure to mould, loss of enjoyment, distress, disappointment, embarrassment, inconvenience and breach of privacy from the landlord attending without notice. The amounts claimed are detailed in the tenant’s documents although the tenant limits her claim to the maximum the Tribunal can award ($15,000).

Respondent’s case

6. The landlord’s evidence and submissions included the following.

1. The landlord acted with reasonable diligence in respect of the required repairs, by lodging an insurance claim and, when that was denied, seeking quotes for repairs.

2. The tenant failed to mitigate her loss by not cleaning mould from her belongings and the premises, and by not vacating earlier.

Consideration

7. On the evidence before me, comprising the documentary evidence and oral evidence of the parties, I make the following findings.

Failure to repair

8. I am satisfied that, in breach of the obligation imposed by section 63 of the Act, the landlord failed to maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. I am satisfied that there were one or more roof leaks which has resulted in water ingress to the premises. I am satisfied that the landlord had notice of the need for the repair, having been informed by the tenant from at least March 2021, and failed to act with reasonable diligence to have the repair carried out. Nothing was done to repair the roof, even by way of a temporary fix, up to the time the tenant vacated the premises in April 2022. I am not satisfied that the inaction is excused by the landlord awaiting the outcome of the insurance assessment (which was ultimately refused) for part of that period.

9. I am satisfied that the failure to carry out repairs has resulted in significant water ingress over a long period of time, causing ceiling damage and mould throughout many parts of the premises. I am satisfied from the mould inspection report that the mould was extensive, and active spores present, such that the tenant should not be in the premises. The mould inspection was carried out in April 2022, and on the evidence before me, I am satisfied that was likely the position for some time prior to the inspection.

Rent reduction and compensation for exposure to mould, loss of enjoyment and amenity, distress, disappointment, embarrassment, and inconvenience

10. I am satisfied there was significant loss of amenity and enjoyment of the premises as a result of the failure to repair. I am satisfied the bedroom was uninhabitable from the time the mould appeared on the ceiling, being unlikely to be able to be adequately cleaned or remedied by the tenant given the underlying cause of the water ingress was not repaired. I am also satisfied the mould spread to other parts of the premises. I am satisfied compensation should be allowed in the sum of $4,160. I am satisfied this is a reasonable amount of compensation for the tenant’s loss or damage under this part of the claim, whether it be described compensation for distress and disappointment, loss of enjoyment and/or loss of amenity. (I note the application was not lodged during the tenancy and therefore a rent reduction within the meaning of section 44 of the Act is not appropriate.) I have arrived at this figure by considering the amenity provided by the premises, the extent to which the tenant’s use of the premises was affected by the failure to repair, and the rent payable for the premises. In arriving at what I consider to be an appropriate figure, I am guided by the amount that would result from a rent reduction of $80 per week for 52 weeks (although confirming I am not making an order for a rent reduction under section 44 of the Act).

Compensation for damage to belongings and relocation costs

11. I am satisfied that the tenant has suffered loss or damage to belongings as a result of the exposure to excessive moisture and mould spores, and I am satisfied it is as a result of the landlord’s breach. In assessing reasonable compensation for the tenant’s loss, I note that the tenant is not entitled to “new for old”, that it is appropriate that I consider the age and type of the items, and that I need to ensure the tenant is not put in a better position than she would have been in had there been no breach by the landlord.

12. I am satisfied the landlord was not entitled to serve a notice of termination based on frustration, as the reason the premises were uninhabitable were as a result of breach by the landlord. However, once the outcome of the mould inspection was known, I consider it was appropriate for the tenant not to remain in the premises. I am satisfied that she was required to vacate in a shorter timeframe than might otherwise have been available. I note however that moving costs would be required at some stage when the tenant vacated, so it is not appropriate for her to be reimbursed for all costs. In all the circumstances, I am satisfied that, because she had to relocate on such short notice, the costs were somewhat higher than would otherwise be the case.

13. On the evidence before me, I am satisfied compensation for damage to belongings and relocation costs should be allowed in the sum of $840, giving a total amount of compensation payable to the tenant of $5,000.

Compensation for breach of privacy

14. The tenant also seeks compensation for breach of privacy, for the landlord attending without notice. I am satisfied this did occur. However, overall, I am satisfied that the amount of compensation allowed under other parts of the claim is reasonable compensation for the tenant’s loss or damage arising from the landlord’s breach, and I am not satisfied any additional compensation should be allowed for breach of privacy.

Mitigation and extension of time

15. I am not satisfied that the tenant has failed to mitigate her loss. I note that she remained in the premises, and signed a renewal of the tenancy agreement, even after being aware of the state of disrepair. I accept however that that was not unreasonable, given the issues were known by the landlord and should have been repaired. I accept it would have caused hardship to the tenant to relocate if that may not have been necessary because the repairs were done as they should have been, and without the underlying issues being resolved it is unlikely to have assisted much for the tenant to be constantly cleaning.

16. The breach relied upon by the tenant is a continuing breach and an extension of time to bring the claim is unnecessary. If I am wrong able that, to the extent an extension of time is needed for this application, I am satisfied that should be allowed. The issue has always been squarely raised by the tenant with the agent, so the landlord is not prejudiced in being able to defend the claim, the claim has very good prospects of success, and the delay in the application being brought was because the tenant was pursuing the landlord to have the breaches remedied.

Conclusion

17. The landlord is to pay the tenant the sum of $5,000 within 14 days of the date of this decision.

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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

25 September 2023 - Formatting amendments.

Decision last updated: 25 September 2023