Culmone v Brodie

[2023] NSWCATCD 89

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Culmone v Brodie and Ors [2023] NSWCATCD 89
Hearing dates:	09 June 2023
Date of orders:	23 August 2023
Decision date:	23 August 2023
Jurisdiction:	Consumer and Commercial Division
Before:	C Campbell, General Member
Decision:	(1) The landlord’s claim for compensation pursuant to s 187(1)(d) of the Residential Tenancies Act 2010 is dismissed as the application was not filed within the prescribed time limits.
Catchwords:	Breach of the residential tenancy agreement – time limits - compensation
Category:	Principal judgment
Parties:	Applicant : Tony Culmone Respondents: Brodie Nicholas and Lachlan Churchill and Regan Grgurovic and Paul Churchill
File Number(s):	RT 23/11316
Publication restriction:	Nil

REASONS FOR DECISION

1. This is an application by the landlord seeking compensation from the tenants for the costs associated with the replacement of a bathtub, pursuant to s 187(1)(d) of the Residential Tenancies Act 2020 (“RTA”) The application was filed on the 08 March 2023.

2. Both parties filed and served their evidence. The landlord was represented by his managing agent Mr Davies. Mr Churchill appeared on behalf of his co-tenants and was assisted by his support person.

3. By way of background the parties entered into a residential tenancy agreement on the 09 September 2021 and the tenants vacated on 08 February 2023.

4. The rental bond of $3,400 was released to the tenants by Rental Bond Services on the 28 February 2023.

LANDLORD'S EVIDENCE

5. The bathtub was installed new in 2011. The shower is situated over the bathtub.

6. The landlord acknowledged that he was first notified by the tenants on the 02 December 2022 that there was mishap which resulted in a hole in the bath. The landlord responded on the 05 December 2022 informing the tenants that all issues would be quoted after the routine inspection which was scheduled on the 12 December 2022.

7. The tenants informed the landlord they were unable to use the shower due to the hole in the bathtub, as water would escape through the hole rather than down the plughole. The landlord did not arrange for an inspection or take any steps to have the bathtub repaired. It was the landlord evidence the agent overlooked the request made the tenant in relation to the bathtub repair.

8. The Routine Inspection report of the 12 December 2022 is before the Tribunal, and it reports the “shower/bath is in good working order.” Two months later, on the 09 February 2023 at the outgoing inspection a different property manager reported there was a “hole in the bathtub”.

9. The landlord relies on three quotations for the repair of the bath:

• Sewer Surgeon dated 16 February 2023: $8,250

• JTC Plumbing Solutions 15 February 2023: $7,300

• JTC Plumbing Solutions 07 March 2023: $6,100

10. The landlord also relies on a report from Jacob Di Leo from Aqua Stream Plumbing Pty Ltd dated 01 March 2023. Mr Di Leo inspected the bathtub and in his opinion the hole was caused by impact of an item dropped by force, rather than any weakness in the moulded bathtub material. The bathtub was removed and the timber frame was rotted due to water coming through the hole. He formed the view the bathtub was beyond repair and needed to be replaced.

TENANTS' EVIDENCE

11. The tenants deny liability for the costs associated with the replacement of the bathtub. Mr Churchill said the damage occurred in the course of him using the shower. He slipped as he turned to get a towel off the adjacent towel rack. As he turned, his left heel hit the side of the bathtub. The surface of the bath broke and the tenant suffered a laceration.

12. It was reported to the landlord who took no steps to undertake any repair. The tenants put gaffer tape over the hole in an attempt to prevent any water getting in through the hole and vermin coming out of the hole. They ceased using the shower. It was a household of males. Thereafter they washed their hair in the laundry tub or stayed at their respective girlfriends houses or went back to their parents’ homes for showers up to the date they vacated.

13. The tenants deny any liability for the cost to replace the bathtub. There was no wilful damage to the bathtub. It occurred in the ordinary use of the shower and the towel rack.

14. Even if they are found liable they contend there should be a significant reduction for depreciation on what was a 12 year old acrylic bathtub. The tenants rely on a downloaded article which refers to the life expectancy of an acrylic bathtub being in the order of 10-15 years. The two higher quotes relied on by the landlord are for the replacement with a pressed metal bath.

15. In a separate application the tenants seek compensation arising out of the landlord’s breach of his obligation to undertake repair to the bathtub.

DECISION

16. Notwithstanding the two inspection reports undertaken by the landlord are at variance with each other. I am satisfied on the contemporaneous evidence that the tenants reported the hole on the 02 December 2022.

17. The landlord seeks an order for compensation on the grounds the tenants breached the agreement as they damaged the bathtub. The landlord filed the application on the 08 March 2023. In accordance with the RTA and Part 4, Clause 39(9) of the Regulations the prescribed period for the time to make an application for compensation for breach of the agreement is within 3 months of becoming aware of the breach.

18. The Tribunal is satisfied the landlord was notified by the tenant of the hole in the bathtub on the 02 December 2022. The tribunal accepts the landlord’s evidence that the reported hole in the bath was overlooked by the agent on that first date. Having regard to the photographs of the hole put before the tribunal by both parties, I do not accept that the bathtub was acceptable and free from defect as reported at the routine inspection on the 12 December 2022. I find that on any proper inspection the hole would have been visible to the person undertaking that inspection on that day.

19. The landlord made no contact with the tenants, took no steps to arrange a repair or to undertake some temporary measure to close off the hole to prevent water escaping behind the bathtub.

20. The landlord’s claim is dismissed as the application was filed more than three months after the landlord was aware of what he claims was a breach by the tenants. The landlord provided not provided a reasonable explanation for the delay:

1. The tenant reported the hole on 02.12.22

2. The landlord undertook an inspection on 12.12.22

3. The landlord undertook the outgoing inspection on 09.02.23

4. On the 27.02.22 the landlord filed RT 23/09473 seeking orders for compensation, but no claim was made for compensation arising out of damage to the bath.

21. No application to extend time was made at the hearing. But even if it were, I am of a view that this would not be an appropriate case to extend time. The landlord has an obligation under s 63(1) of the Act to provide and maintain the premises in a reasonable state of repair. The landlord is not in breach of that obligation if the state of disrepair is caused by the tenant’s breach.

22. I accept the tenant slipped as he reached over to get a towel off the towel rail. There was no grab rail in situ. I am satisfied the hole was caused in the tenant’s ordinary use of the shower, and not as a result of any misuse of the fixture.

23. In this case the landlord did nothing when the damage to the tub was reported. The tenants informed the landlord they were not using the shower and had taken some temporary measures to close over the hole with gaffer tape. No correspondence was sent to the tenants during the currency of the tenancy informing them that the landlord had formed a view that the damage was caused as result of their breach under the Act. Or that they were not to use the shower. He took no action until the filing of this application approximately a month after the tenancy had ended and more than three months after the damage was reported. I find there was a complete failure to mitigate by the landlord. The tenants took immediate steps to notify the landlord. He had knowledge of a reported hole in the bathtub over which the shower head was located. The tenants put gaffer tape over the hole as a temporary measure. I am satisfied that any water damage to the timber frame was as a result of the landlord’s failure to attend to the repair in a timely manner.

24. For these reasons the landlord’s claim for compensation for costs of the replacement of the bathtub is dismissed.

orders

25. The Tribunal makes the following orders:

1. The landlord’s claim for compensation pursuant to s 187(1)(d) of the Residential Tenancies Act 2010 is dismissed as the application was not filed within the prescribed time limits.

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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: 22 September 2023