Ebbelid v Qin
[2014] NSWCATCD 173
•03 September 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Ebbelid and anor v Qin [2014] NSWCATCD 173 Hearing dates: 23 July 2014 Decision date: 03 September 2014 Before: P Boyce, Senior Member Decision: 1. The landlord is to pay to the tenants damages in the amount of $8,846.00 immediately;
2. The tenants are to pay the landlord arrears of rent $574.29 immediately;
3. The rental bond is to be paid to the tenants immediately.
Catchwords: Habitable premises, damages Legislation Cited: Civil and Administrative Tribunal Act 2013
Residential Tenancies Act 2010Cases Cited: None Texts Cited: None Category: Principal judgment Parties: Pernilla Ebbelid and Tomi Ebbelid (applicants)
Minqyu Qin (respondent)File Number(s): RT 14/25538, RT 14/22700, RT 14/31739 and RT 14/36831 Publication restriction: None
reasons for decision
Application
This application is brought by tenants against their landlord in respect of residential premises.
The tenants seek orders under the Residential Tenancies Act 2010.
Because of the multiple applications filed by the tenants and the landlord, the orders they seek are set out in the narrative of the applications filed under the heading "Background" in these reasons for decision.
Jurisdiction
S 28 of the Civil and Administrative Tribunal Act 2013 provides that the NSW Civil and Administrative Tribunal ("Tribunal") has jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.
S 21 of the Residential Tenancies Act 2001 grants to the Tribunal the jurisdiction to hear and determine disputes conferred under the Act.
The Tribunal is satisfied that the applicant tenants pursuant to a signed residential tenancy agreement entered into on or about 27 March 2014 for residential premises located within NSW.
Background
The tenants made an application on 1 May 2014 (RT 14/22700) for:
(a) An order as to compensation pursuant to s 187(1)(d) of the Residential Tenancies Act 2010;
(b) An order that requires payment of part or all of the rent payable under a residential tenancy agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined pursuant to s 187(1)(f) of the Act;
(c) An order reducing the rent payable where the premises are unusable or uninhabitable or destroyed pursuant to s 45 of the Act;
(d) An order for the repayment of rent or other payments made by the tenant contrary to the Act or the residential tenancy agreement pursuant to s 47 of the Act;
(e) An order that the landlord carry out repairs pursuant to s 65 (1)(a) of the Act.
On 16 May 2014 the Tribunal made orders in respect of that application that:
(a) The landlord pay the tenants compensation of $502.00 for the cost of urgent repairs and cleaning carried out by the tenants;
(b) The landlord carry out repairs on or before 30 June 2014 details of which are repairs to:
(i) Air conditioning;
(ii) Kitchen ceiling;
(iii) Temperature gauge to 2 ovens;
(iv) Flue to fireplace;
(v) Fallen vertical blind;
(vi) Rectify mould in kitchen and bathroom.
(c) Leave was granted to the tenant to renew the proceedings to seek further orders including a rent reduction under s 43 of the Act and/or payment of rent to the Tribunal until the landlord complies with the orders.
On 16 May 2014 the tenants made a further application to the Tribunal (RT 14/25538) seeking orders:
(a) An order as to compensation pursuant to s 187(1)(d) of the Act in the amount of $4,690.00;
(b) An order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement pursuant to s 187(1)(e);
(c) An order that requires payment of part or all of the rent payable under a residential tenancy agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined pursuant to s 187(1)(f) of the Act;
(d) An order for the repayment of rent or other payments made by the tenant contrary to the Act or the residential tenancy agreement pursuant to s 47 of the Act;
(e) An order that the landlord carry out repairs pursuant to s 65 (1)(a) of the Act;
(f) An order that the landlord reimburse the tenant an amount for urgent repairs carried out by the tenant $502.00 pursuant to s 65(1)(b) of the Act;
(g) An order that the all or part of the rent payable be paid into the Tribunal until the repairs are carried out pursuant to s 65(5) of the Act;
Application RT 14/25538 is for determination.
On 20 June 2014 the landlord made an application for a termination order of the residential tenancy agreement on the grounds that the tenant is "behind in rent" (RT 14/31739).
On 7 July 2014 the Tribunal made orders in RT 14/31739, including:
(a) Adjourning the hearing to a date to be fixed and to be listed with (RT 14/25538) for determination of the landlords claim for unpaid rent with the tenants claim for compensation;
(b) The application by the landlord for termination and possession is withdrawn and dismissed, the tenant having given vacant possession of the premises on 6 July 2104.
On 22 July 2014 the landlord made an application against the tenant (RT 14/36831) for an order regarding the payment of a rental bond pursuant to s 175 of the Act.
Applications RT 14/25538, RT 14/31739 and with leave RT 14/36831 are now heard together.
The tenants have an order in their favour that the landlord pay the tenants compensation of $520.00. The landlord has paid the tenants in accordance with the order. The Tribunal does not revisit that order.
Facts not in dispute
The landlord and tenant entered into a residential tenancy agreement on 27 March 2014.
The term of the agreement was for 52 weeks.
The rent payable was $670.00 per week.
A bond is held by Rental Bond Services of $2680.00.
The tenants vacated the premises on 6 July 2014.
Evidence
The tenants evidence is contained in:
(a) A bundle of documents dated and field with the Tribunal on 4 June 2014 referred to as Exhibit A;
(b) A bundle of documents filed with the Tribunal on 1 July 2014 including a dvd referred to as Exhibit B;
(c) A bundle of documents filed with the Tribunal on 8 July 2014 referred to as Exhibit C which contains copies of documents already filed with the Tribunal and contained in Exhibit B;
The tenants also gave sworn oral evidence:
(a) They moved into the premises on 27 March 2014;
(b) The premises were described by the tenants as being in bad condition, the rubbish bins were overflowing and there was a lot of rubbish lying in and around the house;
(c) Before taking possession of the premises, the landlords agent represented to the tenants that the premises would be cleaned;
(d) The cleaners were scheduled, however cancelled because there was heavy rain;
(e) The cleaners arrived on 28 March 2014 and looked at the condition of the premises and then left as they needed additional help to be able to clean the premises because of the poor condition they were in. They spent three hours cleaning without completing the cleaning;
(f) The tenants had no other choice but to move into the premises as they had no alternative accommodation available for them and their family;
(g) On 30 March 2014 the tenants telephoned the landlords agent and informed them that there was water leaking into the house through a window;
(h) On 31 March 2014 the tenants cleaned the guttering in an attempt to prevent water entering the ceiling;
(i) During the early days of the tenancy a substantial ceiling light fitting fell from the ceiling because the it was damaged by rain water lying in the ceiling;
(j) On 22 May 2104 the one of the tenants slipped on the floor and spent 4 days in hospital resulting in 6 months rehabilitation to recover from her injuries;
The landlord's documentary evidence is the bundle of documents filed with the Tribunal on 15 July 2014 tendered and referred to as Exhibit 1.
The landlord's authorised agent gave evidence under oath as follows:
(a) The tenant was offered the opportunity to vacate the premises at any time without penalty;
(b) The premises are in poor condition and the tenants were aware of the condition at the commencement of the tenancy;
(c) The landlord acted as soon as they could to have light repaired, at least one of the bathrooms was usable and despite the lack of temperature gauges, the ovens were also useable;
(d) The tenants are $5,765.71 in arrears of rent;
(e) The repairs all took longer than expected; the fire place was not in working order and should not have been used.
The landlord's agent claims that the tenants represented to him that they needed to move out of their existing accommodation urgently and as such they accepted the condition of the house. The agent submits that because of the condition of the premises the rent at which the premises were offered of $730.00 per week was reduced to $680.00 per week for the tenants.
The tenants say that they inspected the premises on the day they signed the residential tenancy agreement and complained to the agent about the condition of the premises and its cleanliness.
As at 4 June 2014 the tenants recorded their complaints about items that remained unattended to, including:
(a) Air conditioning not working and turning itself on and overheating;
(b) At least three blinds not working, including one that fell down on the tenants son's head resulting him receiving three stiches to the head wound he suffered;
(c) Leak in kitchen dining are from window, water damage and mould on window frame;
(d) Dirty fans inside ovens that smoke and no temperature display;
(e) Kitchen fan light not working and fan air filter needing to be replaced;
(f) Smoke alarms not working;
(g) Leak in kitchen ceiling, water damage and significant mould throughout the premises (caused by leak in upstairs bathrooms);
(h) Unable to use 2 upstairs bathrooms because of leaks in their waterproofing;
(i) Mould and water underneath carpet outside bathroom toilet;
(j) Loose tiles in floor and skirting boards;
(k) Dripping taps in upstairs bathroom;
(l) Doorstops missing;
(m) Holes in walls;
(n) Broken shower wall bracket;
(o) Ducted vacuum not working;
(p) Alarm not working;
(q) Doorbell not working;
(r) Fireplace flue not working and scorch marks from pre tenancy use on wall and timber in wall.
The tenants also admit that a number of items they complained about have been repaired by the landlord including:
(a) Lock for garage;
(b) Lock on large window;
(c) Lights in garage;
(d) Electrical wiring hanging loose;
(e) Chandelier refixed;
(f) Broken toilet seat.
In addition the tenants remedied a number of defects with the premises themselves including:
(a) Cleaning up the overgrown and untidy back yard;
(b) Removed all rubbish from garage and emptied overflowing bins;
(c) Cleaned the house of dirt and vermin droppings;
(d) Cleaned gutters;
(e) Repaired dishwasher plate holder;
(f) Replaced broken shower heads;
(g) Cleaned up sewer overflow after plumber unclogged blockages on two occasions;
(h) Cleaned out drains in bathrooms and laundry;
(i) Cleaned ceiling fans;
(j) Repaired and cleaned blinds;
(k) Replaced missing toilet roll holders.
The tenants include in Exhibit A a copy of the ingoing condition report signed by the landlord's agent and the tenants on 27 March 2014. The report notes that the landlord promises to undertake cleaning the premises and have the property treated for pests. On 2 April 2014 the tenants prepared an additional comprehensive list of defects with the premises which the landlord's agent agreed to by signing it.
The Tribunal is satisfied on the evidence before it that the condition of the premises was poor at the commencement of the tenancy as recorded by the parties. However, there were latent defects that became apparent after the inspection of 27 March that the tenants were not aware of and they identified as they continued to occupy the premises.
Despite the tenants continued complaints recorded in emails and tendered as part of Exhibit A the landlord failed to respond to most of the complaints in a reasonable time and the significant issues with the premises remain unattended to at the time the tenants vacated the premises.
The landlord's evidence is that he paid $13,300.00 for a new air-conditioning unit on 25 June 2014 to be installed at the premises.
The tenants' claim at the hearing is:
(a) For their bond of $2,680.00;
(b) Compensation for their required move from the premises $6,250.00;
(c) Damage caused to a lap top computer by water leaking into the premises $1,596.00;
(d) Costs of medicines for daughter because of the adverse effect of mould on her asthma $769.18;
(e) Cost of ambulance for daughter because of the adverse effect of mould on her asthma $471.00.
The landlord claims arrears of rent of $5,765.71 and compensation of $2,000.00 for damage alleged to have been caused by the tenants.
Findings
Application RT 14/25538
Application RT 14/25538 was made on the day orders were made in RT 14/22700.
The reasons for seeking the orders in RT 14/25538 were stated in the application by the tenants as:
"We had a hearing RT 14/22700 today and we feel the Tribunal member did not have time to take part of our application, evidence and documents provided. We feel that the order we got does not include all the issues we were seeking for. Also the property manager/landlord were not available to attend."
The orders sought in RT 14/25538 are for orders under s 187(1)(d), s 187(1)(e), s 187(1)(f), s 47, s 65(1)(a), s 65(1)(b) and s 65(5).
The orders sought in RT 14/22700 were for orders under s 187(1)(d), s 187(1)(f), s 45, s 47 and s 65(1)(a).
The tenants had their application for orders under s 187(1)(d), s 187(1)(f), s 47 and s 65(1)(a) determined by the Tribunal on 16 May 2014. In those orders leave was granted by the Tribunal for the tenants to renew the proceedings until compliance with the orders made on 16 May 2014.
It is the evidence of the tenants that the order for compensation was complied with on 26 May 2014.
The order to carry out work gave the landlord until 30 June 2014 to comply.
The tenants filed their second application on the day the orders were made in the first application. Their intention is clearly and unambiguously stated in the reasons for the application. They were dissatisfied with the result they achieved in the first application.
It was open to then to appeal the decision in the first application; they did not.
They sought to re-present their first application by way of having another attempt to achieve the outcome they wanted. They had a right to seek leave to renew the proceedings if the landlord failed to comply with the orders of 16 May 2014.
In RT 14/ 25538 the order they seek under s 65(1)(b) is for the exact order they obtained on the day they filed the application.
Although not stated as such, the bringing of application RT 14/25538 may be construed to be in the nature of renewal of the first application, the distinction not being understood by litigants in person.
The Tribunal directs its further attention as to whether if leave granted to renew proceedings those proceedings have been finally determined.
It is common practice in the procedure of the Tribunal, particularly in matters brought under the Residential Tenancies Act to grant leave in orders to renew proceedings as an order to promote the resolution of a dispute.
The difficulty in the matter now being determined by the Tribunal is whether the application is a renewal of the tenants' first application or a fresh application.
The Tribunal is under an obligation to adhere to the guiding principle of the Civil and Administrative Tribunal Act in the disposal of applications before it.
The orders made by the Tribunal in RT 14/22700 granted leave to renew the application until 30 June 2014.
To effectively dispose of the applications now before it, the Tribunal grants leave for the application RT 14/25538 to be a renewal of application RT 14/22700.
S 63 of the Act provides that a landlord must provide and maintain premises in a reasonable state of repair having regard for the age of, rent payable for and prospective life of the premises. That obligation applies even though a tenant had notice of the state of repair before entering into occupation of the premises.
The tenants' evidence is that condition of the house was that they were unable to use the first floor of the house. That floor contained 4 bedrooms, a television/lounge room and two bathrooms. The ground floor was mouldy and cold. The kitchen was in such a condition that it could not be used.
The landlord relied on the negotiated rent being "reduced from $730.00 pw to $670 per week due to the condition" (email dated 11 April 2014 from landlords letting agent to landlords managing agent in Exhibit 1 tendered by the landlord) to justify the condition of the premises.
The Tribunal is satisfied on the evidence adduced by the tenants that the premises were in such poor condition that they should not have been let in the first place. The reduction of rent negotiated was manifestly inadequate compensation for the tenants having to live in premises of such poor repair. The tenants' circumstances at the time of entering into the residential tenancy agreement resulted in an urgency to obtain accommodation for themselves and their children, the consequence of which they found themselves in premises that were totally inadequate.
S 109 of the Act provides that a tenant may give a landlord a termination notice and the residential tenancy agreement will end on the date specified in the notice if the residential premises become partly or wholly uninhabitable.
The tenants gave notice to the landlord on 18 June 2014 that they would vacate the premises on 10 July 2014 because they could not use the first floor rooms and the kitchen.
The Tribunal is satisfied on the civil standard of proof that the premises became uninhabitable despite the tenants efforts to bring the premises to a reasonable condition for them to occupy them. It is the landlord that has failed in its duty to provide and maintain the premises in a reasonable condition. The premises became uninhabitable as the problems of water leaks resulted in an inability to use 2 of the 3 bathrooms and the inability to use the bedrooms in a 5 bedroom home.
Compensation pursuant to s 187 (1)(d) of the Act
The tenants claim for damages is:
(a) Compensation for their required move from the premises $6,250.00;
(b) Damage caused to a lap top computer by water leaking into the premises $1,596.00;
(c) Costs of medicines for daughter because of the adverse effect of mould on her asthma $769.18;
(d) Cost of ambulance for daughter because of the adverse effect of mould on her asthma $471.00.
The Tribunal has found that the premises were uninhabitable.
The tenants' evidence is that as a result of the condition of the premises they were required to move from the premises.
The moving expenses claimed are $6,250.00. The tenants support this claim by a quote from a removalist company for packing and removal.
For the claim for damages to succeed it is necessary for the loss to be foreseeable as a consequence of the landlord's failure in its obligations to provide the premises in a condition that are suitable for habitation.
The Tribunal is satisfied that the expenses of moving was reasonably foreseeable consequence of a termination of a fixed term agreement after 3 months of a 12 months term.
The Tribunal makes an order that the landlord pay to the tenants an amount of $6,250.00 as compensation for the cost of moving.
The tenants' evidence is consistent about the water leaks from the first floor into the areas they occupied on the ground floor. The tenants' evidence is corroborated by the photographs tendered to the Tribunal of buckets catching water, plaster falling away and light fittings falling from ceilings.
The Tribunal is satisfied that on the civil standard of proof the tenants' laptop was damaged by water dropping on it and it was destroyed by that damage.
The Tribunal makes an order that the landlord pay to the tenants an amount of $1,596.00 as compensation for the cost of the laptop destroyed.
The remainder of the tenants claim for damages in respect of the cost of treatment of their daughter's asthma. The tenants allege that the mould present in the premises aggravated their daughter's asthma to the extent that she was required to be hospitalised. Their support for this contention is a medical certificate dated 14 May 2014 confirming that their daughter suffers from chronic asthma. They have produced a number of receipts for medicines purchased from pharmacies for those medicines during the period of their occupancy of the premises.
The evidence produced by the tenants in support of their contention that the mould in the premises aggravated their daughters existing condition is not sufficient to provide a causal link. In any case the tenants daughter is not a tenant for the purposes of the Act and is not compensable.
The claim for the cost of the medicines and ambulance is dismissed.
Remainder of orders sought
As to the remainder of the orders sought by the tenants:
(a) An order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement pursuant to s 187(1)(e) is dismissed;
(b) An order that requires payment of part or all of the rent payable under a residential tenancy agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined pursuant to s 187(1)(f) of the Act is dismissed;
(c) An order for the repayment of rent or other payments made by the tenant contrary to the Act or the residential tenancy agreement pursuant to s 47 of the Act is dismissed;
(d) An order that the landlord carry out repairs pursuant to s 65 (1)(a) of the Act is dismissed;
(e) An order that the landlord reimburse the tenant an amount for urgent repairs carried out by the tenant $502.00 pursuant to s 65(1)(b) of the Act is dismissed as it is an issue in which orders have been made;
(f) An order that the all or part of the rent payable be paid into the Tribunal until the repairs are carried out pursuant to s 65(5) of the Act is dismissed;
Application RT 14/31739
Application RT 14/31739 is an application by the landlord for a termination order.
The tenants vacated the premises on 6 July 2014.
On 7 July 2014 the Tribunal noted that the application for termination and possession was withdrawn and the landlords claim for unpaid rent is to be heard with RT 14/25538.
The landlord's evidence contained in its agents rent ledger is that the tenants paid rent from 27 March 2014 to 10 May 2014. The tenants' rent for the period 11 May 2014 until 10 July 2014 is outstanding in the amount of $ 5,765.71.
In an email dated 19 June 2014 from the landlord's agent to the tenants tendered by the landlord, the landlord offered to the tenants a "rent free period" from 19 June 2014 until 10 June 2014 and "will return you bond when the current rents (sic) in arrears have been paid".
The tenants rejected this offer and sought a waiver of all rent arrears and have the bond returned on the same day.
The landlord served a Notice of Termination on the tenants on 20 June 2014.
S 43(2) of the Act provides that rent is to abate if premises become wholly or partly uninhabitable.
On the evidence of the tenants the Tribunal is satisfied that the premises became partly uninhabitable during the term of the tenants occupation of the premises.
The landlord failed to remedy the multiple defects to the premises in compliance with the orders made by the Tribunal on 16 May 2014 and in addition remedy further defects as they arose.
Pursuant to s 43(2) the Tribunal finds that the rent should abate from 16 May 2014 being the date the tribunal made its initial orders until 10 July 2014. The rent was paid to 10 May 2014. The tenants owe 6 days rent being $574.29.
Application RT 14/36831
Application RT 14/36831 is an application by the landlord for compensation against the tenants for damage to the premises alleged to have been caused by the tenants.
The landlord bases this application on 2 emails dated 21 June 2014 and 1 July 2014 from a person who the landlord identifies as a builder to the landlord.
The first email alleges water damage to be caused by water being splashed by people using the hand basin. The second email alleges that there were newly drilled holes on the floor of the bathroom not previously seen by the "builder". In that email the "builder" quotes $1,800.00 to replace a wall, painting and bin hire. By a further email the landlord gives instructions to the agent to make a claim against the tenants for compensation of $2,000.00.
On the material before the Tribunal it is not satisfied that the evidence relied upon by the landlord establishes on the civil standard of proof that the tenants have caused the damage as alleged.
Accordingly, application RT 14/36831 is dismissed.
Orders
The Tribunal orders:
1. The landlord is to pay to the tenants damages in the amount of $8,846.00 immediately;
2. The tenants are to pay the landlord arrears of rent $574.29 immediately;
3. The rental bond is to be paid to the tenants immediately.
P Boyce
Senior Member
Civil and Administrative Tribunal of New South Wales
3 September 2014
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: 13 November 2014
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