Moffatt v Muscat

[2023] NSWCATCD 13

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Moffatt v Muscat [2023] NSWCATCD 13

Hearing dates:

12 January 2023

Date of orders:

17 January 2023

Decision date:

17 January 2023

Jurisdiction:

Consumer and Commercial Division

Before:

P French, Senior Member

Decision:

(1) The landlords, Frank Muscat and Robert Muscat must cause the undertaking of the following work in a proper and workmanlike manner before 28 February 2023:

(a) Permanently disconnect the tank from the water supply from the local water course.

(b) Establish and maintain a filtration system at the top of the tank that ensures that only clean rainwater enters the tank.

(c) Empty all water from the tank.

(d) Thoroughly clean and sanitise the interior of the tank.

(e) Upon completion of the above, fill the tank with clean water suitable for drinking ensuring that it remains full to at least 50% capacity at all times.

(2) The landlords, Frank Muscat and Robert Muscat must pay the tenant, Hailee Moffatt, $100.00 immediately.

(3) The application is otherwise dismissed.

Catchwords:

LEASES AND TENANCIES - Residential Tenancies Act 2010 (NSW) – obligations of tenant and landlord – landlord’s general obligations – obligation to provide premises in a state fit for habitation – obligation to maintain premises in a reasonable state of repair

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW) – s 41

Residential Tenancies Act 2010 (NSW) – ss 39, 41, 52, 63, 65, 187, 190

Residential Tenancies Amendment (Review) Act 2018 (NSW); Schedule 1

Residential Tenancies Regulation 2019 (NSW)

Cases Cited:

Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1992) 174 CLR 64

De Soleil v Palmhide P/L [2010] NSWCTTT 464

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Proudfoot v Hart (1890) 25 QBD 42

Texts Cited:

Legislative Assembly Hansard 28 September 2018, Residential Tenancies Amendment (Review) Bill 2018, Second Reading Speech

Category:

Principal judgment

Parties:

Hailee Moffatt (Applicant)

Frank Muscat (First Respondent)
Robert Muscat (Second Respondent)

Representation:

Hailee Moffatt (Self-represented)

Victoria Muscat (First and Second Respondents)
Joanne Muscat (First and Second Respondents)

File Number(s):

RT 22/45594

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This is an application by Hailee Moffat (the tenant) for orders pursuant to sections 52, 63, 187 and 190 of the Residential Tenancies Act 2010 (the Act) that would require Frank and Robert Muscat (the landlords) to pay her $6,000.00 (or some greater sum as determined by the Tribunal) for damage and loss she contends she has incurred because of the failure of the landlords to fulfill their general obligations to pass possession of the premises to her in a state fit for habitation and to maintain the premises in a reasonable state of repair. Specifically, the tenant contends that the landlord failed to ensure that there was a supply of clean water to the premises. The loss she contends for is the cost of purchase of fresh drinking water over the six-and-a-half year period of the tenancy. The tenant also applies for orders pursuant to s 65(1) of the Act that will require the landlords to carry out repairs to the water tank provided with the premises (that is, to clean and sanitise it and replace its filtration system), and to install ventilation, clean and treat mould, and repaint the bathroom of the premises. This application was made to the Tribunal on 1 July 2022.

Procedural history

2. The application was originally listed for hearing by the Tribunal, as presently constituted, on 29 August 2022 and 27 September 2022 with a related application by the landlords. The application was not reached on 29 August 2022 and was dismissed on 27 September 2022 due to the tenant’s failure to appear at the hearing. It later emerged that this was due to some inadvertence by her as to the venue at which the hearing had been listed (the original application).

3. On 13 October 2022 the Tribunal, differently constituted, set-aside the order I made on 27 September 2022 and reinstated the application on the application of the tenant, which resulted in the application being re-registered and listed before me for hearing on its merits.

Evidence

4. The tenant attended the hearing in person and gave oral evidence under oath. She relied on a bundle of documents filed on 1 July 2022 in the original proceedings and on a further bundle of documents handed up at the final hearing. These bundles were marked Exhibits A1 and A2 respectively.

5. The landlords were represented at the hearing by Ms Victoria Muscat and Ms Joanne Muscat who both gave oral evidence under oath. They relied upon bundles of documents filed in the original proceedings on 20 June 2022, 20 July 2022, 2 August 2022 and 27 September 2022 and a further bundle of documents handed up at the final hearing. These bundles were marked Exhibits R1 to R5 respectively.

6. I note that both the tenant’s and the landlords’ bundles also contained material concerning a related application made by the landlords which is the subject of a separate decision.

Material facts

7. The dispute arises from a residential tenancy agreement that was made on 8 July 2016. The initial agreement was a fixed term agreement of 6 months duration that was expressed to commence on 8 July 2016 and end on 8 January 2017. The agreement has continued periodically since the lapse of the fixed term.

8. The rented premises is a 3-bedroom house situated on rural land in Richmond Lowlands. The house is surrounded by turf farms operated by the landlords, which it appears are watered from an adjacent water course. There is no specific evidence as to the age of the house, but the parties have approached the issue on the basis that it is of some age and in modest (that is to say, dilapidated) condition. The landlords contend that this condition is reflected in the rent payable for the premises, which was originally $365.00 per week, but has been $380.00 per week since 1 April 2022.

9. The premises is not connected to any water supply authority (town water). Water is supplied to the premises via an adjacent water tank which is filled by rainwater channelled through guttering from the roof and by pumping water from a nearby water course. There is a filter on top of the tank that filters both the roof rain and pumped water. There is a dispute between the parties as to the effectiveness of this filter.

10. On page 2 of the residential tenancy agreement made on 8 July 2016 it is stated that the tenant is not required to pay separately for water usage. The landlords have not charged the tenant for water made available to her from the water tank during the tenancy.

11. The landlords contend that the tenant leased the premises on the understanding that the water supplied to the premises via the tank would be suitable for other household uses, including washing clothing and bathing, but not for drinking. The is no objective contemporaneous evidence of that contention in evidence. It is not a special condition of the residential tenancy agreement. The tenant does not appear to dispute that some conversation or agreement of this nature did take place before or at the time the lease was made. Her case is rather that the landlords never had the right to impose such a requirement.

12. It does not appear that this issue gave rise to any dispute between the parties until approximately May 2022. On 24 May 2022 the tenant wrote to both landlords, via Ms Victoria Muscat, to request urgent repairs to the premises, stating:

…

I am regrettably writing this letter to inform you that due to the recent floods and the condition of the river water, it has been drawn to my attention the water supplied in the water tank to the residential property I have leased from you since 8^th July 2016, under the Residential Tenancies Act 2020 for a residential property to be habitable a landlord must supply clean water for the purposes of drinking not unfiltered river water pumped directly into the water tank via the farms sprinkler system.

This is an urgent matter that needs to be rectified within 7 days.

As it stands today the residential property is classed as inhabitable (sic, uninhabitable) due to the water condition.

…

Whilst looking into the water situation I was going over the tenancy agreement it states under the section

WATER USAGE

Will the tenant be required to pay separately for water usage YES or NO

On the lease agreement there is a tick next to the word NO. Since the commencement of the lease 8^th July 2016 until today’s date I have paid for the supply of all water for usage of drinking and food purposes.

We need to work out now I can be compensated/reimbursed for the inconvenience and water condition of the residential property since the commencement of the lease on 8^th July 20216 until the date of which you have rectified the issue of clean drinking water.

From the date I moved into the residential property it has been classed as inhabitable (sic, uninhabitable) living standards due to the condition of the water supplied. There are some health and safety standards when it comes to the supply of water to a residential property.

There is a serious breach of health and safety conditions as the landlord I need you to rectify this matter urgently by:

Empty the water currently in the water tank.

Thoroughly disinfect and high pressure clean the inside of the water tank

Water pump filter needs replacing – then replacement every 6 months

Gutters need cleaning – this verbally mentioned at the last house inspection

Water tank refilled with clean filtered drinkable water.

…

Finally at the last house inspection I showed you the mould in the bathroom due to the lack of ventilation, this is also an urgent matter that needs to be fixed.

,,,

13. The landlords (Frank Muscat) replied to the tenant’s letter on 13 June 2022, stating as follows (relevantly):

…

Further to your request for urgent repairs I comment as follows:

…

Gutters – Cleaned as requested

Water Tank – As discussed, we are happy to have the tank emptied and cleaned and for you (sic, to) fill this yourself regularly at your expense. Alternatively, you can leave as is and treat the water with chlorine tablets. We can provide a new filter and it will then be your responsibility to maintain it.

We will await your confirmation in regard to the water tanks.

Bathroom Mould – is due to lake (sic, lack) of ventilation we would suggest cleaning the area thoroughly and leaving the bathroom window open throughout the day to allow sufficient air flow to the room.

…

14. The tenant did not make any response to this letter, other than to institute this proceeding on 1 July 2022.

15. As evidence that the water supply to the premises is not clean the tenant relies upon a photograph of the filter on top of the tank (at page 19 of Exhibit A1) which she contends shows it is not clean (but objectively, that cannot be seen). She also relies upon a photograph of a bathroom basin filled with water (at page 20 of Exhibit A1) which depicts the water to be light yellow in colour, and other photographs (at pages 14 to 16 of Exhibit A1) which appear to depict freshly laundered white fabrics with yellow stains.

16. As evidence that the water filtration system is inadequate the tenant relies on a document addressed to her dated 9 June 2022 which is on the letterhead of KHP Services Pty Ltd t/a Ken Hale Plumbing and signed by Brad Wilson. That document states, relevantly:

WATER SUPPLY TO RIDGES LANE RICHMOND LOWLANDS

After attending the property at [address] its my belief that the water is drawn from the river which supplies irrigation to the turf farm and as well as the residence to a storage tank which also has the water discharge from the roof feeding it also.

There is only a single filtration system which supplies the residence; there is no potable water supplied. A larger capacity tank fed by roof water discharge separate from river water is needed, along with an upgraded filtration system to ensure safe usage.

17. However, with respect to this document the landlords have submitted into evidence (pages 1 to 3 of Exhibit R5) email correspondence between Ms Joanne Muscat and Mr Ken Hale dated 20 September 2022 in which he denies that his company ever issued this letter or visited the rented premises.

18. As evidence that the bathroom is affected by mould the tenant relies on two photographs of the ceiling of that room (at pages 17 and 18 of Exhibit A1) which depict mould and flaking paint. I note that there is no issue as to the presence of mould in this room. In this respect, the landlords’ representatives conducted a routine inspection of the premises on 31 October 2022. On 3 November 2022, Ms Victoria Muscat wrote to the tenant about the mould stating (in part):

Bathroom mould has worsened since out (sic) last inspection. See Image A; This problem can be alleviated with good spray with exit mould. If you could regularly open windows it will allow better ventilation to prevent recurrence….

19. The dispute concerning the bathroom mould turns on whether it is the landlords or the tenant who are responsible for the mould. The tenant contends that the bathroom lacks ventilation. However, she has submitted no objective evidence of any lack of ventilation (not even a photograph of the window that she says is of inadequate size). The landlords contend that the mould is the result of the tenant’s failure to properly clean and ventilate the bathroom.

20. The loss the tenant contends for is the price she has paid for clean water over the period of the tenancy. In oral evidence she stated that this was “about” $160.00 per month. If that figure were to be accepted, it would amount to a claim of approximately $12,500.00 over the 78-month period of the tenancy. No evidence of the price paid for water, or its cost, is in evidence. The tenant also contends that she suffered damage in form of laundry costs, because she was unable to wash clothing at home due to the condition of the water. No objective evidence of any such cost incurred has been filed.

Applicable law

21. Section 39 of the Act relevantly provides:

1. Water usage charges payable by tenant

2. A tenant must pay the water usage charges for the residential premises, but only if:

(a)   the premises are separately metred or the premises are not connected to a water supply service and water is delivered to the premises by vehicle.

…

22. Section 52 of the Act provides, relevantly:

1. Landlord’s general obligations for residential premises

2. A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant.

(1A)   Without limiting the circumstances in which residential premises are not fit for habitation, residential premises are not fit for habitation unless the residential premises –

…

(c)   have adequate ventilation.

…

(f)   are connected to a water supply service or infrastructure that supplies water (including, but not limited to, a water bore or water tank) that is able to supply the premises hot and cold water for drinking and ablution and cleaning activities, and

…

1. This section is a term of every residential tenancy agreement.

   23. I note that s 52(1A) was introduced to the Act by the Residential Tenancies Amendment (Review) Act 2018 which came into force on 23 March 2020. It was not a provision of the Act as it was in force when the residential tenancy agreement was made. However, by operation of s 52(4) it became a term of every residential tenancy agreement on and from that date this provision came into force on 23 March 2020.

   24. There is an issue to be determined as whether the landlord obligations enacted by s 52(1A) constituted a change in the law or merely codified existing common law with respect to the requirements for habitability of residential premises. In his Second Reading Speech introducing the Residential Tenancies Amendment (Review) Bill 2018, the Minister for Innovation and Better Regulation stated:

I now turn to some other key reforms in this bill. At a minimum, a tenant should be able to live in a rental property that is safe and secure and does not endanger their health. The bill introduces basic minimum standards that all residential rental properties in New South Wales will be required to meet. This reform will provide greater certainty for both tenants and landlords by clarifying seven essential features a rental property must have as part of being fit for habitation. All rental properties must have adequate ventilation; … be connected to a water supply service or infrastructure that can supply hot and cold water for drinking, ablution and cleaning activities …

… For the vast majority of landlords who maintain their properties, the introduction of these basic minimum standards will not have a practical impact. For landlords with properties that have fallen into disrepair or which lack basic working amenities, these reforms will provide an opportunity to carry out the necessary repairs to ensure tenants are not living in substandard conditions. The Government will consult with stakeholders about the commencement of the new standards to ensure landlords have the necessary time to make any repairs or modifications.

…

25. Section 63 of the Act contains a landlord’s general obligation with respect to the repair and maintenance of premises. It provides, relevantly:

1. Landlord’s general obligation

2. 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.

3. A landlord’s obligation to provide and maintain the residential premises in a reasonable state of repair applies even though a tenant had notice of the state of disrepair before entering into occupation of the residential premises.

…

1. This section is a term of every residential tenancy agreement.

   26. Section 65 of the Act sets out the remedies that are available to a tenant in relation to the disrepair of rented premises. It relevantly provides:

2. Tenants’ remedies for repairs – Tribunal orders

3. Orders for which tenant may apply – The Tribunal may, on application by a tenant make any of the following orders –

   (a)   an order that the landlord carry out specified repairs.

   …

4. Orders for repairs – The Tribunal may make an order that the landlord carry out specified repairs only if it determines that the landlord has breached the obligation under this Act 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.

…

1. In deciding whether to make an order under this section, the Tribunal –

…

(b)   may take into consideration whether the landlord failed to act with reasonable diligence to have the repair carried out.

(3A)   The Tribunal must not determine that a landlord has breached the 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 repair.

…

27. Section 190 of the Act deals with applications to the Tribunal that relate to breaches of residential tenancy agreements. It provides:

1. Applications relating to breaches of residential tenancy agreements

2. A landlord or a tenant may apply to the Tribunal for an order in relation to a breach of a residential tenancy agreement prescribed by the regulations after the landlord or tenant becomes aware of the breach or within such other period as may be prescribed by the regulations.

3. An application may be made –

(a)   during or after the end of a residential tenancy agreement, and

(b)   whether or not a termination notice has been given or a termination order made.

…

28. The prescribed period for the making of an application under s 190(1) is found in Regulation 39(9). It is within 3 months of the applicant becoming aware of the breach.

Consideration

29. To decide the outcome of this application the Tribunal must pose and answer the following questions:

1. Did the landlords have an obligation to the tenant in relation to the supply of water suitable for drinking and other household purposes:

1. When the residential tenancy agreement was made on 8 July 2016; or

2. When s 52(1A) of the Act came into force on 23 March 2020?

2. If so, what was the content of that obligation in the circumstances of this case?

3. Were, and are, the landlords in breach of that obligation?

4. When did the tenant become aware of any such breach, and what is the implication of this, if any, for the time she made her application?

5. What remedy, if any, is the tenant entitled to if breach of s 52(1A)(f) is established?

6. Were and are the landlords in breach of their obligation to the tenant under s 52(1A)(c) to provide the bathroom with reasonable ventilation, or their obligation under s 63 to provide and maintain the bathroom in a reasonable state of repair?

7. If so, what remedy is the tenant entitled to in relation to any such breach?

30. The test at general law for the habitability of premises has remained in essential respects the same for more than 130 years, although the lens through which the test is viewed reflects contemporary standards. Residential premises will be fit for habitation if they may be dwelt in with safety and reasonable comfort having regard to contemporary standards of living: Proudfoot v Hart (1890) 25 QBD 42. However, premises will not be found uninhabitable lightly: De Soleil v Palmhide P/L [2010] NSWCTTT 464.

31. It appears to me that the availability of water suitable for drinking and other basic household purposes is essential to the habitability of premises judged by contemporary standards. Premises cannot be dwelt in either with comfort or safety without the availability of clean water. I am satisfied that this standard for habitability prevailed in 2016 when the residential tenancy agreement was made. Section 52(1A) merely recognised that minimum standard for habitability to bring “certainty” and “clarity” to the issue, to adopt the words of the Minister’s second reading speech as set out above.

32. Compliance with this landlord obligation in the circumstances of this case required that there be in place infrastructure that supplies water, such as a water tank, that is suitable for “drinking” as well as other household purposes. There is really no issue between the parties that the water from the water tank has never been suitable for drinking because it is, in part, pumped from a near-by water course. It is not clean water. There was argument about the quality and effectiveness of the filtration system into the tank, but I did not understand the landlords’ representatives to contend that the filtration system had the capacity to convert the water pumped from the water course into safe, clean, water suitable for drinking.

33. There was an issue between the parties as to whether the tank water is suitable for washing and bathing but having regard to the colour of the water depicted in the tenant’s photograph, I am satisfied that it was also unsuitable for these purposes at least at the time that photograph was taken, which I note was a period in which the water course was in flood.

34. I reach these conclusions without giving any weight to the letter the tenant has submitted, purportedly written by KHP Services Pty Ltd t/a Ken Hale Plumbing, because I cannot be satisfied as to its authenticity.

35. I am therefore satisfied that the landlords were and remain in breach of their obligation to provide the premises in a state fit for habitation with respect to the availability of infrastructure for clean water supply.

36. In most circumstances the temporal focus for the obligation contained in s 52 is the date possession of the premises passes from the landlord to the tenant at the start of the residential tenancy agreement. Nevertheless, the obligation to “provide” premises fit for habitation is a continuing one. Breach of that obligation in the circumstances of this case has also been continuous throughout the tenancy. That is, it has occurred each day successively during the tenancy.

37. Even if I were to be wrong in that characterisation of the obligation, as the Minister makes clear in his Second Reading Speech, the obligation was enlivened by the minimum standards for habitability when they came into force on 23 March 2020. Landlords were provided the opportunity to carry out necessary repairs to meet these minimum standards before s 52(1A) came into force.

38. As noted above, an application in relation to a breach of a residential tenancy agreement must be made within 3 months of the applicant becoming aware of the breach. There is some uncertainty as to how this issue is to be approached in this case. The tenant clearly knew that the tank water was not suitable for drinking from the start of the tenancy in July 2016. However, it would appear from the terms of the letter she wrote to the landlords dated 24 May 2022 that she had only recently become aware that this constituted a breach of the residential tenancy agreement. Her application was made on 1 July 2022 which is within 3 months of 24 May 2022.

39. As I have set out above, the landlords breach of s 52 was continuous, recurring each day during the tenancy. The tenant’s application is therefore clearly within time in respect of the 3-month period prior to 1 July 2022 when her application was made. However, to pursue any claim for compensation from the landlords prior to April 2022 she requires an extension of time to be granted pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW).

40. The Tribunal’s discretion under s 41 to extend the time in which an application may be made is unfettered, but it must be exercised judicially having regard to established principle. In short summary, time limits are to be strictly enforced unless to do so would work an injustice to an applicant. The relevant considerations are the length of the delay, the applicant’s explanation for the delay, any prejudice that would be suffered by the respondent if time were to be extended, and the merit of the applicant’s claim. If the delay is relatively short the applicant must establish that they have an arguable case. If the delay is more extensive, they must show that their case has substantial merit: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22.

41. A delay of more than six years in making an application is a very substantial delay that weighs heavily against an extension of time being granted.

42. The tenant’s explanation of the delay is essentially ignorance of the applicable law. I do not consider this an acceptable explanation for the delay. Particularly after the amendment of the Act in March 2020 the minimum standards for the habitability of premises (including clean water) have been widely publicised, including by NSW Fair Trading and Tenant Advice and Advocacy Services. The tenant could readily have clarified her rights upon the making of reasonable enquiries or undertaking reasonable research. This consideration weighs against time being extended for the application to be pursued before 1 April 2022.

43. I consider that there would be substantial prejudice to the landlords if the tenant were to be granted leave to bring the claim in respect of the whole period of the tenancy. They would potentially be exposed to liability for compensation in respect of a period in which they were not on notice as to any complaint about water quality (as to which see further following).

44. Additionally, and decisively, the compensation claim has poor prospects of success because the tenant has failed to submit any satisfactory evidence to prove it.

45. In considering whether an extension of time should be granted I also take account of the tenant’s obligation to mitigate any loss that is consequential upon a breach of an obligation by the landlords. In this case there is no evidence of any complaint by the tenant about her inability to use the tank water for drinking before her letter to the landlords on 24 May 2022. The landlords’ representatives contended, and I did not understand the tenant to contradict this, that the complaint about being unable to use the water for washing was not made until the tenant’s first bundle of evidence was filed in these proceedings on 1 July 2022. In these circumstances I cannot see how it could be said that the tenant took reasonable steps to mitigate her loss before 24 May 2020.

46. This is an issue of causation. That is, any loss incurred by the tenant in relation to the purchase of water and commercial laundry fees before that date resulted from her own failure to put the landlords on notice as to their breach and require action for its remedy.

47. I thus conclude that this is not an appropriate case for the exercise of discretion to extend the time in which the application can be made beyond the 3-month period before 1 July 2022.

48. I now turn to the question of what loss, if any, the tenant has suffered because of the landlords’ breach of their general obligation regarding the habitability of the premises from 1 April 2022 up to the date of the hearing.

49. The tenant approaches the matter on the basis that the landlords are liable to repay her all the costs she incurred in purchasing water for drinking during the whole period of the tenancy. She contends this is the case because the residential tenancy agreement did not require her to pay for water, but she was obliged to do so because the tank water could not be used for drinking. She also contends that she is entitled to be compensated the costs of laundry fees she has incurred because the tank water was not suitable for washing.

50. The difficulty for the tenant is that she has presented no objective or corroborating evidence of any expenditure on water for drinking. Nor is there any objective or corroborating evidence of commercial laundry costs incurred. The Tribunal must do the best that it can on the evidence before it to assess loss: Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 at 31; (1992) 174 CLR 64. However, where there is no evidence at all, no assessment is possible. In these circumstances, the tenant can only be entitled to nominal damages. I will allow her $100.00 in this regard.

51. I now turn to the tenant’s application for orders for repairs.

52. There can be no issue that the tenant’s letter of 24 May 2022 put the landlord on notice as to the breach of ss 52(1A) and 63 with respect to the condition of the water tank. The landlords responded to that letter on 13 June 2022, but having regard to the applicable law, that response was not satisfactory. The landlords reasonably agreed to arrange for the tank to be emptied of its current water and cleaned and to replace the filter. But they also required the tenant to pay for water deliveries, which was not a term of the residential tenancy agreement (the tenant is not liable to pay water usage under the agreement).

53. The landlords also required the tenant to maintain the filter after its replacement. This is clearly a general maintenance obligation of a landlord, not a tenant. I am thus satisfied for the purposes of ss 65(2), (3) and (3A) with respect to the supply of clean water to the premises that the landlord was and is in breach of the obligation to maintain the water tank in a reasonable state of repair, has been on notice as to that default since 24 May 2022, and has failed to carry out the necessary repairs with reasonable diligence. I will therefore make orders requiring the necessary repairs to be completed before 28 February 2023. This will require the disconnection of the water supply from the water course, the installation of a satisfactory filtration system for roof run-off water, and the cleaning and sanitisation of the water tank.

54. I accept that there may be a degree of uncertainty in the legislation as to whether in the circumstances of this case the landlords’ obligation is to supply only the infrastructure for the provision of clean water or whether they must also supply that clean water for distribution through that infrastructure. However, having regard to the terms of s 52(1A)(f) and 39(1)(a) I think the better view is that the landlords are responsible for both the infrastructure and the supply of clean water to premises. In this respect, s 39(1)(a) makes it permissible for a landlord to charge a tenant for water usage in such circumstances (although the residential tenancy agreement does not permit this in this case). The statutory regime constituted by s 39 of the Act does not appear to me to contemplate a situation in which a tenant is responsible for the supply of water to premises. I will therefore also order that upon completion of the repairs to the water tank referred to above, the landlords arrange for it to be filled with clean water, and that they maintain it at least at 50% capacity in future.

55. The residential tenancy agreement that subsists between the parties does not permit the landlords to charge the tenant for water usage. I acknowledge that the provision of clean water to the premises by the landlords will be a further impost in terms of their outgoings. However, the landlords are not without a remedy in relation to this impost. It is open to them to increase the rent payable for the premises to take account of this additional outgoing (provided of course they do so in accordance with the requirements of s 41).

56. Alternatively, they may attempt to negotiate a variation to the residential tenancy agreement with the tenant to provide that she is responsible for water usage charges in accordance with s 39(1)(a). The latter would, of course, require the landlords to comply with each of the other s 39 pre-conditions necessary before a tenant can be liable for water usage charges.

57. I now turn to the tenant’s application for an order that would require the landlords to carry out repairs to the bathroom of the premises to increase ventilation, remove and treat mould, and repaint.

58. This element of the tenant’s application must fail for want of satisfactory evidence capable of proving breach of a landlord obligation. While there is no issue that there is mould on the ceiling of the bathroom, the landlords will only be liable for its removal and treatment if its existence results from some structural defect in the premises (such as water ingress). The tenant says that there is a structural defect in the form of a lack of ventilation of the bathroom, but that is not proved. It is a bare assertion only. There is no evidence of a builder or mould treatment specialist or other suitably qualified person to establish that fact. There is not even a photograph of the bathroom window which the tenant contends is in adequate. The landlords contend that the mould is the result of the tenant’s failure to ventilate and clean the bathroom. That is a plausible alternative explanation for the existence of the mould.

59. For the foregoing reasons, this element of the application must be dismissed.

Orders

60. For the foregoing reasons, I make the following orders:

1. The landlords, Frank Muscat and Robert Muscat must cause the undertaking of the following work in a proper and workmanlike manner before 28 February 2023:

1. Permanently disconnect the tank from the water supply from the local water course.

2. Establish and maintain a filtration system at the top of the tank that ensures that only clean rainwater enters the tank.

3. Empty all water from the tank.

4. Thoroughly clean and sanitise the interior of the tank.

5. Upon completion of the above, fill the tank with clean water suitable for drinking ensuring that it remains full to at least 50% capacity at all times.

2. The landlords, Frank Muscat and Robert Muscat must pay the tenant, Hailee Moffatt, $100.00 immediately.

3. The application is otherwise dismissed.

**********

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

21 August 2023 - Formatting amendments.

Decision last updated: 21 August 2023