Mudford v Hunt
[2022] NSWCATCD 199
•27 October 2022
Civil and Administrative Tribunal
New South Wales
- Amendment notes
Medium Neutral Citation: Mudford v Hunt [2022] NSWCATCD 199 Hearing dates: 27 October 2022 Decision date: 27 October 2022 Jurisdiction: Consumer and Commercial Division Before: D Moss, General Member Decision: On 27 October 2022 the following orders were made: The landlord, Kellie Hunt, is to pay the tenant, Debbie Karen Louise Mudford, the sum of $2,100.00 on or before 17 November 2022.
Catchwords: COMPENSATION - whether landlord failed to keep premises in reasonable repair; compensation claim by tenant.
Legislation Cited: Residential Tenancies Act, 2010
Category: Principal judgment Parties: Debbie Karen Louise Mudford, (the tenant), (Applicant)
Kellie Hunt, (the landlord), (Respondent)Representation: Debbie Karen Louise Mudford appeared in person.
Kellie Hunter was represented by her managing agent, Ms Dean.
File Number(s): RT 22/28686 Publication restriction: Unrestricted
REASONS FOR DECISION
The application
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On 28 June 2022, the tenant made an application for orders under Sections 45, 65(1)(a) and 187(1)(c) of the Residential Tenancies Act 2010 (NSW).
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The tenant sought an order reducing the rent payable; an order that the landlord carry out repairs to the residential premises; and an order that the landlord pay the tenant $7,500.00 compensation.
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The application was listed in a group list at Newcastle on 25 July 2022. The matter was adjourned for formal hearing and the Tribunal made procedural directions for the filing and exchange of evidentiary documents.
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The matter was listed for hearing before Tribunal Member D. Moss at Gosford on 27 October 2022.
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The tenant appeared in person.
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Ms Dean appeared on behalf of the landlord.
Jurisdiction
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The Tribunal has jurisdiction to make orders in accordance with the provisions of the Residential Tenancies Act 2010, NSW, (“the RT Act”).
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The Act applies to tenancy agreements in respect of residential premises in New South Wales.
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The Tribunal is satisfied that there was a residential tenancy agreement between the parties in respect of residential premises at Weston NSW.
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Section 187(1)(d) of the RT Act provides that the Tribunal may, on application by a landlord or a tenant, make an order as to compensation.
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Section 187(2)(b) provides that, without limiting the Tribunal’s power to make an order as to compensation, the Tribunal may order compensation to be paid for any breach of a residential tenancy agreement.
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However, the Tribunal must not make an order for the payment of an amount that exceeds the prescribed amount, (currently $15,000.00).
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The Tribunal has jurisdiction to hear and determine the application.
The evidence for the tenants
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Ms Mudford gave affirmed evidence to the Tribunal.
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Ms Mudford’s evidentiary documents were admitted into evidence and marked Exhibits “1” and “2”.
The evidence for the landlord
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Ms Dean gave affirmed evidence on behalf of the landlord.
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The Landlord’s evidentiary documents were admitted into evidence and marked Exhibits “3” and “4”.
The Decision
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The parties signed a residential tenancy agreement on 22 July 2021.
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The tenancy agreement gave the tenant the right to occupy residential premises at Weston NSW for value, namely the payment of rent in the sum of $390.00 per week.
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The residential tenancy agreement has been terminated and possession of the premises was returned to the landlord on 15 August 2022.
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Section 52 of the RT Act provides that the landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant.
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Section 63 of the RT Act provides:
(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.
(2) A landlord’s obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises.
(3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant’s breach of this Part.
(4) This section is a term of every residential tenancy agreement.
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Having carefully considered all of the evidence and the submissions, the Tribunal finds that there were ants in the kitchen of the residential premises at the commencement of the tenancy. This was a breach of the landlord’s obligation under Section 52 and/or Section 63 of the RT Act.
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The Tribunal finds that, as a result of the landlord’s breach, the tenant paid $360.00 for pest control.
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The Tribunal finds that the tenant mitigated her losses in respect of this breach.
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The Tribunal finds that the tenant has established an entitlement to be paid $360.00 compensation for pest control for ants.
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At a routine inspection on 29 October 2021, the landlord’s agent became aware that the hot water system was leaking.
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On 15 November 2021, the landlord’s contractor replaced a relief valve for the hot water system.
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On 27 December 2021, the tenant sent an email to the landlord’s agent advising that there was no hot water.
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On 4 January 2022, the landlord’s contractor replaced the hot water system.
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The Tribunal finds that the hot water system was not in reasonable repair.
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Because the hot water system was not in reasonable repair, the tenant suffered loss and damage, in the nature of excessive water and gas bills.
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The Tribunal finds that the landlord should compensate the tenant for the period from 29 October 2021, (the date that the landlord’s agent became aware that the hot water service was leaking), to 4 January 2022, (the date that the hot water service was replaced).
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The Tribunal assesses the amount of compensation for excessive gas costs due to the faulty hot water system to be $188.84.
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The Tribunal assesses the amount of compensation for excessive water usage to be $171.95.
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On 26 November 2021, the tenant emailed the landlord’s agent and advised that the dishwasher was not working.
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The Tribunal finds that the dishwasher was not in reasonable repair for the period 26 November 2021 until the date that the tenant vacated, 15 August 2022.
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The Tribunal finds that, as a result of the landlord’s failure to repair or replace the dishwasher, the tenant suffered inconvenience, loss and damage.
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The Tribunal assesses the amount of compensation to be 34 weeks @ $20.00 per week, which is equivalent to a rent reduction of approximately 5% for this period.
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On 14 November 2011, the tenant advised the landlord’s agent that a gate had blown off in windy weather.
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The Tribunal finds that although the landlord obtained a quote on 18 February 2022 to replace the gate, the gate was not replaced before the tenant vacated on 15 August 2022.
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The Tribunal finds that as a result of the landlord’s failure to repair or replace the gate, the tenant suffered inconvenience, loss and damage, and a significant reduction of security and privacy.
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The Tribunal assesses the amount of compensation for the landlord’s failure to repair or replace the gate to be 35 weeks @ $20.00 per week, which is equivalent to a rent reduction of approximately 5% for the relevant period.
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The balance of the tenant’s application for compensation is dismissed because the Tribunal is not satisfied (on the civil standard of proof) that the grounds to make further orders against the landlord have been established.
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The Tribunal finds that the damage to the tenant’s car was not caused by a breach of the tenancy agreement by the landlord.
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The Tribunal finds that the tenant has not established an entitlement to further compensation arising from the ant problem. The pest treatment undertaken at the tenant’s cost was the appropriate remedy.
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The Tribunal finds that the tenant failed to mitigate her losses in relation to the lack of a proper plug for the kitchen sink.
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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
09 February 2023 - Formatting.
06 September 2023 - Formatting amendments.
Decision last updated: 06 September 2023
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