Paul Tony DeBono and Lisa Marie Reviglio v Rebecca Ferguson

[2014] NSWCATCD 117

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Paul Tony DeBono and Lisa Marie Reviglio v Rebecca Ferguson [2014] NSWCATCD 117
Hearing dates:	2 June 2014
Decision date:	09 July 2014
Before:	G J Sarginson, General Member
Decision:	1. The landlord, Rebecca Ferguson, is to pay the tenants, Paul Tony DeBono and Lisa Marie Reviglio the sum of $2,500.00 on or before 30 July 2014.
Catchwords:	Failure to repair residential premises by landlord Compensation to tenant
Legislation Cited:	Residential Tenancies Act 2010 Civil and Administrative Tribunal Act 2013 Residential Tenancies Regulation 2010
Cases Cited:	Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313 Jones v Bartlett (2000) 205 CLR 166 Sakaua v Williams [2005] NSWCA 405
Texts Cited:	Residential Tenancies Law and Practice NSW 5th edition
Category:	Principal judgment
Parties:	Paul Tony DeBono and Lisa Marie Reviglio (applicants) Rebecca Ferguson (respondent)
File Number(s):	RT 14/09533

reasons for decision

BACKGROUND

1. The dispute involves the applicants (the tenants') claim for compensation under Section 187 of the Residential Tenancies Act 2010 ('the Act') due to the respondent ('the landlord') allegedly failing to conduct repairs of the property within a reasonable period of time, in breach of Section 63 of the Act. Although it is not clearly set out in the application filed with the Tribunal, a claim was also brought for compensation due to loss of quiet enjoyment under Section 50 of the Act, by reason of the alleged actions of the licensee of the agency, Mr Creighton; and the tenants not being given notice of tradespersons engaged by the landlord attending the property. The tenants also claim loss of quiet enjoyment due to prospective purchasers viewing the property without reasonable notice.

1. The parties entered into a written standard form residential tenancy agreement on 4 October 2013 in respect of a house, garage and shed at Tahmoor. The rent was $500.00 per week; the house was 5 bedrooms; and the lease of 6 months duration. Proceedings were filed with the Tribunal on 17 February 2014. The proceedings filed with the Tribunal contained, in addition to the claim for compensation under Section 187 of the Act, claims for a rent reduction under Section 44 of the Act and a claim that the rent for the property be paid to the Tribunal until repairs were conducted. However, the claims under Section 44 of the Act and that rent be paid to the Tribunal became irrelevant, as the tenants gave vacant possession of the property on 5 April 2014, after an end of fixed term notice was served by the landlord.

1. The matter was listed before the Tribunal on 10 March 2014 when it was listed for hearing and directions made in respect of the parties filing and serving evidence. Prior to the matter being listed for hearing, the timetable for the filing and serving of evidence by the parties was extended.

1. Prior to the matter proceeding to hearing on 2 June 2014, the Tribunal encouraged the parties to resolve the matter, in accordance with its statutory obligations under Section 37 of the Civil and Administrative Tribunal Act 2013. However, it was apparent that there was a significant degree of animosity between the parties, which affected the ability of the parties to think rationally about the issues in dispute.

1. The issues in dispute were further clouded by the fact that Mr DeBono and Mr Creighton had been friends when the tenants entered the lease, and the friendship had been fractured in about January 2014 over a dispute involving work Mr DeBono had performed as a tradesman. This dispute had nothing to do with the condition of the residential premises. Prior to this falling out, Mr DeBono stated that he had spoken orally to Mr Creighton about the issue of repairs to the property, rather than contacting the property manager Ms Richards. Further, the landlord's husband, Neil Ferguson, apparently performed handyman activities/repairs to the property, and Mr DeBono stated he contacted the landlord's husband, in respect of issues requiring repairs. No statement or oral evidence to the Tribunal was provided by Mr Ferguson.

1. As well, according to Mr DeBono, one of his mobile telephones had been lost, which he claimed contained a number of text messages evidencing complaints about the condition of the property to the landlord. However, Mr DeBono's other telephone, which contained text message exchanges between himself and Mr Creighton, clearly remained in his possession as the Tribunal was provided with copies of such exchanges.

THE CLAIM

1. The tenants did not quantify the claim for compensation in the application filed with the Tribunal, but orally asserted that they were seeking the jurisdictional limit of the Tribunal. The issues pertaining to repair of the premises can be summarised as follows:

(a)   Failing to repair the septic tank at the premises, and failing to compensate the tenants for Mr DeBono digging a new trench to assist in the repair of the septic tank system in November 2013;

(b)   Failing to repair a gas regulator at the property, which meant the tenants could not use the gas stove. An electric stove was installed in December 2013,

(c)   Failing to repair a leaking roof in the premises and leaking roof in the shed;

(d)   Failing to perform repairs to guttering and install a downpipe, causing water to pool in the patio area;

(e)   Failing to perform repairs or replace the TV aerial, which meant there was poor or non-existent television reception;

(f)   Performing negligent repair work on an electricity meter box, which caused an electric shock to the tenant's daughter;

(g)   Failing to provide a pool filter and perform repairs so that the pool filtration system was working;

(h)   Failing to repair electrical power points in the premises.

(i)   The tenants claim for loss of quiet enjoyment was based on the following alleged conduct;

(j)   Text messages and Facebook posts by Mr Creighton;

(k)   Tradespersons attending without notice and leaving pool fence material without notice;

(l)   Prospective purchaser's attending without notice whilst the property was being shown for sale in February/March 2014.

JURISDICTION

1. The dispute involves residential premises, and the Tribunal clearly has jurisdiction under the Residential Tenancies Act 2010. The proceedings have been brought within the relevant limitation period under Regulation 22 of the Residential Tenancies Regulation 2010.

TENANTS EVIDENCE

1. The tenants gave sworn oral evidence, and Mr DeBono was cross examined. The tenants also relied upon documents as follows:

(a)   Letter to the landlord's agent dated 16 December 2013 setting out their complaints about failure to repair and emails sent to the landlord's agent;

(b)   Photographs of the premises;

(c) Copies of documents produced by Endeavour Energy (both a letter dated 3 February 2014 and a document obtained under the GIPA in respect of Endeavour Energy attending the premises on 16 December 2013;

(d)   Copies of various text messages and Facebook posts involving the tenants and Mr Creighton;

(e)   A document setting out the health risks of sewerage spills;

(f)   Bureau of meteorology records downloaded from the internet setting out the rainfall at Picton in 2013 per month;

(g)   Copies of extracts from the tenants' diary in March 2014 about inspections of the property and cancellation of inspections.

1. Mr DeBono, rather than Ms Reviglio, gave the majority of the evidence for the tenants. His evidence can be summarised as follows:

Septic Tank/Septic System

1. Mr DeBono stated that, immediately after the tenants moved into the property, the toilets were "overflowing" and the septic tank pump would block. He stated that he pumped out the septic tank "every day" so that the toilets could be used, pumping the sewerage onto "the front paddock". According to Mr DeBono, he complained on a number of occasions to the agency (by way of telephone calls and text messages) about the toilets, but nothing was done. He stated that he spoke to Neil Ferguson, who knew that the raw sewerage was being pumped onto the paddock. Mr Ferguson allegedly told Mr DeBono that he could not afford to have repairs performed. According to Mr DeBono, an oral agreement was reached between himself and Mr Ferguson that Mr DeBono would fix the septic system by digging a new trench, and Mr Ferguson supplied materials (including domes and gravel). Mr DeBono asserted that the oral agreement was that the landlord would pay for the work, either by way of payment or a rent reduction.

1. Mr DeBono stated that the agreement between himself and Mr Ferguson was that the cost of the work performed by Mr DeBono was $100.00 per hour. Mr DeBono asserted that it took him 2 days to perform the work (7 hours per day) and the repairs were completed by the end of November 2013. From that point, there were no further problems with the septic system. In December 2013, Mr DeBono sent the landlord an invoice for the work performed.

1. In his letter to the landlord's agent dated 16 December 2013, Mr DeBono complained of the inoperative septic system and the work he had performed to repair it. The tenants further complained to the agent about the septic system in an email dated 19 December 2013. In that email, Mr DeBono refers to "issues with the house", but the only issues specifically referred to are the septic tank/septic system (including the landlord's failure to pay the invoice) and "the power incident when my whole family was shocked". He asserts in the email that he had spoken to the agent previously "on several occasions by phone" and had been told the agent would speak to the landlord and get back to him. Ms Richards, the property manager, responded by email that she would get instructions from the landlord, and had "suggested a rent reduction" to the landlord. Ms Richards stated in the email "Just in the future can you please inform our office of any issues as soon as they occur so I can deal with them for you".

Gas Regulator/Oven

1. Mr DeBono asserted that the property did not have a properly connected gas regulator when the tenants moved in. The stove was connected to gas, but there were gas fumes when the oven was used, and it was unsafe to do so. He stated that he could not use gas bottles, as he had been informed by a tradesperson that it was unsafe to use such bottles without a properly connected gas regulator. Mr DeBono stated that, because the oven could not be used, he complained to Mr Ferguson. Mr DeBono stated that he and his family had to get meals cooked at his mother's residence because the family could not use the stove.

1. According to Mr DeBono, Mr Ferguson agreed to replace the gas oven with an electric stove, and the stove was replaced by Mr Ferguson at the end of December 2013. Mr DeBono stated the stove was "second hand" and although it operated, it did not do so efficiently.

1. Mr DeBono's letter to the agent dated 16 December 2013 complains of the inoperative gas oven. Mr DeBono's email to the agent dated 19 December 2013 makes no mention of the oven, but an email dated 24 December 2013 by Mr DeBono to the agent refers to the tenants attending the office of the agent on 23 December 2014, and being told, amongst other things (including that the landlord had refused a rent reduction on the basis that the tenants had leased the property knowing what condition it was in) that Mr Ferguson had told Mr DeBono that an electrician would soon arrive to "hook up" the stove that had been delivered.

Electricity Meter Box

1. According to Mr DeBono, he and his wife suffered mild electric shocks whist showering on 15 December 2013. He stated that he telephoned Mr Ferguson, who came to the property that night after work and placed a second earth wire into the meter box, telling Mr DeBono the problem was fixed. Mr DeBono stated that the following day his teenage daughter suffered a mild electric shock when showering on 16 December 2013. Mr DeBono telephoned Endeavour Electricity, who sent a representative to identify and fix the problem. The letter of Endeavour Electricity dated 3 February 2014 states that the cause of the problem was located in a power pole (rather than at the premises) and fixed on 16 December 2013. Mr DeBono states that he complained to the agent and also notified Funnells Electricians (the electrician listed on the residential tenancy agreement as to whom he should contact in an emergency). Mr DeBono and his family went to their GP on 17 December 2013 regarding the electric shocks, but the medical report by the GP (which was tendered as part of the tenant's evidence) did not indicate any significant injury or medical condition caused by the shocks.

1. In his emails to the agent in December 2013, and the letter dated 16 December 2013 addressed to the agent, the Mr DeBono complain that his family's health was placed in jeopardy as a result of Mr Ferguson, who is not a licenced electrician, performing work on the metre box.

Pool Pump/Filter

1. Mr DeBono stated that when the tenants moved into the property the water in the pool was green and the pool dirty. He asserted that there was no pool filer in the pump, and when the tenants moved into the property Mr Ferguson had promised to fix the pool. According to Mr DeBono, the tenants drained the pool on a number of occasions, and cleaned it. He asserted that Mr Ferguson also drained the pool in late November or early December 2013, and "dropped off unannounced" a pool filer on 13 December 2013. However, Mr DeBono asserted that the pool filer had "never been connected" by Mr Ferguson, and that he and his family had only been able to use the pool on a few occasions because the water became dirty.

1. Notably, the ingoing inspection/condition report dated 4 October 2013 (which was tendered as part of the landlord's evidence) states that the landlord promised to perform the following work by 4 November 2013: "installation of pool pump and pool fence". Mr DeBono's letter to the agent dated 16 December 2013 also complains of problems with the pool.

Pool Fence

1. Mr DeBono asserted that the pool fence was not installed until 3 weeks before the end of the tenancy, and asserted that he had lost quiet enjoyment because materials for the construction of the fence had been left on the property and tradespersons had attended the property unannounced. Mr DeBono also asserted that the lack of a pool fence meant that the landlord was in breach of its statutory obligations, and that a friend's young daughter had fallen into the pool on one occasion.

Leaking Roof/Guttering

1. Mr DeBono asserted that there was a "cracked ceiling in the office" and that the roof leaked water when it rained. There were also water leaks in the dining room and garage. He stated that Mr Ferguson attended the property and replaced 5 tiles, but the roof continued to leak. Mr DeBono's letter to the agent dated 16 December 2013 complains of such leaks. He elaborated upon this in his evidence by asserting the leaks were severe, and that the tenants' property was damaged by water leaks. However, the photographs tendered by the tenant did show mould or damage to property, but they did show holes in a ceiling of the property, and what appears to be a water mark.

1. In respect of the outside of the property, Mr DeBono asserted that there were leaks in the guttering and a downpipe which was missing, causing water to pool when there was heavy rain. Photographs tendered by the tenant showed the pooling of water in heavy rain. Mr DeBono's letter of 16 December 2013 does not mention the guttering or absence of the downpipe as an issue requiring repair by the landlord.

TV Reception

1. Mr DeBono asserted that the property had, at all relevant times, limited TV reception. He stated that Mr Ferguson had been to the property approximately 4-5 weeks after the tenants moved in, and laid new cables in the roof, but the reception did not improve. In Mr DeBono's letter of 16 December 2013, he complained of poor TV reception, and that the agent had recommended Mr DeBono speak to "a TV/antenna person" who had told him the house needed a new aerial and cables at a cost of $640.00.

Power Points

1. Mr DeBono asserted that some of the power points in the property did not work. He stated that he had complained to Mr Ferguson about this. According to Mr DeBono, Mr Ferguson attended the property and replaced a fuse in the meter box, but this did not fix the problem. In his letter to the agent dated 16 December 2013, Mr DeBono complained of "lights flickering" and having lost food in the freezer because the power tripped.

Condition of the Shed; the Garage; and Fences

1. Mr DeBono asserted that the condition of the shed and garage were generally poor, with leaks causing damage to his property. He further asserted that fences at the property kept falling down, and Mr DeBono restored them after they fell down. He stated that he had orally complained to Mr Ferguson on a number of occasions about the need for repairs, and Mr Ferguson had replied he didn't have the money to perform such repairs. Mr DeBono's letter to the agent dated 16 December 2013 does not raise such issues, nor does his emails to the agent dated 19 and 24 December 2013.

LANDLORD'S EVIDENCE

1. Ms Ferguson, Ms Richards and Mr Creighton gave sworn evidence and were cross examined. As discussed above, Mr Ferguson was not present at the Tribunal to give evidence, nor was there any sworn (or unsworn) statement by him served in the proceedings.

1. The landlord also relied upon the following documents:

(a)   The residential tenancy agreement;

(b)   The ingoing inspection/condition report;

(c)   Photographs taken at the end of the tenancy;

(d)   The letter from Endeavour Energy to the tenants dated 5 February 2014;

(e)   A Certificate of Registration from the NSW Swimming Pool Register for the pool at the property dated 4 March 2014;

(f)   The tenants' application to rent the property;

(g)   The rental ledger;

(h)   An undated 'reply to points mentioned in application' prepared by Ms Richards.

1. Ms Richards stated that the first time she had been contacted by the tenants about any issue of the property requiring repairs was on 16 December 2013. She asserted that she had informed the landlord about the tenants' complaints, and the tenants had not followed up the alleged failure of the landlord to perform repairs with her. In respect of the allegation that the agent had failed to give notice of inspections of the property, Ms Richards denied this.

1. Mr Creighton stated that Mr DeBono did make oral complaints to him regarding the condition of the property, but he told Mr DeBono to raise any issues with the property manager Ms Richards, rather than him. Mr Creighton confirmed that he and Mr DeBono were friends when the tenancy had commenced, but had fallen out in about January 2014.

1. Ms Ferguson asserted that the septic tank/system was operational, and that her husband and Mr DeBono decided it was "a good time" to dig a new trench to improve the system. She asserted that there was an oral agreement between Mr DeBono and Mr Ferguson that there be a rent reduction of $500.00. Ms Ferguson stated that the claim by Mr DeBono of there being an agreement for anything above that figure was incorrect, and that Mr DeBono only raised the issue of payment when the tenants fell behind in rent.

1. In respect of the stove, Ms Ferguson agreed that the electric stove had only been installed at the end of December 2014, but could have been installed a week earlier but that Mr DeBono had told her husband to come back as it was not a convenient time. Ms Ferguson asserted that the 'electric shocks' suffered by the tenants and their daughter were due to the fault of Endeavour Energy, and that her husband had not installed a further earth to the metre box. She stated that the power points in the property were operational, and any problems with the power tripping were due to the tenants' electrical equipment.

1. Ms Ferguson denied that the pool pump did not work, and asserted that her husband had provided a new filter. According to Ms Ferguson, any problem with the pool not being clean was due to the tenants failing to maintain it. She denied that the pool breached any statutory obligations by not having a fence (due to when the pool was built), and stated that the fence was eventually installed.

1. Ms Ferguson was adamant that the first notification she and her husband had about repair issues with the property was Mr DeBono's email of 16 December 2014

1. Notably, the landlord's documents contained an email from Ms Ferguson to Ms Richards dated 22 December 2013. In summary, the email states that "the electrical issues have been repaired"; the septic system "always functioned"; the swimming pool fence "is on order"; the oven "is being replaced"'; the roof "has been repaired despite the tenant climbing onto the roof and breaking a further 5 tiles"; the "internal ceiling" is "awaiting insurance" and "roof repairs are awaiting insurance implementation". Mrs Ferguson states in the email that "there will be no deduction of rent" because the tenants decided to rent the property in the condition it was in.

LEGAL PRINCIPLES

1. The landlord's obligations in respect of the repairing residential premises is set out in Section 63 of the Residential Tenancies Act 2010, which relevantly 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, rent payable for and prospective life of the premises.

(2)The 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 the occupation of the residential premises.

(3)The 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.

...

1. Pursuant to Section 65 of the Act, the tenant may apply to the Tribunal for an order that the landlord carry out repairs, or an order that the landlord reimburse the tenant the amount for urgent repairs carried out by the tenant. Under Section 65(2), the Tribunal only make an order regarding repairs "...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. Section 65(3) of the Act states as follows:-

65 Tenant Remedies for Repairs

...

(3) The Tribunal must not determine that a landlord has breached the obligation unless it is satisfied that:-

(a)the landlord had notice of the need for the repair or ought reasonably to have known of the need for the repair, and

(b)the landlord failed to act with reasonable diligence to have the repair carried out.

1. There is no breach of the landlord's obligation to repair premises under Section 63 of the Act (as distinct from an obligation to provide remises at the commencement of the tenancy which are reasonably clean and fit for human habitation under Section 52 of the Act) unless the landlord is aware (or should reasonably be aware) of the need for repairs, and fails to act in a reasonably timely manner to conduct such repairs (or does not conduct adequate repairs: Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313 at 370-371; Jones v Bartlett (2000) 205 CLR 166 per Gleeson CJ at 176 and Callinan J at 239; Sakaua v Williams [2005] NSWCA 405)

1. In respect of compensation for breach of a landlord's obligation under Section 63 of the Act, the relevant legal principles are summarised in Anforth, Christensen and Taylor, Residential Tenancies Law and Practice NSW 5th edition (Federation Press, 2011) at pp 258-295 (and in particular, the table of comparative verdicts at pp 274-295). Further, as in any proceedings involving the award of damages for breach of contract, if the landlord has committed breach, damages are not recoverable unless the tenant has taken all reasonable measures to mitigate the tenant's loss. The landlord bears the onus of proof in respect of failure to mitigate.

1. Section 50(1) of the Act relevantly provides that a tenant is entitled to quiet enjoyment of residential premises without interruption by the landlord (or person claiming through the landlord. Section 50(2) relevantly provides that a landlord, or landlord's agent, must not "interfere with, cause or permit any interference with, the reasonable peace, comfort or privacy" of the tenant.

APPLICATION OF LEGAL PRINCIPLES TO FACTS

1. As discussed above, the fact finding process in this matter has been made more difficult by the relative lack of contemporaneous documents such as emails or text messages from the tenant to the agent and/or the landlord; the absence of any evidence from Mr Ferguson; and the acrimonious current relationship of the parties.

1. The Tribunal does not accept that the tenants have proved to the requisite standard of proof any loss of quiet enjoyment of the property. The Tribunal has viewed the text messages/Facebook posts involving Mr DeBono and Mr Creighton. The Tribunal does not regard such interactions as constituting a loss of quiet enjoyment of the property. The Tribunal is not satisfied that the tenants have proved to the requisite standard that tradespersons coming onto the property (of which Mr DeBono gave vague evidence, and there is no significant contemporaneous documentary verification of complaints) nor potential purchasers coming onto the property constitutes a breach of the right to quiet enjoyment under Section 50 of the Act.

1. The Tribunal is satisfied the tenants have proved the landlord breached its obligation under Section 63 of the Act to perform repairs, and keep the property in a reasonable state of repairs. Even if there is some doubt as to what oral complaints were made by Mr DeBono prior to 16 December 2013 regarding the items which required repair, his letter of 16 December 2013 clearly sets out the issues at the property requiring repairs. This was followed up by emails to the landlord's agent dated 19 December 2013 and 24 December 2013.

1. The landlord's claim that the tenant "took the property in that condition" is without substance on the issue of breach under Section 63, because the obligation to perform repairs and keep the property in a reasonable state of repairs exists irrespective of the tenant having notice of the disrepair of the property at the start of the lease; and had promised (in the ingoing inspection report) to install a pool pump and pool fence by 4 November 2013. However, the general condition of the property (and rent amount) is relevant to the issue of assessment of quantum.

1. In respect of the issues raised by the tenants, the Tribunal is not satisfied the tenant has proved to the requisite standard that the landlord's failure to repair (or the repairs allegedly performed by the landlord to the electricity metre box caused the electric shock to the tenant's daughter. Rather, the documents from Endeavour Energy clearly point to it being responsible for this issue, which was quickly repaired. In any event, if the tenants had proved breach, the Tribunal is not satisfied to the requisite standard of proof that any damages by way of loss of amenity of the premises flow from the breach.

1. In respect of the issue of television reception, the Tribunal is not satisfied that the tenant has proved to the requisite standard the landlord has breached its obligation under Section 63 of the Act, nor has it proved breach to the requisite standard in respect of the leaking guttering; the condition of the shed; nor the fences of the property. Such issues, although raised in Mr DeBono's letter of 16 December 2013, are not detailed to any degree in the emails sent by the tenant. In any event, even if the Tribunal was satisfied to the requisite standard the tenants had proved breach, the Tribunal is not satisfied to the requisite standard of proof that any damages by way of loss of amenity of the premises flow from the breach.

1. The Tribunal is satisfied the tenants has proved breach, and a significant loss of amenity, by reason of the landlord's failure to repair the septic system; the stove (including replacing the stove within a reasonable period of time); the condition of the swimming pool (including the provision of appropriate fencing); and a water leak from the ceiling of the premises. In particular, the Tribunal is satisfied that the tenants suffered a significant loss of amenity of the premises by reason of the septic system not working adequately (or at all) for a significant period, and the work of the tenant to conduct repairs.

1. The Tribunal is also satisfied that there was a loss of amenity due to the stove not being repaired or replaced within a reasonable period of time, and accepts the evidence of Mr DeBono that he made oral complaints about this issue prior to the letter of 16 December 2013. In respect of the pool, the Tribunal finds the tenants lost some amenity, but that this was due to the fencing issue, rather than the issue of the pool pump. The Tribunal also finds some loss of amenity due to the roof leak, but does not find that the leak was significant, or that any items of the tenants' property were damaged.

1. In assessing quantum, the Tribunal adopts a global approach to compensation to the tenant by reason of the landlord's failure to perform repairs, or keep the property in a reasonable state of repair, in breach of Section 63 of the Act. As discussed above, the Tribunal has carefully considered comparable verdicts of the Tribunal set out in Anforth, Christensen and Taylor, Residential Tenancies Law and Practice NSW 5th edition (Federation Press, 2011) at pp 274-295. In respect of loss of amenity of the premises caused to the tenants by reason of the landlord's breach of Section 63 of the Act, the Tribunal finds that $2,500.00 is an appropriate amount, reflecting the value of 5 weeks rent. As discussed above, this amount takes into account all of the matters in which the tenant has proved breach by the landlord of the landlord's obligation under Section 63 of the Act, including the work performed by Mr DeBono fixing the septic system.

1. The Tribunal is not satisfied the landlord has proved any unreasonable failure to mitigate by the tenants, as the landlord made clear at the end of December 2013 that it was not going to conduct any further repairs as the landlord did not believe there was liability to do so. Further, the rental ledger does not show any deduction of rent or rent adjustment by reason of the work by Mr DeBono fixing the septic system.

G J Sarginson

General Member

Civil and Administrative Tribunal of New South Wales

9 July 2014

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

**********

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: 04 September 2014