Ross v Key Depold

[2023] NSWCATCD 55

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Ross v Key Depold [2023] NSWCATCD 55
Hearing dates:	11 April 2023
Date of orders:	11 April 2023
Decision date:	11 April 2023
Jurisdiction:	Consumer and Commercial Division
Before:	P Zammit, General Member
Decision:	The application is dismissed.
Legislation Cited:	Residential Tenancies Act 2010
Category:	Principal judgment
Parties:	Katherine Ross (applicant) Melissa Key Depold (respondent)
File Number(s):	RT 22/48186
Publication restriction:	NIL

REASONS FOR DECISION

1. This matter involves an application by Katherine Ross (the tenant) filed on 29 October 2022 for various orders. The orders sought were amended by the Tribunal on 24 February 2023 to be an order pursuant to section 44(1)(b) of the Residential Tenancies Act 2010 (“the Act”) for Melissa Key Depold (the landlord) to repay rent in circumstances where the rent was excessive due to a withdrawal or reduction of services. The tenant seeks a 25% rent reduction for the period of the tenancy.

Background

2. The dispute arises from a residential tenancy agreement that was made on 26 July 2022. The term of the tenancy is 12 months from 26 July 2022 to 25 July 2023.

Jurisdiction

3. In this case I am satisfied on the evidence before me that the agreement between the parties is a residential tenancy agreement to which the Act applies.

Applicable law

4. Pursuant to section 44(1)(b) of the Act the Tribunal may on application of a tenant make an order that the rent payable under an existing residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods or services or facilities provided with the residential premises.

CONSIDERATION

REDUCTION OR WITHDRAWL OF GOODS OR SERVICES OR FACILITIES

5. The tenant’s claim for reduction or withdrawal of services is based upon the presence of mould in the premises. The mere presence of mould does not give rise to an entitlement for rent reduction. Mould is often caused by environmental factors such as prolonged rainfall and humidity. The tenant needs to show to the Tribunal that the reduction or withdrawal of goods, services or facilities is caused by the actions or inactions of the landlord.

6. There is no evidence before the Tribunal that the presence of mould has been caused by any failure on the part of the landlord.

7. In fact, the landlord has provided evidence to the Tribunal from the Mould Doctors who provided a report to say that there was no water or leaks in the property and what was actually needed was ventilation in the property.

8. Whilst the tenant provided evidence that the windows for the property had been painted over to prevent from opening, this was reported to the landlord and was rectified by the landlord immediately.

9. The fact that it took the tenant until September 2022 to notice that the windows had been painted over, shows that the tenant had taken no steps to ventilate the property from the commencement of the tenancy until September 2022.

10. There is no evidence that the landlord has caused a reduction or withdrawal of goods, services or facilities with the premises.

COMPENSATION

11. Whilst not pleaded on the application, I have also dealt with this as a possible compensation claim, pursuant to section 187(1)(d) of the Act. However for a compensation claim to be successful the tenant would need to show that there had been a breach by the landlord.

12. In this case, that the landlord had breached section 63 of the Act by failing to conduct repairs or alternatively section 52 of the Act by failing to provide the premises with adequate ventilation.

13. However there is no evidence before the Tribunal that the landlord has failed to conduct repairs nor is there any evidence that the landlord has failed to provide adequate ventilation with the property.

14. Overall, the applicant has failed to meet the burden of proof and the application is dismissed.

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

Registrar

Decision last updated: 17 July 2023