Saiah v Affordable Community Housing Limited

Case •

[2023] NSWCATCD 23

•

27 February 2023

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: Saiah v Affordable Community Housing Limited [2023] NSWCATCD 23
Hearing dates: 10 February 2023
Date of orders: 27 February 2023
Decision date: 27 February 2023
Jurisdiction:Consumer and Commercial Division
Before: G Bassett, General Member
Decision:

(1) The Tribunal authorises the landlord, Affordable Community Housing Limited or the landlord's authorised contractor to enter the residential premises on or before 25-Mar-2023 for the purpose of:

       (a) inspecting the residential premises for maintenance, repairs or health and safety

       (b) carrying out the following work: maintenance and repairs. See Order (5).

(2) The landlord is to give the tenant 48-hours’ notice of the date and time for access.

(3) The tenant is not to obstruct the landlord in carrying out these orders.

(4) If the landlord cannot gain access to the residential premises on the date and time as notified in accordance with the above order, the landlord or their representative may engage a locksmith to gain entry to the premises and if the locksmith alters the locking device the landlord is to provide a copy of the door opening device to the tenant immediately.

(5) The Tribunal orders that the respondent, Affordable Community Housing Limited, is to cause the undertaking of the following work in a proper and workmanlike manner on or before 25-Mar-2023.

       Detail of work:

       (a) complete concreting driveway in footpath area

       (b) on compliance with order 1, remove mould at the bedrooms in premises.

       (6) The application of the tenant for compensation is dismissed.

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — Repairs — Landlord’s duty

Legislation Cited:

Sections 63, 65, 187 Residential Tenancies Act 2010

Category:Principal judgment
Parties:

Applicant: Rania Saiah (tenant)

Respondent: Affordable Community Housing Limited trading as Evolve Housing (landlord)
Representation:

Applicant: self-represented

Respondent: Mr Salam
File Number(s): SH 22/43238; SH 22/43240
Publication restriction: unrestricted

REASONS FOR DECISION

  1. On 27 September 2022, the tenant applied for an order that “in a proper and workmanlike manner by 14/9, replace the concrete driveway, inspect the roof and guttering and repair … any identified water ingress issues, and clean away mould and sanitise the ceiling”. This application (SH 22/43238) was a renewal of matter SH 22/22247. In that matter, on 10 August 2022 the Tribunal made orders by consent relating to work to be done at the residential premises, being:

Replace the concrete driveway at the premises

inspect the roof and guttering to identify if there is any water ingress into the premises, and if water ingress is identified, carry out any necessary repair to prevent

clean away mould and sanitise the ceilings of the premises.

  1. The renewal application came before the Tribunal for conciliation on 27 October 2022. The matter did not settle. Directions were made for a contested hearing. The tenant was directed to supply to the Tribunal and the landlord a copy of her points of claim and compensation sought for each point of claim and non-economic loss.

  2. For some inexplicable reason the tenant also made a fresh application on 27 September in SH 22/43240. It is noted that the file numbers in relation to the renewal application and SH 22/43240 are only 2 digits apart. It follows that the tenant must have filed this new application very shortly after she filed the renewal application. The fresh application seeks the same orders as sought in the renewal application. Any orders made in determining this renewal application will determine that fresh application as well.

Law in relation to the claim

  1. A landlord’s general obligation in relation to maintaining premises is set out at section 63 of the Act. It states:

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 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.

  1. Section 65 of the Act sets out a tenant’s remedies if a landlord fails to comply with their general obligation under section 63 as follows:

65   Tenants’ remedies for repairs—Tribunal orders

(1) 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,

(b)  an order that the landlord reimburse the tenant an amount for urgent repairs carried out by the tenant,

(c)  an order that the landlord reimburse the tenant an amount for repairs to a smoke alarm carried out by the tenant under section 64A(3).

(2) 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.

(3)  In deciding whether to make an order under this section, the Tribunal—

(a)  must take into consideration the regulations, if any, made under subsection (6), and

(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 the repair.

(4) Reimbursement for urgent repairs The Tribunal may order that the landlord reimburse the tenant an amount for urgent repairs carried out by the tenant if it is satisfied that the landlord has failed to reimburse the tenant for the costs in accordance with this Division.

(5) Payment of rent into Tribunal The Tribunal may order that all or part of the rent payable under a residential tenancy agreement be paid into the Tribunal until an order under this section has been complied with.

(6) Guidelines relating to reasonable time for repairs The regulations may provide for guidelines relating to reasonable times within which repairs to, and maintenance of, residential premises required to be carried out by the landlord under the residential tenancy agreement, this Act or any other Act or law should be carried out.

  1. At section 187(d) a tenant may also apply for compensation for failure to comply with the duty to repair. The tenant claimed economic loss in alleged damage to her goods from water ingress and mould.

Evidence of the parties

  1. The applicant provided documents for hearing on 24 November 2022. The landlord provided documents on 8 December 2022. Each party also gave oral evidence and was questioned on such evidence.

  2. The tenant asserted that the landlord had not complied with the consent orders for repairs. Mould had not been cleaned. Water was still ingressing from the roof and, when cleaned, mould reappeared.

  3. At tab 6 of her documents the tenant supplied photos of continuing problems alleged. She said she had taken the photos since the consent order repairs had been carried out. The photos contained no date stamps. She said that either she took the photo, or her son took the photo when there was mould that she could not go near. Photos at pages 43 and 44 were photos she said showed water bubbling, a huge hole sure where water ingressed and mould on the ceiling in her son’s bedroom. She said her son cleaned away the mould but it would “just come back”. She had no evidence of the mould being cleaned. She had no evidence of the mould having reappeared. The tenant’s recollection as to specifically when these photos were taken was not reliable. Some of the photos are like those she supplied in her original application for the repairs. The Tribunal could not be certain the photos relied on for this renewal claim had been that taken since the repairs had been carried out. In other photos she showed mould on a pizza oven. She said mould was “everywhere, on everything”. She had a photo she said she took of some clothes around the same time with mould on them.

  4. In relation to the repairs relating to the driveway, photos at pages 40 to 42 showed a dirt gap between the street entrance to her footpath and again to her driveway. She asserted her car would become stuck in this gap on occasion. She said that Council had advised that concreting should be done from the driveway right out to the entrance from the road. Of most particular concern to the tenant was that she asserted the consent order required the landlord to install a concrete driveway down the entire side of her property from the driveway entrance from the road and running along the side of the house to a carport at the back of the house. This contention was hotly disputed at the hearing. The order itself is completely silent on the issue of the extent of the concrete driveway.

  5. Mr Salam for the landlord stated the consent order was to replace the existing driveway only. He said this was from the tenant’s side of the footpath to the front gate at the side of the property where the first corner of the house was located. At pages 5 to 7 of landlord’s documents photos showed completed work as at 18 August 2022. In relation in relation to the component of the path between the roadway and the front fence of the tenant, Mr Salam conceded that this had taken some time as it needed approval from council which was still processing the landlord’s paperwork in relation to the application for works. Some days before the hearing the landlord had obtained approval from council to carry out those works. Mr Salam said the works would be done by the landlord’s contractor on 15 February 2023 and the landlord agreed to the Tribunal making an order for these works to be done.

  6. He said that in relation to carrying out repair works under the consent orders in general, the contractor for the landlord had tried to contact the tenant on numerous occasions by phone and knocking on the door and had not been given entry or that she was not there. He sought an order to access the premises to do works.

  7. He denied that the path subject of the consent order went right down the side of the property to the carport at the back. Mr Salem said that even on the tenants own photos the path from the end of the driveway that existed and ran down the side to the carport was only a footpath and grass. The tenant contended that there were two strips of concrete right down to the carport 4 wheels to run along. The tenant was provided with a copy of documents she supplied with her original claim but was unable to show any evidence of the path running right along the side of the property to the carport at the back. Photos of that area also showed the gate to be closed and goods stored behind the gate so that a car could not access the driveway even if it did exist without such goods being moved.

  8. In relation to the claim for continuing mould and failure to comply with the consent order Mr Salam said that the mould was re-aggravated by the tenant having the property poorly ventilated and due to poor property care in general. At pages 29 to 34 of the most routine recent routine inspection done in 2019 the property was shown having all windows closed. Windows were covered in foil. Lawns were un-mowed and goods strewn throughout the property. He said that the landlord had always agreed to fix mould in bedroom one and bedroom three through the consent order but had not been allowed access to the property.

  9. Mr Salam relied on a detailed report on the roof and guttering at the property resulting from an inspection of the property on 17 August 2002. That report clearly showed the guttering to have no holes in roofs and to have no leaks causing water ingress. He said the Tribunal ought to make an access order to empower the landlord to access the premises for the purpose of cleaning mould in bedrooms as complained of by the tenant. It was conceded there may be mould in bedrooms but there were no holes and the roof was dry.

  10. In relation to the claim of the tenant or $15,000 compensation for non-economic and economic loss the landlord said there was insufficient evidence. Tenant alleged her health had been damaged by the due to mould as had the behaviour and health of his son. No evidence such as medical documents showed attendance at medical facilities in respect of such alleged illness. She outlined health conditions such as skin rashes, breathing issues, mental strain. In a statutory declaration sworn on 23 November 2022, the tenant said household items such as furniture, clothes, pots and pans, pillows, a mattress and other personal items had mould on them. She provided sales / order documents from 2016 showing purchase of the various goods such as bookcases, filing cabinets, office desk, wall mirror, night cabinet, wine cabinet, various lounges, tables, a step display ladder and a storage stand. She also had some photos showing exterior mould on a bag, the surface of a table, a cooking pot and frisbee.

Findings and determination

  1. The photo at page 42 of the tenant’s documents lodged on 24 November is conclusive proof that there was a no pre-existing driveway running down the side of the house to the carport at the back. In addition, this photo shows numerous plants and other items stored in that narrow area that would have prevented a car passing through. The Tribunal is satisfied that the consent order made on 27 September 2022 did not require the landlord to put in a driveway in these areas. But for the footpath area the landlord has complied with the order area. The tribunal is also satisfied that the landlord's failure to complete the concreting of the driveway arose from the length of time that it took to get council approval. At the time of hearing that approval has been granted and an order has been made for the landlord to complete the work.

  2. The tribunal does not find the tenants photos of alleged problems at the tenancy since the consent order works were done compelling evidence. The tribunal prefers the detailed report of the landlords contractor which shows that no water was ingressing at the premises, the roof was dry and there was no leaks as alleged by the tenant. The Tribunal is further satisfied that the tenant has frustrated the landlords attempts to carry out the repair works to mould by refusing access to contractors to do the work. An order is made for such access.

  3. Tenant had no photographic evidence of the alleged damage to the furniture such as photos of it being disposed of. The limited photos shown of mould on goods did not match the goods allegedly purchased in 2016. There was no communication to the landlord of such damage during the tenancy after the works had been done. Nor was there any evidence to support the claim for non-economic loss. If the tenant and her son has suffered stress from alleged failure to repair, she would have granted access to the landlord to rectify mould.

Orders

  1. The following orders are made:

  1. The Tribunal authorises the landlord, Affordable Community Housing Limited or the landlord's authorised contractor to enter the residential premises on or before 25-Mar-2023 for the purpose of:

  1. inspecting the residential premises for maintenance, repairs or health and safety

  2. carrying out the following work: maintenance and repairs. See Order (5).

  1. The landlord is to give the tenant 48-hours’ notice of the date and time for access.

  2. The tenant is not to obstruct the landlord in carrying out these orders.

  3. If the landlord cannot gain access to the residential premises on the date and time as notified in accordance with the above order, the landlord or their representative may engage a locksmith to gain entry to the premises and if the locksmith alters the locking device the landlord is to provide a copy of the door opening device to the tenant immediately.

  4. The Tribunal orders that the respondent, Affordable Community Housing Limited, is to cause the undertaking of the following work in a proper and workmanlike manner on or before 25-Mar-2023.

  5. Detail of work:

  1. complete concreting driveway in footpath area

  2. on compliance with order 1, remove mould at the bedrooms in premises.

  1. The application of the tenant for compensation is 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

18 August 2023 - Formatting amendments.

Decision last updated: 18 August 2023

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