Wakefield v Humayun; Humayun v Wakefield

[2022] NSWCATCD 16

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Wakefield v Humayun; Humayun v Wakefield [2022] NSWCATCD 16
Hearing dates:	13 August 2021, 2 September 2021 and 14 October 2021
Date of orders:	13 January 2022
Decision date:	13 January 2022
Jurisdiction:	Consumer and Commercial Division
Before:	Steven Bliim, General Member
Decision:	The landlord is to pay the tenant the sum of $210.07 within 14 days of the date of these orders.
Catchwords:	RESIDENTIAL TENANCY – Withdrawal or reduction of facilities – Excessive rent – Compensation for damage – Rent arrears – End of tenancy damages
Legislation Cited:	Residential Tenancies Act 2010 (NSW)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Leonard Wakefield (Applicant/Cross-respondent) Salik Humayun (Respondent/Cross-applicant)
Representation:	E Smith (Tenant’s Advocate) (Applicant/Cross-respondent)
File Number(s):	RT 21/20260 and RT 21/24310
Publication restriction:	Nil

REASONS FOR DECISION

The Claims and the Hearing

1. The initial claim by the Tenant (21/20260) was for compensation for persistent breaches of ss.52 and 63 of the Residential Tenancies Act, 2010 (the Act) and repayment of the rental bond pursuant to s.175 of the Act.

2. The Tenant claims $2,000.00 for compensation for repairs not done by the Landlord, $760.00 economic loss and the rental bond of $1,480.00.

3. The Landlord claims (21/24310) end of tenancy damages of $3,864 made up as follows:

1. Damage to walls and doors $1,500.00;

2. Oven cleaning $338.00

3. House cleaning $300.00

4. Cooktop replacement $768.00

5. Water usage $138.00

6. Rent arrears $820.00

4. Both claims were listed for hearing together.

5. The claims were first listed for telephone hearing on 13 August 2021. Ms Smith appeared on behalf of the Tenant by telephone. The Tenant’s bundle of evidence received in the Tribunal on 25 May 2021 was admitted into evidence and marked as Exhibit A. The Tenant’s Statutory Declaration dated 12 July 2021 and the Statutory Declaration of Wendy O’Loughlin dated 24 June 2021 and received in the Tribunal on 29 July 2021 were admitted into evidence and marked as Exhibit B.

6. The Landlord appeared by telephone. The Landlord’s documents received in the Tribunal on 2 August 2021 were admitted into evidence and marked as Exhibit C.

7. The claims were part heard and resumed on 2 September 2021.

8. During the hearing on 2 September 2021 it became apparent that the Tenant had not received a full copy of Exhibit C. The matter was adjourned to allow the Tenant to be provided with a full copy of Exhibit C.

9. The hearing resumed on 14 October 2021. The documents previously marked as Exhibit C were replaced with another document which was marked as New Exhibit C.

10. The Tenant’s representative objected to a number of additional pages which were included in New Exhibit C. Those pages were not allowed and were ruled through.

11. On 14 October 2021 the evidence was completed and the decisions in both matters were reserved with directions for filing of written submissions.

12. The submissions of the Tenant were received in the Tribunal on 29 October 2021.

13. The submissions of the Landlord were received in the Tribunal on 11 November 2021.

The Evidence

14. The parties entered a standard form Residential Tenancy in respect of the premises at XXX Kubor Street, Glenfield, NSW, 2167 (the premises) commencing initially on or about 12 January 2019 and ending on 12 July 2019 at $370 per week with Salik Humayun as landlord and Leonard Wakefield as tenant (the Residential Tenancy Agreement). An unsigned copy of the front page that agreement is exhibited in Exhibit A at p.17. The front page of a further unsigned 6 month agreement commencing on 18 October 2019 and ending on 16 April 2020 at $350 per week is exhibited at p.18 of Exhibit A. Finally a further unsigned 6 month agreement commencing on 17 April 2020 and ending 29 October 2020 at $325 per week is exhibited at pp.6 to 16 of Exhibit A.

15. The Tenant vacated the premises on 15 March 2021.

16. At the hearing the parties agreed the quantum of all issues in respect of the Landlord’s claim as follows:

1. Damage to walls/doors agreed at: $412.50;

2. Oven cleaning and plate agreed at:$165.00;

3. Cleaning of premises agreed at: $300.00;

4. Outstanding rent agreed at: $686.43;

5. Replacement of damaged cooktop value agreed at: $384.00.

17. It was noted that there was no evidence of compliance with s.39 (1)(b) of the Residential Tenancies Act in relation to the amount claimed by the Landlord for water usage and that claim was not pursued.

18. The Tenant has acknowledged liability for items (1) to (4) in the amounts agreed and while disputing liability for item (5) he has agreed the quantum.

19. Essentially therefore the sole issue in the Landlord’s claim is whether or not the Tenant is responsible for the damage to the cooktop.

20. The Landlord states at New Exhibit C p.2 that he claims for damage to the cooktop in an amount of $768.00. There is a tax invoice from NABIL Property Services dated 21 April 2021 for the supply and installation of a new cooktop and the removal of the old cooktop in an amount of $768.00.

21. The Landlord includes the initial Condition Report by the Tenant relating to the condition of the premises but it is a photograph of the document and is out of focus and indistinct.

22. A photograph of the cooktop is exhibited at p.15 of New Exhibit C and marked “After” presumably meaning that it was taken at the end of the tenancy. The photograph shows some damage to the bottom right edge of the unit.

23. The cooktop is mentioned at p.40 of New Exhibit C in an email from the Landlord to the Tenant dated 14 April 2021 to the effect that it is damaged and to be replaced at a cost of $768.00.

24. The Tenant states in his Chronology at Exhibit A p.27 that he notified the Landlord of the crack in the cooktop in around February 2020. The cooktop was not repaired. He says his Statutory Declaration, Exhibit B, that the Landlord agreed to accept the gate as payment for the cooktop.

25. The Tenant states in Exhibit B that after the Council forced the removal of the front fence of the premises he noticed small pieces of asbestos and other building objects in the soil.

26. He says that he discovered more asbestos early in 2020 when the side gate was being built – Exhibit B.

27. The Tenant says that he handed the asbestos pieces to the Applicant in a plastic bag asking him to dispose of it properly – Exhibit B.

28. The Tenant provided photographs of the asbestos pieces and the plastic bag at pp. 22 and 23 of Exhibit A.

29. The Tenant provided a copy of a Statement of Attainment from Transqual Logistics Training certifying that he had attained training to apply chain of responsibility legislation, regulations and workplace procedures dated 1 September 2016. The Tenant said that this related to asbestos but there is nothing readily apparent on the copy certificate to confirm this – Exhibit B.

30. The Tenant also provided a letter from Stephen Wilkins from Fairfield City Council advising that the Tenant worked at the Council’s Sustainable Resource Centre as Spotter with responsibility for inspecting incoming loads of concrete and bricks to determine if they were contaminated with asbestos, clay and other unacceptable materials. He described the Tenant as a diligent employee who carried out his duties in a conscientious and professional manner.

31. At the hearing on 13 August 2021 the Tenant gave evidence that the golf ball pattern on the pieces found in the soil showed that it was asbestos and that his experience allowed him to identify it.

32. He said that he found it in the ground at the side of the house while building the gate. He bagged, dated it and says that he gave it to the landlord requesting that he dispose of all asbestos around the premises.

33. The tenant claims $3.57 per day rent reduction for the asbestos for a total of 34 days.

34. The landlord apparently denies being given the bag of asbestos but it does not appear to have been addressed by way of evidence in New Exhibit C.

35. At point 7 of his Chronology at p.27 of Exhibit A the tenant states that on 10 October 2020 he reported that the bathroom needed fixing due to a water leak whenever he took a shower.

36. At the same place the tenant also stated that various plumbers attended one apparently that day. An entry for 20 June 2021 says that a “repairer attended but there were still problems with the bathroom”. An entry for 30 August 2021 stated that “another plumber attended but still problems”.

37. The tenant’s mother, Wendy O’Loughlin, provided a Statutory Declaration dated 24 June 2021 that she slipped on water seeping from the laundry tub after she had cleaned the bathroom. She stated that plumbers attended the premises several times over a few months but that they couldn’t fix the problem – Exhibit B.

38. The tenant refers to p.36 of New Exhibit C which is the tax invoice from one of the landlord’s plumbers, Rapid Plumbing Group. It confirms that the plumber attended the premises and investigated issues with the toilet constantly leaking into the pan and water leaking under the vanity. The inlet valve on the toilet required replacement and the vanity waste pipe was cracked and water overflowed under the vanity. The vanity was replaced on 12 February 2021 and was reported as having been tested and all good.

39. The tenant claims $1,215.50 comprising 22% of the rent for 17 weeks from 10 October 2020.

40. The landlord’s submissions says that the work was completed without delay and refers to the invoice at p.36 of New Exhibit C.

41. The submissions state that the tenant has not supplied evidence of correspondence as to requests for work to be carried out.

42. The landlord has provided no other evidence as to what occurred between the problem being reported on 10 October 2020 and the replacement of the vanity and waste on 12 February 2021.

43. At item 8 of his Chronology at p.27 of Exhibit A the tenant states that the landlord asked him to kill the trees growing out of the water tank at his own expense.

44. The tenant provided two photographs of the trees growing out of the water tanks at the side of the property at p.25 of Exhibit A.

45. The tenant makes this part of his overall economic loss claim.

46. At item 2 of his Chronology at p.27 of Exhibit A the tenant states that on 1 January 2019 the clothes line was removed by the Council and was never replaced. He says that he had to purchase inside racks as there was no other place to dry clothes.

47. The tenant claims 3% of the rent for a period of 12 months in an amount of $117.00.

48. There was no admissible evidence from the landlord regarding the clothesline.

49. At item 4 of his Chronology at p.27 of Exhibit A the tenant states that he notified the landlord in February 2020 that the cooktop was cracked. He also states that he reached and agreement with the landlord at the end of the tenancy regarding leaving a gate the tenant had installed and to forego a claim for removing the trees in the water tank in exchange for the repairs to the cooktop.

50. The tenant claims 2% of the rent for 12 months in an amount of $78 for the landlord’s failure to repair the cooktop.

51. The landlord has supplied evidence at p.15 of New Exhibit C of the damage to the bottom right hand corner of the glass cooktop and a copy of a tax invoice at p.14 for the replacement of the cooktop for $1,096.86.

52. The landlord was asked in cross examination on 13 August 2021: “What was the age of the cooktop?”. He responded: “The granny flat was built in 2017 so the cooktop was 3 to 4 years old”. In answer to another question he stated that the cooktop was new when installed.

53. At item 2 of his Chronology at p.27 of Exhibit A the tenant states that on 1 January 2019 the front fence was removed by Council at the time of removal of the clothes line. He claims at item 3 at p.27 of Exhibit A that on 17 October 2019 he installed a gate to keep his dog in the back yard.

54. The landlord submits that the front fence was removed on the order of Council at which time the tenant had no dog. The tenant later bought a dog and chose to install the gate.

55. The tenant claims the cost of the gate as part of his economic loss claim of $760. That claim is expressed to be for the cost of parts and time used to replace the gate and the cost of weed killer and time to remove trees in the water tanks.

56. The landlord submits that the tenant has provided no evidence of the cost of the components of the economic loss claim or any evidence that such work was undertaken at the request of the landlord.

The Law

57. The Act gives the Tribunal power to determine certain matters relating to residential tenancy agreements (see Part 9 of the Act). The Tribunal’s powers relevantly include the power to make an order that rent under an existing or proposed residential tenancy agreement, or a rent increase, is excessive. Section 44 of the Act provides:

44 Tenant’s remedies for excessive rent

1. Excessive rent orders The Tribunal may, on the application of a tenant, make any of the following orders:

(a) an order that a rent increase under an existing or proposed residential tenancy agreement is excessive and that, from a specified day, the rent for residential premises must not exceed a specified amount,

(b) an order that rent payable under an existing or proposed residential tenancy agreement is excessive, having regard to the reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises and that, from a specified day, the rent for residential premises must not exceed a specified amount.

...

(5) The Tribunal may have regard to the following in determining whether a rent increase or rent is excessive:

(a) the general market level of rents for comparable premises in the locality or a similar locality,

(b) the landlord’s outgoings under the residential tenancy agreement or proposed agreement,

(c) any fittings, appliances or other goods, services or facilities provided with the residential premises,

(d) the state of repair of the residential premises,

(e) the accommodation and amenities provided in the residential premises,

(f) any work done to the residential premises by or on behalf of the tenant,

(g) when the last increase occurred,

(h) any other matter it considers relevant (other than the income of the tenant or the tenant’s ability to afford the rent increase or rent).

58. The Tribunal also has power pursuant to s.187 of the Act to make orders for compensation.

Findings

59. I note that with respect to the cooktop I accept the landlord’s oral evidence in cross examination that the cooktop was new at the time the granny flat was built in 2017.

60. There is however no photograph or other evidence as to it’s precise condition at the commencement of the tenancy on 12 January 2019.

61. The photograph of the cooktop at p.15 of New Exhibit C clearly shows that at the end of the tenancy the bottom right hand side corner of the cooktop was broken.

62. There is no evidence from the landlord as to how the alleged damage to the cooktop occurred and how it was the tenant was responsible for the damage.

63. On the other hand the tenant states in his statutory declaration in Exhibit B that there was an agreement with the landlord that if he left the side gate that he built the landlord would waive the crack in the cooktop. Such an agreement appears to involve the tenant accepting some responsibility for the damage to the cooktop.

64. There is no evidence from the landlord in respect of that agreement.

65. I am satisfied therefore that the tenant has accepted responsibility for the damage to the cooktop.

66. I am also satisfied that the landlord and the tenant had reached an agreement that the landlord would waive the damage to the cooktop if the tenant left the side gate that he had installed. That gate was left by the tenant and there is no amount payable by the tenant relating to the damage to the cooktop.

67. The agreement relating to the cooktop and the gate also means that the tenant has no basis upon which to make a claim for economic loss relating to the installation of that gate.

68. With respect to the tenant’s claim for reduction in rent relating to the asbestos on the premises I accept the evidence of the tenant that the material that he found in the soil, bagged and handed to the landlord was asbestos despite there having been no scientific testing of it.

69. I accept that the tenant has relevant work experience of identifying asbestos and that such experience allowed him to identify the golf ball type indentations on the material as being asbestos.

70. The tenant’s evidence is that he handed that bagged material to the landlord and asked the landlord to dispose of it properly. The evidence does not refer to any request to remove asbestos from the premises, merely to dispose of the material found by the tenant.

71. I am not satisfied that the asbestos issue constitutes a “reduction or withdrawal by the landlord of any goods, services or facilities provided with the residential premises” for the purposes of s.44(1)(b) of the Act.

72. I accept the tenant’s evidence that there was a problem with water leaking under the vanity in the bathroom at least in or about February 2021. The tax invoice at p.36 of New Exhibit C shows that such leak was fixed between 10 and 12 February 2021.

73. There is no evidence of any complaint to the landlord on or about 10 October 2020 or subsequently. Consequently there is no evidence to support a finding that the landlord had failed to take appropriate steps to repair the leak under the vanity in a timely manner.

74. I accept the tenant’s evidence that there were trees growing in the water tanks attached to the premises and that the landlord asked him to remove them at his own expense.

75. The removal of such trees was the responsibility of the landlord.

76. There is no evidence from the tenant as to the cost of or details of the steps that he took to remove the trees.

77. Doing the best that I can I assess the compensation payable under s.187(1)(d) of the Act for removal of the trees by the tenant at $125.

78. I accept the tenant’s evidence that the clothesline for the premises was removed at the time of removal of the fence in or about January 2019.

79. I am satisfied that the failure to replace the clothes line constituted a reduction in facilities relating to the premises through out the tenancy.

80. In the circumstances it is appropriate to make an order that the rent for the premises was excessive for a period of 12 months in accordance with s.44(6) of the Act.

81. I do not understand the calculations of the tenant as to the amount of rent reduction claimed. An amount of 3% of the rent is suggested and a figure of $117 is suggested over 12 months. If 3% is accepted then the appropriate amount over 12 months would be $507.

82. I am more inclined to accept a figure of 1% of the rent over 12 months in an amount of $169.

83. In light of my findings regarding the claim for the cooktop made by the landlord I do not accept that the tenant’s rent should be reduced in respect of the cooktop.

84. I note the evidence of the landlord that rental bond of $1,480.00 was not paid to Renting Services at the commencement of the tenancy and remains in the hands of the landlord.

Findings relating to 21/24310

85. In accordance with the agreement reached between the parties the tenant is to pay the landlord the sum of $83.93 in respect of the landlord’s claim made up as follows:

1. Damage to walls/doors agreed at: $412.50;

2. Oven cleaning and plate agreed at: $165.00;

3. Cleaning of premises agreed at: $300.00;

4. Outstanding rent agreed at: $686.43;

5. Less rental bond held by the landlord -$1,480.00

Findings relating to 21/20260

86. The rent payable by the tenant for the premises was excessive as a result of the withdrawal of facilities relating to the premises because of the removal of the clothes line for the period of 12 months from 16 March 2020 to 15 March 2021 in an amount of 1% of the rent payable or $169.00

86. In accordance with the findings made the landlord is to pay the tenant the sum of $294.00 made up as follows:

1. Excessive rent: $169.00

2. Compensation for the removal of trees by the tenant: $125.00

Orders

88. The landlord is to pay the tenant the sum of $210.07 within 14 days of the date of these orders.

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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: 16 March 2022