Windfeld v Ho

[2020] NSWCATCD 10

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Windfeld v Ho [2020] NSWCATCD 10

Hearing dates:

2 December 2019

Date of orders:

3 February 2020

Decision date:

03 February 2020

Jurisdiction:

Consumer and Commercial Division

Before:

J Alder, General Member

Decision:

The Notice of Order issued on 3 February 2020 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows:

1. Pursuant to section 44(1)(b) of the Residential Tenancies Act NSW 2010, the rent is not to exceed $1,178 per week for the period 9 November 2018 to 3 September 2019 (40 weeks).

2. Pursuant to section 44(1)(b) of the Residential Tenancies Act NSW 2010, the rent is not to exceed $1,000 per week for the period 19 October 2018 to 2 November 2018 (2 weeks).

3. The respondent is to pay the applicant the sum of $3,380 within 14 days.

4. The balance of the claim is dismissed.

Catchwords:

LEASES AND TENANCIES – Tenancy – Excessive rent – Rent reduction-compensation

Legislation Cited:

Residential Tenancies Act NSW 2010 (NSW)

Residential Tenancies Regulation 2010 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Camilla Windfeld (Applicant)
Patricia Ho (Respondent)

Representation:

Applicant (Self-represented)
Respondent (Self-represented)

File Number(s):

RT 19/41112

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. This is an application for a retrospective rent reduction and/or compensation under the Residential Tenancies Act NSW 2010 (Act).

2. On 6 September 2017, the parties entered into a 24-month fixed term written residential tenancy agreement expiring on 3 September 2019 (RTA) in relation to premises at Cremorne (premises). The Premises consisted of three bedrooms plus a fourth studio room in the garden and were occupied by Camilla Windfield, her husband and their children aged 8 and 14 years (tenant).

3. The tenant paid a weekly rent of $1,250 and a rental bond of $5,000 (Bond) which

4. The premises were managed by David Murphy Real Estate Property Management Pty Ltd (Agent).

5. On 5 August 2019, the landlord served an end of fixed term termination notice on the tenant, with a vacate date of 14 September 2019.

6. On 11 September, the tenant filed this application.

7. The tenant did not vacate until 5 October 2019.

8. The tenant alleges a withdrawal and/or reduction of facilities, goods and services by the landlord/ and/or a failure to keep the premises in good repair.

9. During the tenancy, the tenant made numerous requests for repairs, for which she seeks compensation. They are as follows:

1. Sewer/blocked drain at side of house

2. Flooding of washing machine

3. Blinds for skylights in two bedrooms

4. Dishwasher

5. Shower leak

6. Broken roller door

7. Broken front gates

8. Mould

10. Various other items were specified in the application and referred to in the tenant’s evidence, such as flying of drone over premises, harassment regarding visitors bringing a dog to the premises and lack of inspections. However no evidence was tendered on these issues and they were not pressed at the hearing.

11. Various other orders were sought in the application, including that the landlord’s termination notice was invalid and retaliatory, but these were not pressed at the hearing.

Preliminary

12. The tenant has filed and served a bundle of documents on 10 October 2019 (tenant’s bundle). The landlord has also provided a bundle of documents filed on 23 October 2019 (landlord’s bundle).

13. Oral evidence was given by the tenant. Oral evidence was also given by the landlord and by the principal managing agent, Mr David Murphy. Senior Property Manager, Mr Chris West, from the Agent’s office was supposed to represent the landlord at the hearing, but was unable to attend. He had requested an adjournment in writing at 12 noon, just prior to the 1.15pm hearing start time on grounds that his child had been admitted to hospital the previous evening. The adjournment application was pressed at the hearing by Mr Murphy.

14. The Tribunal refused the adjournment for reasons being that the applicant was ready to proceed and would be unduly prejudiced by any delay. Further, the landlord was in attendance, as was the principal agent and the Tribunal believed that each between them could competently present the landlord’s defence.

15. The applicant bears the onus of proof for her claim. The civil standard of proof is the balance of probabilities.

Legislation

16. The tenant brings her claim under s 44(1)(b) of the Act seeking an order that the rent payable is excessive on the basis that goods, services or facilities were withdrawn and reduced during the tenancy. She also brings her claim in the alternative, for compensation for breaches of the Act.

17. Section 52 of the Act provides that a landlord must keep the premises in a reasonable state of cleanliness and fit for habitation.

18. Section 63 provides that the landlord must provide and maintain the premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. However, section 65 stipulates that the landlord is not in breach unless he/she had notice of the need to repair or ought reasonably have known of the need to repair and failed to act with reasonable diligence to have the repair carried out.

19. The Tribunal may make a money order under s187(1)(c) or make an order for compensation under s 187(1)(d) of the Act if it finds that the landlord has breached her obligation to repair or properly maintain the premises.

20. The tenant did not serve a breach notice under s 98.

21. The time frame to bring a breach claim is within three months of the applicant becoming aware of the breach: section 190 of the Act and rule 22(9) of the Residential Tenancies Regulation 2010.

22. Many of the matters were raised by the tenant in 2018 and thus more than three months has passed and are out of time. The Tribunal may grant an extension of time of its own motion.

23. The time frame to bring a claim for rent reduction is prior to the end of the tenancy agreement. This claim is within time.

Tenants’ withdrawal of services/goods/facilities claims and breach claims

Sewer blockage east side of house and sewer pipe left exposed

24. On 9 November 2018, the tenant complained to the Agent by email that when a plumber had earlier attended the premises to unblock the sewer pipe/toilet in the bathroom, he had blasted the blockage, which caused sewer to be sprayed outside. The tenant also said the plumber had left the pipe exposed with no cover. The tenant complained it was unhygienic and unsafe to have an open sewer line and she was fearful of resulting vermon. The tax invoice from Christopher Lobb Plumbing Services dated 19 October 2018 confirms that a plumber attended the premises to investigate: “blocked sewer lines on left side of building… blockage affecting bathroom…”

25. The tenant gave oral evidence that she did not know what caused the blockage and they had “raw sewer for two weeks”.

26. The plumber’s report says: “lines now clear however suspect plumbing from bathroom toilet is not connected to sewer line correctly and maybe illegal or non compliant… needs to be checked and confirmed. clean up sewer and toilet paper etc.”

27. On 9 November 2018, the Agent responded to say that she would arrange for the plumber to reattend to cover the sewer pipe.

28. On 16 November 2018 the Agent emailed the tenant to say “the uncapped sewer pipe issue” had been fixed by the plumber.

29. I do not find that the landlord failed to act with reasonable diligence once notified to have the sewerage pipe covered.

30. In relation to the blockage itself, it is not clear when the blocked sewer was initially reported or what caused it. The plumber attended on or about 19 October 2018. I find that the state of the premises due to the sewerage blockage was not in accordance with what the tenant bargained for. I am prepared to accept that there was a withdrawal of services for two weeks.

Water from washing machine/blocked drain on back patio

31. On 9 November 2018, the tenant reported two further plumbing issues to the Agent by email. The tenant reported that grey water from the washing machine was not plumbed into any pipe and consequently discharged into the back outdoor tiled patio area which flooded whenever they used the washing machine. She said this rendered the outside area unusable when they did a wash, which was every weekend.

32. She said they had raised this verbally with the Agent in February 2018 and again in July 2018, but that nothing was done.

33. The tenant said two centremetres of water covered the tiles. After a wash, a muddy residue was left. The tenant relies on five photos showing water on the tiles in the outdoor courtyard. She also said that the drain on the back patio was blocked.

34. The Agent says she first became aware of this issue in November 2018 and responded the same day to say that she had arranged a plumber to inspect.

35. Christopher Lobb Plumbing Services attended on 12 November 2018. His tax invoice for $497.20 dated 12 November 2018 states he attended to investigate: “sewer overflowing…from laundry. The Agent said that a temporary fix was conducted by clearing the pipes and redirecting the flow of water draining and that the plumber had advised remedial works would be extensive and best carried out when the premises were vacant. The plumber also ascertained that the washing machine line was not connected to the sewer line.

36. On 16 November 2018, the Agent emailed the tenant: “The flooding from your laundry is a large job to repair, your landlord is overseas right now so will talk with the plumber next week on her return to see what needs doing. Please bear with us while we review this..”

37. The tenant did not raise this issue again until five months later when she sent an email to the Agent on 17 April 2019 stating: “chasing up the outside grey water pipe which runs onto the patio every time we run the washing machine. This results in the kids not being able to be outside on the paved area every weekend when we do the washing. We raised this last year, and you had arranged to have a plumber come out to evaluate. I believe from our last conversation you had forwarded the quotes to the owner.”

38. The tenant again wrote to the Agent on 27 May 2019: “is there a solution for the overflowing of the non-functional pipe from the washing machine outlet into the garden?”

39. On 31 May 2019, the Agent informed the tenant that given the drainage was becoming pressing, the landlord had decided she should start the repairs earlier, that is prior to the end of the lease. The landlord gave evidence that she believed the tenant seemed unhappy living at the premises so she offered her an early release from the fixed term with no break fee. The tenant did not respond to the offer. The landlord ultimately issued an end of fixed term termination notice and the tenants stayed beyond this time to mid October 2019.

40. The ingoing report refers to the washing machine taps, which were fixed to the wall under the tub, but that they had not been tested. The landlord also said that although no diagnosis was given by the plumber, the issue may be related to the use of the washing machine as her three previous tenants had not raised a complaint.

41. I accept the evidence of the landlord that this issue was first raised on 9 November 2018. Whilst I find that upon notification, the Agent took immediate steps to engage a plumber to ascertain the problem and provide a temporary fix, I find that the landlord did nothing to permanantly repair the plumbing issue in the laundry throughout the tenancy and the seepage from the washing machine continued. The landlord admitted that she did not intend to carry out these repairs until after the tenants vacated.

42. I accept the evidence of the plumber that the line was not connected to the sewer and thus did not present a health issue. Nevertheless, I am satisfied from the photos that the leak looked serious, the tiles were wet. I find that the state of the premises due to the leaks were not in accordance with what the tenant bargained for. I find that this was a breach of section 63 of the Act to keep the premises in a state of reasonable repair. I also find the premises were partly uninhabitable.

Sky lights in bedrooms

43. The tenants say that they could not sleep due to light streaming in via the ceiling skylights in two of the bedrooms and requested two blinds to cover each of the skylights.

44. They first raised this in September 2017 when they moved in. The tenant said that she had made comments on the ingoing condition report, but did not have a copy to tender at the hearing. The landlord’s copy was not signed by the tenant, nor did it contain any tenant’s comments.

45. They sent a follow up email in October 2018 and obtained a quote for $826 for Urban Range for the delivery and installation of two blinds, which they sent to the Agent on 5 November 2018.

46. On 7 November 2018, the Agent informed the tenant the landlord refused to pay $826 for the blinds, but was happy for the tenant to install them at her own cost.

47. The landlord says that she had paid $500 to repair/replace sash cords on the windows in the two rooms. However, she considered the request for new blinds on the skylights a personal preference. She said she had never had a previous complaint by three sets of prior tenants. The landlord suggested the tenant could place her own cover over the skylight. The tenant said there was nothing to hold it into position and she did not want to damage the existing skylight.

48. The tenant in her application mentioned: “fixing lack of fittings to skylights”. However, I do not accept that this is an item requiring repair.

49. I find that this is a cosmetic change and not a withdrawal of goods, services or facilities.

Broken roller door to studio

50. On 3 November 2017 a handyman had cleaned the runner and refitted the glass sliding door in the studio. The issue was that it kept getting stuck and falling off its runner. The ingoing report states that “the sliders are very stiff.”

51. On 9 November 2018, the tenant reported that the roller door, “had stopped working again”. The tenant used the studio as a storage room.

52. The tenant has suggested that this was a design or manufacturing defect as the door was too heavy for the roller and it was difficult to pull it.

53. The Agent advised the tenant on 16 November 2018 that she had arranged for a handyman to refit the door. The tenant responded on the same day that she thought the whole roller door needed replacing as “when [the handyman] fixed previously it only last for a few weeks and is then unusable again.” The tenant believed it to be a safety issue as there was a risk it would fall on her children.

54. On or about 21 November 2018, McFixit oiled the door rollers and refitted the door and reinforced the frame. The tenant reported that fix appeared to be temporary only as the opening was still uneven and there was a gap and metal was sticking out.

55. The tenant says that the premises were advertised as having four bedrooms, but they were not able to use the fourth room/studio due to the broken door.

56. I do not accept that the tenant lost the use of studio, given she has said that it was used as a storeroom. I do not find that the landlord has failed in her obligation to maintain the premises by failing to repair the sliding door. I find that the Agent took reasonable steps to have the door repaired.

57. I disallow this claim.

Dishwasher

58. There were several occasions when the dishwasher would leak and washing up was done manually. The tenant gave evidence that she was without a dishwasher for 10 weeks.

59. The Agent arranged for repairs to be carried out on 26 October 2017 and 14 September 2018 by Sydney Domestic Appliance Centre.

60. The tenant sent an email on 8 April 2019 asking if someone could check the dishwasher. She sent another email on 27 May 2019: “just checking the dishwashing company came back to you?” On 31 May 2019, the Agent informed the tenant that a new dishwasher had been ordered. It was delivered on 7 June 2019. I disallow this claim as I do not find that the Agent did not take steps to repair the dishwasher each time she was informed of it not working.

Dripping taps in bathroom

61. On 27 May 2019, the tenant requested that the shower taps be changed: “the rubber insulation seems to have worn and hence the water constantly drips.” This was requested again on 30 May 2019. On 31 May 2019, the Agent, as mentioned above, advised the tenant that the owner wished to commence major renovations, including laundry plumbing work. The landlord said she offered the tenant an opportunity to move out early as they seemed unhappy and she agreed not to charge the break lease fee. The tenant did not respond to the offer. The tenant still had use of the shower. Whilst this issue was not addressed, I do not consider it to be a loss of amenity that warrants compensation.

Broken gates

62. The tenant said the wooden front gates did not shut properly, presenting a security issue.

63. The Agent arranged for a handyman from McFixit Home Maintenance to repair the front gate latch handle initially on 3 November 2017, and then a few more times.

64. The lock on the gate then broke, which was reported to the Agent by email on 27 May 2019: “the front gate lock was loose and falls off if the gate is slammed…”. There is an undated photo of what appears to be some broken hinges. The tenant said she is not pressing this claim.

Mould

65. The tenant relies on a medical certificate dated 9 October 2019 from her doctor, Dr Ryan Holmes, who confirms she has a fungal ear infection. Dr Holmes states that her ear nose and throat surgeon, David Lowinger, has confirmed this issue can be related to living in an environment with damp and mould. However, Dr Lowinger’s (earlier) report dated 19 September 2019 does not say this. On the contrary, he says that she has a history of an infection occurring in her right ear two years ago after an overseas trip.

66. The tenant also relies on two black and white photos of what appears to be mould on a ceiling. The photos are undated and the room is not identified, but looks to be the bathroom as there is an exhaust fan. There are three further photos showing mould on some leather items. There is no evidence of ownership of these items and the photos are undated.

67. The tenant admits she did not raise the mould issue in writing. She says she raised it verbally, but gave no evidence of when.

68. I disallow this claim for rent reduction for insufficient evidence.

Conclusion

69. Having regard to the oral and documentary evidence of both parties, I find that landlord has failed to properly maintain and repair the premises by failing to remedy the cause of the washing machine water seepage to the outdoor patio for the period 9 November 2018 to the end of the lease on 3 September 2019, which is approximately 10 months/40 weeks.

70. I also find that the state of the premises due to the sewerage blockage was not in accordance with what the tenant bargained for.

71. I do not find there has been a breach or a loss of amenity in relation to any of the other items.

72. In her application, the tenant sought amounts of $5,786 and $4,160 (presumably not $41,600 as stated in the application as this would take the total sum claimed to $47,386, which is well in excess of the Tribunal’s jurisdictional limit of $15,000). Assuming the correct amount is $4,160, the claim totals $9,946 ($4,160 plus $5,786).

73. The problem for the tenant is that she has not quantified her claim.

74. In relation to the washing machine, it is not clear on the evidence presented the actual period that the tenant did not use the outdoor area. She has said her family could not use the outdoor area when they did washing, which was on the weekend.

75. The tenant’s evidence is sufficient to satisfy me on the balance of probabilities that a rent reduction is a reasonable assessment of the loss of amenity of the outdoor area for two days per week from the date the issue was reported to the end of the fixed term.

69. I am satisfied that a rent reduction is appropriate and working as best as I can on the evidence available, I allow a rent reduction of 20% for a period of 40 weeks, to be pro rated at two days per week. This calculates at $250.00 per week, pro rated to $72 per week ($36 per day x 2 days) x 40 weeks. This calculates to a refund of rent of $2,880.

70. In relation to the sewerage, I will also allow a 20% rent reduction for two weeks from 19 October 2018 to 2 November 2018. This calculates to a rent refund of $500.00.

71. Accordingly, I find that the tenant is entitled to a rent reduction of $2,880 and the rent is not to exceed $1,178 per week for the period 9 November 2018 to 3 September 2019.

72. I also find that the tenant is entitled to a rent reduction of $500 and the rent is not to exceed $1,000 per week for the period 19 October 2018 to 2 November 2018.

Orders

80. It follows that the appropriate orders are as follows:

1. Pursuant to section 44(1)(b) of the Residential Tenancies Act NSW 2010, the rent is not to exceed $1,178 per week for the period 9 November 2018 to 3 September 2019 (40 weeks).

2. Pursuant to section 44(1)(b) of the Residential Tenancies Act NSW 2010, the rent is not to exceed $1000 per week for the period 19 October 2018 to 2 November 2018 (2 weeks).

3. The respondent is to pay the applicant the sum of $3,380 within 14 days.

4. The balance of the claim 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 March 2022