Zerkowsk v Lewis; Lewis v Zerkowski
[2016] NSWCATCD 45
•13 May 2016
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Zerkowsk v Lewis ; Lewis v Zerkowski [2016] NSWCATCD 45 Hearing dates: 2 March 2016 Decision date: 13 May 2016 Jurisdiction: Consumer and Commercial Division Before: G J Sarginson, General Member Decision: 1 In Matter RT 15/67234, the landlord’s claim for termination and possession is dismissed.
2 In Matter RT 15/67410, the landlord is to pay the tenant the sum of $330.00 as compensation for breach of Section 51(1) of the Residential Tenancies Act 2010 immediately.Catchwords: Abuse of landlord’s agent
Discretion to terminate tenancy
Habitability of premises at commencement of tenancy
Compensation to tenantLegislation Cited: Residential Tenancies Act 2010 ss 51, 63, 65, 92, 187 Cases Cited: Menashi v Ly [1997] NSWRT 162
Alexandros v Le [2012] NSWCTTT 395Category: Principal judgment Parties: Lynda Margaret Zerkowski (applicant / cross respondent)
Anthony Lewis (respondent / cross applicant)Representation: Landlord: Ms A Trad, agent
Tenant: In person
File Number(s): RT 15/67234 and RT 15/67410 Publication restriction: Unrestricted
reasons for decision
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The dispute involves two separate proceedings between the parties. In Matter RT 15/67234 the applicant is the landlord, and the tenant is the respondent. The landlord seeks termination of the tenancy under Section 92 of the Residential Tenancies Act 2010 (‘the RT Act’). In Matter RT 15/67410, the tenant is the applicant and the landlord the respondent. The tenant seeks an order setting aside a notice to terminate issued by the landlord on the basis it is a retaliatory notice. The tenant further seeks orders that the landlord conduct repairs to the premises and an order for compensation for cleaning performed by the tenant. There was no issue between the parties in respect of rent arrears.
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Both matters were listed for a special fixture hearing together. Each party had filed and served documentary evidence in accordance with previous directions of the Tribunal.
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The landlord was represented by Ms A Trad, property manager, who gave sworn evidence. Another property manager of the agent of the landlord, Mr Donnatuoni, appeared and gave sworn evidence. The tenant appeared and gave sworn evidence. The tenant’s mother, Ms J Lewis, appeared and gave sworn evidence.
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The property rented by the tenant was a unit and the rent at the commencement of the tenancy was $330.00 per week.
BACKGROUND
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There is no dispute the landlord and tenant executed a written fixed term residential tenancy agreement. The period of the fixed term is from 12 December 2015 to 12 June 2016. The tenant inspected the property prior to executing the residential tenancy agreement. In respect of the landlord’s application to terminate the tenancy under Section 92 of the RT Act, the salient issue is the events of 15 December 2015, when there was an argument and confrontation at the premises. In particular, the landlord alleges that the tenant’s mother verbally abused Ms Trad and moved towards her with her hand raised. The landlord also alleges the tenant shouted at Ms Trad. The persons present at the unit were the tenant, the tenant’s mother, Mr Abduljabar (a junior property manager and Ms Trad’s colleague) and a tradesperson, Mr Zerkowski who is the father in law of the landlord.
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After executing the residential tenancy agreement, the tenant commenced moving into the property. The tenant was upset about the condition of the property, in particular the cleanliness of the property. After the tenant had inspected the property, and signed the written residential tenancy agreement, but prior to moving into the property, the landlord had arranged for kitchen benchtops to be repaired by Mr Zerkowski (the father in law of the landlord). Mr Zerkowski had attended the property on 14 December 2015, but the work had not been completed, and Mr Zerkowski had arranged to attend the property on 15 December 2015 to complete the work and collect his tools.
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In the period between 12 December 2015 and 14 December 2015, the tenant had made a number of calls to the office of the agent who managed the property complaining of the condition of the property. Mr Donnatuoni, another junior property manager of the agent, had attended the property and spoken to the tenant. The tenant had demanded that Ms Trad attend the property on 15 December 2015 for an inspection and it is as it this inspection that the confrontation occurred.
LANDLORD’S DOCUMENTARY EVIDENCE
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The landlord had filed and served documents in accordance with Tribunal directions. The landlord’s documents can be saliently summarised as follows:
Statutory declarations of Mr Zerkowski; Ms Zerkowski (the landlord); Mr Abduljabar; Mr Donnatuoni; and Mr Muscio (the principal of the agency who manages the property on behalf of the landlord);
Emails between the tenant and the landlord’s agent for the period between 14 December 2015 and 6 January 2015;
File notes in the agency’s database of contact with the tenant, including contemporaneous notes made by Ms Trad in respect of the incident on 15 December 2015;
The written residential tenancy agreement between the parties;
The ingoing inspection report of the landlord;
Photographs taken by the landlord’s agent at the ingoing inspection;
Photographs taken by Mr Donnatouni when he inspected the residence on or about 14 December 2015.
TENANT’S DOCUMENTARY EVIDENCE
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The tenant’s documents saliently included:
A written statement of the tenant’s mother Ms Lewis;
A written statement of the tenant;
Emails between the tenant and the landlord’s agent;
Copies of text messages between the landlord and the agent;
Photographs taken by the tenant of the condition of the property as of 15 December 2015.
LANDORD’S CLAIM FOR TERMINATION-RELEVANT LEGAL PRINCIPLES
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Section 92 of the RT Act states:
92 Tribunal may terminate residential tenancy agreement for threat, abuse, intimidation or harassment
(1) The Tribunal may, on application by a landlord, make a termination order if it is satisfied that the tenant, or any person who although not a tenant is occupying or jointly occupying the residential premises, has:
(a) seriously or persistently threatened or abused the landlord, the landlord’s agent or any employee or contractor of the landlord or landlord’s agent, or caused or permitted any such threats, abuse or conduct, or
(b) intentionally engaged, or intentionally caused or permitted another person to engage, in conduct in relation to any such person that would be reasonably likely to cause the person to be intimidated or harassed (whether or not any abusive language or threat has been directed towards the person).
(2) The termination order may specify that the order for possession takes effect immediately.
(3) A landlord may make an application under this section without giving the tenant a termination notice.
(4) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.
INCIDENTS BETWEEN THE LANDLORD’S AGENT AND THE TENANT PRIOR TO 15 DECEMBER 2015
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The evidence of Mr Muscio and Mr Donnatouni was that the tenant had been demanding of a loud tone of voice when he telephoned the agency complaining about the condition of the property and asserting that Ms Trad must come and inspect the property. Mr Donnatouni stated that when he inspected the property and took photographs, the tenant’s mother had been rude to him and spoke to him in a loud voice complaining that the property was unclean and uninhabitable, particularly due to the presence of cockroaches in the kitchen; the condition of the kitchen cupboards; and the floor area of the laundry being dirty.
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The tenant and his mother denied being rude or aggressive in respect of contacting the agency, or in respect of when Mr Donnatouni inspected the property.
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Having heard the evidence of the parties, and viewed the text messages and emails sent by the tenant to the landlord, the Tribunal is not satisfied that the tenant, or the tenant’s mother “seriously or persistently threatened or abused… the landlord’s agent … or contractor of the landlord” (Section 92(1)(a) of the RT Act) or “intentionally engaged in…or caused or permitted…conduct reasonably likely to cause” the landlord’s agent, or contractor, to “be intimidated or harassed”.
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The Tribunal accepts that the tenant made a number of calls to the agency, and spoke in a forthright and demanding manner. The Tribunal also accepts the mother of the tenant spoke in a forthright manner to Mr Donnatouni when he attended the premises about the condition of the premises which Mr Donnatouni interpreted as the tenant’s mother speaking rudely. However, the Tribunal is not satisfied such conduct is of such magnitude that it constitutes a breach of Section 92 of the RT Act.
INCIDENT ON 15 DECEMBER 2015
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As discussed above, the key incident between the parties occurred on 15 December 2015. Ms Trad’s evidence was as follows:
Ms Trad entered the premises. Mr Abduljabar was outside, and entered the premises during the confrontation between Ms Trad, the tenant, and the tenant’s mother. Mr Zerkowski also entered the premises soon after Ms Trad arrived. Ms Trad had asked Mr Abduljabar to attend with her because of the stridency of the tenant’s complaints in the previous days about the condition of the property. The tenant and the tenant’s mother were present.
Ms Trad saw the kitchen cupboards and benchtops were “pulled apart”, which was the repair work that was being performed by Mr Zerkowski.
The tenant and his mother were very angry about the condition of the premises. The tenant and the tenant’s mother were speaking quickly and in loud voices. Ms Trad asked the tenant and his mother to show her the problems they were complaining of. In particular, the tenant and his mother showed Ms Trad a linen press cupboard in the laundry of the premises, which had been moved out of its position by the tenant. There was some dirt on the floor in the position where the cupboard had been. The tenant’s mother said words to the effect of “The place is filthy”; “Would you let your family live here?” and “I’m going to take the matter to ‘A Current Affair’ ”:
Ms Trad said the dirt on the floor in the laundry was due to the cupboard being moved, and said to the tenant’s mother “Is this what you are talking about? Why don’t’ you get a dustpan and pick it up?” Whilst this interaction was occurring between Ms Trad and the tenant’s mother, the tenant and Mr Zerkowski were separately arguing about Mr Zerkowski being able to pick up his tools;
Ms Trad moved back towards the living room area of the premises. The tenant‘s mother continued to shout at Ms Trad. Ms Trad could not recall what she was saying, as Ms Trad was upset. The tenant’s mother moved towards Ms Trad, with Ms Trad looking at her. The tenant’s mother raised her hand towards Ms Trad, and got to a distance of approximately 10 cm from her. Ms Trad stated she was frightened the tenant’s mother would hit her. The tenant said “Stop Mum”, and physically moved his mother away from Ms Trad;
Ms Trad said she was extremely upset by the actions of the tenant his mother, and left the premises. She could not drive back to the agency office because she was upset, and Mr Abduljabar drove the vehicle. She informed the principal of the agency what had happened, and made a file note of what had occurred.
Ms Trad accepted that she had referred to Ms Abduljabar as being present as her “bodyguard” in a sarcastic way during the confrontation, and that she raised her voice when speaking to the tenant and his mother. However, Ms Trad stated that she had been a property manager for 21 years, and had never been as upset as she had been during the incident with the tenant and his mother. Ms Trad stated that she recalled repeatedly stating to the tenant and his mother “Calm down and show me what the problem is”, but the tenant and his mother repeatedly shouted words to the effect of “Look!”; “The place is riddled with cockroaches!” and “Do you live like this?”
Neither Mr Zerkowski nor Mr Abduljabar were present at the hearing, but provided statutory declarations. Mr Zerkowski stated that when he arrived the tenant was “shouting” and “screaming” at Ms Trad about the premises being dirty and full of cockroaches. Mr Zerkowski stated that the tenant shouted at him “look at the mess you made in the kitchen” and Mr Zerkowski replied “You are a liar, I asked you if I could leave the kitchen like this and you said yes”. The tenant replied with words to the effect of “Get your tools and get out”. Mr Zerkowski removed his tools and left the premises while the tenant and his mother continued to shout at Ms Trad.
Mr Abduljabar’s statutory declaration is brief. It states that Mr Abduljabar had to “step in” between the tenant’s mother and Ms Trad; that the tenant’s mother had her “fist raised” towards Ms Trad; and the tenant and his mother were “shouting” and “being intimidating”.
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The evidence of the tenant was as follows:
The tenant accepted that he spoke to Ms Trad in a loud voice, but did so because he was upset that the property was not in a clean condition, and that further work was being done to the kitchen which he had not been told about prior to signing the lease. The tenant stated that the property was not clean, and there were dead cockroaches in the kitchen area. The tenant denied that his mother had approached Ms Trad with her hand or fist raised, or that he intervened between his mother and Ms Trad.
The tenant accepted that he had been upset and raised his voice, but denied that his actions were intimidating or harassing. The tenant stated that a reason he had been upset was that he had previously asked to speak to Ms Trad about the condition of the premises, but she was unavailable. The tenant said he had asked Ms Trad and Mr Abduljabar to leave, stating “We are not getting anywhere”.
The evidence of the tenant’s mother was that she had shown Ms Trad the areas of the residence that were dirty, and had cockroaches, and Ms Trad had told her words to the effect of “You can clean this up yourself”. The tenant’s mother denied having walked towards Ms Trad with her hand or fist raised. The tenant’s mother stated that it was Ms Trad who walked towards her with her finger raised and said “Who do you think you are to talk to me this way?” The tenant’s mother accepted that she had been emotional and angry, but denied having intimidated, harassed or threatened Ms Trad.
SUBSEQUENT RELATIONSHIP BETWEEN THE PARTIES
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Each party relied upon email correspondence. The Tribunal has viewed that correspondence. The correspondence indicates that, after the incident on 15 December 2015, the parties were able to co-operate in respect of the repairs to the kitchen being completed (although there was a delay until early January 2016 for the repairs to be completed because the tenant was not available to give access to the property at an earlier date arranged) and a pest control fumigation was arranged by the landlord. The landlord served a termination notice on the tenant in respect of terminating the tenancy under Section 92 of the RT Act, but notice was not in the landlord’s documentary evidence (in any event, the Tribunal may terminate a tenancy under Section 92 of the RT Act even though a notice has not been given).
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The emails between the parties for the period from 15 December 2015 to 6 January 2016 indicate the parties co-operated in respect of the repairs being conducted in respect of the kitchen, and the landlord attended to the tenant’s complaint about the letterbox of the premises requiring repairs. As discussed above, a pest control treatment was performed. The landlord issued the tenant a ‘rent credit’ of 4 days rent (the period between 12 December 2015 to 15 December 2015) to take into account the repairs to the kitchen. The tenant in an email to Ms Trad complained of the manner in which ‘NCAT documents’ were served by the landlord’s agent, but the email correspondence between the parties indicates the relationship was relatively civil after the incident on 15 December 2015.
APPLICATION OF LAW TO THE FACTS IN RESPECT OF THE INCIDENT ON 15 DECEMBER 2015
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I am satisfied the tenant’s mother was a “occupant” within the meaning of Section 92(1) of the RT Act on 15 December 2015 as she was on the premises by reason of the invitation of the tenant, in the context of meeting with the agent of the landlord to discuss the condition of the property.
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I am satisfied on the evidence that the tenant and his mother shouted at Ms Trad, and this engaged an argumentative response from Ms Trad that escalated. There was not any specific evidence that either the tenant or the tenant’s mother swore at Ms Trad. There was no evidence of any verbal threat, other than the tenant’s mother reporting the condition of the property to a current affairs program. The evidence of Ms Trad regarding the conduct of the tenant is that he raised his voice at Ms Trad repeatedly regarding the condition of the property, but there was no evidence that the tenant had made any physical threat towards Ms Trad.
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In assessing the conduct of the parties as to whether there were “serious and persistent threats and abuse of the landlord’s agent” or intentional conduct that would “be reasonably likely to cause the person to be intimidated or harassed” the Tribunal must take into account that issues between landlords and tenants (and the agent of landlord) may become heated, and there may be robust discussions about issues including the condition of residential premises. Such discussions may involve a tenant or occupant being rude to a landlord, or a landlord’s agent. However, the fact that a tenant (or occupant) is upset about the condition of a property or any other tenancy issue does not entitle the tenant or occupant to engage in serious and persistent threats or abuse, or intentional conduct reasonably likely to cause the agent of the landlord to be intimidated.
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In respect of the conduct of the tenant on 15 December 2015, I am satisfied the tenant was angry and emotional in respect of the condition of the property and directed that anger towards Ms Trad by shouting at her. I am satisfied that shouting at the agent is “abuse” and that such “abuse” was “serious”. However, I am not satisfied that the landlord has proved on the balance of probabilities that such abuse was “persistent”. I am not satisfied that the conduct of the tenant in shouting about the condition of the property was intentional conduct reasonably likely to cause the agent of the landlord to be intimidated. Rather, from the evidence of Ms Trad, it was the tenant’s mother who engaged in the most serious conduct, and it was the tenant who told his mother to calm down.
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I am not satisfied that the tenant’s brief argument with Mr Zerkowski about the completion of the work in the kitchen, or removal of his tools, constitutes conduct in breach of Section 92 of the RT Act. Mr Zerkowski did not attend the Tribunal, and was not cross examined. Accordingly, his evidence must be given a reduced amount of weight compared to the witnesses who attended the Tribunal, were cross examined, and responded to question from the Member. From the statutory declaration of Mr Zerkowski, his argument with the tenant was brief, and there is not sufficient evidence to conclude he was seriously or persistently threatened or abused, or intimidated or harassed by the tenant.
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In respect of the conduct of the tenant’s mother, I am satisfied on the evidence that she persistently and repeatedly shouted towards Ms Trad about the condition of the premises. I am satisfied that the tenant told his mother words to the effect of “calm down”. I am satisfied on the evidence of Ms Trad, which is supported by the contemporaneous notes made by Ms Trad and the statutory declarations of Mr Abduljabar that the tenant’s mother approached Ms Trad whilst shouting with her arm raised. I am not satisfied on the evidence that the tenant’s mother was threatening to hit Ms Trad. The tenant’s mother may have been gesticulating rather than raising her hand in a motion to hit Ms Trad, and I am not satisfied on the balance of probabilities that she was raising her hand in a motion to threaten to hit Ms Trad.
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I am satisfied that, by repeatedly shouting at Ms Trad about the condition of the property and moving towards her gesticulating, the tenant’s mother engaged in “serious and persistent abuse” of Ms Trad. I am not satisfied that the conduct of the tenant’s mother constituted “serious and persistent threats” towards Ms Trad. Although the tenant’s mother is an elderly person (although no evidence was given as to her age) I am satisfied that approaching Ms Trad with a raised arm after repeatedly shouting about the condition of the premises, is “intentional conduct…reasonably likely to cause” Ms Trad to be “intimidated and harassed”.
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I am satisfied the landlord had proved breach of Section 92 of the RT Act by reason of the actions of the tenant’s mother on 15 December 2015. However, under Section 92 of the RT Act, the Tribunal “may” terminate the tenancy for breach of this provision. The Tribunal has discretion whether or not to terminate the tenancy.
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The Tribunal is not satisfied that it should exercise its discretion to terminate the tenancy under Section 92 of the RT Act. The breach of Section 92 of the RT Act was by the tenant’s mother, who was visiting the premises and the breach occurred in respect of the events of 15 December 2015 as set out above. The tenant’s mother is not a full time occupant of the premises. There is no evidence that the tenant (or his mother) conducted themselves in a threatening, harassing, or intimidating manner towards the landlord, the landlord’s agent, or a contractor of the landlord after 15 December 2015. The tenant and the landlord co-operated after 15 December 2015 in respect of the completion of the renovations/repairs to the kitchen, and other repair issues the tenant had raised. There was no evidence the tenant had not paid rent on time, and in accordance with, the residential tenancy agreement.
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The Tribunal is not satisfied the landlord has proved on the balance of probabilities that the Tribunal should exercise its discretion to terminate the tenancy under Section 92 of the RT Act. Accordingly, the landlord’s application to terminate the tenancy under Section 92 of the RT Act is dismissed.
TENANT’S CLAIM FOR COMPENSATION
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The tenant’s claim for compensation is as follows:
2 weeks rent ($760.00) for the period from 12 December 2015 to 26 December 2015 due to the condition of the premises and the landlord’s failure to repair the premises;
$300.00 for cleaning products
An order that the landlord repair the kitchen of the premises; replace the front door security lock; fumigate the premises; and repair a telephone line.
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The application filed by the applicant also makes an application under Section 115 of the RT Act, but that application is otiose in light of the decision of the Tribunal not to terminate the tenancy under Section 92 of the RT Act.
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The evidence of the tenant and the tenant’s mother were that, when the tenant moved into the property, the kitchen benchtop had been removed and cupboards had been dismantled. The tenant was not made aware that this work was being performed. The tenant asserted that the cupboards in the kitchen, in particular, were dirty and there was evidence of cockroaches. The tenant (and the tenant’s mother) stated that the floor was dirty, particularly in the laundry. The tenant had moved a linen press cupboard in the kitchen, and after it was moved there was as significant amount of dirt where it was placed. The tenant stated that he had not been able to “move in” to the property until 26 December 2015. The tenant stated he had cleaned the property so that he and his daughters could move into the property. The repairs to the kitchen had been completed in early January 2016 as well as other repairs to the property, including a further pest control treatment and repair to the letterbox.
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Ms Trad stated that the agent had not been aware the landlord’s father in law was conducting renovation to the kitchen, and acknowledged that the renovation/repairs should have been completed prior to the commencement of the tenancy (or at the very least the tenant being informed what was happening) but that the repairs would have been completed within a week if the tenant had not argued with the agent and the landlord’s father in law about the completion of the work and allowed the work to be completed. The landlord sought access to complete the work in late December 2015, but the tenant stated that the time was not convenient to him, and the work was completed on or about 5 January 2016.
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Ms Trad denied the property was in an unreasonably clean condition, other than the kitchen benchtop and cupboards being removed. She submitted the dirt on the laundry floor was only able to be seen because the tenant had moved the linen press. Ms Trad accepted that there was evidence of a few dead cockroaches in the kitchen after a pest control had been done prior to the commencement of the tenancy, but this would have been easily rectified if the landlord had been given a reasonable opportunity to do so, rather than the argument that occurred on 15 December 2015. Ms Trad submitted that the rent adjustment of 4 days rent was adequate to compensate the tenant.
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Pursuant to Section 51(1) of the RT Act, a landlord “must” provide premises in a reasonable state of cleanliness and fit for habitation by the tenant” at the commencement of the tenancy. The relevant principles are set out and authorities summarised in Anforth, Christensen and Bentwood Residential Tenancies Law and Practice NSW (6th ed) at pp 135-139 (in particular, Menashi v Ly [1997] NSWRT 162 and Alexandros v Le [2012] NSWCTTT 395). Pursuant to Section 63(1) of the RT Act, a landlord has an obligation to keep the property in a reasonable state of repair, having regard to the age, rent payable, and prospective life of the premises. However, pursuant to Section 65(3)(a) and (b) of the RT Act, the landlord is not in breach of the landlord’s obligation to repair the premises if unless the landlord is on notice of the need for repairs, or should reasonably be on notice, and has failed to act with “reasonable diligence” to conduct the repairs. Relevant principles are discussed in Anforth, Christensen and Bentwood Residential Tenancies Law and Practice NSW (6th ed) at pp 149-155.
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I am satisfied that dismantling of the kitchen benchtop and cupboards immediately prior to the tenant moving in constitutes a breach of Section 51(1) of the RT Act, because the ability of the tenant to use the kitchen of the premises significantly affects the habitability of the premises. I am not satisfied the existence of some dead cockroaches; dirt and marks in cupboard, and dirt on the laundry floor as evidenced by the photographs taken by the tenant is of such magnitude that it constitutes a breach of Section 51(1) of the Act.
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The tenant having proved breach under Section 51(1) of the Act, the issue to be determined is the appropriate amount of compensation. The tenant seeks 2 weeks rent. The landlord has, subsequent to the tenant’s application being filed in the Tribunal, granted a rent adjustment of 4 days rent. The landlord was in the process of repairing the kitchen, and the Tribunal is satisfied that, had the tenant granted the landlord reasonable access, the premises would have been repaired within 11 days of the commencement of the tenancy. Under these circumstances, the Tribunal is satisfied that the appropriate amount to compensate the tenant for the significant loss of amenity by reason of the state of disrepair of the kitchen is $330.00, being equivalent to 1 week of rent (in addition to the rent credit of 4 days rent that has already occurred).
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In respect of the tenant’s claim for the cost of cleaning materials, there was accounts or receipts to evidence the claim. In any event, the Tribunal is not satisfied the tenant has proved breach of Section 63 of the RT Act in respect of the state of maintenance or repair of the premises other than in respect of the issue of the kitchen benchtop and cupboard. The other issues raised by the tenant have been repaired by early January 2016, and the landlord has acted with reasonable diligence in this regard.
CONCLUSION
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The effect of the above findings is a follows:
In Matter RT 15/67234 landlord’s application for termination of the tenancy under Section 92 of the RT Act is dismissed.
In Matter RT 15/67410, landlord is to pay the tenant the sum of $330.00 for compensation for breach of Section 51 of the RT Act.
G J Sarginson
General Member
Civil and Administrative Tribunal of New South Wales
13 May 2016
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: 20 July 2016
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